86R22172 KJE-F
By: Cain, Oliverson, Goldman, Phelan, et al. H.B. No. 2100
Substitute the following for H.B. No. 2100:
By: Parker C.S.H.B. No. 2100
A BILL TO BE ENTITLED
AN ACT
relating to the protection of expressive activities at public
institutions of higher education.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds that:
(1) freedom of expression is of critical importance
and requires each public institution of higher education to ensure
free, robust, and uninhibited debate and deliberations by students
enrolled at the institution, regardless of whether the students are
on or off campus; and
(2) it is a matter of statewide concern that all public
institutions of higher education officially recognize freedom of
speech as a fundamental right.
SECTION 2. Subchapter Z, Chapter 51, Education Code, is
amended by adding Section 51.9315 to read as follows:
Sec. 51.9315. PROTECTED EXPRESSION ON CAMPUS. (a) In this
section:
(1) "Employee" has the meaning assigned by Section
51.934.
(2) "Expressive activities" means any speech or
expressive conduct protected by the First Amendment to the United
States Constitution or Section 8, Article I, Texas Constitution,
and includes assemblies, protests, speeches, the distribution of
written or visual material, the carrying of signs, and the
circulation of petitions. The term does not include commercial
speech.
(3) "Institution of higher education" has the meaning
assigned by Section 61.003.
(4) "Matter of public concern" includes matters
related to:
(A) health or safety;
(B) environmental, economic, or community
well-being;
(C) a local, state, or federal government;
(D) a public official or figure;
(E) a good or service; or
(F) a public policy or controversy.
(b) It is the policy of this state and the purpose of this
section to protect the expressive rights of persons guaranteed by
the constitutions of the United States and of this state by ensuring
that:
(1) all persons lawfully present on the campus of an
institution of higher education may engage in expressive
activities; and
(2) the expressive rights of persons lawfully present
on the campus of an institution of higher education are not
unnecessarily restricted or impeded by rules or policies adopted by
the institution.
(c) An institution of higher education shall:
(1) ensure that the common outdoor areas of the
institution's campus are deemed traditional public forums; and
(2) permit any person lawfully present to engage in
expressive activities in those areas of the institution's campus
freely, as long as the person's conduct:
(A) is not unlawful; and
(B) does not materially and substantially
disrupt the functioning of the institution.
(d) Notwithstanding Subsection (c), an institution of
higher education by rule may maintain and enforce reasonable
restrictions on the time, place, and manner of expressive
activities in the common outdoor areas of the institution's campus
if those restrictions:
(1) are necessary to further a compelling
institutional interest and are the least restrictive means of
furthering that interest;
(2) employ clear, published, content-neutral, and
viewpoint-neutral criteria;
(3) leave open ample alternative means of expression;
and
(4) allow students enrolled at and employees of the
institution to spontaneously and contemporaneously assemble or
distribute written material without a permit or other permission
from the institution.
(e) Subsections (c) and (d) do not limit the right of
student expression at other campus locations.
(f) The protections under this section apply equally to
students and to student groups and organizations, regardless of
whether the group or organization is recognized by or registered
with the institution of higher education.
(g) Each institution of higher education shall adopt a
policy detailing students' and employees' rights and
responsibilities regarding expressive activities at the
institution. The policy must:
(1) allow:
(A) any person to, subject to Subsection (c)(2)
and reasonable restrictions adopted under Subsection (d), engage in
expressive activities on campus, including by responding to the
expressive activities of others; and
(B) students, student groups and organizations,
and employees to, subject to Subsection (h), invite speakers to
speak on campus;
(2) establish disciplinary sanctions for students or
student groups or organizations who unduly interfere with the
expressive activities of others on campus;
(3) include a grievance procedure for addressing
complaints of a violation of this section;
(4) encourage the free and open exchange of ideas,
including unpopular, controversial, or offensive ideas, in
classrooms and all other campus locations;
(5) prohibit the institution or any employee of the
institution from punishing a student or employee in any manner for
engaging in expressive activities;
(6) prohibit the institution from taking official
action on a matter of public concern in a manner that requires a
student or employee to publicly express a particular viewpoint on
that matter;
(7) require the institution to strive to maintain an
official position of neutrality on matters of public concern except
as necessary for the institution's operations;
(8) require the institution to permit a student group
or organization formed for the purpose of exercising expressive
rights to establish and maintain membership and leadership
qualifications for the group or organization that further the
group's or organization's purpose, including by requiring the
group's or organization's leaders or members to:
(A) adhere to or comply with the group's or
organization's sincerely held beliefs or sincere standards of
conduct; or
(B) be committed to furthering the group's or
organization's mission or purpose;
(9) contain statements that:
(A) it is not the proper role of the institution
to shield persons from expressive activities, including ideas or
opinions that may be unpopular, controversial, or offensive; and
(B) subject to Subsection (c)(2) and reasonable
restrictions adopted under Subsection (d), students and employees
are entitled to:
(i) discuss any problem; and
(ii) spontaneously and contemporaneously
assemble or distribute written or visual material without a permit
or other permission from the institution;
(10) be approved by a majority vote of the
institution's governing board before final adoption; and
(11) be posted on the institution's Internet website.
(h) In determining whether to approve a speaker to speak on
campus or in determining the amount of a fee to be charged for use of
the institution's facilities for purposes of engaging in expressive
activities, an institution of higher education:
(1) may consider only content-neutral and
viewpoint-neutral criteria related to the needs of the event, such
as:
(A) the proposed venue and the expected size of
the audience;
(B) any anticipated need for campus security;
(C) any necessary accommodations; and
(D) any relevant history of compliance or
noncompliance by the requesting student, student group or
organization, or employee with the institution's policy adopted
under Subsection (g) and any other relevant policies; and
(2) may not consider:
(A) the anticipated attendance of persons not
intending to participate in the event; or
(B) any anticipated controversy related to the
event.
(i) An institution of higher education shall make
reasonable efforts to ensure the safety of speakers invited to
speak on campus by a student enrolled at the institution, a student
group or organization at the institution, or an employee of the
institution.
(j) Not later than the first anniversary of the date that a
violation of this section is alleged to have occurred at an
institution of higher education, the attorney general or a person
whose expressive rights have been violated under this section may
bring an action for injunctive relief to compel the institution to
comply with this section or to recover compensatory damages, court
costs, and reasonable attorney's fees. In an action for damages
brought under this subsection, if the court finds that an
institution of higher education has violated this section, the
court shall award the aggrieved person the greater of:
(1) the amount of the person's compensatory damages;
or
(2) $1,000.
(k) For purposes of computing the limitation period under
Subsection (j), each day of a continuing violation of this section,
including each day that a rule or policy of an institution of higher
education that violates this section remains in effect, constitutes
a separate violation.
(l) In addition to the cause of action under Subsection (j),
a person whose expressive rights are affected by a rule or policy
adopted by an institution of higher education may file suit against
the institution for declaratory judgment in the manner provided by
Chapter 37, Civil Practice and Remedies Code.
(m) Each institution of higher education shall make the
institution's policies adopted in accordance with this section
available to students enrolled at and employees of the institution
by:
(1) including the policies in the institution's
student handbook and personnel handbook;
(2) providing a copy of each policy to students during
the institution's freshman or transfer student orientation; and
(3) posting the policies on the institution's Internet
website.
(n) Each institution of higher education shall develop
materials, programs, and procedures to ensure that the
institution's employees responsible for educating or disciplining
students understand the requirements of this section and all
policies adopted by the institution in accordance with this
section.
(o) Not later than December 1, 2020, each institution of
higher education shall prepare, post on the institution's Internet
website, and submit to the governor and the members of the
legislature a report regarding the institution's implementation of
the requirements under this section. This subsection expires
September 1, 2021.
SECTION 3. Not later than August 1, 2020, each public
institution of higher education shall adopt the policy required
under Section 51.9315(g), Education Code, as added by this Act.
SECTION 4. This Act takes effect September 1, 2019.