Texas 2019 - 86th Regular

Texas House Bill HB2100 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	By: Cain, Oliverson, Goldman, Phelan, Wilson, H.B. No. 2100
2		-	et al.
	1	+	86R22172 KJE-F
	2	+	By: Cain, Oliverson, Goldman, Phelan, et al. H.B. No. 2100
	3	+	Substitute the following for H.B. No. 2100:
	4	+	By: Parker C.S.H.B. No. 2100
3	5
4	6
5	7		A BILL TO BE ENTITLED
6	8		AN ACT
7	9		relating to the protection of expressive activities at public
8	10		institutions of higher education.
9	11		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	12		SECTION 1. The legislature finds that:
11	13		(1) freedom of expression is of critical importance
12	14		and requires each public institution of higher education to ensure
13	15		free, robust, and uninhibited debate and deliberations by students
14	16		enrolled at the institution, regardless of whether the students are
15	17		on or off campus; and
16	18		(2) it is a matter of statewide concern that all public
17	19		institutions of higher education officially recognize freedom of
18	20		speech as a fundamental right.
19	21		SECTION 2. Subchapter Z, Chapter 51, Education Code, is
20	22		amended by adding Section 51.9315 to read as follows:
21	23		Sec. 51.9315. PROTECTED EXPRESSION ON CAMPUS. (a) In this
22	24		section:
23	25		(1) "Employee" has the meaning assigned by Section
24	26		51.934.
25	27		(2) "Expressive activities" means any speech or
26	28		expressive conduct protected by the First Amendment to the United
27	29		States Constitution or Section 8, Article I, Texas Constitution,
28	30		and includes assemblies, protests, speeches, the distribution of
29	31		written or visual material, the carrying of signs, and the
30	32		circulation of petitions. The term does not include commercial
31	33		speech.
32	34		(3) "Institution of higher education" has the meaning
33	35		assigned by Section 61.003.
34		-	(4) "Matter of public concern" ~~means a statement or~~
35		-	~~activity~~ related to:
36		-	(A) ~~a public official, public figure,~~ or ~~other~~
37		-	~~person who has drawn substantial public attention due to the~~
38		-	~~person's official acts, fame, notoriety, or celebrity~~;
39		-	(B) a ~~matter of political~~, ~~governmental~~, ~~social,~~
40		-	or ~~other concern to the community~~; or
41		-	(C) a ~~subject of general interest and of value~~
42		-	~~and concern to the~~ public.
	36	+	(4) "Matter of public concern" includes matters
	37	+	related to:
	38	+	(A) health or safety;
	39	+	(B) environmental, economic, or community
	40	+	well-being;
	41	+	(C) a local, state, or federal government;
	42	+	(D) a public official or figure;
	43	+	(E) a good or service; or
	44	+	(F) a public policy or controversy.
43	45		(b) It is the policy of this state and the purpose of this
44	46		section to protect the expressive rights of persons guaranteed by
45	47		the constitutions of the United States and of this state by ensuring
46	48		that:
47	49		(1) all persons lawfully present on the campus of an
48		-	institution of higher education may engage in~~, observe, or listen~~
49		-	~~to expressive~~ activities; and
	50	+	institution of higher education may engage in expressive
	51	+	activities; and
50	52		(2) the expressive rights of persons lawfully present
51	53		on the campus of an institution of higher education are not
52	54		unnecessarily restricted or impeded by rules or policies adopted by
53	55		the institution.
54	56		(c) An institution of higher education shall:
55	57		(1) ensure that the common outdoor areas of the
56	58		institution's campus are deemed traditional public forums; and
57		-	(2) permit any person lawfully present to engage in,
58		-	~~observe, or listen to~~ expressive activities in those areas of the
59		-	~~institution's campus~~ freely, as long as the person's conduct:
	59	+	(2) permit any person lawfully present to engage in
	60	+	expressive activities in those areas of the institution's campus
	61	+	freely, as long as the person's conduct:
60	62		(A) is not unlawful; and
61		-	(B) does not materially and substantially:
62		-	(i) disrupt the functioning of the
63		-	institution; or
64		-	(ii) interfere with the rights of others to
65		-	engage in, observe, or listen to expressive activities.
	63	+	(B) does not materially and substantially
	64	+	disrupt the functioning of the institution.
66	65		(d) Notwithstanding Subsection (c), an institution of
67	66		higher education by rule may maintain and enforce reasonable
68	67		restrictions on the time, place, and manner of expressive
69	68		activities in the common outdoor areas of the institution's campus
70	69		if those restrictions:
71	70		(1) are necessary to further a compelling
72	71		institutional interest and are the least restrictive means of
73	72		furthering that interest;
74	73		(2) employ clear, published, content-neutral, and
75	74		viewpoint-neutral criteria;
76	75		(3) leave open ample alternative means of expression;
77	76		and
78	77		(4) allow students enrolled at and employees of the
79	78		institution to spontaneously and contemporaneously assemble or
80	79		distribute written material without a permit or other permission
81	80		from the institution.
82		-	(e) Subsections (c) and (d) do not:
83		-	(1) limit the right of student expression at other
84		-	campus locations; or
85		-	(2) prohibit faculty members from maintaining order in
86		-	the classroom.
	81	+	(e) Subsections (c) and (d) do not limit the right of
	82	+	student expression at other campus locations.
87	83		(f) The protections under this section apply equally to
88	84		students and to student groups and organizations, regardless of
89	85		whether the group or organization is recognized by or registered
90	86		with the institution of higher education.
91	87		(g) Each institution of higher education shall adopt a
92	88		policy detailing students' and employees' rights and
93	89		responsibilities regarding expressive activities at the
94	90		institution. The policy must:
95	91		(1) allow:
96	92		(A) any person to, subject to Subsection (c)(2)
97		-	and reasonable restrictions adopted under Subsection (d), engage
98		-	~~in, observe, or listen to~~ expressive activities on campus,
99		-	~~including by responding to the~~ expressive activities of others; and
	93	+	and reasonable restrictions adopted under Subsection (d), engage in
	94	+	expressive activities on campus, including by responding to the
	95	+	expressive activities of others; and
100	96		(B) students, student groups and organizations,
101		-	and employees to, subject to Subsection (j), invite speakers to
	97	+	and employees to, subject to Subsection (h), invite speakers to
102	98		speak on campus;
103	99		(2) establish disciplinary sanctions for students or
104		-	student groups or organizations who materially and substantially
105		-	interfere with the rights of others to engage in, observe, or listen
106		-	to expressive activities on campus;
	100	+	student groups or organizations who unduly interfere with the
	101	+	expressive activities of others on campus;
107	102		(3) include a grievance procedure for addressing
108	103		complaints of a violation of this section;
109	104		(4) encourage the free and open exchange of ideas,
110		-	~~regardless of the content~~ or ~~viewpoint expressed~~, in ~~classrooms and~~
111		-	all other campus locations;
	105	+	including unpopular, controversial, or offensive ideas, in
	106	+	classrooms and all other campus locations;
112	107		(5) prohibit the institution or any employee of the
113	108		institution from punishing a student or employee in any manner for
114		-	engaging in~~, observing, or listening to~~ expressive activities;
	109	+	engaging in expressive activities;
115	110		(6) prohibit the institution from taking official
116	111		action on a matter of public concern in a manner that requires a
117	112		student or employee to publicly express a particular viewpoint on
118	113		that matter;
119		-	(7) prohibit any institution official or employee from
120		-	disinviting a speaker who has been approved by the institution to
121		-	speak on campus and has been invited to speak on campus by a student
122		-	enrolled at the institution, a student group or organization at the
123		-	institution, or an employee of the institution;
124		-	(8) require the institution to strive to maintain an
	114	+	(7) require the institution to strive to maintain an
125	115		official position of neutrality on matters of public concern except
126	116		as necessary for the institution's operations;
127		-	(9) to the extent consistent with state and federal
128		-	law, require the institution to permit a student group or
129		-	organization formed for the purpose of exercising expressive rights
130		-	to establish and maintain membership and leadership qualifications
131		-	for the group or organization that further the group's or
132		-	organization's purpose, including by requiring the group's or
133		-	organization's leaders or members to:
	117	+	(8) require the institution to permit a student group
	118	+	or organization formed for the purpose of exercising expressive
	119	+	rights to establish and maintain membership and leadership
	120	+	qualifications for the group or organization that further the
	121	+	group's or organization's purpose, including by requiring the
	122	+	group's or organization's leaders or members to:
134	123		(A) adhere to or comply with the group's or
135	124		organization's sincerely held beliefs or sincere standards of
136	125		conduct; or
137	126		(B) be committed to furthering the group's or
138	127		organization's mission or purpose;
139		-	(10) contain statements that:
	128	+	(9) contain statements that:
140	129		(A) it is not the proper role of the institution
141		-	to shield persons from speech or expressive conduct protected by
142		-	the First Amendment to the United States Constitution or Section 8,
143		-	Article I, Texas Constitution, including, without limitation,
144		-	ideas or opinions that those persons may find unwelcome or
145		-	disagreeable; and
	130	+	to shield persons from expressive activities, including ideas or
	131	+	opinions that may be unpopular, controversial, or offensive; and
146	132		(B) subject to Subsection (c)(2) and reasonable
147	133		restrictions adopted under Subsection (d), students and employees
148	134		are entitled to:
149	135		(i) discuss any problem; and
150	136		(ii) spontaneously and contemporaneously
151	137		assemble or distribute written or visual material without a permit
152	138		or other permission from the institution;
153		-	(11) contain a statement that, pursuant to Section
154		-	51.935, a person commits an offense if the person, alone or in
155		-	concert with others, intentionally engages in disruptive activity
156		-	on the campus or property of an institution of higher education;
157		-	(12) be approved by a majority vote of the
	139	+	(10) be approved by a majority vote of the
158	140		institution's governing board before final adoption; and
159		-	(13) be posted on the institution's Internet website.
160		-	(h) Each institution of higher education shall adopt
161		-	procedures for the institution's disciplinary process regarding an
162		-	alleged violation of the institution's student code of conduct
163		-	involving expressive activities and provide notice of those
164		-	procedures to each student enrolled at the institution. At a
165		-	minimum, the procedures must entitle the student alleged to have
166		-	violated the institution's student code of conduct to:
167		-	(1) receive written notice of the allegation before
168		-	the initiation of the disciplinary process;
169		-	(2) review evidence supporting the allegation;
170		-	(3) present a defense, including by calling witnesses
171		-	for the student and confronting witnesses against the student;
172		-	(4) have the institution's determination of
173		-	responsibility made by an impartial arbiter or panel;
174		-	(5) appeal a determination finding the student
175		-	responsible for the violation; and
176		-	(6) if a potential sanction for the violation is
177		-	suspension for a period of more than 30 days or expulsion from the
178		-	institution, have assistance of counsel during each stage of the
179		-	disciplinary process.
180		-	(i) On the second or any subsequent determination by an
181		-	institution of higher education that a student is responsible for
182		-	violating the institution's student code of conduct by materially
183		-	and substantially interfering with the expressive activities of
184		-	others, the institution shall:
185		-	(1) suspend the student for at least one semester or
186		-	term; or
187		-	(2) not later than two weeks after resolving the
188		-	disciplinary process, provide to the committee on free expression
189		-	for the institution established under this section an explanation
190		-	of the reason the institution did not impose a sanction on the
191		-	student under Subdivision (1).
192		-	(j) In determining whether to approve a speaker to speak on
	141	+	(11) be posted on the institution's Internet website.
	142	+	(h) In determining whether to approve a speaker to speak on
193	143		campus or in determining the amount of a fee to be charged for use of
194	144		the institution's facilities for purposes of engaging in expressive
195		-	activities, an institution of higher education may consider only
196		-	content-neutral and viewpoint-neutral criteria related to the
197		-	needs of the event, such as:
198		-	(1) the proposed venue and the expected size of the
199		-	audience;
200		-	(2) any anticipated need for campus security;
201		-	(3) any necessary accommodations; and
202		-	(4) any relevant history of compliance or
	145	+	activities, an institution of higher education:
	146	+	(1) may consider only content-neutral and
	147	+	viewpoint-neutral criteria related to the needs of the event, such
	148	+	as:
	149	+	(A) the proposed venue and the expected size of
	150	+	the audience;
	151	+	(B) any anticipated need for campus security;
	152	+	(C) any necessary accommodations; and
	153	+	(D) any relevant history of compliance or
203	154		noncompliance by the requesting student, student group or
204	155		organization, or employee with the institution's policy adopted
205		-	under Subsection (g) and any other relevant policies.
206		-	(k) An institution of higher education shall make
	156	+	under Subsection (g) and any other relevant policies; and
	157	+	(2) may not consider:
	158	+	(A) the anticipated attendance of persons not
	159	+	intending to participate in the event; or
	160	+	(B) any anticipated controversy related to the
	161	+	event.
	162	+	(i) An institution of higher education shall make
207	163		reasonable efforts to ensure the safety of speakers invited to
208	164		speak on campus by a student enrolled at the institution, a student
209	165		group or organization at the institution, or an employee of the
210	166		institution.
211		-	(l) Not later than the first anniversary of the date that a
	167	+	(j) Not later than the first anniversary of the date that a
212	168		violation of this section is alleged to have occurred at an
213	169		institution of higher education, the attorney general or a person
214	170		whose expressive rights have been violated under this section may
215	171		bring an action for injunctive relief to compel the institution to
216	172		comply with this section or to recover compensatory damages, court
217	173		costs, and reasonable attorney's fees. In an action for damages
218		-	brought under this subsection, the court:
219		-	(1) shall, if the court finds that an institution of
220		-	higher education has violated this section, award the aggrieved
221		-	person the greater of:
222		-	(A) the amount of the person's compensatory
223		-	damages; or
224		-	(B) $1,000; and
225		-	(2) may award reasonable attorney's fees to the
226		-	prevailing party.
227		-	(m) For purposes of computing the limitation period under
228		-	Subsection (l), each day of a continuing violation of this section,
	174	+	brought under this subsection, if the court finds that an
	175	+	institution of higher education has violated this section, the
	176	+	court shall award the aggrieved person the greater of:
	177	+	(1) the amount of the person's compensatory damages;
	178	+	or
	179	+	(2) $1,000.
	180	+	(k) For purposes of computing the limitation period under
	181	+	Subsection (j), each day of a continuing violation of this section,
229	182		including each day that a rule or policy of an institution of higher
230	183		education that violates this section remains in effect, constitutes
231	184		a separate violation.
232		-	(n) In addition to the cause of action under Subsection (l),
	185	+	(l) In addition to the cause of action under Subsection (j),
233	186		a person whose expressive rights are affected by a rule or policy
234	187		adopted by an institution of higher education may file suit against
235	188		the institution for declaratory judgment in the manner provided by
236	189		Chapter 37, Civil Practice and Remedies Code.
237		-	(o) An institution of higher education's sovereign immunity
238		-	to suit and from liability is waived and abolished to the extent of
239		-	liability created under this section.
240		-	(p) Each institution of higher education shall make the
	190	+	(m) Each institution of higher education shall make the
241	191		institution's policies adopted in accordance with this section
242	192		available to students enrolled at and employees of the institution
243	193		by:
244	194		(1) including the policies in the institution's
245	195		student handbook and personnel handbook;
246	196		(2) providing a copy of each policy to students during
247	197		the institution's freshman or transfer student orientation; and
248	198		(3) posting the policies on the institution's Internet
249	199		website.
250		-	(q) Each institution of higher education shall develop
	200	+	(n) Each institution of higher education shall develop
251	201		materials, programs, and procedures to ensure that the
252	202		institution's employees responsible for educating or disciplining
253	203		students understand the requirements of this section and all
254	204		policies adopted by the institution in accordance with this
255	205		section.
256		-	(r) The governing board of each institution of higher
257		-	education or university system shall create a committee on free
258		-	expression to address free speech issues at the institution or
259		-	institutions governed by the board. The committee must consist of
260		-	at least five members. Not later than September 1 of each year, the
261		-	committee shall prepare and submit to the governor, the members of
262		-	the legislature, and the governing board a report on free speech
263		-	issues that arose at the institution or institutions during the
264		-	preceding academic year. The report must include, for each
265		-	institution governed by the board:
266		-	(1) a description of any barriers to or disruptions of
267		-	expressive activities at the institution;
268		-	(2) a summary of the institution's handling of free
269		-	speech issues, including any disciplinary action taken related to
270		-	the policies adopted under this section and any explanations
271		-	regarding those actions provided to the committee by the
272		-	institution as required under this section;
273		-	(3) an analysis of any substantial difficulties,
274		-	controversies, or successes in maintaining the institution's
275		-	official position of neutrality on matters of public concern; and
276		-	(4) any recommendations for legislative or other
277		-	action.
278		-	SECTION 3. Not later than September 1, 2019, the governing
279		-	board of each public institution of higher education or university
280		-	system shall create the committee on free expression required under
281		-	Section 51.9315, Education Code, as added by this Act. Each
282		-	governing board's committee shall prepare and submit its initial
283		-	report required under that section not later than September 1,
284		-	2020.
285		-	SECTION 4. Not later than August 1, 2020, each public
	206	+	(o) Not later than December 1, 2020, each institution of
	207	+	higher education shall prepare, post on the institution's Internet
	208	+	website, and submit to the governor and the members of the
	209	+	legislature a report regarding the institution's implementation of
	210	+	the requirements under this section. This subsection expires
	211	+	September 1, 2021.
	212	+	SECTION 3. Not later than August 1, 2020, each public
286	213		institution of higher education shall adopt the policy required
287	214		under Section 51.9315(g), Education Code, as added by this Act.
288		-	SECTION 5. This Act takes effect September 1, 2019.
	215	+	SECTION 4. This Act takes effect September 1, 2019.