By: Cain, Oliverson, Goldman, Phelan, Wilson, H.B. No. 2100
et al.
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" means a statement or
activity related to:
(A) a public official, public figure, or other
person who has drawn substantial public attention due to the
person's official acts, fame, notoriety, or celebrity;
(B) a matter of political, governmental, social,
or other concern to the community; or
(C) a subject of general interest and of value
and concern to the public.
(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, observe, or listen
to 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,
observe, or listen to 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:
(i) disrupt the functioning of the
institution; or
(ii) interfere with the rights of others to
engage in, observe, or listen to expressive activities.
(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:
(1) limit the right of student expression at other
campus locations; or
(2) prohibit faculty members from maintaining order in
the classroom.
(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, observe, or listen to 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 (j), invite speakers to
speak on campus;
(2) establish disciplinary sanctions for students or
student groups or organizations who materially and substantially
interfere with the rights of others to engage in, observe, or listen
to expressive activities 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,
regardless of the content or viewpoint expressed, 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, observing, or listening to 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) prohibit any institution official or employee from
disinviting a speaker who has been approved by the institution to
speak on campus and has been 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;
(8) 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;
(9) to the extent consistent with state and federal
law, 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;
(10) contain statements that:
(A) it is not the proper role of the institution
to shield persons from speech or expressive conduct protected by
the First Amendment to the United States Constitution or Section 8,
Article I, Texas Constitution, including, without limitation,
ideas or opinions that those persons may find unwelcome or
disagreeable; 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;
(11) contain a statement that, pursuant to Section
51.935, a person commits an offense if the person, alone or in
concert with others, intentionally engages in disruptive activity
on the campus or property of an institution of higher education;
(12) be approved by a majority vote of the
institution's governing board before final adoption; and
(13) be posted on the institution's Internet website.
(h) Each institution of higher education shall adopt
procedures for the institution's disciplinary process regarding an
alleged violation of the institution's student code of conduct
involving expressive activities and provide notice of those
procedures to each student enrolled at the institution. At a
minimum, the procedures must entitle the student alleged to have
violated the institution's student code of conduct to:
(1) receive written notice of the allegation before
the initiation of the disciplinary process;
(2) review evidence supporting the allegation;
(3) present a defense, including by calling witnesses
for the student and confronting witnesses against the student;
(4) have the institution's determination of
responsibility made by an impartial arbiter or panel;
(5) appeal a determination finding the student
responsible for the violation; and
(6) if a potential sanction for the violation is
suspension for a period of more than 30 days or expulsion from the
institution, have assistance of counsel during each stage of the
disciplinary process.
(i) On the second or any subsequent determination by an
institution of higher education that a student is responsible for
violating the institution's student code of conduct by materially
and substantially interfering with the expressive activities of
others, the institution shall:
(1) suspend the student for at least one semester or
term; or
(2) not later than two weeks after resolving the
disciplinary process, provide to the committee on free expression
for the institution established under this section an explanation
of the reason the institution did not impose a sanction on the
student under Subdivision (1).
(j) 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 may consider only
content-neutral and viewpoint-neutral criteria related to the
needs of the event, such as:
(1) the proposed venue and the expected size of the
audience;
(2) any anticipated need for campus security;
(3) any necessary accommodations; and
(4) 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.
(k) 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.
(l) 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, the court:
(1) shall, if the court finds that an institution of
higher education has violated this section, award the aggrieved
person the greater of:
(A) the amount of the person's compensatory
damages; or
(B) $1,000; and
(2) may award reasonable attorney's fees to the
prevailing party.
(m) For purposes of computing the limitation period under
Subsection (l), 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.
(n) In addition to the cause of action under Subsection (l),
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.
(o) An institution of higher education's sovereign immunity
to suit and from liability is waived and abolished to the extent of
liability created under this section.
(p) 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.
(q) 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.
(r) The governing board of each institution of higher
education or university system shall create a committee on free
expression to address free speech issues at the institution or
institutions governed by the board. The committee must consist of
at least five members. Not later than September 1 of each year, the
committee shall prepare and submit to the governor, the members of
the legislature, and the governing board a report on free speech
issues that arose at the institution or institutions during the
preceding academic year. The report must include, for each
institution governed by the board:
(1) a description of any barriers to or disruptions of
expressive activities at the institution;
(2) a summary of the institution's handling of free
speech issues, including any disciplinary action taken related to
the policies adopted under this section and any explanations
regarding those actions provided to the committee by the
institution as required under this section;
(3) an analysis of any substantial difficulties,
controversies, or successes in maintaining the institution's
official position of neutrality on matters of public concern; and
(4) any recommendations for legislative or other
action.
SECTION 3. Not later than September 1, 2019, the governing
board of each public institution of higher education or university
system shall create the committee on free expression required under
Section 51.9315, Education Code, as added by this Act. Each
governing board's committee shall prepare and submit its initial
report required under that section not later than September 1,
2020.
SECTION 4. 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 5. This Act takes effect September 1, 2019.