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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 553
October 23, 2023 - Introduced by Representatives NEDWESKI, MURPHY, ALLEN,
BEHNKE, BRANDTJEN, DITTRICH, EDMING, GOEBEN, GUNDRUM, MAXEY, MOSES,
O'CONNOR, PENTERMAN, RETTINGER, SCHRAA and TUSLER, cosponsored by
Senators CABRAL-GUEVARA and TOMCZYK. Referred to Committee on Colleges
and Universities.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to amend 36.11 (6) (c) and 38.04 (7m); and to create 36.41, 36.42, 38.34,
38.35 and 39.285 (1) (c) of the statutes; relating to: free speech and academic
freedom at University of Wisconsin System institutions and technical colleges,
due process in disciplinary proceedings at University of Wisconsin System
institutions and technical colleges, Wisconsin grant funding allocation, and
causes of action against the Board of Regents of the University of Wisconsin
System and technical college district boards.
Analysis by the Legislative Reference Bureau
This bill establishes certain standards related to free speech and academic
freedom at University of Wisconsin System institutions and technical colleges. For
violation of these standards, the Board of Regents of the UW System or technical
college district board may be subject to a civil cause of action and must provide
certain public notice of the violation.
The bill also establishes certain due process standards in disciplinary
proceedings at UW System institutions and technical colleges. For violation of these
standards, a UW institution or technical college may become ineligible for Wisconsin
grant funding allocation.
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FREE SPEECH AND ACADEMIC FREEDOM
First Amendment protections
Under the bill, a UW institution or technical college may not do any of the
following: 1) restrict speech protected under the First Amendment, if the speaker's
conduct is not unlawful and does not materially and substantially disrupt the
functioning of the UW institution or technical college; 2) maintain and enforce time,
place, and manner restrictions on expressive activities on the publicly accessible,
open outdoor areas of its campus and indoor areas that have been designated as
public forums, except classrooms while they are in use for instructional purposes,
unless those restrictions meet specified requirements; 3) designate any area of a
campus a “free speech zone” or otherwise create policies restricting noncommercial
expressive activities to a particular area of a campus; 4) subject to an exception,
require a permit as a condition of being allowed to engage in expressive activities
protected under the bill; 5) charge security fees, as part of a permit application, based
on the content of expression or anticipated reaction; or 6) sanction individuals or
groups for discriminatory harassment unless the speech targets its victim on the
basis of a protected class under law, and is so severe, pervasive, and objectively
offensive that it effectively bars a student from receiving equal access to educational
opportunities or benefits. Under the bill, if a permit is required, the permitting
process and any security fee must be content and viewpoint neutral.
The bill also specifies that all of an institution's or technical college's indoor
areas that have been designated as public forums and publicly accessible outdoor
areas, except classrooms while they are in use for instructional purposes, are
governed by rules applicable to traditional public forums. The bill specifies that its
provisions do not 1) enable individuals to engage in conduct that intentionally,
materially, and substantially disrupts another's expressive activity in a campus
space reserved for that activity; or 2) limit the right of student expression at campus
locations not specified in the bill.
The bill requires an institution or technical college to do all of the following: 1)
conduct a survey biennially of students and employees on First Amendment rights,
academic freedom, perceived political or other bias at the institution or technical
college, and whether campus culture promotes self-censorship; 2) submit a report
biennially to the legislature detailing the results of this survey; and 3) annually
provide all students and employees with instruction in academic freedom, due
process, and First Amendment protections.
Academic freedom
Under the bill, a UW or technical college policy or employee may not limit the
expressive rights and academic freedom of an instructor to 1) conduct research,
publish, lecture, or teach in the academic setting; 2) require students to participate
in instructional exercises with legitimate pedagogical purposes that involve
exploring, or arguing for or against, any argument or assertion; or 3) speak publicly
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Principles
The bill sets forth principles of academic freedom and freedom of expression to
which the UW System and each institution must adhere, as well as UW System and
institution responsibilities associated with these principles.
Notice and cause of action
The bill requires a UW institution or technical college that is found by a state
or federal court, by a preponderance of the evidence, to have violated any of the free
speech or academic freedom provisions described above to include, for four years, the
following disclaimer on all notices to individuals regarding admission to the UW
institution or technical college: “NOTICE: We are required by the State of Wisconsin
to inform you that within the last four years ... [insert name of UW institution or
technical college] has violated the free speech or academic freedom provisions in the
Wisconsin statutes.”
Under the bill, the attorney general, a district attorney, or any person whose
expressive rights were violated may bring a court action against the Board of Regents
of the UW System or the technical college district board for violation by a UW
institution or technical college of any of the free speech or academic freedom
provisions described above and may seek an injunction and recovery of damages,
court costs, and attorney fees for persons aggrieved by the violation. In such an
action, if the court finds a violation, the court must award to the plaintiffs all of the
following: 1) total damages for all prevailing persons aggrieved by the violation of
not less than $500 for the initial violation plus $50 for each day after the complaint
is served that the violation remains ongoing, but not exceeding an aggregate amount
of $100,000 for all cases stemming from a single controversy; and 2) court costs and
reasonable attorney fees. An award to the plaintiffs of damages, court costs, or
attorney fees must be paid from the UW institution's or technical college's
administrative expense moneys.
DUE PROCESS IN DISCIPLINARY PROCEEDINGS
Due process guarantees
Under the bill, a student enrolled in a UW institution or technical college has
a property interest in maintaining the student's status as a student that may be
terminated against the student's will only for due cause, including failure to meet
academic standards or attendance requirements, failure to pay tuition or other fees,
or violating conduct rules. A student accused of a disciplinary or conduct violation
that carries a potential penalty of expulsion or suspension of more than nine days,
and a UW institution's or technical college's employee accused of a disciplinary or
conduct violation, have the right to be represented, at the person's own expense, by
a licensed attorney or non-attorney advocate who is permitted to fully participate
during the disciplinary proceeding. The same right applies to a student
organization, employee organization, or independent organization recognized by the
UW institution or technical college (organization) accused of a violation and to a
complaining student if the disciplinary proceeding arises from the student's
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that a complaint has been made and inform the student, employee, or organization
of the student's, employee's, or organization's due process rights. A UW institution
or technical college must ensure that all parties to a disciplinary proceeding,
including if applicable an accusing student, have access to all material evidence,
including both inculpatory and exculpatory evidence, not later than one week prior
to the start of any formal hearing or similar adjudicatory proceeding. Before a
disciplinary proceeding is scheduled, and at least two business days before a student,
employee, or organization may be questioned about allegations of violations of the
institution's or technical college's disciplinary or conduct rules, the institution or
technical college must advise the student, employee, or organization in writing of
these rights. A UW institution or technical college is not obligated to follow the
state's rules of evidence in a disciplinary proceeding, but must make a good faith
effort to include only relevant, probative evidence and must exclude evidence that
is neither relevant nor probative. A UW institution or technical college must ensure
that a disciplinary proceeding is carried out free from conflicts of interest by
prohibiting overlap of administrative or adjudicative roles.
Penalties and Wisconsin grants
Under current law, the Wisconsin grant program, administered by the Higher
Educational Aids Board, provides grants to resident students enrolled in eligible
types of postsecondary schools, including UW institutions and technical colleges.
The amount of funding available for these types of eligible postsecondary schools
varies, and the UW System and technical colleges must annually submit to HEAB
a proposed formula for awarding Wisconsin grants to students enrolled in UW
institutions or technical colleges. HEAB must then approve, modify, or disapprove
these proposed formulas for awarding grants to UW or technical college students in
the next fiscal year.
Under this bill, a UW institution or technical college that violates any of the due
process provisions described above more than once in a 10-year period is ineligible
for allocation of Wisconsin grants for the longer of 1) a period of no less than one fiscal
year; or 2) if the institution's or technical college's administrator causes the violation,
until the administrator is permanently removed from his or her administrative role.
HEAB's formula for awarding Wisconsin grants must take these loss of allocation
penalties into consideration. The violation giving rise to this penalty may be found,
by a preponderance of the evidence, by any of the following: 1) a state or federal court;
2) HEAB; or 3) a legislative standing committee having jurisdiction over matters
relating to higher education.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 36.11 (6) (c) of the statutes is amended to read:1 - 5 -2023 - 2024 Legislature
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36.11 (6) (c) By February 10 of each year, the board shall develop and submit
to the higher educational aids board for its review under s. 39.285 (1) a proposed
formula for the awarding of grants under s. 39.435, except for grants awarded under
s. 39.435 (2) or (5), for the next fiscal year to students enrolled in the system. The
proposed formula shall take into consideration any institution's loss of funding
allocation under s. 36.42 (3) (a) and (b).
SECTION 2. 36.41 of the statutes is created to read:
36.41 Campus free speech and academic freedom. (1) DEFINITION. In this
section, “employee” means a member of the faculty, academic staff, or university staff
assigned to an institution. “Employee” also includes the institution's graduate
assistants and employees in training.
(2) PRINCIPLES OF ACADEMIC FREEDOM AND FREEDOM OF EXPRESSION. (a) The
system and each institution shall adhere to the following principles of academic
freedom and freedom of expression in order to achieve the system's mission under s.
36.01 (2):
1. Academic freedom includes the freedom to explore all avenues of scholarship,
research, and creative expression, and to reach conclusions according to one's own
scholarly discernment. Freedom of expression includes the right to discuss and
present scholarly opinions and conclusions on all matters both in and outside the
classroom. These freedoms include the right to speak and write as a member of an
institution's community or as a private citizen without institutional discipline or
restraint on scholarly matters or on matters of public concern. The system and each
institution shall remain committed to these principles and provide all members of
an institution's community the broadest possible latitude to explore ideas and to
speak, write, listen, challenge, and learn.
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2. Although different ideas in an institution's community often and quite
naturally conflict, it is not the proper role of an institution to attempt to shield
individuals from ideas and opinions the institution or others find unwelcome,
disagreeable, or even deeply offensive. Despite the great value of civility, concerns
about civility and mutual respect may never be used as justification for closing off
discussion of ideas, however offensive or disagreeable those ideas may be to some
members within an institution's community.
3. The freedom to debate and discuss the merits of competing ideas does not
mean that members of an institution's community may say whatever they wish,
wherever they wish. Consistent with long-standing practice informed by law, the
system and each institution may restrict expression that violates the law, that falsely
defames a specific individual, that constitutes a genuine threat or discriminatory
harassment, that unjustifiably invades substantial privacy or confidentiality
interests, or that is otherwise directly incompatible with the functioning of an
institution. In addition, subject to sub. (3) (a) 2., the system and each institution may
reasonably regulate the time, place, and manner of expression to ensure that it does
not disrupt ordinary activities. However, these exceptions to the general principle
of freedom of expression shall be construed narrowly and may not be applied in a
manner that is inconsistent with the system's and each institution's commitment to
a completely free and open discussion of ideas.
(b) The principles stated in par. (a) carry responsibilities, as follows:
1. Academic freedom carries the responsibility for the faithful performance of
professional duties and obligations. All members of an institution's community share
in the responsibility for maintaining civility and a climate of mutual respect.
Although members of an institution's community are free to criticize and contest the
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views expressed on campus, they may not obstruct or otherwise interfere with the
freedom of others, including speakers who are invited to campus, to express views
they reject or even loathe.
2. Freedom of expression carries the obligation to make clear that when
speaking on matters of public interest or concern, one is speaking on behalf of oneself,
not the institution.
3. An institution has a solemn responsibility not only to promote lively and
fearless exploration, deliberation, and debate of ideas, but also to protect those
freedoms when others attempt to restrict them. Exploration, deliberation, and
debate may not be suppressed because the ideas put forth are thought by some or
even by most members of an institution's community, or those outside the
community, to be offensive, unwise, immoral, or wrongheaded. It is for the members
of an institution's community, not for the institution itself, to make those judgments
for themselves, and to act on those judgments not by seeking to suppress exploration
of ideas or expression of speech, but by openly and vigorously contesting the ideas
that they oppose. Fostering the ability of members of an institution's community to
engage in such debate and deliberation in an effective and responsible manner is an
essential part of an institution's educational mission.
(3) FIRST AMENDMENT PROTECTIONS. (a) Except as specified in this section, an
institution may not do any of the following:
1. Restrict speech protected under the First Amendment of the U.S.
Constitution, including noncommercial expressive activities protected under the
provisions of this section, which include all forms of peaceful assembly, protests,
speeches, distribution of literature, carrying signs, circulating petitions, and the
recording and lawful publication, including Internet publication, of video and audio
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lawfully recorded in public outdoor areas of public institutions of higher education,
if the speaker's conduct is not unlawful and does not materially and substantially
disrupt the functioning of the institution.
2. Maintain and enforce time, place, and manner restrictions on expressive
activities on the open outdoor areas of its campus that are generally accessible to the
public and indoor areas that have been designated as public forums, except
classrooms while they are in use for instructional purposes, unless those restrictions
meet all of the following requirements:
a. The restrictions are reasonable, in furtherance of a significant institutional
interest, and employ clear, published, content-neutral, and viewpoint-neutral
criteria.
b. The restrictions provide for ample alternative means for communication of
the information and allow for members of the institution's community to
spontaneously and contemporaneously distribute literature and assemble.
3. Designate any area of a campus a “free speech zone” or otherwise create
policies restricting noncommercial expressive activities to a particular area of a
campus.
4. Require a permit from any individual or group as a condition of being allowed
to engage in expressive activities protected under this section, unless the individual
or group is seeking exclusive control of a location for its expressive activity at a
reserved time. Any such permitting process may not be overly burdensome, and
applications for permits shall be evaluated solely using published content and
viewpoint-neutral criteria.
5. Charge security fees to a student or a student group, as part of an application
for those expressive activities that require a permit, based on the content of the
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expression, the content of the expression of an invited guest, or the anticipated
reaction to the student's, student group's, or invited guest's expression. Whether the
security fee is required and its amount may be determined only on the basis of
content and viewpoint-neutral criteria. Content and viewpoint-neutral criteria
include the time of the event, the location of the event, the anticipated size of the
invited audience, and whether alcohol will be served. Any institution charging
security fees pursuant to this subdivision shall publish the criteria it uses for
assessing those charges and shall have a published process for waving the fees for
those who cannot afford to pay them.
6. Sanction individuals or groups for discriminatory harassment unless the
speech targets its victim on the basis of the victim's membership in a class protected
under federal, state, or local law, and is so severe, pervasive, and objectively offensive
that it effectively bars a student from receiving equal access to educational
opportunities or benefits. This subdivision does not preclude an institution from
providing additional resources to a student affected by speech that cannot be
sanctioned under this subdivision or from taking nonpunitive actions.
(b) All indoor areas that have been designated as public forums and outdoor
public areas generally accessible to the public and operated by an institution or
under the institution's jurisdiction, except classrooms while they are in use for
instructional purposes, shall be governed by rules applicable to traditional public
forums.
(c) 1. Nothing in this section enables individuals to engage in conduct that
intentionally, materially, and substantially disrupts another's expressive activity if
that activity is occurring in a campus space reserved for that activity under the
exclusive use or control of a particular group.
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2. For purposes of subd. 1., and subject to subd. 3., “materially and
substantially disrupts” means when a person, with the intent or knowledge of doing
so, significantly hinders another person's or group's expressive activity, prevents the
communication of the message, or prevents the transaction of the business of a lawful
meeting, gathering, or procession by doing any of the following:
a. Engaging in fighting, violence, or seriously disruptive behavior.
b. Physically blocking or significantly hindering any person from attending,
listening to, viewing, or otherwise participating in an expressive activity.
3. For purposes of subd. 1., the phrase “materially and substantially disrupts”
does not include conduct that is protected under the First Amendment of the U.S.
Constitution or article I, section 3, of the Wisconsin Constitution. This protected
conduct includes lawful protests and counterprotests in the outdoor areas of campus
generally accessible to members of the public and indoor areas that have been
designated as public forums, except classrooms while they are in use for
instructional purposes, except during times when those areas have been reserved in
advance for other events, or minor, brief, or fleeting nonviolent disruptions of events
that are isolated and short in duration.
(d) Nothing in this section limits the right of student expression at campus
locations that are not specified in this section.
(e) An institution shall do all of the following:
1. Conduct a biennial survey of students and employees on First Amendment
rights, academic freedom, perceived political, ideological, or other bias at the
institution, and whether campus culture promotes self-censorship. The survey shall
be conducted using statistically sound methodology and in a manner that protects
the confidentiality of the survey's respondents.
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2. Biennially submit to the legislature under s. 13.172 (2) a report detailing the
results of the survey under subd. 1.
3. Annually provide all students and employees with instruction in academic
freedom, due process, and First Amendment protections.
(4) ACADEMIC FREEDOM. (a) No board policy, institution policy, or employee may
limit the expressive rights and academic freedom of an instructor of an institution
to do any of the following:
1. Conduct research, publish, lecture, or teach in the academic setting.
2. Require students to participate in instructional exercises with legitimate
pedagogical purposes that involve exploring, or arguing for or against, any argument
or assertion.
3. Speak publicly as a private citizen on matters of public concern.
(b) Nothing in this subsection shall be interpreted to prohibit an institution
from requiring an instructor to perform the instructor's academic duties or from
setting performance standards consistent with this subsection or as required by
other law of this state.
(5) NOTICE; INSTITUTIONAL AID. (a) An institution that violates this section, for
4 years following the date of the finding of the violation under par. (b), shall include
a disclaimer on all notices, both printed or electronic, to individuals regarding
admission to the institution, in a type size no smaller than the majority of the rest
of the notice, in substantially the following form: “NOTICE: We are required by the
State of Wisconsin to inform you that within the last 4 years ... [insert name of
institution] has violated the free speech or academic freedom provisions in the
Wisconsin statutes.”
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(b) The penalty under par. (a) applies if a state or federal court in this state
finds, on the basis of a preponderance of the evidence, that the institution violated
this section.
(6) CAUSE OF ACTION. (a) Any person identified in par. (b) may bring an action
in circuit court against the board for violation of this section by an institution and
may seek any of the following:
1. An injunction against violation of this section.
2. Recovery from the board of damages, court costs, and attorney fees for
persons aggrieved by the violation.
(b) Any of the following persons may bring an action under par. (a):
1. The attorney general.
2. A district attorney.
3. Any person whose expressive rights were violated through the violation of
this section.
(c) Subject to par. (d), in an action brought under par. (a), if the court finds a
violation, the court shall award to the plaintiffs all of the following:
1. Total damages for all prevailing persons aggrieved by the violation of not less
than $500 for the initial violation plus $50 for each day the violation remains
ongoing, which shall accrue starting on the day after the complaint is served on the
board.
2. Notwithstanding s. 814.04 (1), court costs and reasonable attorney fees.
(d) In an action brought under par. (a), the total damages, excluding court costs
and attorney fees, that may be awarded to plaintiffs in a case or cases stemming from
a single controversy may not exceed an aggregate amount of $100,000. In violations
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harming multiple plaintiffs, the court shall divide the damages equitably among
them until the maximum award is exhausted, if applicable.
(e) If a court awards to plaintiffs damages, court costs, or attorney fees in an
action brought under this subsection, the board shall pay the total amount of the
award from moneys allocated under s. 36.09 (1) (h) to the violating institution for the
institution's administrative expenses.
SECTION 3. 36.42 of the statutes is created to read:
36.42 Due process guarantees in disciplinary proceedings. (1)
DEFINITIONS. In this section:
(a) “Disciplinary proceeding” means an investigatory interview or hearing, or
any other procedure adopted and used by an institution, relating to an alleged
violation that may result in disciplinary action against a student, employee, or
organization.
(b) “Employee” means a member of the faculty, academic staff, or university
staff assigned to an institution. “Employee” also includes the institution's graduate
assistants and employees in training.
(c) “Fully participate” includes having the opportunity to make opening and
closing statements, to examine and cross-examine witnesses, and to provide the
accuser or accused with support, guidance, and advice.
(d) “Organization” means a student organization, employee organization, or
independent organization that is officially recognized by an institution.
(2) DUE PROCESS GUARANTEES. (a) A student who has enrolled in an institution
has a property interest in maintaining the student's status as a student that may be
terminated against the student's will only for due cause, including failure to meet
academic standards, failure to pay academic fees, tuition, or other costs required for
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continued enrollment, failure to meet the institution's attendance requirements, or
a violation of the institution's conduct rules. A student who is accused of a violation
of disciplinary or conduct rules that carries a potential penalty of suspension of more
than 9 days or expulsion shall have the right to be represented, at the student's
expense, by a licensed attorney or, if the student prefers, a non-attorney advocate,
who shall be permitted to fully participate during the disciplinary proceeding.
(b) In addition to any substantive or procedural rights set forth in an employee's
employment contract, an employee who is accused of a violation of disciplinary or
conduct rules shall have the right to be represented, at the employee's expense, by
a licensed attorney or, if the employee prefers, a non-attorney advocate, who shall
be permitted to fully participate during the disciplinary proceeding.
(c) An organization that is accused of a violation of disciplinary or conduct rules
shall have the right to be represented, at the organization's expense, by a licensed
attorney or, if the organization prefers, a non-attorney advocate, who shall be
permitted to fully participate during the disciplinary proceeding.
(d) If a disciplinary proceeding arises from a complaint by a student against a
student, employee, or organization, the complaining student shall also have the right
to be represented, at that student's expense, by a licensed attorney or, if the
complaining student prefers, a non-attorney advocate.
(e) Prior to initiating a disciplinary proceeding or investigation, an institution
shall notify the student, employee, or organization that a complaint has been made
and inform the student, employee, or organization of his, her, or its due process
rights.
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(f) In a disciplinary proceeding, an institution is not obligated to follow the
state's rules of evidence but shall make a good faith effort to include only relevant,
probative evidence and shall exclude evidence that is neither relevant nor probative.
(g) Before a disciplinary proceeding is scheduled, and at least 2 business days
before a student, employee, or organization may be questioned by an institution or
agent of the institution about allegations of violations of the institution's disciplinary
or conduct rules, the institution shall advise the student, employee, or organization
in writing of the student's, employee's, or organization's rights under this subsection.
(h) The right of a student, employee, or organization to be represented by an
attorney or a non-attorney advocate applies until the conclusion of any appellate
process.
(i) An institution shall ensure that all parties to a disciplinary proceeding,
including the accused student, the accused employee, the accused organization, and,
if applicable, the accusing student, have access to all material evidence, including
both inculpatory and exculpatory evidence, not later than one week prior to the start
of any formal hearing or similar adjudicatory proceeding. This evidence may include
complainant statements, 3rd-party witness statements, electronically stored
information, written communications, social media posts, and demonstrative
evidence but may not include any materials that are privileged under applicable
federal or state law.
(j) An institution shall ensure that a disciplinary proceeding is carried out free
from conflicts of interest by prohibiting overlap of administrative or adjudicative
roles. An individual may not serve in more than one of the following roles:
1. Counselor or advocate of the accuser or victim.
2. Investigator.
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3. Hearing panel member.
4. Institutional prosecutor.
5. Adjudicator.
6. Appellate adjudicator.
(k) This subsection does not affect the obligation of an institution to provide
equivalent rights to a student who is the accuser or victim in the disciplinary
proceeding, including equivalent opportunities to have others present and fully
participate during the disciplinary proceeding, to not limit the choice of attorney or
non-attorney advocate in any meeting or in the disciplinary proceeding, and to
provide simultaneous notification of the institution's procedures for the accused and
the accuser or victim to appeal the result of the disciplinary proceeding.
(L) Nothing in this subsection shall prevent the temporary suspension of a
student, employee, or organization pending an investigation.
(3) PENALTIES. (a) An institution that violates this section more than once in
a 10-year period is ineligible for allocation of grants under s. 39.435, except grants
awarded under s. 39.435 (2) or (5), for a period of no less than one fiscal year.
(b) In addition to the period of ineligibility under par. (a), if an institution's
administrator causes the violation of this section, the institution is not eligible for
allocation of grants under s. 39.435, except grants awarded under s. 39.435 (2) or (5),
until the administrator is permanently removed from his or her administrative role.
(c) The penalties under this subsection apply if any of the following find, on the
basis of a preponderance of the evidence, that the institution violated this section:
1. A state or federal court in this state.
2. The higher educational aids board.
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3. Any standing committee of the legislature having jurisdiction over matters
relating to higher education.
SECTION 4. 38.04 (7m) of the statutes is amended to read:
38.04 (7m) FINANCIAL AIDS. By February 10 of each year, the board shall develop
and submit to the higher educational aids board for its review under s. 39.285 (1) a
proposed formula for the awarding of grants under s. 39.435, except for grants
awarded under s. 39.435 (2) or (5), for the next fiscal year to students enrolled in the
technical colleges. The proposed formula shall take into consideration any technical
college's loss of funding allocation under s. 38.35 (3) (a) and (b).
SECTION 5. 38.34 of the statutes is created to read:
38.34 Campus free speech and academic freedom. (1) DEFINITIONS. In
this section:
(a) “Employee” means a staff member, faculty member, or administrator
employed by a district board.
(b) “Student” means an individual enrolled in a district school.
(2) FIRST AMENDMENT PROTECTIONS. (a) Except as specified in this section, a
district board may not do any of the following:
1. Restrict speech protected under the First Amendment of the U.S.
Constitution, including noncommercial expressive activities protected under the
provisions of this section, which include all forms of peaceful assembly, protests,
speeches, distribution of literature, carrying signs, circulation petitions, and the
recording and lawful publication, including Internet publication, of video and audio
lawfully recorded in public outdoor areas of public institutions of higher education,
if the speaker's conduct is not unlawful and does not materially and substantially
disrupt the functioning of the district school.
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2. Maintain and enforce time, place, and manner restrictions on expressive
activities on the open outdoor areas of district campuses that are generally accessible
to the public and indoor areas that have been designated as public forums, except
classrooms while they are in use for instructional purposes, unless those restrictions
meet all of the following requirements:
a. The restrictions are reasonable, in furtherance of a significant interest of the
district board, and employ clear, published, content-neutral, and viewpoint-neutral
criteria.
b. The restrictions provide for ample alternative means for communication of
the information and allow for members of the district campus's community to
spontaneously and contemporaneously distribute literature and assemble.
3. Designate any area of a district campus a “free speech zone” or otherwise
create policies restricting noncommercial expressive activities to a particular area
of a district campus.
4. Require a permit from any individual or group as a condition of being allowed
to engage in expressive activities protected under this section, unless the individual
or group is seeking exclusive control of a location for its expressive activity at a
reserved time. Any such permitting process may not be overly burdensome, and
applications for permits shall be evaluated solely using published content and
viewpoint-neutral criteria.
5. Charge security fees to a student or a student group, as part of an application
for those expressive activities that require a permit, based on the content of the
expression, the content of the expression of an invited guest, or the anticipated
reaction to the student's, student group's, or invited guest's expression. Whether the
security fee is required and its amount may be determined only on the basis of
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content and viewpoint-neutral criteria. Content and viewpoint-neutral criteria
include the time of the event, the location of the event, the anticipated size of the
invited audience, and whether alcohol will be served. Any district board charging
security fees pursuant to this subdivision shall publish the criteria it uses for
assessing those charges and shall have a published process for waving the fees for
those who cannot afford to pay them.
6. Sanction individuals or groups for discriminatory harassment unless the
speech targets its victim on the basis of the victim's membership in a class protected
under federal, state, or local law, and is so severe, pervasive, and objectively offensive
that it effectively bars a student from receiving equal access to educational
opportunities or benefits. This subdivision does not preclude a district board from
providing additional resources to a student affected by speech that cannot be
sanctioned under this subdivision or from taking nonpunitive actions.
(b) All indoor areas that have been designated as public forums and outdoor
public areas generally accessible to the public and owned or operated by a district
board, except classrooms while they are in use for instructional purposes, shall be
governed by rules applicable to traditional public forums.
(c) 1. Nothing in this section enables individuals to engage in conduct that
intentionally, materially, and substantially disrupts another's expressive activity if
that activity is occurring in a campus space reserved for that activity under the
exclusive use or control of a particular group.
2. For purposes of subd. 1., and subject to subd. 3., “materially and
substantially disrupts” means when a person, with the intent or knowledge of doing
so, significantly hinders another person's or group's expressive activity, prevents the
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communication of the message, or prevents the transaction of the business of a lawful
meeting, gathering, or procession by doing any of the following:
a. Engaging in fighting, violence, or seriously disruptive behavior.
b. Physically blocking or significantly hindering any person from attending,
listening to, viewing, or otherwise participating in an expressive activity.
3. For purposes of subd. 1., the phrase “materially and substantially disrupts”
does not include conduct that is protected under the First Amendment of the U.S.
Constitution or article I, section 3, of the Wisconsin Constitution. This protected
conduct includes lawful protests and counterprotests in the outdoor areas of campus
generally accessible to members of the public and indoor areas that have been
designated as public forums, except classrooms while they are in use for
instructional purposes, except during times when those areas have been reserved in
advance for other events, or minor, brief, or fleeting nonviolent disruptions of events
that are isolated and short in duration.
(d) Nothing in this section limits the right of student expression at campus
locations that are not specified in this section.
(e) A district board shall do all of the following:
1. Conduct a biennial survey of students and employees on First Amendment
rights, academic freedom, perceived political, ideological, or other bias at the district
schools, and whether campus culture promotes self-censorship. The survey shall be
conducted using statistically sound methodology and in a manner that protects the
confidentiality of the survey's respondents.
2. Biennially submit to the legislature under s. 13.172 (2) a report detailing the
results of the survey under subd. 1.
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3. Annually provide all students and employees with instruction in academic
freedom, due process, and First Amendment protections.
(3) ACADEMIC FREEDOM. (a) No district board policy or employee may limit the
expressive rights and academic freedom of an instructor of a district school to do any
of the following:
1. Conduct research, publish, lecture, or teach in the academic setting.
2. Require students to participate in instructional exercises with legitimate
pedagogical purposes that involve exploring, or arguing for or against, any argument
or assertion.
3. Speak publicly as a private citizen on matters of public concern.
(b) Nothing in this subsection shall be interpreted to prohibit a district board
from requiring an instructor to perform the instructor's academic duties or from
setting performance standards consistent with this subsection or as required by
other law of this state.
(4) NOTICE; INSTITUTIONAL AID. (a) A district board that violates this section, for
4 years following the date of the finding of the violation under par. (b), shall include
a disclaimer on all notices, both printed or electronic, to individuals regarding
admission to a technical college of the district, in a type size no smaller than the
majority of the rest of the notice, in substantially the following form: “NOTICE: We
are required by the State of Wisconsin to inform you that within the last 4 years ...
[insert name of technical college] has violated the free speech or academic freedom
provisions in the Wisconsin statutes.”
(b) The penalty under par. (a) applies if a state or federal court in this state
finds, on the basis of a preponderance of the evidence, that the district board violated
this section.
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(5) CAUSE OF ACTION. (a) Any person identified in par. (b) may bring an action
in circuit court against a district board for violation of this section and may seek any
of the following:
1. An injunction against violation of this section.
2. Recovery from the district board of damages, courts costs, and attorney fees
for persons aggrieved by the violation.
(b) Any of the following persons may bring an action under par. (a):
1. The attorney general.
2. A district attorney.
3. Any person whose expressive rights were violated through the violation of
this section.
(c) Subject to par. (d), in an action brought under par. (a), if the court finds a
violation, the court shall award to the plaintiffs all of the following:
1. Total damages for all prevailing persons aggrieved by the violation of not less
than $500 for the initial violation plus $50 for each day the violation remains
ongoing, which shall accrue starting on the day after the complaint is served on the
district board.
2. Notwithstanding s. 814.04 (1), court costs and reasonable attorney fees.
(d) In an action brought under par. (a), the total damages, excluding court costs
and attorney fees, that may be awarded to plaintiffs in a case or cases stemming from
a single controversy may not exceed an aggregate amount of $100,000. In violations
harming multiple plaintiffs, the court shall divide the damages equitably among
them until the maximum award is exhausted, if applicable.
(e) If a court awards to plaintiffs damages, court costs, or attorney fees in an
action brought under this subsection, the district board shall pay the total amount
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of the award from moneys that the district board has allocated for its administrative
expenses.
(f) Section 893.80 does not apply to an action brought against a district board
under this section.
SECTION 6. 38.35 of the statutes is created to read:
38.35 Due process guarantees in disciplinary proceedings. (1)
DEFINITIONS. In this section:
(a) “Disciplinary proceeding” means an investigatory interview or hearing, or
any other procedure adopted and used by a district board, relating to an alleged
violation that may result in disciplinary action against a student, employee, or
organization.
(b) “Employee” means a staff member, faculty member, or administrator
employed by a district board.
(c) “Fully participate” includes having the opportunity to make opening and
closing statements, to examine and cross-examine witnesses, and to provide the
accuser or accused with support, guidance, and advice.
(d) “Organization” means a student organization, employee organization, or
independent organization that is officially recognized by a district board.
(2) DUE PROCESS GUARANTEES. (a) A student who has enrolled in a district school
has a property interest in maintaining the student's status as a student that may be
terminated against the student's will only for due cause, including failure to meet
academic standards, failure to pay fees or other costs required for continued
enrollment, failure to meet the district board's attendance requirements, or a
violation of the district board's conduct rules. A student who is accused of a violation
of disciplinary or conduct rules that carries a potential penalty of suspension of more
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than 9 days or expulsion shall have the right to be represented, at the student's
expense, by a licensed attorney or, if the student prefers, a non-attorney advocate,
who shall be permitted to fully participate during the disciplinary proceeding.
(b) In addition to any substantive or procedural rights set forth in an employee's
employment contract, an employee who is accused of a violation of disciplinary or
conduct rules shall have the right to be represented, at the employee's expense, by
a licensed attorney or, if the employee prefers, a non-attorney advocate, who shall
be permitted to fully participate during the disciplinary proceeding.
(c) An organization that is accused of a violation of disciplinary or conduct rules
shall have the right to be represented, at the organization's expense, by a licensed
attorney or, if the organization prefers, a non-attorney advocate, who shall be
permitted to fully participate during the disciplinary proceeding.
(d) If a disciplinary proceeding arises from a complaint by a student against a
student, employee, or organization, the complaining student shall also have the right
to be represented, at that student's expense, by a licensed attorney or, if the
complaining student prefers, a non-attorney advocate.
(e) Prior to initiating a disciplinary proceeding or investigation, a district board
shall notify the student, employee, or organization that a complaint has been made
and inform the student, employee, or organization of his, her, or its due process
rights.
(f) In a disciplinary proceeding, a district board is not obligated to follow the
state's rules of evidence but shall make a good faith effort to include only relevant,
probative evidence and shall exclude evidence that is neither relevant nor probative.
(g) Before a disciplinary proceeding is scheduled, and at least 2 business days
before a student, employee, or organization may be questioned by a district board or
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agent of the district board about allegations of violations of the district board's
disciplinary or conduct rules, the district board shall advise the student, employee,
or organization in writing of the student's, employee's, or organization's rights under
this subsection.
(h) The right of a student, employee, or organization to be represented by an
attorney or a non-attorney advocate applies until the conclusion of any appellate
process.
(i) A district board shall ensure that all parties to a disciplinary proceeding,
including the accused student, the accused employee, the accused organization, and,
if applicable, the accusing student, have access to all material evidence, including
both inculpatory and exculpatory evidence, not later than one week prior to the start
of any formal hearing or similar adjudicatory proceeding. This evidence may include
complainant statements, 3rd-party witness statements, electronically stored
information, written communications, social media posts, and demonstrative
evidence but may not include any materials that are privileged under applicable
federal or state law.
(j) A district board shall ensure that a disciplinary proceeding is carried out free
from conflicts of interest by prohibiting overlap of administrative or adjudicative
roles. An individual may not serve in more than one of the following roles:
1. Counselor or advocate of the accuser or victim.
2. Investigator.
3. Hearing panel member.
4. District board prosecutor.
5. Adjudicator.
6. Appellate adjudicator.
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(k) This subsection does not affect the obligation of a district board to provide
equivalent rights to a student who is the accuser or victim in the disciplinary
proceeding, including equivalent opportunities to have others present and fully
participate during the disciplinary proceeding, to not limit the choice of attorney or
non-attorney advocate in any meeting or in the disciplinary proceeding, and to
provide simultaneous notification of the district board's procedures for the accused
and the accuser or victim to appeal the result of the disciplinary proceeding.
(L) Nothing in this subsection shall prevent the temporary suspension of a
student, employee, or organization pending an investigation.
(3) PENALTIES. (a) A district board that violates this section more than once in
a 10-year period is ineligible for allocation of grants under s. 39.435, except grants
awarded under s. 39.435 (2) or (5), for a period of no less than one fiscal year.
(b) In addition to the period of ineligibility under par. (a), if a district board
administrator causes the violation of this section, the district board is not eligible for
allocation of grants under s. 39.435, except grants awarded under s. 39.435 (2) or (5),
until the administrator is permanently removed from his or her administrative role.
(c) The penalties under this subsection apply if any of the following find, on the
basis of a preponderance of the evidence, that the district board violated this section:
1. A state or federal court in this state.
2. The higher educational aids board.
3. Any standing committee of the legislature having jurisdiction over matters
relating to higher education.
SECTION 7. 39.285 (1) (c) of the statutes is created to read:
39.285 (1) (c) The board shall ensure that any formula approved under par. (a)
takes into consideration any University of Wisconsin institution's loss of funding
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allocation under s. 36.42 (3) (a) and (b) or technical college district board's loss of
funding allocation under s. 38.35 (3) (a) and (b).
(END)
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