Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB553 Compare Versions

Only one version of the bill is available at this time.

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1	1	LRB-4708/1
2	2	ARG:amn
3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 553
5	5	October 23, 2023 - Introduced by Representatives NEDWESKI, MURPHY, ALLEN,
6	6	BEHNKE, BRANDTJEN, DITTRICH, EDMING, GOEBEN, GUNDRUM, MAXEY, MOSES,
7	7	O'CONNOR, PENTERMAN, RETTINGER, SCHRAA and TUSLER, cosponsored by
8	8	Senators CABRAL-GUEVARA and TOMCZYK. Referred to Committee on Colleges
9	9	and Universities.
10	10	*AUTHORS SUBJECT TO CHANGE*
11	11	AN ACT to amend 36.11 (6) (c) and 38.04 (7m); and to create 36.41, 36.42, 38.34,
12	12	38.35 and 39.285 (1) (c) of the statutes; relating to: free speech and academic
13	13	freedom at University of Wisconsin System institutions and technical colleges,
14	14	due process in disciplinary proceedings at University of Wisconsin System
15	15	institutions and technical colleges, Wisconsin grant funding allocation, and
16	16	causes of action against the Board of Regents of the University of Wisconsin
17	17	System and technical college district boards.
18	18	Analysis by the Legislative Reference Bureau
19	19	This bill establishes certain standards related to free speech and academic
20	20	freedom at University of Wisconsin System institutions and technical colleges. For
21	21	violation of these standards, the Board of Regents of the UW System or technical
22	22	college district board may be subject to a civil cause of action and must provide
23	23	certain public notice of the violation.
24	24	The bill also establishes certain due process standards in disciplinary
25	25	proceedings at UW System institutions and technical colleges. For violation of these
26	26	standards, a UW institution or technical college may become ineligible for Wisconsin
27	27	grant funding allocation.
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35	35	ARG:amn
36	36	ASSEMBLY BILL 553
37	37	FREE SPEECH AND ACADEMIC FREEDOM
38	38	First Amendment protections
39	39	Under the bill, a UW institution or technical college may not do any of the
40	40	following: 1) restrict speech protected under the First Amendment, if the speaker's
41	41	conduct is not unlawful and does not materially and substantially disrupt the
42	42	functioning of the UW institution or technical college; 2) maintain and enforce time,
43	43	place, and manner restrictions on expressive activities on the publicly accessible,
44	44	open outdoor areas of its campus and indoor areas that have been designated as
45	45	public forums, except classrooms while they are in use for instructional purposes,
46	46	unless those restrictions meet specified requirements; 3) designate any area of a
47	47	campus a “free speech zone” or otherwise create policies restricting noncommercial
48	48	expressive activities to a particular area of a campus; 4) subject to an exception,
49	49	require a permit as a condition of being allowed to engage in expressive activities
50	50	protected under the bill; 5) charge security fees, as part of a permit application, based
51	51	on the content of expression or anticipated reaction; or 6) sanction individuals or
52	52	groups for discriminatory harassment unless the speech targets its victim on the
53	53	basis of a protected class under law, and is so severe, pervasive, and objectively
54	54	offensive that it effectively bars a student from receiving equal access to educational
55	55	opportunities or benefits. Under the bill, if a permit is required, the permitting
56	56	process and any security fee must be content and viewpoint neutral.
57	57	The bill also specifies that all of an institution's or technical college's indoor
58	58	areas that have been designated as public forums and publicly accessible outdoor
59	59	areas, except classrooms while they are in use for instructional purposes, are
60	60	governed by rules applicable to traditional public forums. The bill specifies that its
61	61	provisions do not 1) enable individuals to engage in conduct that intentionally,
62	62	materially, and substantially disrupts another's expressive activity in a campus
63	63	space reserved for that activity; or 2) limit the right of student expression at campus
64	64	locations not specified in the bill.
65	65	The bill requires an institution or technical college to do all of the following: 1)
66	66	conduct a survey biennially of students and employees on First Amendment rights,
67	67	academic freedom, perceived political or other bias at the institution or technical
68	68	college, and whether campus culture promotes self-censorship; 2) submit a report
69	69	biennially to the legislature detailing the results of this survey; and 3) annually
70	70	provide all students and employees with instruction in academic freedom, due
71	71	process, and First Amendment protections.
72	72	Academic freedom
73	73	Under the bill, a UW or technical college policy or employee may not limit the
74	74	expressive rights and academic freedom of an instructor to 1) conduct research,
75	75	publish, lecture, or teach in the academic setting; 2) require students to participate
76	76	in instructional exercises with legitimate pedagogical purposes that involve
77	77	exploring, or arguing for or against, any argument or assertion; or 3) speak publicly
78	78	as a private citizen on matters of public concern. - 3 -2023 - 2024 Legislature
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80	80	ARG:amn
81	81	ASSEMBLY BILL 553
82	82	Principles
83	83	The bill sets forth principles of academic freedom and freedom of expression to
84	84	which the UW System and each institution must adhere, as well as UW System and
85	85	institution responsibilities associated with these principles.
86	86	Notice and cause of action
87	87	The bill requires a UW institution or technical college that is found by a state
88	88	or federal court, by a preponderance of the evidence, to have violated any of the free
89	89	speech or academic freedom provisions described above to include, for four years, the
90	90	following disclaimer on all notices to individuals regarding admission to the UW
91	91	institution or technical college: “NOTICE: We are required by the State of Wisconsin
92	92	to inform you that within the last four years ... [insert name of UW institution or
93	93	technical college] has violated the free speech or academic freedom provisions in the
94	94	Wisconsin statutes.”
95	95	Under the bill, the attorney general, a district attorney, or any person whose
96	96	expressive rights were violated may bring a court action against the Board of Regents
97	97	of the UW System or the technical college district board for violation by a UW
98	98	institution or technical college of any of the free speech or academic freedom
99	99	provisions described above and may seek an injunction and recovery of damages,
100	100	court costs, and attorney fees for persons aggrieved by the violation. In such an
101	101	action, if the court finds a violation, the court must award to the plaintiffs all of the
102	102	following: 1) total damages for all prevailing persons aggrieved by the violation of
103	103	not less than $500 for the initial violation plus $50 for each day after the complaint
104	104	is served that the violation remains ongoing, but not exceeding an aggregate amount
105	105	of $100,000 for all cases stemming from a single controversy; and 2) court costs and
106	106	reasonable attorney fees. An award to the plaintiffs of damages, court costs, or
107	107	attorney fees must be paid from the UW institution's or technical college's
108	108	administrative expense moneys.
109	109	DUE PROCESS IN DISCIPLINARY PROCEEDINGS
110	110	Due process guarantees
111	111	Under the bill, a student enrolled in a UW institution or technical college has
112	112	a property interest in maintaining the student's status as a student that may be
113	113	terminated against the student's will only for due cause, including failure to meet
114	114	academic standards or attendance requirements, failure to pay tuition or other fees,
115	115	or violating conduct rules. A student accused of a disciplinary or conduct violation
116	116	that carries a potential penalty of expulsion or suspension of more than nine days,
117	117	and a UW institution's or technical college's employee accused of a disciplinary or
118	118	conduct violation, have the right to be represented, at the person's own expense, by
119	119	a licensed attorney or non-attorney advocate who is permitted to fully participate
120	120	during the disciplinary proceeding. The same right applies to a student
121	121	organization, employee organization, or independent organization recognized by the
122	122	UW institution or technical college (organization) accused of a violation and to a
123	123	complaining student if the disciplinary proceeding arises from the student's
124	124	complaint. Prior to initiating a disciplinary proceeding or investigation, a UW
125	125	institution or technical college must notify the student, employee, or organization - 4 -2023 - 2024 Legislature LRB-4708/1
126	126	ARG:amn
127	127	ASSEMBLY BILL 553
128	128	that a complaint has been made and inform the student, employee, or organization
129	129	of the student's, employee's, or organization's due process rights. A UW institution
130	130	or technical college must ensure that all parties to a disciplinary proceeding,
131	131	including if applicable an accusing student, have access to all material evidence,
132	132	including both inculpatory and exculpatory evidence, not later than one week prior
133	133	to the start of any formal hearing or similar adjudicatory proceeding. Before a
134	134	disciplinary proceeding is scheduled, and at least two business days before a student,
135	135	employee, or organization may be questioned about allegations of violations of the
136	136	institution's or technical college's disciplinary or conduct rules, the institution or
137	137	technical college must advise the student, employee, or organization in writing of
138	138	these rights. A UW institution or technical college is not obligated to follow the
139	139	state's rules of evidence in a disciplinary proceeding, but must make a good faith
140	140	effort to include only relevant, probative evidence and must exclude evidence that
141	141	is neither relevant nor probative. A UW institution or technical college must ensure
142	142	that a disciplinary proceeding is carried out free from conflicts of interest by
143	143	prohibiting overlap of administrative or adjudicative roles.
144	144	Penalties and Wisconsin grants
145	145	Under current law, the Wisconsin grant program, administered by the Higher
146	146	Educational Aids Board, provides grants to resident students enrolled in eligible
147	147	types of postsecondary schools, including UW institutions and technical colleges.
148	148	The amount of funding available for these types of eligible postsecondary schools
149	149	varies, and the UW System and technical colleges must annually submit to HEAB
150	150	a proposed formula for awarding Wisconsin grants to students enrolled in UW
151	151	institutions or technical colleges. HEAB must then approve, modify, or disapprove
152	152	these proposed formulas for awarding grants to UW or technical college students in
153	153	the next fiscal year.
154	154	Under this bill, a UW institution or technical college that violates any of the due
155	155	process provisions described above more than once in a 10-year period is ineligible
156	156	for allocation of Wisconsin grants for the longer of 1) a period of no less than one fiscal
157	157	year; or 2) if the institution's or technical college's administrator causes the violation,
158	158	until the administrator is permanently removed from his or her administrative role.
159	159	HEAB's formula for awarding Wisconsin grants must take these loss of allocation
160	160	penalties into consideration. The violation giving rise to this penalty may be found,
161	161	by a preponderance of the evidence, by any of the following: 1) a state or federal court;
162	162	2) HEAB; or 3) a legislative standing committee having jurisdiction over matters
163	163	relating to higher education.
164	164	For further information see the state and local fiscal estimate, which will be
165	165	printed as an appendix to this bill.
166	166	The people of the state of Wisconsin, represented in senate and assembly, do
167	167	enact as follows:
168	168	SECTION 1. 36.11 (6) (c) of the statutes is amended to read:1 - 5 -2023 - 2024 Legislature
169	169	LRB-4708/1
170	170	ARG:amn
171	171	SECTION 1
172	172	ASSEMBLY BILL 553
173	173	36.11 (6) (c) By February 10 of each year, the board shall develop and submit
174	174	to the higher educational aids board for its review under s. 39.285 (1) a proposed
175	175	formula for the awarding of grants under s. 39.435, except for grants awarded under
176	176	s. 39.435 (2) or (5), for the next fiscal year to students enrolled in the system. The
177	177	proposed formula shall take into consideration any institution's loss of funding
178	178	allocation under s. 36.42 (3) (a) and (b).
179	179	SECTION 2. 36.41 of the statutes is created to read:
180	180	36.41 Campus free speech and academic freedom. (1) DEFINITION. In this
181	181	section, “employee” means a member of the faculty, academic staff, or university staff
182	182	assigned to an institution. “Employee” also includes the institution's graduate
183	183	assistants and employees in training.
184	184	(2) PRINCIPLES OF ACADEMIC FREEDOM AND FREEDOM OF EXPRESSION. (a) The
185	185	system and each institution shall adhere to the following principles of academic
186	186	freedom and freedom of expression in order to achieve the system's mission under s.
187	187	36.01 (2):
188	188	1. Academic freedom includes the freedom to explore all avenues of scholarship,
189	189	research, and creative expression, and to reach conclusions according to one's own
190	190	scholarly discernment. Freedom of expression includes the right to discuss and
191	191	present scholarly opinions and conclusions on all matters both in and outside the
192	192	classroom. These freedoms include the right to speak and write as a member of an
193	193	institution's community or as a private citizen without institutional discipline or
194	194	restraint on scholarly matters or on matters of public concern. The system and each
195	195	institution shall remain committed to these principles and provide all members of
196	196	an institution's community the broadest possible latitude to explore ideas and to
197	197	speak, write, listen, challenge, and learn.
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224	224	SECTION 2 ASSEMBLY BILL 553
225	225	2. Although different ideas in an institution's community often and quite
226	226	naturally conflict, it is not the proper role of an institution to attempt to shield
227	227	individuals from ideas and opinions the institution or others find unwelcome,
228	228	disagreeable, or even deeply offensive. Despite the great value of civility, concerns
229	229	about civility and mutual respect may never be used as justification for closing off
230	230	discussion of ideas, however offensive or disagreeable those ideas may be to some
231	231	members within an institution's community.
232	232	3. The freedom to debate and discuss the merits of competing ideas does not
233	233	mean that members of an institution's community may say whatever they wish,
234	234	wherever they wish. Consistent with long-standing practice informed by law, the
235	235	system and each institution may restrict expression that violates the law, that falsely
236	236	defames a specific individual, that constitutes a genuine threat or discriminatory
237	237	harassment, that unjustifiably invades substantial privacy or confidentiality
238	238	interests, or that is otherwise directly incompatible with the functioning of an
239	239	institution. In addition, subject to sub. (3) (a) 2., the system and each institution may
240	240	reasonably regulate the time, place, and manner of expression to ensure that it does
241	241	not disrupt ordinary activities. However, these exceptions to the general principle
242	242	of freedom of expression shall be construed narrowly and may not be applied in a
243	243	manner that is inconsistent with the system's and each institution's commitment to
244	244	a completely free and open discussion of ideas.
245	245	(b) The principles stated in par. (a) carry responsibilities, as follows:
246	246	1. Academic freedom carries the responsibility for the faithful performance of
247	247	professional duties and obligations. All members of an institution's community share
248	248	in the responsibility for maintaining civility and a climate of mutual respect.
249	249	Although members of an institution's community are free to criticize and contest the
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277	277	SECTION 2
278	278	ASSEMBLY BILL 553
279	279	views expressed on campus, they may not obstruct or otherwise interfere with the
280	280	freedom of others, including speakers who are invited to campus, to express views
281	281	they reject or even loathe.
282	282	2. Freedom of expression carries the obligation to make clear that when
283	283	speaking on matters of public interest or concern, one is speaking on behalf of oneself,
284	284	not the institution.
285	285	3. An institution has a solemn responsibility not only to promote lively and
286	286	fearless exploration, deliberation, and debate of ideas, but also to protect those
287	287	freedoms when others attempt to restrict them. Exploration, deliberation, and
288	288	debate may not be suppressed because the ideas put forth are thought by some or
289	289	even by most members of an institution's community, or those outside the
290	290	community, to be offensive, unwise, immoral, or wrongheaded. It is for the members
291	291	of an institution's community, not for the institution itself, to make those judgments
292	292	for themselves, and to act on those judgments not by seeking to suppress exploration
293	293	of ideas or expression of speech, but by openly and vigorously contesting the ideas
294	294	that they oppose. Fostering the ability of members of an institution's community to
295	295	engage in such debate and deliberation in an effective and responsible manner is an
296	296	essential part of an institution's educational mission.
297	297	(3) FIRST AMENDMENT PROTECTIONS. (a) Except as specified in this section, an
298	298	institution may not do any of the following:
299	299	1. Restrict speech protected under the First Amendment of the U.S.
300	300	Constitution, including noncommercial expressive activities protected under the
301	301	provisions of this section, which include all forms of peaceful assembly, protests,
302	302	speeches, distribution of literature, carrying signs, circulating petitions, and the
303	303	recording and lawful publication, including Internet publication, of video and audio
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330	330	SECTION 2 ASSEMBLY BILL 553
331	331	lawfully recorded in public outdoor areas of public institutions of higher education,
332	332	if the speaker's conduct is not unlawful and does not materially and substantially
333	333	disrupt the functioning of the institution.
334	334	2. Maintain and enforce time, place, and manner restrictions on expressive
335	335	activities on the open outdoor areas of its campus that are generally accessible to the
336	336	public and indoor areas that have been designated as public forums, except
337	337	classrooms while they are in use for instructional purposes, unless those restrictions
338	338	meet all of the following requirements:
339	339	a. The restrictions are reasonable, in furtherance of a significant institutional
340	340	interest, and employ clear, published, content-neutral, and viewpoint-neutral
341	341	criteria.
342	342	b. The restrictions provide for ample alternative means for communication of
343	343	the information and allow for members of the institution's community to
344	344	spontaneously and contemporaneously distribute literature and assemble.
345	345	3. Designate any area of a campus a “free speech zone” or otherwise create
346	346	policies restricting noncommercial expressive activities to a particular area of a
347	347	campus.
348	348	4. Require a permit from any individual or group as a condition of being allowed
349	349	to engage in expressive activities protected under this section, unless the individual
350	350	or group is seeking exclusive control of a location for its expressive activity at a
351	351	reserved time. Any such permitting process may not be overly burdensome, and
352	352	applications for permits shall be evaluated solely using published content and
353	353	viewpoint-neutral criteria.
354	354	5. Charge security fees to a student or a student group, as part of an application
355	355	for those expressive activities that require a permit, based on the content of the
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382	382	ARG:amn
383	383	SECTION 2
384	384	ASSEMBLY BILL 553
385	385	expression, the content of the expression of an invited guest, or the anticipated
386	386	reaction to the student's, student group's, or invited guest's expression. Whether the
387	387	security fee is required and its amount may be determined only on the basis of
388	388	content and viewpoint-neutral criteria. Content and viewpoint-neutral criteria
389	389	include the time of the event, the location of the event, the anticipated size of the
390	390	invited audience, and whether alcohol will be served. Any institution charging
391	391	security fees pursuant to this subdivision shall publish the criteria it uses for
392	392	assessing those charges and shall have a published process for waving the fees for
393	393	those who cannot afford to pay them.
394	394	6. Sanction individuals or groups for discriminatory harassment unless the
395	395	speech targets its victim on the basis of the victim's membership in a class protected
396	396	under federal, state, or local law, and is so severe, pervasive, and objectively offensive
397	397	that it effectively bars a student from receiving equal access to educational
398	398	opportunities or benefits. This subdivision does not preclude an institution from
399	399	providing additional resources to a student affected by speech that cannot be
400	400	sanctioned under this subdivision or from taking nonpunitive actions.
401	401	(b) All indoor areas that have been designated as public forums and outdoor
402	402	public areas generally accessible to the public and operated by an institution or
403	403	under the institution's jurisdiction, except classrooms while they are in use for
404	404	instructional purposes, shall be governed by rules applicable to traditional public
405	405	forums.
406	406	(c) 1. Nothing in this section enables individuals to engage in conduct that
407	407	intentionally, materially, and substantially disrupts another's expressive activity if
408	408	that activity is occurring in a campus space reserved for that activity under the
409	409	exclusive use or control of a particular group.
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435	435	ARG:amn
436	436	SECTION 2 ASSEMBLY BILL 553
437	437	2. For purposes of subd. 1., and subject to subd. 3., “materially and
438	438	substantially disrupts” means when a person, with the intent or knowledge of doing
439	439	so, significantly hinders another person's or group's expressive activity, prevents the
440	440	communication of the message, or prevents the transaction of the business of a lawful
441	441	meeting, gathering, or procession by doing any of the following:
442	442	a. Engaging in fighting, violence, or seriously disruptive behavior.
443	443	b. Physically blocking or significantly hindering any person from attending,
444	444	listening to, viewing, or otherwise participating in an expressive activity.
445	445	3. For purposes of subd. 1., the phrase “materially and substantially disrupts”
446	446	does not include conduct that is protected under the First Amendment of the U.S.
447	447	Constitution or article I, section 3, of the Wisconsin Constitution. This protected
448	448	conduct includes lawful protests and counterprotests in the outdoor areas of campus
449	449	generally accessible to members of the public and indoor areas that have been
450	450	designated as public forums, except classrooms while they are in use for
451	451	instructional purposes, except during times when those areas have been reserved in
452	452	advance for other events, or minor, brief, or fleeting nonviolent disruptions of events
453	453	that are isolated and short in duration.
454	454	(d) Nothing in this section limits the right of student expression at campus
455	455	locations that are not specified in this section.
456	456	(e) An institution shall do all of the following:
457	457	1. Conduct a biennial survey of students and employees on First Amendment
458	458	rights, academic freedom, perceived political, ideological, or other bias at the
459	459	institution, and whether campus culture promotes self-censorship. The survey shall
460	460	be conducted using statistically sound methodology and in a manner that protects
461	461	the confidentiality of the survey's respondents.
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488	488	ARG:amn
489	489	SECTION 2
490	490	ASSEMBLY BILL 553
491	491	2. Biennially submit to the legislature under s. 13.172 (2) a report detailing the
492	492	results of the survey under subd. 1.
493	493	3. Annually provide all students and employees with instruction in academic
494	494	freedom, due process, and First Amendment protections.
495	495	(4) ACADEMIC FREEDOM. (a) No board policy, institution policy, or employee may
496	496	limit the expressive rights and academic freedom of an instructor of an institution
497	497	to do any of the following:
498	498	1. Conduct research, publish, lecture, or teach in the academic setting.
499	499	2. Require students to participate in instructional exercises with legitimate
500	500	pedagogical purposes that involve exploring, or arguing for or against, any argument
501	501	or assertion.
502	502	3. Speak publicly as a private citizen on matters of public concern.
503	503	(b) Nothing in this subsection shall be interpreted to prohibit an institution
504	504	from requiring an instructor to perform the instructor's academic duties or from
505	505	setting performance standards consistent with this subsection or as required by
506	506	other law of this state.
507	507	(5) NOTICE; INSTITUTIONAL AID. (a) An institution that violates this section, for
508	508	4 years following the date of the finding of the violation under par. (b), shall include
509	509	a disclaimer on all notices, both printed or electronic, to individuals regarding
510	510	admission to the institution, in a type size no smaller than the majority of the rest
511	511	of the notice, in substantially the following form: “NOTICE: We are required by the
512	512	State of Wisconsin to inform you that within the last 4 years ... [insert name of
513	513	institution] has violated the free speech or academic freedom provisions in the
514	514	Wisconsin statutes.”
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539	539	ARG:amn
540	540	SECTION 2 ASSEMBLY BILL 553
541	541	(b) The penalty under par. (a) applies if a state or federal court in this state
542	542	finds, on the basis of a preponderance of the evidence, that the institution violated
543	543	this section.
544	544	(6) CAUSE OF ACTION. (a) Any person identified in par. (b) may bring an action
545	545	in circuit court against the board for violation of this section by an institution and
546	546	may seek any of the following:
547	547	1. An injunction against violation of this section.
548	548	2. Recovery from the board of damages, court costs, and attorney fees for
549	549	persons aggrieved by the violation.
550	550	(b) Any of the following persons may bring an action under par. (a):
551	551	1. The attorney general.
552	552	2. A district attorney.
553	553	3. Any person whose expressive rights were violated through the violation of
554	554	this section.
555	555	(c) Subject to par. (d), in an action brought under par. (a), if the court finds a
556	556	violation, the court shall award to the plaintiffs all of the following:
557	557	1. Total damages for all prevailing persons aggrieved by the violation of not less
558	558	than $500 for the initial violation plus $50 for each day the violation remains
559	559	ongoing, which shall accrue starting on the day after the complaint is served on the
560	560	board.
561	561	2. Notwithstanding s. 814.04 (1), court costs and reasonable attorney fees.
562	562	(d) In an action brought under par. (a), the total damages, excluding court costs
563	563	and attorney fees, that may be awarded to plaintiffs in a case or cases stemming from
564	564	a single controversy may not exceed an aggregate amount of $100,000. In violations
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589	589	LRB-4708/1
590	590	ARG:amn
591	591	SECTION 2
592	592	ASSEMBLY BILL 553
593	593	harming multiple plaintiffs, the court shall divide the damages equitably among
594	594	them until the maximum award is exhausted, if applicable.
595	595	(e) If a court awards to plaintiffs damages, court costs, or attorney fees in an
596	596	action brought under this subsection, the board shall pay the total amount of the
597	597	award from moneys allocated under s. 36.09 (1) (h) to the violating institution for the
598	598	institution's administrative expenses.
599	599	SECTION 3. 36.42 of the statutes is created to read:
600	600	36.42 Due process guarantees in disciplinary proceedings. (1)
601	601	DEFINITIONS. In this section:
602	602	(a) “Disciplinary proceeding” means an investigatory interview or hearing, or
603	603	any other procedure adopted and used by an institution, relating to an alleged
604	604	violation that may result in disciplinary action against a student, employee, or
605	605	organization.
606	606	(b) “Employee” means a member of the faculty, academic staff, or university
607	607	staff assigned to an institution. “Employee” also includes the institution's graduate
608	608	assistants and employees in training.
609	609	(c) “Fully participate” includes having the opportunity to make opening and
610	610	closing statements, to examine and cross-examine witnesses, and to provide the
611	611	accuser or accused with support, guidance, and advice.
612	612	(d) “Organization” means a student organization, employee organization, or
613	613	independent organization that is officially recognized by an institution.
614	614	(2) DUE PROCESS GUARANTEES. (a) A student who has enrolled in an institution
615	615	has a property interest in maintaining the student's status as a student that may be
616	616	terminated against the student's will only for due cause, including failure to meet
617	617	academic standards, failure to pay academic fees, tuition, or other costs required for
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643	643	ARG:amn
644	644	SECTION 3 ASSEMBLY BILL 553
645	645	continued enrollment, failure to meet the institution's attendance requirements, or
646	646	a violation of the institution's conduct rules. A student who is accused of a violation
647	647	of disciplinary or conduct rules that carries a potential penalty of suspension of more
648	648	than 9 days or expulsion shall have the right to be represented, at the student's
649	649	expense, by a licensed attorney or, if the student prefers, a non-attorney advocate,
650	650	who shall be permitted to fully participate during the disciplinary proceeding.
651	651	(b) In addition to any substantive or procedural rights set forth in an employee's
652	652	employment contract, an employee who is accused of a violation of disciplinary or
653	653	conduct rules shall have the right to be represented, at the employee's expense, by
654	654	a licensed attorney or, if the employee prefers, a non-attorney advocate, who shall
655	655	be permitted to fully participate during the disciplinary proceeding.
656	656	(c) An organization that is accused of a violation of disciplinary or conduct rules
657	657	shall have the right to be represented, at the organization's expense, by a licensed
658	658	attorney or, if the organization prefers, a non-attorney advocate, who shall be
659	659	permitted to fully participate during the disciplinary proceeding.
660	660	(d) If a disciplinary proceeding arises from a complaint by a student against a
661	661	student, employee, or organization, the complaining student shall also have the right
662	662	to be represented, at that student's expense, by a licensed attorney or, if the
663	663	complaining student prefers, a non-attorney advocate.
664	664	(e) Prior to initiating a disciplinary proceeding or investigation, an institution
665	665	shall notify the student, employee, or organization that a complaint has been made
666	666	and inform the student, employee, or organization of his, her, or its due process
667	667	rights.
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691	691	LRB-4708/1
692	692	ARG:amn
693	693	SECTION 3
694	694	ASSEMBLY BILL 553
695	695	(f) In a disciplinary proceeding, an institution is not obligated to follow the
696	696	state's rules of evidence but shall make a good faith effort to include only relevant,
697	697	probative evidence and shall exclude evidence that is neither relevant nor probative.
698	698	(g) Before a disciplinary proceeding is scheduled, and at least 2 business days
699	699	before a student, employee, or organization may be questioned by an institution or
700	700	agent of the institution about allegations of violations of the institution's disciplinary
701	701	or conduct rules, the institution shall advise the student, employee, or organization
702	702	in writing of the student's, employee's, or organization's rights under this subsection.
703	703	(h) The right of a student, employee, or organization to be represented by an
704	704	attorney or a non-attorney advocate applies until the conclusion of any appellate
705	705	process.
706	706	(i) An institution shall ensure that all parties to a disciplinary proceeding,
707	707	including the accused student, the accused employee, the accused organization, and,
708	708	if applicable, the accusing student, have access to all material evidence, including
709	709	both inculpatory and exculpatory evidence, not later than one week prior to the start
710	710	of any formal hearing or similar adjudicatory proceeding. This evidence may include
711	711	complainant statements, 3rd-party witness statements, electronically stored
712	712	information, written communications, social media posts, and demonstrative
713	713	evidence but may not include any materials that are privileged under applicable
714	714	federal or state law.
715	715	(j) An institution shall ensure that a disciplinary proceeding is carried out free
716	716	from conflicts of interest by prohibiting overlap of administrative or adjudicative
717	717	roles. An individual may not serve in more than one of the following roles:
718	718	1. Counselor or advocate of the accuser or victim.
719	719	2. Investigator.
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745	745	ARG:amn
746	746	SECTION 3 ASSEMBLY BILL 553
747	747	3. Hearing panel member.
748	748	4. Institutional prosecutor.
749	749	5. Adjudicator.
750	750	6. Appellate adjudicator.
751	751	(k) This subsection does not affect the obligation of an institution to provide
752	752	equivalent rights to a student who is the accuser or victim in the disciplinary
753	753	proceeding, including equivalent opportunities to have others present and fully
754	754	participate during the disciplinary proceeding, to not limit the choice of attorney or
755	755	non-attorney advocate in any meeting or in the disciplinary proceeding, and to
756	756	provide simultaneous notification of the institution's procedures for the accused and
757	757	the accuser or victim to appeal the result of the disciplinary proceeding.
758	758	(L) Nothing in this subsection shall prevent the temporary suspension of a
759	759	student, employee, or organization pending an investigation.
760	760	(3) PENALTIES. (a) An institution that violates this section more than once in
761	761	a 10-year period is ineligible for allocation of grants under s. 39.435, except grants
762	762	awarded under s. 39.435 (2) or (5), for a period of no less than one fiscal year.
763	763	(b) In addition to the period of ineligibility under par. (a), if an institution's
764	764	administrator causes the violation of this section, the institution is not eligible for
765	765	allocation of grants under s. 39.435, except grants awarded under s. 39.435 (2) or (5),
766	766	until the administrator is permanently removed from his or her administrative role.
767	767	(c) The penalties under this subsection apply if any of the following find, on the
768	768	basis of a preponderance of the evidence, that the institution violated this section:
769	769	1. A state or federal court in this state.
770	770	2. The higher educational aids board.
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795	795	LRB-4708/1
796	796	ARG:amn
797	797	SECTION 3
798	798	ASSEMBLY BILL 553
799	799	3. Any standing committee of the legislature having jurisdiction over matters
800	800	relating to higher education.
801	801	SECTION 4. 38.04 (7m) of the statutes is amended to read:
802	802	38.04 (7m) FINANCIAL AIDS. By February 10 of each year, the board shall develop
803	803	and submit to the higher educational aids board for its review under s. 39.285 (1) a
804	804	proposed formula for the awarding of grants under s. 39.435, except for grants
805	805	awarded under s. 39.435 (2) or (5), for the next fiscal year to students enrolled in the
806	806	technical colleges. The proposed formula shall take into consideration any technical
807	807	college's loss of funding allocation under s. 38.35 (3) (a) and (b).
808	808	SECTION 5. 38.34 of the statutes is created to read:
809	809	38.34 Campus free speech and academic freedom. (1) DEFINITIONS. In
810	810	this section:
811	811	(a) “Employee” means a staff member, faculty member, or administrator
812	812	employed by a district board.
813	813	(b) “Student” means an individual enrolled in a district school.
814	814	(2) FIRST AMENDMENT PROTECTIONS. (a) Except as specified in this section, a
815	815	district board may not do any of the following:
816	816	1. Restrict speech protected under the First Amendment of the U.S.
817	817	Constitution, including noncommercial expressive activities protected under the
818	818	provisions of this section, which include all forms of peaceful assembly, protests,
819	819	speeches, distribution of literature, carrying signs, circulation petitions, and the
820	820	recording and lawful publication, including Internet publication, of video and audio
821	821	lawfully recorded in public outdoor areas of public institutions of higher education,
822	822	if the speaker's conduct is not unlawful and does not materially and substantially
823	823	disrupt the functioning of the district school.
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849	849	ARG:amn
850	850	SECTION 5 ASSEMBLY BILL 553
851	851	2. Maintain and enforce time, place, and manner restrictions on expressive
852	852	activities on the open outdoor areas of district campuses that are generally accessible
853	853	to the public and indoor areas that have been designated as public forums, except
854	854	classrooms while they are in use for instructional purposes, unless those restrictions
855	855	meet all of the following requirements:
856	856	a. The restrictions are reasonable, in furtherance of a significant interest of the
857	857	district board, and employ clear, published, content-neutral, and viewpoint-neutral
858	858	criteria.
859	859	b. The restrictions provide for ample alternative means for communication of
860	860	the information and allow for members of the district campus's community to
861	861	spontaneously and contemporaneously distribute literature and assemble.
862	862	3. Designate any area of a district campus a “free speech zone” or otherwise
863	863	create policies restricting noncommercial expressive activities to a particular area
864	864	of a district campus.
865	865	4. Require a permit from any individual or group as a condition of being allowed
866	866	to engage in expressive activities protected under this section, unless the individual
867	867	or group is seeking exclusive control of a location for its expressive activity at a
868	868	reserved time. Any such permitting process may not be overly burdensome, and
869	869	applications for permits shall be evaluated solely using published content and
870	870	viewpoint-neutral criteria.
871	871	5. Charge security fees to a student or a student group, as part of an application
872	872	for those expressive activities that require a permit, based on the content of the
873	873	expression, the content of the expression of an invited guest, or the anticipated
874	874	reaction to the student's, student group's, or invited guest's expression. Whether the
875	875	security fee is required and its amount may be determined only on the basis of
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901	901	LRB-4708/1
902	902	ARG:amn
903	903	SECTION 5
904	904	ASSEMBLY BILL 553
905	905	content and viewpoint-neutral criteria. Content and viewpoint-neutral criteria
906	906	include the time of the event, the location of the event, the anticipated size of the
907	907	invited audience, and whether alcohol will be served. Any district board charging
908	908	security fees pursuant to this subdivision shall publish the criteria it uses for
909	909	assessing those charges and shall have a published process for waving the fees for
910	910	those who cannot afford to pay them.
911	911	6. Sanction individuals or groups for discriminatory harassment unless the
912	912	speech targets its victim on the basis of the victim's membership in a class protected
913	913	under federal, state, or local law, and is so severe, pervasive, and objectively offensive
914	914	that it effectively bars a student from receiving equal access to educational
915	915	opportunities or benefits. This subdivision does not preclude a district board from
916	916	providing additional resources to a student affected by speech that cannot be
917	917	sanctioned under this subdivision or from taking nonpunitive actions.
918	918	(b) All indoor areas that have been designated as public forums and outdoor
919	919	public areas generally accessible to the public and owned or operated by a district
920	920	board, except classrooms while they are in use for instructional purposes, shall be
921	921	governed by rules applicable to traditional public forums.
922	922	(c) 1. Nothing in this section enables individuals to engage in conduct that
923	923	intentionally, materially, and substantially disrupts another's expressive activity if
924	924	that activity is occurring in a campus space reserved for that activity under the
925	925	exclusive use or control of a particular group.
926	926	2. For purposes of subd. 1., and subject to subd. 3., “materially and
927	927	substantially disrupts” means when a person, with the intent or knowledge of doing
928	928	so, significantly hinders another person's or group's expressive activity, prevents the
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953	953	ARG:amn
954	954	SECTION 5 ASSEMBLY BILL 553
955	955	communication of the message, or prevents the transaction of the business of a lawful
956	956	meeting, gathering, or procession by doing any of the following:
957	957	a. Engaging in fighting, violence, or seriously disruptive behavior.
958	958	b. Physically blocking or significantly hindering any person from attending,
959	959	listening to, viewing, or otherwise participating in an expressive activity.
960	960	3. For purposes of subd. 1., the phrase “materially and substantially disrupts”
961	961	does not include conduct that is protected under the First Amendment of the U.S.
962	962	Constitution or article I, section 3, of the Wisconsin Constitution. This protected
963	963	conduct includes lawful protests and counterprotests in the outdoor areas of campus
964	964	generally accessible to members of the public and indoor areas that have been
965	965	designated as public forums, except classrooms while they are in use for
966	966	instructional purposes, except during times when those areas have been reserved in
967	967	advance for other events, or minor, brief, or fleeting nonviolent disruptions of events
968	968	that are isolated and short in duration.
969	969	(d) Nothing in this section limits the right of student expression at campus
970	970	locations that are not specified in this section.
971	971	(e) A district board shall do all of the following:
972	972	1. Conduct a biennial survey of students and employees on First Amendment
973	973	rights, academic freedom, perceived political, ideological, or other bias at the district
974	974	schools, and whether campus culture promotes self-censorship. The survey shall be
975	975	conducted using statistically sound methodology and in a manner that protects the
976	976	confidentiality of the survey's respondents.
977	977	2. Biennially submit to the legislature under s. 13.172 (2) a report detailing the
978	978	results of the survey under subd. 1.
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1003	1003	LRB-4708/1
1004	1004	ARG:amn
1005	1005	SECTION 5
1006	1006	ASSEMBLY BILL 553
1007	1007	3. Annually provide all students and employees with instruction in academic
1008	1008	freedom, due process, and First Amendment protections.
1009	1009	(3) ACADEMIC FREEDOM. (a) No district board policy or employee may limit the
1010	1010	expressive rights and academic freedom of an instructor of a district school to do any
1011	1011	of the following:
1012	1012	1. Conduct research, publish, lecture, or teach in the academic setting.
1013	1013	2. Require students to participate in instructional exercises with legitimate
1014	1014	pedagogical purposes that involve exploring, or arguing for or against, any argument
1015	1015	or assertion.
1016	1016	3. Speak publicly as a private citizen on matters of public concern.
1017	1017	(b) Nothing in this subsection shall be interpreted to prohibit a district board
1018	1018	from requiring an instructor to perform the instructor's academic duties or from
1019	1019	setting performance standards consistent with this subsection or as required by
1020	1020	other law of this state.
1021	1021	(4) NOTICE; INSTITUTIONAL AID. (a) A district board that violates this section, for
1022	1022	4 years following the date of the finding of the violation under par. (b), shall include
1023	1023	a disclaimer on all notices, both printed or electronic, to individuals regarding
1024	1024	admission to a technical college of the district, in a type size no smaller than the
1025	1025	majority of the rest of the notice, in substantially the following form: “NOTICE: We
1026	1026	are required by the State of Wisconsin to inform you that within the last 4 years ...
1027	1027	[insert name of technical college] has violated the free speech or academic freedom
1028	1028	provisions in the Wisconsin statutes.”
1029	1029	(b) The penalty under par. (a) applies if a state or federal court in this state
1030	1030	finds, on the basis of a preponderance of the evidence, that the district board violated
1031	1031	this section.
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1057	1057	ARG:amn
1058	1058	SECTION 5 ASSEMBLY BILL 553
1059	1059	(5) CAUSE OF ACTION. (a) Any person identified in par. (b) may bring an action
1060	1060	in circuit court against a district board for violation of this section and may seek any
1061	1061	of the following:
1062	1062	1. An injunction against violation of this section.
1063	1063	2. Recovery from the district board of damages, courts costs, and attorney fees
1064	1064	for persons aggrieved by the violation.
1065	1065	(b) Any of the following persons may bring an action under par. (a):
1066	1066	1. The attorney general.
1067	1067	2. A district attorney.
1068	1068	3. Any person whose expressive rights were violated through the violation of
1069	1069	this section.
1070	1070	(c) Subject to par. (d), in an action brought under par. (a), if the court finds a
1071	1071	violation, the court shall award to the plaintiffs all of the following:
1072	1072	1. Total damages for all prevailing persons aggrieved by the violation of not less
1073	1073	than $500 for the initial violation plus $50 for each day the violation remains
1074	1074	ongoing, which shall accrue starting on the day after the complaint is served on the
1075	1075	district board.
1076	1076	2. Notwithstanding s. 814.04 (1), court costs and reasonable attorney fees.
1077	1077	(d) In an action brought under par. (a), the total damages, excluding court costs
1078	1078	and attorney fees, that may be awarded to plaintiffs in a case or cases stemming from
1079	1079	a single controversy may not exceed an aggregate amount of $100,000. In violations
1080	1080	harming multiple plaintiffs, the court shall divide the damages equitably among
1081	1081	them until the maximum award is exhausted, if applicable.
1082	1082	(e) If a court awards to plaintiffs damages, court costs, or attorney fees in an
1083	1083	action brought under this subsection, the district board shall pay the total amount
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1109	1109	LRB-4708/1
1110	1110	ARG:amn
1111	1111	SECTION 5
1112	1112	ASSEMBLY BILL 553
1113	1113	of the award from moneys that the district board has allocated for its administrative
1114	1114	expenses.
1115	1115	(f) Section 893.80 does not apply to an action brought against a district board
1116	1116	under this section.
1117	1117	SECTION 6. 38.35 of the statutes is created to read:
1118	1118	38.35 Due process guarantees in disciplinary proceedings. (1)
1119	1119	DEFINITIONS. In this section:
1120	1120	(a) “Disciplinary proceeding” means an investigatory interview or hearing, or
1121	1121	any other procedure adopted and used by a district board, relating to an alleged
1122	1122	violation that may result in disciplinary action against a student, employee, or
1123	1123	organization.
1124	1124	(b) “Employee” means a staff member, faculty member, or administrator
1125	1125	employed by a district board.
1126	1126	(c) “Fully participate” includes having the opportunity to make opening and
1127	1127	closing statements, to examine and cross-examine witnesses, and to provide the
1128	1128	accuser or accused with support, guidance, and advice.
1129	1129	(d) “Organization” means a student organization, employee organization, or
1130	1130	independent organization that is officially recognized by a district board.
1131	1131	(2) DUE PROCESS GUARANTEES. (a) A student who has enrolled in a district school
1132	1132	has a property interest in maintaining the student's status as a student that may be
1133	1133	terminated against the student's will only for due cause, including failure to meet
1134	1134	academic standards, failure to pay fees or other costs required for continued
1135	1135	enrollment, failure to meet the district board's attendance requirements, or a
1136	1136	violation of the district board's conduct rules. A student who is accused of a violation
1137	1137	of disciplinary or conduct rules that carries a potential penalty of suspension of more
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1164	1164	SECTION 6 ASSEMBLY BILL 553
1165	1165	than 9 days or expulsion shall have the right to be represented, at the student's
1166	1166	expense, by a licensed attorney or, if the student prefers, a non-attorney advocate,
1167	1167	who shall be permitted to fully participate during the disciplinary proceeding.
1168	1168	(b) In addition to any substantive or procedural rights set forth in an employee's
1169	1169	employment contract, an employee who is accused of a violation of disciplinary or
1170	1170	conduct rules shall have the right to be represented, at the employee's expense, by
1171	1171	a licensed attorney or, if the employee prefers, a non-attorney advocate, who shall
1172	1172	be permitted to fully participate during the disciplinary proceeding.
1173	1173	(c) An organization that is accused of a violation of disciplinary or conduct rules
1174	1174	shall have the right to be represented, at the organization's expense, by a licensed
1175	1175	attorney or, if the organization prefers, a non-attorney advocate, who shall be
1176	1176	permitted to fully participate during the disciplinary proceeding.
1177	1177	(d) If a disciplinary proceeding arises from a complaint by a student against a
1178	1178	student, employee, or organization, the complaining student shall also have the right
1179	1179	to be represented, at that student's expense, by a licensed attorney or, if the
1180	1180	complaining student prefers, a non-attorney advocate.
1181	1181	(e) Prior to initiating a disciplinary proceeding or investigation, a district board
1182	1182	shall notify the student, employee, or organization that a complaint has been made
1183	1183	and inform the student, employee, or organization of his, her, or its due process
1184	1184	rights.
1185	1185	(f) In a disciplinary proceeding, a district board is not obligated to follow the
1186	1186	state's rules of evidence but shall make a good faith effort to include only relevant,
1187	1187	probative evidence and shall exclude evidence that is neither relevant nor probative.
1188	1188	(g) Before a disciplinary proceeding is scheduled, and at least 2 business days
1189	1189	before a student, employee, or organization may be questioned by a district board or
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1217	1217	SECTION 6
1218	1218	ASSEMBLY BILL 553
1219	1219	agent of the district board about allegations of violations of the district board's
1220	1220	disciplinary or conduct rules, the district board shall advise the student, employee,
1221	1221	or organization in writing of the student's, employee's, or organization's rights under
1222	1222	this subsection.
1223	1223	(h) The right of a student, employee, or organization to be represented by an
1224	1224	attorney or a non-attorney advocate applies until the conclusion of any appellate
1225	1225	process.
1226	1226	(i) A district board shall ensure that all parties to a disciplinary proceeding,
1227	1227	including the accused student, the accused employee, the accused organization, and,
1228	1228	if applicable, the accusing student, have access to all material evidence, including
1229	1229	both inculpatory and exculpatory evidence, not later than one week prior to the start
1230	1230	of any formal hearing or similar adjudicatory proceeding. This evidence may include
1231	1231	complainant statements, 3rd-party witness statements, electronically stored
1232	1232	information, written communications, social media posts, and demonstrative
1233	1233	evidence but may not include any materials that are privileged under applicable
1234	1234	federal or state law.
1235	1235	(j) A district board shall ensure that a disciplinary proceeding is carried out free
1236	1236	from conflicts of interest by prohibiting overlap of administrative or adjudicative
1237	1237	roles. An individual may not serve in more than one of the following roles:
1238	1238	1. Counselor or advocate of the accuser or victim.
1239	1239	2. Investigator.
1240	1240	3. Hearing panel member.
1241	1241	4. District board prosecutor.
1242	1242	5. Adjudicator.
1243	1243	6. Appellate adjudicator.
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1271	1271	(k) This subsection does not affect the obligation of a district board to provide
1272	1272	equivalent rights to a student who is the accuser or victim in the disciplinary
1273	1273	proceeding, including equivalent opportunities to have others present and fully
1274	1274	participate during the disciplinary proceeding, to not limit the choice of attorney or
1275	1275	non-attorney advocate in any meeting or in the disciplinary proceeding, and to
1276	1276	provide simultaneous notification of the district board's procedures for the accused
1277	1277	and the accuser or victim to appeal the result of the disciplinary proceeding.
1278	1278	(L) Nothing in this subsection shall prevent the temporary suspension of a
1279	1279	student, employee, or organization pending an investigation.
1280	1280	(3) PENALTIES. (a) A district board that violates this section more than once in
1281	1281	a 10-year period is ineligible for allocation of grants under s. 39.435, except grants
1282	1282	awarded under s. 39.435 (2) or (5), for a period of no less than one fiscal year.
1283	1283	(b) In addition to the period of ineligibility under par. (a), if a district board
1284	1284	administrator causes the violation of this section, the district board is not eligible for
1285	1285	allocation of grants under s. 39.435, except grants awarded under s. 39.435 (2) or (5),
1286	1286	until the administrator is permanently removed from his or her administrative role.
1287	1287	(c) The penalties under this subsection apply if any of the following find, on the
1288	1288	basis of a preponderance of the evidence, that the district board violated this section:
1289	1289	1. A state or federal court in this state.
1290	1290	2. The higher educational aids board.
1291	1291	3. Any standing committee of the legislature having jurisdiction over matters
1292	1292	relating to higher education.
1293	1293	SECTION 7. 39.285 (1) (c) of the statutes is created to read:
1294	1294	39.285 (1) (c) The board shall ensure that any formula approved under par. (a)
1295	1295	takes into consideration any University of Wisconsin institution's loss of funding
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1321	1321	LRB-4708/1
1322	1322	ARG:amn
1323	1323	SECTION 7
1324	1324	ASSEMBLY BILL 553
1325	1325	allocation under s. 36.42 (3) (a) and (b) or technical college district board's loss of
1326	1326	funding allocation under s. 38.35 (3) (a) and (b).
1327	1327	(END)
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