Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB575 Compare Versions

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

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1	1	LRB-4719/1
2	2	ARG:amn
3	3	2023 - 2024 LEGISLATURE
4	4	2023 SENATE BILL 575
5	5	October 30, 2023 - Introduced by Senators C ABRAL-GUEVARA and TOMCZYK,
6	6	cosponsored by Representatives NEDWESKI, MURPHY, ALLEN, BEHNKE,
7	7	BRANDTJEN, DITTRICH, EDMING, GOEBEN, GUNDRUM, MAXEY, MOSES, O'CONNOR,
8	8	PENTERMAN, RETTINGER, SCHRAA and TUSLER. Referred to Committee on
9	9	Universities and Revenue.
10	10	AN ACT to amend 36.11 (6) (c) and 38.04 (7m); and to create 36.41, 36.42, 38.34,
11	11	38.35 and 39.285 (1) (c) of the statutes; relating to: free speech and academic
12	12	freedom at University of Wisconsin System institutions and technical colleges,
13	13	due process in disciplinary proceedings at University of Wisconsin System
14	14	institutions and technical colleges, Wisconsin grant funding allocation, and
15	15	causes of action against the Board of Regents of the University of Wisconsin
16	16	System and technical college district boards.
17	17	Analysis by the Legislative Reference Bureau
18	18	This bill establishes certain standards related to free speech and academic
19	19	freedom at University of Wisconsin System institutions and technical colleges. For
20	20	violation of these standards, the Board of Regents of the UW System or technical
21	21	college district board may be subject to a civil cause of action and must provide
22	22	certain public notice of the violation.
23	23	The bill also establishes certain due process standards in disciplinary
24	24	proceedings at UW System institutions and technical colleges. For violation of these
25	25	standards, a UW institution or technical college may become ineligible for Wisconsin
26	26	grant funding allocation.
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34	34	ARG:amn
35	35	SENATE BILL 575
36	36	FREE SPEECH AND ACADEMIC FREEDOM
37	37	First Amendment protections
38	38	Under the bill, a UW institution or technical college may not do any of the
39	39	following: 1) restrict speech protected under the First Amendment, if the speaker's
40	40	conduct is not unlawful and does not materially and substantially disrupt the
41	41	functioning of the UW institution or technical college; 2) maintain and enforce time,
42	42	place, and manner restrictions on expressive activities on the publicly accessible,
43	43	open outdoor areas of its campus and indoor areas that have been designated as
44	44	public forums, except classrooms while they are in use for instructional purposes,
45	45	unless those restrictions meet specified requirements; 3) designate any area of a
46	46	campus a “free speech zone” or otherwise create policies restricting noncommercial
47	47	expressive activities to a particular area of a campus; 4) subject to an exception,
48	48	require a permit as a condition of being allowed to engage in expressive activities
49	49	protected under the bill; 5) charge security fees, as part of a permit application, based
50	50	on the content of expression or anticipated reaction; or 6) sanction individuals or
51	51	groups for discriminatory harassment unless the speech targets its victim on the
52	52	basis of a protected class under law, and is so severe, pervasive, and objectively
53	53	offensive that it effectively bars a student from receiving equal access to educational
54	54	opportunities or benefits. Under the bill, if a permit is required, the permitting
55	55	process and any security fee must be content and viewpoint neutral.
56	56	The bill also specifies that all of an institution's or technical college's indoor
57	57	areas that have been designated as public forums and publicly accessible outdoor
58	58	areas, except classrooms while they are in use for instructional purposes, are
59	59	governed by rules applicable to traditional public forums. The bill specifies that its
60	60	provisions do not 1) enable individuals to engage in conduct that intentionally,
61	61	materially, and substantially disrupts another's expressive activity in a campus
62	62	space reserved for that activity; or 2) limit the right of student expression at campus
63	63	locations not specified in the bill.
64	64	The bill requires an institution or technical college to do all of the following: 1)
65	65	conduct a survey biennially of students and employees on First Amendment rights,
66	66	academic freedom, perceived political or other bias at the institution or technical
67	67	college, and whether campus culture promotes self-censorship; 2) submit a report
68	68	biennially to the legislature detailing the results of this survey; and 3) annually
69	69	provide all students and employees with instruction in academic freedom, due
70	70	process, and First Amendment protections.
71	71	Academic freedom
72	72	Under the bill, a UW or technical college policy or employee may not limit the
73	73	expressive rights and academic freedom of an instructor to 1) conduct research,
74	74	publish, lecture, or teach in the academic setting; 2) require students to participate
75	75	in instructional exercises with legitimate pedagogical purposes that involve
76	76	exploring, or arguing for or against, any argument or assertion; or 3) speak publicly
77	77	as a private citizen on matters of public concern. - 3 -2023 - 2024 Legislature
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79	79	ARG:amn
80	80	SENATE BILL 575
81	81	Principles
82	82	The bill sets forth principles of academic freedom and freedom of expression to
83	83	which the UW System and each institution must adhere, as well as UW System and
84	84	institution responsibilities associated with these principles.
85	85	Notice and cause of action
86	86	The bill requires a UW institution or technical college that is found by a state
87	87	or federal court, by a preponderance of the evidence, to have violated any of the free
88	88	speech or academic freedom provisions described above to include, for four years, the
89	89	following disclaimer on all notices to individuals regarding admission to the UW
90	90	institution or technical college: “NOTICE: We are required by the State of Wisconsin
91	91	to inform you that within the last four years ... [insert name of UW institution or
92	92	technical college] has violated the free speech or academic freedom provisions in the
93	93	Wisconsin statutes.”
94	94	Under the bill, the attorney general, a district attorney, or any person whose
95	95	expressive rights were violated may bring a court action against the Board of Regents
96	96	of the UW System or the technical college district board for violation by a UW
97	97	institution or technical college of any of the free speech or academic freedom
98	98	provisions described above and may seek an injunction and recovery of damages,
99	99	court costs, and attorney fees for persons aggrieved by the violation. In such an
100	100	action, if the court finds a violation, the court must award to the plaintiffs all of the
101	101	following: 1) total damages for all prevailing persons aggrieved by the violation of
102	102	not less than $500 for the initial violation plus $50 for each day after the complaint
103	103	is served that the violation remains ongoing, but not exceeding an aggregate amount
104	104	of $100,000 for all cases stemming from a single controversy; and 2) court costs and
105	105	reasonable attorney fees. An award to the plaintiffs of damages, court costs, or
106	106	attorney fees must be paid from the UW institution's or technical college's
107	107	administrative expense moneys.
108	108	DUE PROCESS IN DISCIPLINARY PROCEEDINGS
109	109	Due process guarantees
110	110	Under the bill, a student enrolled in a UW institution or technical college has
111	111	a property interest in maintaining the student's status as a student that may be
112	112	terminated against the student's will only for due cause, including failure to meet
113	113	academic standards or attendance requirements, failure to pay tuition or other fees,
114	114	or violating conduct rules. A student accused of a disciplinary or conduct violation
115	115	that carries a potential penalty of expulsion or suspension of more than nine days,
116	116	and a UW institution's or technical college's employee accused of a disciplinary or
117	117	conduct violation, have the right to be represented, at the person's own expense, by
118	118	a licensed attorney or non-attorney advocate who is permitted to fully participate
119	119	during the disciplinary proceeding. The same right applies to a student
120	120	organization, employee organization, or independent organization recognized by the
121	121	UW institution or technical college (organization) accused of a violation and to a
122	122	complaining student if the disciplinary proceeding arises from the student's
123	123	complaint. Prior to initiating a disciplinary proceeding or investigation, a UW
124	124	institution or technical college must notify the student, employee, or organization - 4 -2023 - 2024 Legislature LRB-4719/1
125	125	ARG:amn
126	126	SENATE BILL 575
127	127	that a complaint has been made and inform the student, employee, or organization
128	128	of the student's, employee's, or organization's due process rights. A UW institution
129	129	or technical college must ensure that all parties to a disciplinary proceeding,
130	130	including if applicable an accusing student, have access to all material evidence,
131	131	including both inculpatory and exculpatory evidence, not later than one week prior
132	132	to the start of any formal hearing or similar adjudicatory proceeding. Before a
133	133	disciplinary proceeding is scheduled, and at least two business days before a student,
134	134	employee, or organization may be questioned about allegations of violations of the
135	135	institution's or technical college's disciplinary or conduct rules, the institution or
136	136	technical college must advise the student, employee, or organization in writing of
137	137	these rights. A UW institution or technical college is not obligated to follow the
138	138	state's rules of evidence in a disciplinary proceeding, but must make a good faith
139	139	effort to include only relevant, probative evidence and must exclude evidence that
140	140	is neither relevant nor probative. A UW institution or technical college must ensure
141	141	that a disciplinary proceeding is carried out free from conflicts of interest by
142	142	prohibiting overlap of administrative or adjudicative roles.
143	143	Penalties and Wisconsin grants
144	144	Under current law, the Wisconsin grant program, administered by the Higher
145	145	Educational Aids Board, provides grants to resident students enrolled in eligible
146	146	types of postsecondary schools, including UW institutions and technical colleges.
147	147	The amount of funding available for these types of eligible postsecondary schools
148	148	varies, and the UW System and technical colleges must annually submit to HEAB
149	149	a proposed formula for awarding Wisconsin grants to students enrolled in UW
150	150	institutions or technical colleges. HEAB must then approve, modify, or disapprove
151	151	these proposed formulas for awarding grants to UW or technical college students in
152	152	the next fiscal year.
153	153	Under this bill, a UW institution or technical college that violates any of the due
154	154	process provisions described above more than once in a 10-year period is ineligible
155	155	for allocation of Wisconsin grants for the longer of 1) a period of no less than one fiscal
156	156	year; or 2) if the institution's or technical college's administrator causes the violation,
157	157	until the administrator is permanently removed from his or her administrative role.
158	158	HEAB's formula for awarding Wisconsin grants must take these loss of allocation
159	159	penalties into consideration. The violation giving rise to this penalty may be found,
160	160	by a preponderance of the evidence, by any of the following: 1) a state or federal court;
161	161	2) HEAB; or 3) a legislative standing committee having jurisdiction over matters
162	162	relating to higher education.
163	163	For further information see the state and local fiscal estimate, which will be
164	164	printed as an appendix to this bill.
165	165	The people of the state of Wisconsin, represented in senate and assembly, do
166	166	enact as follows:
167	167	SECTION 1. 36.11 (6) (c) of the statutes is amended to read:1 - 5 -2023 - 2024 Legislature
168	168	LRB-4719/1
169	169	ARG:amn
170	170	SECTION 1
171	171	SENATE BILL 575
172	172	36.11 (6) (c) By February 10 of each year, the board shall develop and submit
173	173	to the higher educational aids board for its review under s. 39.285 (1) a proposed
174	174	formula for the awarding of grants under s. 39.435, except for grants awarded under
175	175	s. 39.435 (2) or (5), for the next fiscal year to students enrolled in the system. The
176	176	proposed formula shall take into consideration any institution's loss of funding
177	177	allocation under s. 36.42 (3) (a) and (b).
178	178	SECTION 2. 36.41 of the statutes is created to read:
179	179	36.41 Campus free speech and academic freedom. (1) DEFINITION. In this
180	180	section, “employee” means a member of the faculty, academic staff, or university staff
181	181	assigned to an institution. “Employee” also includes the institution's graduate
182	182	assistants and employees in training.
183	183	(2) PRINCIPLES OF ACADEMIC FREEDOM AND FREEDOM OF EXPRESSION. (a) The
184	184	system and each institution shall adhere to the following principles of academic
185	185	freedom and freedom of expression in order to achieve the system's mission under s.
186	186	36.01 (2):
187	187	1. Academic freedom includes the freedom to explore all avenues of scholarship,
188	188	research, and creative expression, and to reach conclusions according to one's own
189	189	scholarly discernment. Freedom of expression includes the right to discuss and
190	190	present scholarly opinions and conclusions on all matters both in and outside the
191	191	classroom. These freedoms include the right to speak and write as a member of an
192	192	institution's community or as a private citizen without institutional discipline or
193	193	restraint on scholarly matters or on matters of public concern. The system and each
194	194	institution shall remain committed to these principles and provide all members of
195	195	an institution's community the broadest possible latitude to explore ideas and to
196	196	speak, write, listen, challenge, and learn.
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222	222	ARG:amn
223	223	SECTION 2 SENATE BILL 575
224	224	2. Although different ideas in an institution's community often and quite
225	225	naturally conflict, it is not the proper role of an institution to attempt to shield
226	226	individuals from ideas and opinions the institution or others find unwelcome,
227	227	disagreeable, or even deeply offensive. Despite the great value of civility, concerns
228	228	about civility and mutual respect may never be used as justification for closing off
229	229	discussion of ideas, however offensive or disagreeable those ideas may be to some
230	230	members within an institution's community.
231	231	3. The freedom to debate and discuss the merits of competing ideas does not
232	232	mean that members of an institution's community may say whatever they wish,
233	233	wherever they wish. Consistent with long-standing practice informed by law, the
234	234	system and each institution may restrict expression that violates the law, that falsely
235	235	defames a specific individual, that constitutes a genuine threat or discriminatory
236	236	harassment, that unjustifiably invades substantial privacy or confidentiality
237	237	interests, or that is otherwise directly incompatible with the functioning of an
238	238	institution. In addition, subject to sub. (3) (a) 2., the system and each institution may
239	239	reasonably regulate the time, place, and manner of expression to ensure that it does
240	240	not disrupt ordinary activities. However, these exceptions to the general principle
241	241	of freedom of expression shall be construed narrowly and may not be applied in a
242	242	manner that is inconsistent with the system's and each institution's commitment to
243	243	a completely free and open discussion of ideas.
244	244	(b) The principles stated in par. (a) carry responsibilities, as follows:
245	245	1. Academic freedom carries the responsibility for the faithful performance of
246	246	professional duties and obligations. All members of an institution's community share
247	247	in the responsibility for maintaining civility and a climate of mutual respect.
248	248	Although members of an institution's community are free to criticize and contest the
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274	274	LRB-4719/1
275	275	ARG:amn
276	276	SECTION 2
277	277	SENATE BILL 575
278	278	views expressed on campus, they may not obstruct or otherwise interfere with the
279	279	freedom of others, including speakers who are invited to campus, to express views
280	280	they reject or even loathe.
281	281	2. Freedom of expression carries the obligation to make clear that when
282	282	speaking on matters of public interest or concern, one is speaking on behalf of oneself,
283	283	not the institution.
284	284	3. An institution has a solemn responsibility not only to promote lively and
285	285	fearless exploration, deliberation, and debate of ideas, but also to protect those
286	286	freedoms when others attempt to restrict them. Exploration, deliberation, and
287	287	debate may not be suppressed because the ideas put forth are thought by some or
288	288	even by most members of an institution's community, or those outside the
289	289	community, to be offensive, unwise, immoral, or wrongheaded. It is for the members
290	290	of an institution's community, not for the institution itself, to make those judgments
291	291	for themselves, and to act on those judgments not by seeking to suppress exploration
292	292	of ideas or expression of speech, but by openly and vigorously contesting the ideas
293	293	that they oppose. Fostering the ability of members of an institution's community to
294	294	engage in such debate and deliberation in an effective and responsible manner is an
295	295	essential part of an institution's educational mission.
296	296	(3) FIRST AMENDMENT PROTECTIONS. (a) Except as specified in this section, an
297	297	institution may not do any of the following:
298	298	1. Restrict speech protected under the First Amendment of the U.S.
299	299	Constitution, including noncommercial expressive activities protected under the
300	300	provisions of this section, which include all forms of peaceful assembly, protests,
301	301	speeches, distribution of literature, carrying signs, circulating petitions, and the
302	302	recording and lawful publication, including Internet publication, of video and audio
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328	328	ARG:amn
329	329	SECTION 2 SENATE BILL 575
330	330	lawfully recorded in public outdoor areas of public institutions of higher education,
331	331	if the speaker's conduct is not unlawful and does not materially and substantially
332	332	disrupt the functioning of the institution.
333	333	2. Maintain and enforce time, place, and manner restrictions on expressive
334	334	activities on the open outdoor areas of its campus that are generally accessible to the
335	335	public and indoor areas that have been designated as public forums, except
336	336	classrooms while they are in use for instructional purposes, unless those restrictions
337	337	meet all of the following requirements:
338	338	a. The restrictions are reasonable, in furtherance of a significant institutional
339	339	interest, and employ clear, published, content-neutral, and viewpoint-neutral
340	340	criteria.
341	341	b. The restrictions provide for ample alternative means for communication of
342	342	the information and allow for members of the institution's community to
343	343	spontaneously and contemporaneously distribute literature and assemble.
344	344	3. Designate any area of a campus a “free speech zone” or otherwise create
345	345	policies restricting noncommercial expressive activities to a particular area of a
346	346	campus.
347	347	4. Require a permit from any individual or group as a condition of being allowed
348	348	to engage in expressive activities protected under this section, unless the individual
349	349	or group is seeking exclusive control of a location for its expressive activity at a
350	350	reserved time. Any such permitting process may not be overly burdensome, and
351	351	applications for permits shall be evaluated solely using published content and
352	352	viewpoint-neutral criteria.
353	353	5. Charge security fees to a student or a student group, as part of an application
354	354	for those expressive activities that require a permit, based on the content of the
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381	381	ARG:amn
382	382	SECTION 2
383	383	SENATE BILL 575
384	384	expression, the content of the expression of an invited guest, or the anticipated
385	385	reaction to the student's, student group's, or invited guest's expression. Whether the
386	386	security fee is required and its amount may be determined only on the basis of
387	387	content and viewpoint-neutral criteria. Content and viewpoint-neutral criteria
388	388	include the time of the event, the location of the event, the anticipated size of the
389	389	invited audience, and whether alcohol will be served. Any institution charging
390	390	security fees pursuant to this subdivision shall publish the criteria it uses for
391	391	assessing those charges and shall have a published process for waving the fees for
392	392	those who cannot afford to pay them.
393	393	6. Sanction individuals or groups for discriminatory harassment unless the
394	394	speech targets its victim on the basis of the victim's membership in a class protected
395	395	under federal, state, or local law, and is so severe, pervasive, and objectively offensive
396	396	that it effectively bars a student from receiving equal access to educational
397	397	opportunities or benefits. This subdivision does not preclude an institution from
398	398	providing additional resources to a student affected by speech that cannot be
399	399	sanctioned under this subdivision or from taking nonpunitive actions.
400	400	(b) All indoor areas that have been designated as public forums and outdoor
401	401	public areas generally accessible to the public and operated by an institution or
402	402	under the institution's jurisdiction, except classrooms while they are in use for
403	403	instructional purposes, shall be governed by rules applicable to traditional public
404	404	forums.
405	405	(c) 1. Nothing in this section enables individuals to engage in conduct that
406	406	intentionally, materially, and substantially disrupts another's expressive activity if
407	407	that activity is occurring in a campus space reserved for that activity under the
408	408	exclusive use or control of a particular group.
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434	434	ARG:amn
435	435	SECTION 2 SENATE BILL 575
436	436	2. For purposes of subd. 1., and subject to subd. 3., “materially and
437	437	substantially disrupts” means when a person, with the intent or knowledge of doing
438	438	so, significantly hinders another person's or group's expressive activity, prevents the
439	439	communication of the message, or prevents the transaction of the business of a lawful
440	440	meeting, gathering, or procession by doing any of the following:
441	441	a. Engaging in fighting, violence, or seriously disruptive behavior.
442	442	b. Physically blocking or significantly hindering any person from attending,
443	443	listening to, viewing, or otherwise participating in an expressive activity.
444	444	3. For purposes of subd. 1., the phrase “materially and substantially disrupts”
445	445	does not include conduct that is protected under the First Amendment of the U.S.
446	446	Constitution or article I, section 3, of the Wisconsin Constitution. This protected
447	447	conduct includes lawful protests and counterprotests in the outdoor areas of campus
448	448	generally accessible to members of the public and indoor areas that have been
449	449	designated as public forums, except classrooms while they are in use for
450	450	instructional purposes, except during times when those areas have been reserved in
451	451	advance for other events, or minor, brief, or fleeting nonviolent disruptions of events
452	452	that are isolated and short in duration.
453	453	(d) Nothing in this section limits the right of student expression at campus
454	454	locations that are not specified in this section.
455	455	(e) An institution shall do all of the following:
456	456	1. Conduct a biennial survey of students and employees on First Amendment
457	457	rights, academic freedom, perceived political, ideological, or other bias at the
458	458	institution, and whether campus culture promotes self-censorship. The survey shall
459	459	be conducted using statistically sound methodology and in a manner that protects
460	460	the confidentiality of the survey's respondents.
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487	487	ARG:amn
488	488	SECTION 2
489	489	SENATE BILL 575
490	490	2. Biennially submit to the legislature under s. 13.172 (2) a report detailing the
491	491	results of the survey under subd. 1.
492	492	3. Annually provide all students and employees with instruction in academic
493	493	freedom, due process, and First Amendment protections.
494	494	(4) ACADEMIC FREEDOM. (a) No board policy, institution policy, or employee may
495	495	limit the expressive rights and academic freedom of an instructor of an institution
496	496	to do any of the following:
497	497	1. Conduct research, publish, lecture, or teach in the academic setting.
498	498	2. Require students to participate in instructional exercises with legitimate
499	499	pedagogical purposes that involve exploring, or arguing for or against, any argument
500	500	or assertion.
501	501	3. Speak publicly as a private citizen on matters of public concern.
502	502	(b) Nothing in this subsection shall be interpreted to prohibit an institution
503	503	from requiring an instructor to perform the instructor's academic duties or from
504	504	setting performance standards consistent with this subsection or as required by
505	505	other law of this state.
506	506	(5) NOTICE; INSTITUTIONAL AID. (a) An institution that violates this section, for
507	507	4 years following the date of the finding of the violation under par. (b), shall include
508	508	a disclaimer on all notices, both printed or electronic, to individuals regarding
509	509	admission to the institution, in a type size no smaller than the majority of the rest
510	510	of the notice, in substantially the following form: “NOTICE: We are required by the
511	511	State of Wisconsin to inform you that within the last 4 years ... [insert name of
512	512	institution] has violated the free speech or academic freedom provisions in the
513	513	Wisconsin statutes.”
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538	538	ARG:amn
539	539	SECTION 2 SENATE BILL 575
540	540	(b) The penalty under par. (a) applies if a state or federal court in this state
541	541	finds, on the basis of a preponderance of the evidence, that the institution violated
542	542	this section.
543	543	(6) CAUSE OF ACTION. (a) Any person identified in par. (b) may bring an action
544	544	in circuit court against the board for violation of this section by an institution and
545	545	may seek any of the following:
546	546	1. An injunction against violation of this section.
547	547	2. Recovery from the board of damages, court costs, and attorney fees for
548	548	persons aggrieved by the violation.
549	549	(b) Any of the following persons may bring an action under par. (a):
550	550	1. The attorney general.
551	551	2. A district attorney.
552	552	3. Any person whose expressive rights were violated through the violation of
553	553	this section.
554	554	(c) Subject to par. (d), in an action brought under par. (a), if the court finds a
555	555	violation, the court shall award to the plaintiffs all of the following:
556	556	1. Total damages for all prevailing persons aggrieved by the violation of not less
557	557	than $500 for the initial violation plus $50 for each day the violation remains
558	558	ongoing, which shall accrue starting on the day after the complaint is served on the
559	559	board.
560	560	2. Notwithstanding s. 814.04 (1), court costs and reasonable attorney fees.
561	561	(d) In an action brought under par. (a), the total damages, excluding court costs
562	562	and attorney fees, that may be awarded to plaintiffs in a case or cases stemming from
563	563	a single controversy may not exceed an aggregate amount of $100,000. In violations
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588	588	LRB-4719/1
589	589	ARG:amn
590	590	SECTION 2
591	591	SENATE BILL 575
592	592	harming multiple plaintiffs, the court shall divide the damages equitably among
593	593	them until the maximum award is exhausted, if applicable.
594	594	(e) If a court awards to plaintiffs damages, court costs, or attorney fees in an
595	595	action brought under this subsection, the board shall pay the total amount of the
596	596	award from moneys allocated under s. 36.09 (1) (h) to the violating institution for the
597	597	institution's administrative expenses.
598	598	SECTION 3. 36.42 of the statutes is created to read:
599	599	36.42 Due process guarantees in disciplinary proceedings. (1)
600	600	DEFINITIONS. In this section:
601	601	(a) “Disciplinary proceeding” means an investigatory interview or hearing, or
602	602	any other procedure adopted and used by an institution, relating to an alleged
603	603	violation that may result in disciplinary action against a student, employee, or
604	604	organization.
605	605	(b) “Employee” means a member of the faculty, academic staff, or university
606	606	staff assigned to an institution. “Employee” also includes the institution's graduate
607	607	assistants and employees in training.
608	608	(c) “Fully participate” includes having the opportunity to make opening and
609	609	closing statements, to examine and cross-examine witnesses, and to provide the
610	610	accuser or accused with support, guidance, and advice.
611	611	(d) “Organization” means a student organization, employee organization, or
612	612	independent organization that is officially recognized by an institution.
613	613	(2) DUE PROCESS GUARANTEES. (a) A student who has enrolled in an institution
614	614	has a property interest in maintaining the student's status as a student that may be
615	615	terminated against the student's will only for due cause, including failure to meet
616	616	academic standards, failure to pay academic fees, tuition, or other costs required for
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642	642	ARG:amn
643	643	SECTION 3 SENATE BILL 575
644	644	continued enrollment, failure to meet the institution's attendance requirements, or
645	645	a violation of the institution's conduct rules. A student who is accused of a violation
646	646	of disciplinary or conduct rules that carries a potential penalty of suspension of more
647	647	than 9 days or expulsion shall have the right to be represented, at the student's
648	648	expense, by a licensed attorney or, if the student prefers, a non-attorney advocate,
649	649	who shall be permitted to fully participate during the disciplinary proceeding.
650	650	(b) In addition to any substantive or procedural rights set forth in an employee's
651	651	employment contract, an employee who is accused of a violation of disciplinary or
652	652	conduct rules shall have the right to be represented, at the employee's expense, by
653	653	a licensed attorney or, if the employee prefers, a non-attorney advocate, who shall
654	654	be permitted to fully participate during the disciplinary proceeding.
655	655	(c) An organization that is accused of a violation of disciplinary or conduct rules
656	656	shall have the right to be represented, at the organization's expense, by a licensed
657	657	attorney or, if the organization prefers, a non-attorney advocate, who shall be
658	658	permitted to fully participate during the disciplinary proceeding.
659	659	(d) If a disciplinary proceeding arises from a complaint by a student against a
660	660	student, employee, or organization, the complaining student shall also have the right
661	661	to be represented, at that student's expense, by a licensed attorney or, if the
662	662	complaining student prefers, a non-attorney advocate.
663	663	(e) Prior to initiating a disciplinary proceeding or investigation, an institution
664	664	shall notify the student, employee, or organization that a complaint has been made
665	665	and inform the student, employee, or organization of his, her, or its due process
666	666	rights.
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690	690	LRB-4719/1
691	691	ARG:amn
692	692	SECTION 3
693	693	SENATE BILL 575
694	694	(f) In a disciplinary proceeding, an institution is not obligated to follow the
695	695	state's rules of evidence but shall make a good faith effort to include only relevant,
696	696	probative evidence and shall exclude evidence that is neither relevant nor probative.
697	697	(g) Before a disciplinary proceeding is scheduled, and at least 2 business days
698	698	before a student, employee, or organization may be questioned by an institution or
699	699	agent of the institution about allegations of violations of the institution's disciplinary
700	700	or conduct rules, the institution shall advise the student, employee, or organization
701	701	in writing of the student's, employee's, or organization's rights under this subsection.
702	702	(h) The right of a student, employee, or organization to be represented by an
703	703	attorney or a non-attorney advocate applies until the conclusion of any appellate
704	704	process.
705	705	(i) An institution shall ensure that all parties to a disciplinary proceeding,
706	706	including the accused student, the accused employee, the accused organization, and,
707	707	if applicable, the accusing student, have access to all material evidence, including
708	708	both inculpatory and exculpatory evidence, not later than one week prior to the start
709	709	of any formal hearing or similar adjudicatory proceeding. This evidence may include
710	710	complainant statements, 3rd-party witness statements, electronically stored
711	711	information, written communications, social media posts, and demonstrative
712	712	evidence but may not include any materials that are privileged under applicable
713	713	federal or state law.
714	714	(j) An institution shall ensure that a disciplinary proceeding is carried out free
715	715	from conflicts of interest by prohibiting overlap of administrative or adjudicative
716	716	roles. An individual may not serve in more than one of the following roles:
717	717	1. Counselor or advocate of the accuser or victim.
718	718	2. Investigator.
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744	744	ARG:amn
745	745	SECTION 3 SENATE BILL 575
746	746	3. Hearing panel member.
747	747	4. Institutional prosecutor.
748	748	5. Adjudicator.
749	749	6. Appellate adjudicator.
750	750	(k) This subsection does not affect the obligation of an institution to provide
751	751	equivalent rights to a student who is the accuser or victim in the disciplinary
752	752	proceeding, including equivalent opportunities to have others present and fully
753	753	participate during the disciplinary proceeding, to not limit the choice of attorney or
754	754	non-attorney advocate in any meeting or in the disciplinary proceeding, and to
755	755	provide simultaneous notification of the institution's procedures for the accused and
756	756	the accuser or victim to appeal the result of the disciplinary proceeding.
757	757	(L) Nothing in this subsection shall prevent the temporary suspension of a
758	758	student, employee, or organization pending an investigation.
759	759	(3) PENALTIES. (a) An institution that violates this section more than once in
760	760	a 10-year period is ineligible for allocation of grants under s. 39.435, except grants
761	761	awarded under s. 39.435 (2) or (5), for a period of no less than one fiscal year.
762	762	(b) In addition to the period of ineligibility under par. (a), if an institution's
763	763	administrator causes the violation of this section, the institution is not eligible for
764	764	allocation of grants under s. 39.435, except grants awarded under s. 39.435 (2) or (5),
765	765	until the administrator is permanently removed from his or her administrative role.
766	766	(c) The penalties under this subsection apply if any of the following find, on the
767	767	basis of a preponderance of the evidence, that the institution violated this section:
768	768	1. A state or federal court in this state.
769	769	2. The higher educational aids board.
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794	794	LRB-4719/1
795	795	ARG:amn
796	796	SECTION 3
797	797	SENATE BILL 575
798	798	3. Any standing committee of the legislature having jurisdiction over matters
799	799	relating to higher education.
800	800	SECTION 4. 38.04 (7m) of the statutes is amended to read:
801	801	38.04 (7m) FINANCIAL AIDS. By February 10 of each year, the board shall develop
802	802	and submit to the higher educational aids board for its review under s. 39.285 (1) a
803	803	proposed formula for the awarding of grants under s. 39.435, except for grants
804	804	awarded under s. 39.435 (2) or (5), for the next fiscal year to students enrolled in the
805	805	technical colleges. The proposed formula shall take into consideration any technical
806	806	college's loss of funding allocation under s. 38.35 (3) (a) and (b).
807	807	SECTION 5. 38.34 of the statutes is created to read:
808	808	38.34 Campus free speech and academic freedom. (1) DEFINITIONS. In
809	809	this section:
810	810	(a) “Employee” means a staff member, faculty member, or administrator
811	811	employed by a district board.
812	812	(b) “Student” means an individual enrolled in a district school.
813	813	(2) FIRST AMENDMENT PROTECTIONS. (a) Except as specified in this section, a
814	814	district board may not do any of the following:
815	815	1. Restrict speech protected under the First Amendment of the U.S.
816	816	Constitution, including noncommercial expressive activities protected under the
817	817	provisions of this section, which include all forms of peaceful assembly, protests,
818	818	speeches, distribution of literature, carrying signs, circulation petitions, and the
819	819	recording and lawful publication, including Internet publication, of video and audio
820	820	lawfully recorded in public outdoor areas of public institutions of higher education,
821	821	if the speaker's conduct is not unlawful and does not materially and substantially
822	822	disrupt the functioning of the district school.
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848	848	ARG:amn
849	849	SECTION 5 SENATE BILL 575
850	850	2. Maintain and enforce time, place, and manner restrictions on expressive
851	851	activities on the open outdoor areas of district campuses that are generally accessible
852	852	to the public and indoor areas that have been designated as public forums, except
853	853	classrooms while they are in use for instructional purposes, unless those restrictions
854	854	meet all of the following requirements:
855	855	a. The restrictions are reasonable, in furtherance of a significant interest of the
856	856	district board, and employ clear, published, content-neutral, and viewpoint-neutral
857	857	criteria.
858	858	b. The restrictions provide for ample alternative means for communication of
859	859	the information and allow for members of the district campus's community to
860	860	spontaneously and contemporaneously distribute literature and assemble.
861	861	3. Designate any area of a district campus a “free speech zone” or otherwise
862	862	create policies restricting noncommercial expressive activities to a particular area
863	863	of a district campus.
864	864	4. Require a permit from any individual or group as a condition of being allowed
865	865	to engage in expressive activities protected under this section, unless the individual
866	866	or group is seeking exclusive control of a location for its expressive activity at a
867	867	reserved time. Any such permitting process may not be overly burdensome, and
868	868	applications for permits shall be evaluated solely using published content and
869	869	viewpoint-neutral criteria.
870	870	5. Charge security fees to a student or a student group, as part of an application
871	871	for those expressive activities that require a permit, based on the content of the
872	872	expression, the content of the expression of an invited guest, or the anticipated
873	873	reaction to the student's, student group's, or invited guest's expression. Whether the
874	874	security fee is required and its amount may be determined only on the basis of
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900	900	LRB-4719/1
901	901	ARG:amn
902	902	SECTION 5
903	903	SENATE BILL 575
904	904	content and viewpoint-neutral criteria. Content and viewpoint-neutral criteria
905	905	include the time of the event, the location of the event, the anticipated size of the
906	906	invited audience, and whether alcohol will be served. Any district board charging
907	907	security fees pursuant to this subdivision shall publish the criteria it uses for
908	908	assessing those charges and shall have a published process for waving the fees for
909	909	those who cannot afford to pay them.
910	910	6. Sanction individuals or groups for discriminatory harassment unless the
911	911	speech targets its victim on the basis of the victim's membership in a class protected
912	912	under federal, state, or local law, and is so severe, pervasive, and objectively offensive
913	913	that it effectively bars a student from receiving equal access to educational
914	914	opportunities or benefits. This subdivision does not preclude a district board from
915	915	providing additional resources to a student affected by speech that cannot be
916	916	sanctioned under this subdivision or from taking nonpunitive actions.
917	917	(b) All indoor areas that have been designated as public forums and outdoor
918	918	public areas generally accessible to the public and owned or operated by a district
919	919	board, except classrooms while they are in use for instructional purposes, shall be
920	920	governed by rules applicable to traditional public forums.
921	921	(c) 1. Nothing in this section enables individuals to engage in conduct that
922	922	intentionally, materially, and substantially disrupts another's expressive activity if
923	923	that activity is occurring in a campus space reserved for that activity under the
924	924	exclusive use or control of a particular group.
925	925	2. For purposes of subd. 1., and subject to subd. 3., “materially and
926	926	substantially disrupts” means when a person, with the intent or knowledge of doing
927	927	so, significantly hinders another person's or group's expressive activity, prevents the
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952	952	ARG:amn
953	953	SECTION 5 SENATE BILL 575
954	954	communication of the message, or prevents the transaction of the business of a lawful
955	955	meeting, gathering, or procession by doing any of the following:
956	956	a. Engaging in fighting, violence, or seriously disruptive behavior.
957	957	b. Physically blocking or significantly hindering any person from attending,
958	958	listening to, viewing, or otherwise participating in an expressive activity.
959	959	3. For purposes of subd. 1., the phrase “materially and substantially disrupts”
960	960	does not include conduct that is protected under the First Amendment of the U.S.
961	961	Constitution or article I, section 3, of the Wisconsin Constitution. This protected
962	962	conduct includes lawful protests and counterprotests in the outdoor areas of campus
963	963	generally accessible to members of the public and indoor areas that have been
964	964	designated as public forums, except classrooms while they are in use for
965	965	instructional purposes, except during times when those areas have been reserved in
966	966	advance for other events, or minor, brief, or fleeting nonviolent disruptions of events
967	967	that are isolated and short in duration.
968	968	(d) Nothing in this section limits the right of student expression at campus
969	969	locations that are not specified in this section.
970	970	(e) A district board shall do all of the following:
971	971	1. Conduct a biennial survey of students and employees on First Amendment
972	972	rights, academic freedom, perceived political, ideological, or other bias at the district
973	973	schools, and whether campus culture promotes self-censorship. The survey shall be
974	974	conducted using statistically sound methodology and in a manner that protects the
975	975	confidentiality of the survey's respondents.
976	976	2. Biennially submit to the legislature under s. 13.172 (2) a report detailing the
977	977	results of the survey under subd. 1.
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1002	1002	LRB-4719/1
1003	1003	ARG:amn
1004	1004	SECTION 5
1005	1005	SENATE BILL 575
1006	1006	3. Annually provide all students and employees with instruction in academic
1007	1007	freedom, due process, and First Amendment protections.
1008	1008	(3) ACADEMIC FREEDOM. (a) No district board policy or employee may limit the
1009	1009	expressive rights and academic freedom of an instructor of a district school to do any
1010	1010	of the following:
1011	1011	1. Conduct research, publish, lecture, or teach in the academic setting.
1012	1012	2. Require students to participate in instructional exercises with legitimate
1013	1013	pedagogical purposes that involve exploring, or arguing for or against, any argument
1014	1014	or assertion.
1015	1015	3. Speak publicly as a private citizen on matters of public concern.
1016	1016	(b) Nothing in this subsection shall be interpreted to prohibit a district board
1017	1017	from requiring an instructor to perform the instructor's academic duties or from
1018	1018	setting performance standards consistent with this subsection or as required by
1019	1019	other law of this state.
1020	1020	(4) NOTICE; INSTITUTIONAL AID. (a) A district board that violates this section, for
1021	1021	4 years following the date of the finding of the violation under par. (b), shall include
1022	1022	a disclaimer on all notices, both printed or electronic, to individuals regarding
1023	1023	admission to a technical college of the district, in a type size no smaller than the
1024	1024	majority of the rest of the notice, in substantially the following form: “NOTICE: We
1025	1025	are required by the State of Wisconsin to inform you that within the last 4 years ...
1026	1026	[insert name of technical college] has violated the free speech or academic freedom
1027	1027	provisions in the Wisconsin statutes.”
1028	1028	(b) The penalty under par. (a) applies if a state or federal court in this state
1029	1029	finds, on the basis of a preponderance of the evidence, that the district board violated
1030	1030	this section.
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1056	1056	ARG:amn
1057	1057	SECTION 5 SENATE BILL 575
1058	1058	(5) CAUSE OF ACTION. (a) Any person identified in par. (b) may bring an action
1059	1059	in circuit court against a district board for violation of this section and may seek any
1060	1060	of the following:
1061	1061	1. An injunction against violation of this section.
1062	1062	2. Recovery from the district board of damages, courts costs, and attorney fees
1063	1063	for persons aggrieved by the violation.
1064	1064	(b) Any of the following persons may bring an action under par. (a):
1065	1065	1. The attorney general.
1066	1066	2. A district attorney.
1067	1067	3. Any person whose expressive rights were violated through the violation of
1068	1068	this section.
1069	1069	(c) Subject to par. (d), in an action brought under par. (a), if the court finds a
1070	1070	violation, the court shall award to the plaintiffs all of the following:
1071	1071	1. Total damages for all prevailing persons aggrieved by the violation of not less
1072	1072	than $500 for the initial violation plus $50 for each day the violation remains
1073	1073	ongoing, which shall accrue starting on the day after the complaint is served on the
1074	1074	district board.
1075	1075	2. Notwithstanding s. 814.04 (1), court costs and reasonable attorney fees.
1076	1076	(d) In an action brought under par. (a), the total damages, excluding court costs
1077	1077	and attorney fees, that may be awarded to plaintiffs in a case or cases stemming from
1078	1078	a single controversy may not exceed an aggregate amount of $100,000. In violations
1079	1079	harming multiple plaintiffs, the court shall divide the damages equitably among
1080	1080	them until the maximum award is exhausted, if applicable.
1081	1081	(e) If a court awards to plaintiffs damages, court costs, or attorney fees in an
1082	1082	action brought under this subsection, the district board shall pay the total amount
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1107	1107	25 - 23 -2023 - 2024 Legislature
1108	1108	LRB-4719/1
1109	1109	ARG:amn
1110	1110	SECTION 5
1111	1111	SENATE BILL 575
1112	1112	of the award from moneys that the district board has allocated for its administrative
1113	1113	expenses.
1114	1114	(f) Section 893.80 does not apply to an action brought against a district board
1115	1115	under this section.
1116	1116	SECTION 6. 38.35 of the statutes is created to read:
1117	1117	38.35 Due process guarantees in disciplinary proceedings. (1)
1118	1118	DEFINITIONS. In this section:
1119	1119	(a) “Disciplinary proceeding” means an investigatory interview or hearing, or
1120	1120	any other procedure adopted and used by a district board, relating to an alleged
1121	1121	violation that may result in disciplinary action against a student, employee, or
1122	1122	organization.
1123	1123	(b) “Employee” means a staff member, faculty member, or administrator
1124	1124	employed by a district board.
1125	1125	(c) “Fully participate” includes having the opportunity to make opening and
1126	1126	closing statements, to examine and cross-examine witnesses, and to provide the
1127	1127	accuser or accused with support, guidance, and advice.
1128	1128	(d) “Organization” means a student organization, employee organization, or
1129	1129	independent organization that is officially recognized by a district board.
1130	1130	(2) DUE PROCESS GUARANTEES. (a) A student who has enrolled in a district school
1131	1131	has a property interest in maintaining the student's status as a student that may be
1132	1132	terminated against the student's will only for due cause, including failure to meet
1133	1133	academic standards, failure to pay fees or other costs required for continued
1134	1134	enrollment, failure to meet the district board's attendance requirements, or a
1135	1135	violation of the district board's conduct rules. A student who is accused of a violation
1136	1136	of disciplinary or conduct rules that carries a potential penalty of suspension of more
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1162	1162	ARG:amn
1163	1163	SECTION 6 SENATE BILL 575
1164	1164	than 9 days or expulsion shall have the right to be represented, at the student's
1165	1165	expense, by a licensed attorney or, if the student prefers, a non-attorney advocate,
1166	1166	who shall be permitted to fully participate during the disciplinary proceeding.
1167	1167	(b) In addition to any substantive or procedural rights set forth in an employee's
1168	1168	employment contract, an employee who is accused of a violation of disciplinary or
1169	1169	conduct rules shall have the right to be represented, at the employee's expense, by
1170	1170	a licensed attorney or, if the employee prefers, a non-attorney advocate, who shall
1171	1171	be permitted to fully participate during the disciplinary proceeding.
1172	1172	(c) An organization that is accused of a violation of disciplinary or conduct rules
1173	1173	shall have the right to be represented, at the organization's expense, by a licensed
1174	1174	attorney or, if the organization prefers, a non-attorney advocate, who shall be
1175	1175	permitted to fully participate during the disciplinary proceeding.
1176	1176	(d) If a disciplinary proceeding arises from a complaint by a student against a
1177	1177	student, employee, or organization, the complaining student shall also have the right
1178	1178	to be represented, at that student's expense, by a licensed attorney or, if the
1179	1179	complaining student prefers, a non-attorney advocate.
1180	1180	(e) Prior to initiating a disciplinary proceeding or investigation, a district board
1181	1181	shall notify the student, employee, or organization that a complaint has been made
1182	1182	and inform the student, employee, or organization of his, her, or its due process
1183	1183	rights.
1184	1184	(f) In a disciplinary proceeding, a district board is not obligated to follow the
1185	1185	state's rules of evidence but shall make a good faith effort to include only relevant,
1186	1186	probative evidence and shall exclude evidence that is neither relevant nor probative.
1187	1187	(g) Before a disciplinary proceeding is scheduled, and at least 2 business days
1188	1188	before a student, employee, or organization may be questioned by a district board or
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1214	1214	LRB-4719/1
1215	1215	ARG:amn
1216	1216	SECTION 6
1217	1217	SENATE BILL 575
1218	1218	agent of the district board about allegations of violations of the district board's
1219	1219	disciplinary or conduct rules, the district board shall advise the student, employee,
1220	1220	or organization in writing of the student's, employee's, or organization's rights under
1221	1221	this subsection.
1222	1222	(h) The right of a student, employee, or organization to be represented by an
1223	1223	attorney or a non-attorney advocate applies until the conclusion of any appellate
1224	1224	process.
1225	1225	(i) A district board shall ensure that all parties to a disciplinary proceeding,
1226	1226	including the accused student, the accused employee, the accused organization, and,
1227	1227	if applicable, the accusing student, have access to all material evidence, including
1228	1228	both inculpatory and exculpatory evidence, not later than one week prior to the start
1229	1229	of any formal hearing or similar adjudicatory proceeding. This evidence may include
1230	1230	complainant statements, 3rd-party witness statements, electronically stored
1231	1231	information, written communications, social media posts, and demonstrative
1232	1232	evidence but may not include any materials that are privileged under applicable
1233	1233	federal or state law.
1234	1234	(j) A district board shall ensure that a disciplinary proceeding is carried out free
1235	1235	from conflicts of interest by prohibiting overlap of administrative or adjudicative
1236	1236	roles. An individual may not serve in more than one of the following roles:
1237	1237	1. Counselor or advocate of the accuser or victim.
1238	1238	2. Investigator.
1239	1239	3. Hearing panel member.
1240	1240	4. District board prosecutor.
1241	1241	5. Adjudicator.
1242	1242	6. Appellate adjudicator.
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1268	1268	ARG:amn
1269	1269	SECTION 6 SENATE BILL 575
1270	1270	(k) This subsection does not affect the obligation of a district board to provide
1271	1271	equivalent rights to a student who is the accuser or victim in the disciplinary
1272	1272	proceeding, including equivalent opportunities to have others present and fully
1273	1273	participate during the disciplinary proceeding, to not limit the choice of attorney or
1274	1274	non-attorney advocate in any meeting or in the disciplinary proceeding, and to
1275	1275	provide simultaneous notification of the district board's procedures for the accused
1276	1276	and the accuser or victim to appeal the result of the disciplinary proceeding.
1277	1277	(L) Nothing in this subsection shall prevent the temporary suspension of a
1278	1278	student, employee, or organization pending an investigation.
1279	1279	(3) PENALTIES. (a) A district board that violates this section more than once in
1280	1280	a 10-year period is ineligible for allocation of grants under s. 39.435, except grants
1281	1281	awarded under s. 39.435 (2) or (5), for a period of no less than one fiscal year.
1282	1282	(b) In addition to the period of ineligibility under par. (a), if a district board
1283	1283	administrator causes the violation of this section, the district board is not eligible for
1284	1284	allocation of grants under s. 39.435, except grants awarded under s. 39.435 (2) or (5),
1285	1285	until the administrator is permanently removed from his or her administrative role.
1286	1286	(c) The penalties under this subsection apply if any of the following find, on the
1287	1287	basis of a preponderance of the evidence, that the district board violated this section:
1288	1288	1. A state or federal court in this state.
1289	1289	2. The higher educational aids board.
1290	1290	3. Any standing committee of the legislature having jurisdiction over matters
1291	1291	relating to higher education.
1292	1292	SECTION 7. 39.285 (1) (c) of the statutes is created to read:
1293	1293	39.285 (1) (c) The board shall ensure that any formula approved under par. (a)
1294	1294	takes into consideration any University of Wisconsin institution's loss of funding
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1320	1320	LRB-4719/1
1321	1321	ARG:amn
1322	1322	SECTION 7
1323	1323	SENATE BILL 575
1324	1324	allocation under s. 36.42 (3) (a) and (b) or technical college district board's loss of
1325	1325	funding allocation under s. 38.35 (3) (a) and (b).
1326	1326	(END)
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