Today's Law As Amended

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ACA-14 Postsecondary education: Campus Free Speech Act.(2017-2018)



That Section 8.5 is added to Article IX thereof, to read:

SEC. 8.5.
 (a) This section shall be known, and may be cited, as the Campus Free Speech Act.
(b) The people of the State of California find and declare all of the following:
(1) Subdivision (a) of Section 2 of Article I establishes that “[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
(2) California’s higher education institutions have historically embraced a commitment to freedom of expression in policy.
(3) In recent years, certain California higher education institutions have abdicated their responsibility to uphold free speech principles, and these failures make it appropriate for all California higher education institutions to restate and confirm their commitment in this regard.
(4) In 1967, the Kalven Committee Report of the University of Chicago articulated the principle of institutional neutrality regarding political and social issues and the essential role of such neutrality in protecting freedom of thought and expression at universities. In 1975, the Committee on Freedom of Expression at Yale University issued a statement known as the Woodward Report that stands as a classic defense of free expression on campuses. In 2015, the Committee on Freedom of Expression at the University of Chicago issued a similar and widely respected report. The principles affirmed by these three highly regarded reports are inspiring articulations of the critical importance of free expression in higher education.
(5) Freedom of expression is an issue of critical importance, and each California higher education institution has a constitutional responsibility to ensure free, robust, and uninhibited debate and deliberation by its students whether on or off campus.
(6) It is a matter of statewide concern that all California higher education institutions officially recognize freedom of speech as a fundamental right.
(c) For purposes of this section, the following terms have the following meanings:
(1) “First Amendment” means the First Amendment to the United States Constitution.
(2) “Higher education institution” means a campus of the California Community Colleges, the California State University, or the University of California, a private postsecondary educational institution, or an independent institution of higher education.
(3) “Peer-on-peer harassment” means conduct directed by a student towards another individual student, on the basis of that student’s membership or perceived membership in a protected class, that is so severe, pervasive, and objectively offensive that it effectively deprives the victim of access to the educational opportunities or benefits provided by the university.
(4) “Quid pro quo harassment” means explicitly or implicitly conditioning a student’s participation in an education program or activity or basing an educational decision on the student’s submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature.
(5) “True threats” means statements meant by the speaker to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.
(d) (1) The appropriate governing board or body for each higher education institution shall develop and adopt a policy on free expression that contains, at least, all of the following components:
(A) A statement that the primary function of the institution is the discovery, improvement, transmission, and dissemination of knowledge by means of teaching, discussion, debate, and research, as applicable. The statement shall provide that, to fulfill this function, the institution must strive to ensure the fullest degree of intellectual freedom and free expression.
(B) A statement that it is not the proper role of the institution to shield individuals from speech protected by the First Amendment, including, but not limited to, ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.
(C) That students and faculty have the freedom to discuss any problem that presents itself, as the First Amendment permits and within the limits of reasonable viewpoint and content-neutral restrictions on time, place, and manner of expression that are consistent with this section and that are necessary to achieve a significant institutional interest if these restrictions are clear, published, and provide ample alternative means of expression. Students and faculty shall be permitted to assemble and engage in spontaneous expressive activity if the activity is not unlawful and does not materially and substantially disrupt the functioning of the institution, subject to the requirements of this section.
(D) That any person lawfully present on campus may protest or demonstrate there. The policy shall make clear that protests and demonstrations that infringe upon the rights of others to engage in or listen to expressive activity shall not be permitted and shall be subject to sanction. This subparagraph does not prohibit professors or other instructors from maintaining order in the classroom.
(E) That the institution is open to any speaker whom students, student groups, or members of the faculty have invited.
(F) That the public areas of the institution are traditional public forums, open on the same terms to any speaker.
(G) A range of disciplinary sanctions for anyone under the jurisdiction of the institution who interferes with the free expression of others.
(H) (i) In all disciplinary cases involving expressive conduct, students are entitled to a disciplinary hearing under published procedures, including, but not limited to, all of the following:
(I) The right to receive advanced written notice of the charges.
(II) The right to review the evidence in support of the charges.
(III) The right to confront witnesses against them.
(IV) The right to present a defense.
(V) The right to call witnesses.
(VI) A decision by an impartial arbiter or panel.
(VII) The right of appeal.
(ii) When suspension for longer than 30 days or expulsion are potential penalties, students are entitled to a disciplinary hearing under published procedures, including, but not limited to, all of the procedures listed in clause (i), plus the right to active assistance of counsel.
(I) Any student who has twice been found responsible for infringing the expressive rights of others shall be suspended for a minimum of one year or expelled.
(J) That the institution shall strive to remain neutral, as an institution, on the public policy controversies of the day, and shall not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.
(2) The policy established pursuant to paragraph (1) shall supersede any provisions in the policies and regulations of a higher education institution that restrict speech on campus and are inconsistent with the requirements of paragraph (1). The appropriate governing board or body of the institution shall remove or revise these provisions in its policies and regulations to ensure compatibility with the policy established pursuant to paragraph (1).
(e) (1) The appropriate governing board or body of each higher education institution shall establish a Committee on Free Expression for the institution or segment, as appropriate, consisting of no less than 15 members.
(2) On or before September 1 of each year, each committee established pursuant to paragraph (1) shall submit a report to the governing board or body and, pursuant to Section 9795 of the Government Code, or a successor statute, to the Legislature and the Governor. The report shall include all of the following information for the previous academic year, disaggregated by higher education institution, as appropriate:
(A) A description of any barriers to or disruptions of free expression within the institution.
(B) A description of the administrative handling and discipline relating to the disruptions or barriers described in subparagraph (A).
(C) A description of substantial difficulties, controversies, or successes in maintaining a posture of administrative and institutional neutrality with regard to political or social issues.
(D) Any assessments, criticisms, commendations, or recommendations the committee sees fit to include.
(f) A higher education institution shall include in its freshman orientation programs a section describing to its students the institution’s policies and regulations regarding free expression consistent with this section.
(g) (1) The governing board or body of each institution of higher education may adopt regulations to further the purposes of the policies adopted pursuant to this section.
(2) Nothing in this section shall be construed to prevent institutions from regulating student speech or activity that is prohibited by law. Except as further limited by this chapter, institutions may restrict student expression only for expressive activity not protected by the First Amendment, including, but not necessarily limited to, all of the following:
(A) Violations of state or federal law.
(B) Expression that a court has deemed unprotected defamation.
(C) Peer-on-peer harassment.
(D) Quid pro quo sexual harassment.
(E) True threats.
(F) An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.
(G) An action that unlawfully disrupts the function of the institution.
(H) Reasonable time, place, and manner restrictions on expressive activities consistent with subparagraph (C) of paragraph (1) of subdivision (d).
(h) (1) A higher education institution may restrict expressive conduct in the public areas of campus only if it demonstrates that the restriction meets all of the following requirements:
(A) Is necessary to achieve a compelling interest.
(B) Is the least restrictive means of furthering that compelling interest.
(C) Leaves open ample other opportunities to engage in the expressive conduct.
(D) Provides for spontaneous assembly and distribution of literature.
(2) Either of the following persons may bring an action in a court of competent jurisdiction to enjoin a violation of this subdivision, or to recover compensatory damages, court costs, and reasonable attorney’s fees, or both:
(A) The Attorney General.
(B) A person whose expressive rights are violated by a violation of this section.
(3) In an action brought under paragraph (2), if the court finds that a violation of this subdivision occurred, the court shall award the aggrieved person injunctive relief for the violation and shall award reasonable court costs and reasonable attorney’s fees. The court shall also award damages of one thousand dollars ($1,000) or actual damages, whichever is higher.
(4) A person shall bring an action for a violation of this subdivision within one year after the date the cause of action accrues. For the purpose of calculating the one-year limitation period, each day that the violation persists or each day that a policy in violation of this subdivision remains in effect constitutes a new violation of this subdivision and shall be considered a day that the cause of action has accrued.
(i) A higher education institution that does not comply with this section is ineligible for any state funding except pursuant to the Cal Grant Program established in Chapter 1.7 (commencing with Section 69430) of Part 42 of Division 5 of Title 3 of the Education Code, or a successor state-funded student financial aid program.
(j) This section shall only apply to educational programs or activities offered by a higher education institution that is controlled by a religious organization, if the application of this section would not be consistent with the religious tenets of that organization.