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AB-2081 Postsecondary education: Campus Free Speech Act. (2017-2018)

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Date Published: 02/07/2018 09:00 PM
AB2081:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2081


Introduced by Assembly Member Melendez

February 07, 2018


An act to add Chapter 7 (commencing with Section 99305) to Part 65 of Division 14 of Title 3 of the Education Code, relating to postsecondary education.


LEGISLATIVE COUNSEL'S DIGEST


AB 2081, as introduced, Melendez. Postsecondary education: Campus Free Speech Act.
Existing law establishes the University of California, established under the California Constitution as a public trust under the administration of the Regents of the University of California, the California State University, under the administration of the Trustees of the California State University, the California Community Colleges, under the administration of the Board of Governors of the California Community Colleges, independent institutions of higher education, and private postsecondary educational institutions as the segments of postsecondary education in this state.
This bill would establish the Campus Free Speech Act, which would, among other things, require the appropriate governing board or body of each higher education institution, as defined, to develop and adopt a policy on free expression that contains specified components. The act would require that the policy supersede any provisions in the policies and regulations of the institution that restrict speech on campus and are inconsistent with the policy, and would require the appropriate governing board or body of the institution to remove or revise the provisions to ensure compatibility with the policy.
The act would require the appropriate governing board or body of the institution to establish a Committee on Free Expression, consisting of no less than 5 members and no more than 15 members, as specified. The act would require each committee to report, on or before September 1 of each year, to the governing board or body, the Legislature, and the Governor specified information regarding the status of free expression at the campus, or at each campus of the higher education institution, as applicable. The act would require each higher education institution to include in its freshman orientation programs a section describing to its students the institution’s policies and regulations regarding free expression.
The act would make a higher education institution with written policies that do not comply with the act as of January 1, 2019, ineligible for any state funding except pursuant to the Cal Grant Program or a successor state-funded student financial aid program. Because the bill would impose new duties on community college districts, this bill would impose a state-mandated local program. The act would apply to educational programs or activities offered by a higher education institution that is controlled by a religious organization only if the application would not be inconsistent with the religious tenets of that organization.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Chapter 7 (commencing with Section 99305) is added to Part 65 of Division 14 of Title 3 of the Education Code, to read:
CHAPTER  7. The Campus Free Speech Act

99305.
 This chapter shall be known, and may be cited, as the Campus Free Speech Act.

99306.
 For purposes of this chapter, the following terms have the following meanings:
(a) “Appropriate governing board or body” for a campus of the California Community Colleges means the Board of Governors of the California Community Colleges.
(b) “Appropriate governing board or body” for a campus of the California State University means the Trustees of the California State University.
(c) “Appropriate governing board or body” for a campus of the University of California means the Regents of the University of California.
(d) “First Amendment” means the First Amendment to the United States Constitution.
(e) “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.
(f) “Peer-on-peer harassment” means unwelcome conduct directed toward a person that is discriminatory on the basis of race, color, national origin, disability, religion, age, sex, sexual orientation, gender, or gender identity, and that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.
(g) “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.

99307.
 (a) 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:
(1) 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.
(2) 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.
(3) Provisions ensuring 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 chapter and that are necessary to achieve a compelling 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 chapter.
(4) Provisions ensuring that any person lawfully present on campus may protest or demonstrate there. The policy shall make clear that protests and demonstrations that materially and substantially 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 paragraph does not prohibit professors or other instructors from maintaining order in the classroom.
(5) Provisions ensuring that the institution is open to any speaker whom students, student groups, or members of the faculty have invited.
(6) Provisions designating the public open outdoor areas of the institution as public forums that shall operate under the rules applicable at traditional public forums, open on the same terms to any speaker.
(7) A range of disciplinary sanctions, which may include suspensions, firings, and expulsions, as applicable, for anyone under the jurisdiction of the institution who materially and substantially interferes with the free expression of others.
(8) (A)   Provisions ensuring that, 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.
(B) When suspension for longer than 30 days or expulsion are potential penalties, students shall be entitled to a disciplinary hearing under published procedures, including, but not limited to, all of the procedures listed in subparagraph (A), plus the right to active assistance of counsel.
(9) A prohibition on the institution charging its students security fees for specific events based on the content of their speech or the content of the speech of external speakers invited by students for the events.
(10) A requirement that the institution make all reasonable efforts and make available all reasonable resources to ensure the safety of speakers invited by students.
(11) Provisions authorizing the institution to restrict the use of its nonpublic facilities by anyone who is not a student, faculty member, administrator, or other employee at the institution if he or she is not invited by students, faculty members, administrators, or other employees at the institution.
(12) A prohibition on the institution revoking an invitation made by a student, student organization, or faculty member to a guest speaker based on the conclusion that the speaker’s anticipated speech may be considered offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrongheaded by students, faculty, administrators, government officials, or members of the public.
(13) A prohibition on the institution confining a student’s free speech rights to limited areas of the campus, sometimes known as free speech zones, or otherwise creating a policy implying that a student’s free speech rights are restricted to limited areas of the campus. The institution may maintain a policy that grants members of the college or university community the right to reserve certain outdoor spaces in advance.
(14) Provisions ensuring that individual students, faculty, and staff of the institution shall be free to take positions on the public controversies of the day.
(b) The policy established pursuant to subdivision (a) 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 subdivision (a). 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 subdivision (a).

99308.
 (a) 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 5 members and no more than 15 members.
(b) On or before September 1 of each year, each committee established pursuant to subdivision (a) 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:
(1) A description of any barriers to or disruptions of free expression within the institution.
(2) A description of the administrative handling and discipline relating to the disruptions or barriers described in subparagraph (A).
(3) A description of substantial difficulties, controversies, or successes in maintaining a posture of administrative and institutional neutrality with regard to political or social issues.
(4) Any assessments, criticisms, commendations, or recommendations the committee sees fit to include.

99309.
 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 chapter.

99310.
 (a) 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 chapter.
(b) Nothing in this chapter 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:
(1) Violations of state or federal law.
(2) Expression that a court has deemed unprotected defamation.
(3) Peer-on-peer harassment.
(4) Quid pro quo sexual harassment.
(5) True threats, as defined by applicable legal precedent.
(6) An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.
(7) An action that unlawfully disrupts the function of the institution.
(8) Reasonable time, place, and manner restrictions on expressive activities consistent with paragraph (3) of subdivision (a) of Section 99307.

99311.
 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) It is in furtherance of a compelling institutional interest.
(b) It is the least restrictive means of furthering that compelling institutional interest.
(c) It leaves open ample other opportunities to engage in the expressive conduct.
(d) It provides for spontaneous assembly and distribution of literature.

99312.
 A higher education institution with written policies that do not comply with this chapter as of January 1, 2019, 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.

99313.
 This chapter shall apply to educational programs or activities offered by a higher education institution that is controlled by a religious organization only if the application of this chapter would not be inconsistent with the religious tenets of that organization.

SEC. 2.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.