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SB-1388 Postsecondary education: Forming Open and Robust University Minds Act.(2017-2018)

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Date Published: 02/17/2018 04:00 AM
SB1388:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1388


Introduced by Senator Anderson

February 16, 2018


An act to add Chapter 9 (commencing with Section 99360) to Part 65 of Division 14 of Title 3 of the Education Code, relating to postsecondary education.


LEGISLATIVE COUNSEL'S DIGEST


SB 1388, as introduced, Anderson. Postsecondary education: Forming Open and Robust University Minds 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 Forming Open and Robust University Minds (FORUM) Act, which would require the Board of Governors of the California Community Colleges and the Trustees of the California State University to, and would encourage the Regents of the University of California to, develop and adopt a policy on free expression that contains specified statements. The bill would require that the outdoor areas of a public institution of higher education be deemed traditional public forums, subject to certain exceptions, and would require that a person who wishes to engage in noncommercial expressive activity in the outdoor areas of a public institution of higher education be permitted to do so freely, as long as the person’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the public institution of higher education. The bill would require a public institution of higher education to publicly post on its Internet Web site and submit to the Governor and Legislature an annual report that details the course of action being taken in order to comply with the requirements of the act. The bill would impose other requirements and restrictions on a public institution of higher education, relating to free expression on campus. By imposing new duties on a campus of the California Community Colleges, the bill would impose a state-mandated local program.
The bill would authorize a person or student association aggrieved by a violation of the act to bring an action against the public institution of higher education and any other persons responsible for the violation not later than one year after the day the cause of action accrues. The bill would provide that the state waives immunity under the 11th Amendment of the United States Constitution and consents to suit in a federal court for lawsuits arising out of the act, and would provide that a public institution of higher education that violates the act is not immune from suit or liability for the violation. The bill would provide that, if any provision of the act or any application of a provision of the act to any person or circumstance is held to be unconstitutional, the remainder of the act and the application of the provision to any other person or circumstance shall not be affected.
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.

 The Legislature finds and declares all of the following:
(a) The First Amendment of the United States Constitution and the California Constitution protect the rights of free speech, freedom of the press, freedom of religion, and freedom of association for all citizens.
(b) The United States Supreme Court in Healy v. James, 408 U.S. 169, 180 (1972) called public universities, “peculiarly ‘the marketplace of ideas,’” where young adults learn to exercise these constitutional rights necessary to participate in our system of government and to tolerate others’ exercise of the same rights and stated that there is “no room for the view that...First Amendment protections should apply with less force on college campuses than in the community at large.”
(c) The exercise of First Amendment rights on public university campuses in this state is a critical component of the education experience for students and requires that each public university in this state ensure free, robust, and uninhibited debate and deliberations by students on and off campus.
(d) Public universities in this state and elsewhere are failing to provide adequate safeguards for the First Amendment rights of their students, leading to a stifling of expression on campus.
(e) The United States Supreme Court in Sweezy v. State of N.H. by Wyman 354 U.S. 234, 250 (1957) warned that if public universities stifle student speech and prevent the open exchange of ideas on campus, “our civilization will stagnate and die.”
(f) A significant amount of taxpayer dollars is appropriated to public institutions of higher education each year, and, as such, this legislature must ensure that all public institutions of higher education receiving state funds recognize freedom of speech as a fundamental right for all.

SEC. 2.

 Chapter 9 (commencing with Section 99360) is added to Part 65 of Division 14 of Title 3 of the Education Code, to read:
CHAPTER  9. The Forming Open and Robust University Minds Act

99360.
 This chapter shall be known, and may be cited, as the Forming Open and Robust University Minds Act, or the FORUM Act.

99361.
 For purposes of this chapter, the following definitions apply:
(a) “Benefit” includes recognition, registration, the use of facilities of the institution of higher education for meetings or speaking purposes, the use of channels of communication, and funding sources that are otherwise available to other student associations at the public institution of higher education.
(b) “Campus community” means students, administrators, and faculty and staff of the institution of higher education, and invited guests of any of those persons.
(c) “Counter demonstration” means lawful action or conduct that criticizes or objects to the free expression activities of others on campus, and does not violate the rights of others in the campus community by materially disrupting previously scheduled or reserved activities in a portion or section of the campus at that scheduled time.
(d) “First Amendment” means the First Amendment of the United States Constitution.
(e) “Harassment” means expression that is so severe, pervasive, and subjectively and objectively offensive that it unreasonably interferes with an individual’s access to educational opportunities or benefits provided by the public institution of higher education.
(f) “Outdoor areas” means the generally accessible outside areas of campus where members of the campus community are commonly allowed, including grassy areas and walkways. “Outdoor areas of campus” do not include outdoor areas that a majority of the campus community is restricted from accessing.
(g) “Public institution of higher education” means a campus of the California Community Colleges, the California State University, or the University of California.
(h) “Student” means a person who is enrolled on a full-time or part-time basis in a public institution of higher education.
(i) “Student organization” means an officially recognized group at a public institution of higher education, or a group seeking official recognition, comprised of students who receive, or are seeking to receive, benefits through the institution of higher education.

99362.
 Expressive activities protected under the provisions of this chapter include, but are not limited to, any lawful verbal or written means by which an individual communicates ideas to others, including all forms of peaceful assembly, protests, speeches, guest speakers, distribution of literature, carrying signs, and circulating petitions.

99363.
 (a) The outdoor areas of a public institution of higher education shall be deemed traditional public forums. A public institution of higher education may maintain and enforce reasonable time, place, and manner restrictions narrowly tailored in service of a significant institutional interest only when those restrictions employ clear, published, content- and viewpoint-neutral criteria, and provide for ample alternative means of expression. A restriction pursuant to this section shall not prohibit a member of the campus community from spontaneously and contemporaneously assembling and distributing literature.
(b) Nothing in this section shall be interpreted as limiting the right of student expression elsewhere on campus.

99364.
 (a) A person who wishes to engage in noncommercial expressive activity in the outdoor areas of a public institution of higher education shall be permitted to do so freely, as long as the person’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the public institution of higher education, subject only to the requirements of Section 99363.
(b) Nothing in this section shall prohibit a public institution of higher education from maintaining and enforcing reasonable time, place, and manner restrictions that are narrowly tailored to serve a significant institutional interest only when those restrictions employ clear, published, content- and viewpoint-neutral criteria. A restriction pursuant to this section shall not prohibit a member of the campus community from spontaneously and contemporaneously assembling and distributing literature.
(c) Nothing in this section shall be interpreted as preventing a public institution of higher education from prohibiting, limiting, or restricting expression that the First Amendment does not protect, including, but not limited to, true threats and expression directed to provoke imminent lawless actions and likely to produce it, or from prohibiting harassment.
(d) Nothing in this section shall be interpreted as limiting the right of a member of the campus community to hold a counter demonstration, if the conduct of the counter demonstration is not unlawful and does not materially and substantially prohibit the expressive activities of others on campus, or disrupt the functioning of the institution of higher education.

99365.
 A public institution of higher education shall not deny a belief-based student organization a benefit or privilege available to any other student organization, or otherwise discriminate against a belief-based organization, based on the expression of the organization, including by requiring that a leader or member of a belief-based organization do any of the following:
(a) Affirm and adhere to the organization’s sincerely held beliefs.
(b) Comply with the organization’s standards of conduct.
(c) Further the organization’s mission or purpose, as defined by the student organization.

99366.
 (a) A public institution of higher education shall make public in its handbooks, on its Internet Web site, and through its orientation programs for students the policies, regulations, and expectations of students regarding free expression on campus consistent with this chapter.
(b) A public institution of higher education shall develop materials, programs, and procedures to ensure that those persons who are responsible for the discipline or education of students, including, but not limited to, administrators, campus police officers, residence life officials, and professors, understand the policies, regulations, and duties of public institutions of higher education regarding free expression on campus consistent with this chapter.

99367.
 (a) On or before December 1, 2019, and on December 1 of each year thereafter, a public institution of higher education shall publicly post on its Internet Web site and submit to the Governor and Legislature a report that details the course of action being taken in order to comply with the requirements of this chapter. A report required pursuant to this subdivision shall meet the following requirements:
(1) Be accessible from the institution’s Internet Web site homepage by use of not more than three links to reach the report.
(2) Be searchable by keywords and phrases.
(3) Be accessible to the public without requiring registration or use of a username, password, or other user identification.
(b) A report required pursuant to subdivision (a) shall include all of the following:
(1) A description of any barriers to, or incidents of disruption of, free expression occurring on campus, including, but not limited to, attempts to block or prohibit speakers and investigations into students or student organizations for their expressive activities. The description shall include the nature of each barrier or incident and any disciplinary action taken against members of the campus community determined to be responsible for those specific barriers or incidents. The description shall not reveal a student’s personally identifying information.
(2) Any other information the public institution of higher education deems valuable in order for the public to evaluate whether free expression rights for all members of the campus community have been equally protected and enforced consistent with this chapter.
(c) If a public institution of higher education is sued for an alleged violation of First Amendment rights, a supplementary report with a copy of the complaint shall be submitted to the Governor and Legislature within 30 days of notice of the suit.
(d) A report required pursuant to this section shall be submitted in compliance with Section 9795 of the Government Code.

99368.
 The Board of Governors of the California Community Colleges and the Trustees of the California State University shall, and Regents of the University of California are encouraged to, develop and adopt a policy on free expression that contains, at a minimum, the following statements:
(a) The primary function of an institution of higher education is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate. This statement shall provide that, to fulfill this function, the institution must strive to ensure the fullest degree of intellectual freedom and free expression.
(b) It is not the proper role of an institution of higher education to shield individuals from speech protected by the First Amendment, including, without limitation, ideas and opinions a person may find unwelcome, disagreeable, or even deeply offensive.
(c) 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 significant institutional interest, provided that 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.
(d) The public outdoor areas of an institution of higher education are traditional public forums, open on the same terms to any speaker.
(e) 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.

99369.
 A person or student association aggrieved by a violation of this chapter may bring an action against the public institution of higher education and any other persons responsible for the violation, and may seek appropriate relief, including, but not limited to, injunctive relief, monetary damages, reasonable attorneys’ fees, and court costs. A person or student organization aggrieved by a violation of this chapter may assert that violation as a defense or counter claim in any disciplinary action or in any civil or administrative proceedings brought against the student or a student organization. Nothing in this section shall be interpreted to limit any other remedies available to any person or student organization.

99370.
 A person may bring suit for violation of this chapter not later than one year after the day the cause of action accrues. For purposes of calculating the one-year limitation period, each day that the violation persists, and each day that a policy in violation of this chapter remains in effect, shall constitute a new violation of this chapter and, therefore, a new day that the cause of action has accrued.

99371.
 The state waives immunity under the Eleventh Amendment of the United States Constitution and consents to suit in a federal court for lawsuits arising out of this chapter. A public institution of higher education that violates this chapter is not immune from suit or liability for the violation.

99372.
 If any provision of this chapter or any application of a provision of this chapter to any person or circumstance is held to be unconstitutional, the remainder of this chapter and the application of the provision to any other person or circumstance shall not be affected.

SEC. 3.

 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.