HF 276 (LSB 1120YH (7) 88)

HOUSE FILE 276

BY  SALMON, HOLT, GASSMAN, GUSTAFSON, BAXTER, SHIPLEY, WHEELER, JACOBSEN, OSMUNDSON, FISHER, and THOMPSON

A BILL FOR

An Act relating to speech and expression at public institutions of higher education, providing for remedies, and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  261H.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Benefit” with respect to a student organization at a public institution of higher education means any of the following:
   a.  Recognition.
   b.  Registration.
   c.  Use of facilities for meetings or speaking purposes.
   d.  Use of channels of communication.
   e.  Access to funding sources that are otherwise available to other student groups.
   2.  “Campus community” means students, administrators, faculty, and staff at a public institution of higher education and guests invited to a public institution of higher education by the institution’s students, administrators, faculty, or staff.
   3.  “Outdoor areas of campus” means the generally accessible outside areas of campus where students, administrators, faculty, and staff at a public institution of higher education are commonly allowed, such as grassy areas, walkways, or other similar common areas and does not include areas outside health care facilities, veterinary medicine facilities, a facility or outdoor area used by the institution’s athletics program or teams, or other outdoor areas where access is restricted to a majority of the campus community. In recognition of the healing environment that is essential to its clinical purposes, the areas outside health care facilities are not a traditional or designated public forum.
   4.  “Public institution of higher education” means a community college established under chapter 260C or an institution of higher learning governed by the state board of regents.
   5.  “Student” means an individual who is enrolled on a full-time or part-time basis at a public institution of higher education.
   6.  “Student organization” means a group officially recognized at or officially registered by a public institution of higher education, or a group seeking such official recognition or official registration, comprised of students who are admitted and in attendance at the public institution of higher education, and who receive, or are seeking to receive, student organization benefits or privileges through the public institution of higher education.
    Sec. 2.  NEW SECTION.  261H.2  Policy —— statements and disciplinary sanctions.
   1.  The state board of regents and the board of directors of each community college shall adopt a policy that includes all of the following statements:
   a.  That 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 allowed under the first amendment to the Constitution of the United States.
   b.  (1)  That it is not the proper role of an institution of higher education to shield individuals from speech protected by the first amendment to the Constitution of the United States, which may include ideas and opinions the individual finds unwelcome, disagreeable, or even offensive.
   (2)  That it is the proper role of an institution of higher education to encourage diversity of thoughts, ideas, and opinions and to encourage, within the bounds of the first amendment to the Constitution of the United States, the peaceful, respectful, and safe exercise of first amendment rights.
   c.  That students and faculty have the freedom to discuss any problem that presents itself, assemble, and engage in spontaneous expressive activity on campus, within the bounds of established principles of the first amendment to the Constitution of the United States, and subject to reasonable time, place, and manner restrictions that are consistent with established first amendment principles.
   d.  That the public areas of campus of an institution of higher education are traditional public forums, open on the same terms to any invited speaker subject to reasonable time, place, and manner restrictions that are consistent with established principles of the first amendment to the Constitution of the United States.
   2.  The policy shall include a range of disciplinary sanctions for anyone who is under the jurisdiction of the public institution of higher education and who materially and substantially interferes with the free expression of others.
   3.  The policy shall establish that members of the campus community are free to take positions on current public controversial issues.
   4.  The policy shall require that the institution of higher education attempt to remain neutral on current public policy controversies, except insofar as administrative decisions on such controversies are essential to the day-to-day functioning of the institution, and shall prohibit the institution from taking action on current public policy controversies in such a way as to require members of the campus community to publicly express a given view of a public policy controversy.
    Sec. 3.  NEW SECTION.  261H.3  Protected activities.
   1.  Noncommercial expressive activities protected under the provisions of this chapter include any lawful oral or written means by which members of the campus community may communicate ideas to one another, including all forms of peaceful assembly, protests, speeches including by invited speakers, distribution of literature, and circulating petitions.
   2.  A member of the campus community who wishes to engage in noncommercial expressive activity in outdoor areas of campus shall be permitted to do so freely, subject to reasonable time, place, and manner restrictions that are consistent with established principles of the first amendment to the Constitution of the United States, and as long as the member’s conduct is not unlawful and does not disrupt the functioning of the public institution of higher education, subject to the protections of subsection 1. The public institution of higher education may designate other areas of campus available for use by the campus community according to institutional policy, but in all cases access to designated areas of campus must be granted on a content-neutral and viewpoint-neutral basis within the bounds of established first amendment principles. 
   3.  A public institution of higher education shall not deny benefits or privileges available to student organizations based on the viewpoint of a student organization or the expression of the viewpoint of a student organization by the student organization or its members protected by the first amendment to the Constitution of the United States. In addition, a public institution of higher education shall not deny any benefit or privilege to a student organization based on the student organization’s requirement that the leaders of the student organization affirm or agree to the student organization’s beliefs or standards of conduct or further the student organization’s mission. 
   4.  This section shall not be interpreted as limiting the right of student expression in a counter demonstration held on campus as long as the conduct at the counter demonstration is not unlawful and does not materially and substantially prohibit the free expression rights of others on campus or disrupt the functioning of the public institution of higher education, subject to reasonable time, place, and manner restrictions that are consistent with established principles of the first amendment to the Constitution of the United States.
   5.  Nothing in this chapter shall be interpreted as preventing public institutions of higher education from prohibiting, limiting, or restricting expression that is not protected by the first amendment to the Constitution of the United States.
    Sec. 4.  NEW SECTION.  261H.4  Public forums on campus —— freedom of association.
   The outdoor areas of campuses of public institutions of higher education in this state shall be deemed traditional public forums. Public institutions of higher education may maintain and enforce reasonable time, place, and manner restrictions consistent with established principles of the first amendment to the Constitution of the United States. Such restrictions shall allow for members of the campus community to engage in spontaneous expressive activity and to distribute literature.
    Sec. 5.  NEW SECTION.  261H.5  Remedies —— statute of limitations —— immunity.
   1.  A member of the campus community aggrieved by a violation of this chapter may file a complaint with the governing body of the public institution of higher education. 
   2.  A member of the campus community who is the subject of a complaint filed in accordance with subsection 1 is entitled to a disciplinary hearing under procedures published by the public institution of higher education on the institution’s internet site and the member of the campus community is further entitled, at minimum, to the following:
   a.  The right to receive advanced written notice of the charges.
   b.  The right to review the evidence in support of the charges. 
   c.  The right to confront any witness to the alleged violation. 
   d.  The right to present a defense.
   e.  The right to call witnesses. 
   f.  The right to a decision by an impartial arbiter or panel. 
   g.  The right to appeal a decision of the public institution of higher education to the institution’s governing body.
   h.  The right to active assistance of counsel if the potentially applicable sanctions adopted pursuant to section 261H.2, subsection 2, include suspension for longer than thirty days or expulsion.
   3.  If two or more disciplinary hearings conducted pursuant to this section result in disciplinary actions against the same student, the student shall be suspended for a minimum of one year or expelled.
   4.  A member of the campus community aggrieved by a violation of this chapter may assert such violation as a defense or counterclaim in a disciplinary action or in a civil or administrative proceeding brought against the member of the campus community.
   5.  A member of the campus community shall bring a claim for violation of this chapter pursuant to this section not later than one year after the day the cause of action accrues.
   6.  If the court finds that a violation of this chapter occurred, the court shall award the aggrieved person injunctive relief for the violation; shall award reasonable court costs and reasonable attorney fees; and shall also award damages of one thousand dollars or actual damages, whichever is higher.
   7.  This section shall not be interpreted to limit any other remedies available to a member of the campus community.
   8.  Nothing in this section shall be construed to make any administrator, officer, employee, or agent of a public institution of higher education personally liable for acts taken pursuant to the individual’s official duties.
    Sec. 6.  NEW SECTION.  261H.6  Committee on free expression —— annual report.
   1.  The state board of regents, in cooperation with the Iowa association of community college trustees, shall annually convene a committee on free expression to compile an annual report that includes all of the following: 
   a.  A description of any barriers to or disruptions of free expression within public institutions of higher education.
   b.  A description of the administrative handling and discipline relating to these disruptions or barriers.
   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 deems appropriate to include.
   2.  Members of the committee shall be appointed at the discretion of the president of the state board of regents and the board chair of the Iowa association of community college trustees. However, a public postsecondary institution shall not be represented by more than one person appointed to the committee. By September 1, 2020, and by September 1 each year thereafter, the committee shall submit its report to the governor, the general assembly, the state board of regents, and the Iowa association of community college trustees.
    Sec. 7.  IMPLEMENTATION OF ACT.  Section 25B.2, subsection 3, shall not apply to this Act.
    Sec. 8.  EFFECTIVE DATE.  This Act, being deemed of immediate importance, takes effect upon enactment.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to public forums, freedom of expression, and freedom of association at community colleges and regents universities.
   DEFINITIONS. The bill defines “benefit”, “campus community”, “outdoor areas of campus”, “public institution of higher education”, “student”, and “student organization” for purposes of the new Code chapter established by the bill.
   POLICY STATEMENTS AND DISCIPLINARY SANCTIONS. The bill requires the boards governing the public postsecondary institutions to adopt a policy that includes statements describing the functions and roles of institutions with regard to knowledge; protected speech; the freedom to discuss within the bounds of the established principles of the first amendment to the United States Constitution; freedom to assemble and engage in spontaneous expressive activities subject to reasonable time, place, and manner restrictions; and public areas of campuses as traditional public forums.
   The policy must also include a range of disciplinary sanctions; establish that members of the campus community are free to take positions on current public controversial issues; require that the institutions attempt to remain neutral; and prohibit the institution from taking action on current public policy controversies in such a way as to require members of the campus community to publicly express a given view of a public policy controversy.
   PROTECTED ACTIVITIES. Protected activities include noncommercial expressive activities including oral or written means to communicate ideas, including all forms of peaceful assembly, protests, speeches including by invited speakers, distribution of literature, and circulating petitions. A member of the campus community who wishes to engage in noncommercial expressive activity on campus shall be permitted to do so freely subject to reasonable time, place, and manner restrictions. However, nothing in the bill shall be interpreted as preventing the institutions from prohibiting, limiting, or restricting unprotected expression.
   A public postsecondary institution shall not deny a student organization any benefit or privilege available to any other student organization. However, nothing in the bill shall be interpreted as limiting the right of student expression in a counter demonstration held on campus so long as the conduct at the counter demonstration is not unlawful and does not materially and substantially prohibit the free expression rights of others or disrupt the functioning of the institution.
   PUBLIC FORUMS ON CAMPUS —— FREEDOM OF ASSOCIATION. The bill requires that the outdoor areas of campuses of public postsecondary institutions be deemed traditional public forums. The institutions may maintain and enforce reasonable time, place, and manner restrictions consistent with first amendment established principles.
   REMEDIES, STATUTE OF LIMITATIONS, AND IMMUNITY PROVISIONS.  An aggrieved member of the campus community may bring an action against the institution responsible for a violation of the Code chapter and seek appropriate relief, and may assert such violation as a defense or counterclaim. Such person has one year after the day the cause of action accrues to bring a claim for violation of the Code chapter. 
   A member of the campus community who is the subject of a complaint is entitled to a disciplinary hearing and to certain rights established by the bill, including the right to counsel if suspension for more than 30 days or expulsion are potential sanctions. If two or more disciplinary hearings result in disciplinary actions against the same student, the student shall be suspended for a minimum of one year or expelled. Procedures for the hearing must be published by the institution on its internet site. 
   If the court finds that a violation occurred, the court shall award the aggrieved person injunctive relief; reasonable court costs and reasonable attorney fees; and damages of $1,000 or actual damages, whichever is higher.
   Nothing in the bill shall be interpreted to limit any other available remedies to a member of the campus community.
   COMMITTEE ON FREE EXPRESSION —— ANNUAL REPORT. The state board of regents, in cooperation with the Iowa association of community college trustees, shall annually convene a committee on free expression to compile an annual report that includes descriptions of barriers to or disruptions of free expression within public postsecondary institutions and the administrative handling and discipline of such disruptions or barriers; and the substantial difficulties, controversies, or successes in maintaining a posture of administrative and institutional neutrality with regard to political or social issues. Any assessments, criticisms, commendations, or recommendations the committee deems appropriate may be included in the report.
   Members of the committee are appointed at the discretion of the president of the state board of regents and the board chair of the Iowa association of community college trustees. However, a public postsecondary institution shall not be represented by more than one person appointed to the committee. The first report must be submitted by September 1, 2020, and subsequent reports by September 1 annually thereafter, to the governor, the general assembly, the state board of regents, and the Iowa association of community college trustees. 
   STATE MANDATE —— INAPPLICABILITY PROVISION. The bill may include a state mandate as defined in Code section 25B.3. The bill makes inapplicable Code section 25B.2, subsection 3, which would relieve a political subdivision from complying with a state mandate if funding for the cost of the state mandate is not provided or specified. Therefore, political subdivisions are required to comply with any state mandate included in the bill.
   EFFECTIVE DATE. The bill takes effect upon enactment.