HB3409 102ND GENERAL ASSEMBLY

LRB102 14947 CMG 20302 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB3409

Introduced 2/22/2021, by Rep. Thomas Morrison

SYNOPSIS AS INTRODUCED:

New Act

Creates the Campus Free Speech Act. Requires the governing board of each public university and community college to develop and adopt a policy on free expression; sets forth what the policy must contain. Requires the Board of Higher Education to create a Committee on Free Expression to issue an annual report. Requires public institutions of higher education to include in their freshman orientation programs a section describing to all students the policies and rules regarding free expression that are consistent with the Act. Contains provisions concerning rules, construction of the Act, permitted restrictions, and enforcement.

FISCAL NOTE ACT MAY APPLY

STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

A BILL FOR

AN ACT concerning education.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Campus Free Speech Act.

Section 5. Legislative findings. The General Assembly finds the following:

(1) Section 4 of Article I of the Illinois Constitution recognizes that "all persons may speak, write and publish freely, being responsible for the abuse of that liberty. In trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense".

(2) Public institutions of higher education have historically embraced a commitment to freedom of expression in policy.

(3) In recent years, public institutions of higher education have abdicated their responsibility to uphold free-speech principles, and these failures make it appropriate for all public institutions of higher education to restate and confirm their commitment in this regard.

(4) In 1974, the Committee on Free 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; and 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. The principles affirmed by these 3 highly regarded reports are inspiring articulations of the critical importance of free expression in higher education.

(5) The General Assembly views freedom of expression as being of critical importance and requires that each public institution of higher education ensure free, robust, and uninhibited debate and deliberation by students of public institutions whether on or off campus.

(6) The General Assembly has determined that it is a matter of statewide concern that all public institutions of higher education officially recognize freedom of speech as a fundamental right.

Section 10. Definition. In this Act, "public institution" means a public university or public community college in this State.

Section 15. Policy on free expression required. The board of trustees of a public institution shall develop and adopt a policy on free expression that contains, at least, the following:

(1) A statement 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.

(2) A statement that it is not the proper role of the institution to shield individuals from speech protected by the First Amendment, including, without limitation, ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.

(3) A statement 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 Act 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 as long as the activity is not unlawful and does not materially and substantially disrupt the functioning of the institution, subject to the requirements of this Act.

(4) A statement that any person lawfully present on campus may protest or demonstrate there. The statement 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 does not prohibit professors or other instructors from maintaining order in the classroom.

(5) A statement that the campuses of the institution are open to any speaker whom students, student groups, or members of the faculty have invited.

(6) A statement that the public areas of campuses of the institution are traditional public forums, open on the same terms to any speaker.

(7) A range of disciplinary sanctions for anyone under the jurisdiction of the institution who interferes with the free expression of others.

(8) A provision that, in all disciplinary cases involving expressive conduct, students are entitled to a disciplinary hearing under published procedures, including, at minimum:

(A) the right to receive advance written notice of the charges;

(B) the right to review the evidence in support of the charges;

(C) the right to confront witnesses against them;

(D) the right to present a defense;

(E) the right to call witnesses;

(F) a decision by an impartial arbiter or panel; and

(G) the right of appeal.

When suspension for longer than 30 days or expulsion are potential penalties, students are entitled to a disciplinary hearing under published procedures, including, at minimum, all of the procedures listed in this subdivision (8), plus the right to active assistance of counsel.

(9) A provision that any student who has twice been found responsible for infringing on the expressive rights of others will be suspended for a minimum of one year or expelled.

(10) A statement that the institution (i) shall strive to remain neutral, as an institution, on the public policy controversies of the day and (ii) may 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.

(11) A statement that this policy supersedes and nullifies any prior provisions in the policies and regulations of the institution that restrict speech on campus and are, therefore, inconsistent with this policy on free expression. The institution shall remove or revise any such provisions in its policies and regulations to ensure compatibility with this policy on free expression.

Section 20. Committee on Free Expression.

(a) The Board of Higher Education shall create a single Committee on Free Expression consisting of all of the following members, all of whom shall serve without compensation but shall be reimbursed for their reasonable and necessary expenses from funds appropriated for that purpose:

(1) One member representing the University of Illinois at Urbana-Champaign, appointed by the university's board of trustees.

(2) One member representing the University of Illinois at Springfield, appointed by the university's board of trustees.

(3) One member representing the University of Illinois at Chicago, appointed by the university's board of trustees.

(4) One member representing Southern Illinois University at Carbondale, appointed by the university's board of trustees.

(5) One member representing Southern Illinois University at Edwardsville, appointed by the university's board of trustees.

(6) One member representing Western Illinois University, appointed by the university's board of trustees.

(7) One member representing Eastern Illinois University, appointed by the university's board of trustees.

(8) One member representing Illinois State University, appointed by the university's board of trustees.

(9) One member representing Northern Illinois University, appointed by the university's board of trustees.

(10) One member representing Chicago State University, appointed by the university's board of trustees.

(11) One member representing Governors State University, appointed by the university's board of trustees.

(12) One member representing Northeastern Illinois University, appointed by the university's board of trustees.

(13) Three members representing public community colleges, appointed by the Illinois Community College Board at its discretion.

(b) The Committee on Free Expression shall meet initially at the call of the Chairperson of the Board of Higher Education, shall select one member as chairperson at its initial meeting, and shall thereafter meet at the call of that chairperson. The Board of Higher Education shall provide administrative and other support to the Committee.

(c) The Committee on Free Expression shall report to the public, the Board of Higher Education, the Governor, and the General Assembly on September 1 of every year. The report shall include all of the following:

(1) A description of any barriers to or disruptions of free expression within public institutions.

(2) A description of the administrative handling and discipline relating to these disruptions or barriers.

(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.

Section 25. Freshman orientation information. Public institutions shall include in their freshman orientation programs a section describing to all students the policies and rules regarding free expression that are consistent with this Act.

Section 30. Rules; construction of Act; permitted restrictions. The Board of Higher Education is authorized to adopt rules to further the purposes of the policies adopted pursuant to this Act. Nothing in this Act shall be construed to prevent public institutions from regulating student speech or activity that is prohibited by law. Except as further limited by this Act, public institutions shall be allowed to restrict student expression only for expressive activity not protected by the First Amendment, including all of the following:

(1) Violations of State or federal law.

(2) Expression that a court has deemed unprotected defamation.

(3) Harassment as follows:

(A) Peer-on-peer harassment, which is defined as conduct directed by a student toward 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 public institution.

(B) Quid pro quo sexual harassment, which is defined as 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.

(4) True threats, which are defined as 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.

(5) An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.

(6) An action that unlawfully disrupts the function of the public institution.

(7) Reasonable time, place, and manner restrictions on expressive activities consistent with subdivision (3) of Section 15 of this Act.

Section 35. Restriction on expressive conduct; enforcement.

(a) A public institution may restrict expressive conduct in the public areas of campus only if it demonstrates that the restriction:

(1) is necessary to achieve a compelling governmental interest;

(2) is the least restrictive means of furthering that compelling governmental interest;

(3) leaves open ample other opportunities to engage in the expressive conduct; and

(4) provides for spontaneous assembly and the distribution of literature.

(b) The following persons may bring an action in a court of competent jurisdiction to enjoin any violation of this Section or to recover reasonable court costs and reasonable attorney fees:

(1) The Attorney General.

(2) A person whose expressive rights are violated by a violation of this Section.

(c) In an action brought under subsection (b) of this Section, if the court finds that a violation of this Section occurred, the court shall award the aggrieved person injunctive relief for the violation and shall award reasonable court costs and reasonable attorney fees. The court shall also award damages of $1,000 or actual damages, whichever is higher.

(d) A person shall bring an action for a violation of this Section 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 Section remains in effect constitutes a new violation of this Section and shall be considered a day that the cause of action has accrued.