Bill Text: TX HB2100 | 2019-2020 | 86th Legislature | Engrossed
Bill Title: Relating to the protection of expressive activities at public institutions of higher education.
Spectrum: Partisan Bill (Republican 63-0)
Status: (Engrossed - Dead) 2019-04-30 - Received from the House [HB2100 Detail]
Download: Texas-2019-HB2100-Engrossed.html
By: Cain, Oliverson, Goldman, Phelan, Wilson, | H.B. No. 2100 | |
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relating to the protection of expressive activities at public | ||
institutions of higher education. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. The legislature finds that: | ||
(1) freedom of expression is of critical importance | ||
and requires each public institution of higher education to ensure | ||
free, robust, and uninhibited debate and deliberations by students | ||
enrolled at the institution, regardless of whether the students are | ||
on or off campus; and | ||
(2) it is a matter of statewide concern that all public | ||
institutions of higher education officially recognize freedom of | ||
speech as a fundamental right. | ||
SECTION 2. Subchapter Z, Chapter 51, Education Code, is | ||
amended by adding Section 51.9315 to read as follows: | ||
Sec. 51.9315. PROTECTED EXPRESSION ON CAMPUS. (a) In this | ||
section: | ||
(1) "Employee" has the meaning assigned by Section | ||
51.934. | ||
(2) "Expressive activities" means any speech or | ||
expressive conduct protected by the First Amendment to the United | ||
States Constitution or Section 8, Article I, Texas Constitution, | ||
and includes assemblies, protests, speeches, the distribution of | ||
written or visual material, the carrying of signs, and the | ||
circulation of petitions. The term does not include commercial | ||
speech. | ||
(3) "Institution of higher education" has the meaning | ||
assigned by Section 61.003. | ||
(4) "Matter of public concern" means a statement or | ||
activity related to: | ||
(A) a public official, public figure, or other | ||
person who has drawn substantial public attention due to the | ||
person's official acts, fame, notoriety, or celebrity; | ||
(B) a matter of political, governmental, social, | ||
or other concern to the community; or | ||
(C) a subject of general interest and of value | ||
and concern to the public. | ||
(b) It is the policy of this state and the purpose of this | ||
section to protect the expressive rights of persons guaranteed by | ||
the constitutions of the United States and of this state by ensuring | ||
that: | ||
(1) all persons lawfully present on the campus of an | ||
institution of higher education may engage in, observe, or listen | ||
to expressive activities; and | ||
(2) the expressive rights of persons lawfully present | ||
on the campus of an institution of higher education are not | ||
unnecessarily restricted or impeded by rules or policies adopted by | ||
the institution. | ||
(c) An institution of higher education shall: | ||
(1) ensure that the common outdoor areas of the | ||
institution's campus are deemed traditional public forums; and | ||
(2) permit any person lawfully present to engage in, | ||
observe, or listen to expressive activities in those areas of the | ||
institution's campus freely, as long as the person's conduct: | ||
(A) is not unlawful; and | ||
(B) does not materially and substantially: | ||
(i) disrupt the functioning of the | ||
institution; or | ||
(ii) interfere with the rights of others to | ||
engage in, observe, or listen to expressive activities. | ||
(d) Notwithstanding Subsection (c), an institution of | ||
higher education by rule may maintain and enforce reasonable | ||
restrictions on the time, place, and manner of expressive | ||
activities in the common outdoor areas of the institution's campus | ||
if those restrictions: | ||
(1) are necessary to further a compelling | ||
institutional interest and are the least restrictive means of | ||
furthering that interest; | ||
(2) employ clear, published, content-neutral, and | ||
viewpoint-neutral criteria; | ||
(3) leave open ample alternative means of expression; | ||
and | ||
(4) allow students enrolled at and employees of the | ||
institution to spontaneously and contemporaneously assemble or | ||
distribute written material without a permit or other permission | ||
from the institution. | ||
(e) Subsections (c) and (d) do not: | ||
(1) limit the right of student expression at other | ||
campus locations; or | ||
(2) prohibit faculty members from maintaining order in | ||
the classroom. | ||
(f) The protections under this section apply equally to | ||
students and to student groups and organizations, regardless of | ||
whether the group or organization is recognized by or registered | ||
with the institution of higher education. | ||
(g) Each institution of higher education shall adopt a | ||
policy detailing students' and employees' rights and | ||
responsibilities regarding expressive activities at the | ||
institution. The policy must: | ||
(1) allow: | ||
(A) any person to, subject to Subsection (c)(2) | ||
and reasonable restrictions adopted under Subsection (d), engage | ||
in, observe, or listen to expressive activities on campus, | ||
including by responding to the expressive activities of others; and | ||
(B) students, student groups and organizations, | ||
and employees to, subject to Subsection (j), invite speakers to | ||
speak on campus; | ||
(2) establish disciplinary sanctions for students or | ||
student groups or organizations who materially and substantially | ||
interfere with the rights of others to engage in, observe, or listen | ||
to expressive activities on campus; | ||
(3) include a grievance procedure for addressing | ||
complaints of a violation of this section; | ||
(4) encourage the free and open exchange of ideas, | ||
regardless of the content or viewpoint expressed, in classrooms and | ||
all other campus locations; | ||
(5) prohibit the institution or any employee of the | ||
institution from punishing a student or employee in any manner for | ||
engaging in, observing, or listening to expressive activities; | ||
(6) prohibit the institution from taking official | ||
action on a matter of public concern in a manner that requires a | ||
student or employee to publicly express a particular viewpoint on | ||
that matter; | ||
(7) prohibit any institution official or employee from | ||
disinviting a speaker who has been approved by the institution to | ||
speak on campus and has been invited to speak on campus by a student | ||
enrolled at the institution, a student group or organization at the | ||
institution, or an employee of the institution; | ||
(8) require the institution to strive to maintain an | ||
official position of neutrality on matters of public concern except | ||
as necessary for the institution's operations; | ||
(9) to the extent consistent with state and federal | ||
law, require the institution to permit a student group or | ||
organization formed for the purpose of exercising expressive rights | ||
to establish and maintain membership and leadership qualifications | ||
for the group or organization that further the group's or | ||
organization's purpose, including by requiring the group's or | ||
organization's leaders or members to: | ||
(A) adhere to or comply with the group's or | ||
organization's sincerely held beliefs or sincere standards of | ||
conduct; or | ||
(B) be committed to furthering the group's or | ||
organization's mission or purpose; | ||
(10) contain statements that: | ||
(A) it is not the proper role of the institution | ||
to shield persons from speech or expressive conduct protected by | ||
the First Amendment to the United States Constitution or Section 8, | ||
Article I, Texas Constitution, including, without limitation, | ||
ideas or opinions that those persons may find unwelcome or | ||
disagreeable; and | ||
(B) subject to Subsection (c)(2) and reasonable | ||
restrictions adopted under Subsection (d), students and employees | ||
are entitled to: | ||
(i) discuss any problem; and | ||
(ii) spontaneously and contemporaneously | ||
assemble or distribute written or visual material without a permit | ||
or other permission from the institution; | ||
(11) contain a statement that, pursuant to Section | ||
51.935, a person commits an offense if the person, alone or in | ||
concert with others, intentionally engages in disruptive activity | ||
on the campus or property of an institution of higher education; | ||
(12) be approved by a majority vote of the | ||
institution's governing board before final adoption; and | ||
(13) be posted on the institution's Internet website. | ||
(h) Each institution of higher education shall adopt | ||
procedures for the institution's disciplinary process regarding an | ||
alleged violation of the institution's student code of conduct | ||
involving expressive activities and provide notice of those | ||
procedures to each student enrolled at the institution. At a | ||
minimum, the procedures must entitle the student alleged to have | ||
violated the institution's student code of conduct to: | ||
(1) receive written notice of the allegation before | ||
the initiation of the disciplinary process; | ||
(2) review evidence supporting the allegation; | ||
(3) present a defense, including by calling witnesses | ||
for the student and confronting witnesses against the student; | ||
(4) have the institution's determination of | ||
responsibility made by an impartial arbiter or panel; | ||
(5) appeal a determination finding the student | ||
responsible for the violation; and | ||
(6) if a potential sanction for the violation is | ||
suspension for a period of more than 30 days or expulsion from the | ||
institution, have assistance of counsel during each stage of the | ||
disciplinary process. | ||
(i) On the second or any subsequent determination by an | ||
institution of higher education that a student is responsible for | ||
violating the institution's student code of conduct by materially | ||
and substantially interfering with the expressive activities of | ||
others, the institution shall: | ||
(1) suspend the student for at least one semester or | ||
term; or | ||
(2) not later than two weeks after resolving the | ||
disciplinary process, provide to the committee on free expression | ||
for the institution established under this section an explanation | ||
of the reason the institution did not impose a sanction on the | ||
student under Subdivision (1). | ||
(j) In determining whether to approve a speaker to speak on | ||
campus or in determining the amount of a fee to be charged for use of | ||
the institution's facilities for purposes of engaging in expressive | ||
activities, an institution of higher education may consider only | ||
content-neutral and viewpoint-neutral criteria related to the | ||
needs of the event, such as: | ||
(1) the proposed venue and the expected size of the | ||
audience; | ||
(2) any anticipated need for campus security; | ||
(3) any necessary accommodations; and | ||
(4) any relevant history of compliance or | ||
noncompliance by the requesting student, student group or | ||
organization, or employee with the institution's policy adopted | ||
under Subsection (g) and any other relevant policies. | ||
(k) An institution of higher education shall make | ||
reasonable efforts to ensure the safety of speakers invited to | ||
speak on campus by a student enrolled at the institution, a student | ||
group or organization at the institution, or an employee of the | ||
institution. | ||
(l) Not later than the first anniversary of the date that a | ||
violation of this section is alleged to have occurred at an | ||
institution of higher education, the attorney general or a person | ||
whose expressive rights have been violated under this section may | ||
bring an action for injunctive relief to compel the institution to | ||
comply with this section or to recover compensatory damages, court | ||
costs, and reasonable attorney's fees. In an action for damages | ||
brought under this subsection, the court: | ||
(1) shall, if the court finds that an institution of | ||
higher education has violated this section, award the aggrieved | ||
person the greater of: | ||
(A) the amount of the person's compensatory | ||
damages; or | ||
(B) $1,000; and | ||
(2) may award reasonable attorney's fees to the | ||
prevailing party. | ||
(m) For purposes of computing the limitation period under | ||
Subsection (l), each day of a continuing violation of this section, | ||
including each day that a rule or policy of an institution of higher | ||
education that violates this section remains in effect, constitutes | ||
a separate violation. | ||
(n) In addition to the cause of action under Subsection (l), | ||
a person whose expressive rights are affected by a rule or policy | ||
adopted by an institution of higher education may file suit against | ||
the institution for declaratory judgment in the manner provided by | ||
Chapter 37, Civil Practice and Remedies Code. | ||
(o) An institution of higher education's sovereign immunity | ||
to suit and from liability is waived and abolished to the extent of | ||
liability created under this section. | ||
(p) Each institution of higher education shall make the | ||
institution's policies adopted in accordance with this section | ||
available to students enrolled at and employees of the institution | ||
by: | ||
(1) including the policies in the institution's | ||
student handbook and personnel handbook; | ||
(2) providing a copy of each policy to students during | ||
the institution's freshman or transfer student orientation; and | ||
(3) posting the policies on the institution's Internet | ||
website. | ||
(q) Each institution of higher education shall develop | ||
materials, programs, and procedures to ensure that the | ||
institution's employees responsible for educating or disciplining | ||
students understand the requirements of this section and all | ||
policies adopted by the institution in accordance with this | ||
section. | ||
(r) The governing board of each institution of higher | ||
education or university system shall create a committee on free | ||
expression to address free speech issues at the institution or | ||
institutions governed by the board. The committee must consist of | ||
at least five members. Not later than September 1 of each year, the | ||
committee shall prepare and submit to the governor, the members of | ||
the legislature, and the governing board a report on free speech | ||
issues that arose at the institution or institutions during the | ||
preceding academic year. The report must include, for each | ||
institution governed by the board: | ||
(1) a description of any barriers to or disruptions of | ||
expressive activities at the institution; | ||
(2) a summary of the institution's handling of free | ||
speech issues, including any disciplinary action taken related to | ||
the policies adopted under this section and any explanations | ||
regarding those actions provided to the committee by the | ||
institution as required under this section; | ||
(3) an analysis of any substantial difficulties, | ||
controversies, or successes in maintaining the institution's | ||
official position of neutrality on matters of public concern; and | ||
(4) any recommendations for legislative or other | ||
action. | ||
SECTION 3. Not later than September 1, 2019, the governing | ||
board of each public institution of higher education or university | ||
system shall create the committee on free expression required under | ||
Section 51.9315, Education Code, as added by this Act. Each | ||
governing board's committee shall prepare and submit its initial | ||
report required under that section not later than September 1, | ||
2020. | ||
SECTION 4. Not later than August 1, 2020, each public | ||
institution of higher education shall adopt the policy required | ||
under Section 51.9315(g), Education Code, as added by this Act. | ||
SECTION 5. This Act takes effect September 1, 2019. |