Struck = only in HB 326 ·
added = only in HB 2390.
MISSISSIPPIWEST VIRGINIA LEGISLATURE REGULAR SESSION 2024Introduced By:House Bill 2390 By Delegates Kimble, Horst, Kirby, McGeehan, Ridenour, Phillips, C.
RepresentativePritt, Hobgood-WilkesMazzocchi To:and Fast [Introduced January 11, 2023;
UniversitiesReferred andto Collegesthe HOUSECommittee BILLon NO.Education then the Judiciary] Intr.
326HB AN2023R1041 ACTA TOBILL ESTABLISHto THEamend "FORMINGand OPENreenact AND§18B-20-1, ROBUST§18B-20-3, UNIVERSITY§18B-20-5, MINDS§18B-20-6, (FORUM)§18B-20-7, ACT,"and AS§18B-20-9 ITof RELATESthe TOCode FREEDOMof OFWest SPEECHVirginia, ON1931, THEas CAMPUSESamended; OF STATE INSTITUTIONS OF HIGHER LEARNING;
TOand PROHIBITto Aamend STATEsaid INSTITUTIONcode OFby HIGHERadding LEARNINGthereto FROMtwo DENYINGnew Asections, RELIGIOUS,designated POLITICAL§18B-20-10 ORand IDEOLOGICAL§18B-20-11, STUDENTall ORGANIZATIONrelating Ato BENEFITestablishing ORthe PRIVILEGEForming AVAILABLEOpen TOand ANOTHERRobust STUDENTUniversity ORGANIZATION,Minds OR(FORUM) OTHERWISEAct DISCRIMINATEthrough AGAINSTstrengthening SUCHexisting ANfree ORGANIZATION,expression BASEDon ONcampus THElaws; EXPRESSION OF THE ORGANIZATION;
TOproviding REQUIREfor STATElegislative INSTITUTIONSfindings OFregarding HIGHERthe LEARNINGexercise TOof DEVELOPFirst ANDAmendment MAKErights AVAILABLEon MATERIALSpublic EXPLAININGuniversity THEcampuses POLICYin FORthis CAMPUSstate STAFFas ANDbeing STUDENTS;critical components of the education experience for students;
TOclarifying REQUIREthe STATEdefinition INSTITUTIONSof OFpublic HIGHERforums; LEARNING TO SUBMIT A YEARLY REPORT DETAILING THE COURSE OF ACTION IMPLEMENTED TO COMPLY WITH THE POLICY;
TOmodifying PRESCRIBEcertain Atime, ONE-YEARplace, STATUTEand OFmanner LIMITATIONSrestrictions; FOR ACTIONS BROUGHT UNDER THIS ACT;
ANDstrengthening FORdevelopment RELATEDof PURPOSES.policies and procedures;
BEensuring ITa ENACTEDreporting BYrequirement THEand LEGISLATUREestablishing OFthe THEframework STATEfor OFreporting MISSISSIPPI:requirements;
SECTIONclarifying 1.the statute of limitations;
Thisproviding actfor shallimmunity; be known and may be cited as the "Forming Open and Robust University Minds (FORUM) Act." SECTION 2.
Asand usedproviding infor thisseverability. act, the following terms shall have the meaning ascribed in this section, unless context of use clearly requires otherwise:
(a)Be "Benefit"it meansenacted by the following:Legislature of West Virginia:
(i)ARTICLE Recognition;20.
(ii)FREE Registration;EXPRESSION ON CAMPUS FORMING OPEN AND ROBUST UNIVERSITY MINDS (FORUM).
H.§18B-20-1.
B.Definitions Legislative findings and definitions.
No.The West Virginia Legislature finds that the First Amendment of the United States Constitution and the West Virginia Constitution protect the rights of freedom of speech, freedom of the press, freedom of religion, freedom of association and freedom to petition the Government for all citizens.
326Furthermore, *HR31/R315*the ~Supreme OFFICIALCourt ~has G1/2called 24/HR31/R315public PAGEuniversities, 1“peculiarly (DJ\JAB) (iii) The use of facilities of the institutionmarketplace of higherideas,” educationHealy forv. meetings or speaking purposes;
(iv)James, The408 useU.S. of channels of communication;
and169, (v)180 Funding(1972), sourceswhere thatyoung areadults otherwiselearn availableto exercise these constitutional rights necessary to otherparticipate studentin organizationsour atsystem theof stategovernment institutionand to tolerate others’ exercise of higherthe learning.same rights, and 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,” Healy, 408 U.S.
(b) "Campus community" includes students, administrators, faculty and staff at the180. institution of higher education and their invited guests.
(c)Intr. "Harassment" shall mean only that expression that is unwelcome, so severe, pervasive, and subjectively and objectively offensive, that a student is effectively denied equal access to educational opportunities or benefits provided by the state institution of higher learning.
(d)HB "Materially2023R1041 andThis substantiallyLegislature disrupts"views meansthe whenexercise aof person,First withAmendment therights intenton topublic oruniversity withcampuses knowledgein ofthis doingstate so,as significantlycritical hinderscomponents anotherof person'sthe oreducation group'sexperience expressivefor activity,students preventsand therequires communicationthat ofeach thepublic message,university orin preventsthis thestate transactionensure offree, therobust, businessand ofuninhibited adebate lawfuland meeting,deliberations gatheringby students whether on or processionoff by:campus.
(i)This EngagingLegislature also finds that public universities in fighting,this violent,state orand otherelsewhere unlawfulare behavior;failing to provide adequate safeguards for the First Amendment rights of their students leading to a stifling of expression on campus.
orThe (ii)Supreme PhysicallyCourt blockinghas orwarned usingthat threatsif ofpublic violenceuniversities tostifle student speech and prevent anythe personopen fromexchange attending,of listeningideas to,on viewing,campus, or“our otherwisecivilization participatingwill instagnate anand expressivedie.” activity.Sweezy v.
H.New Hampshire, 354 U.S.
B.234, 250 (1957).
No.Finally, this Legislature has determined that 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.
326As *HR31/R315*used ~in OFFICIALthis ~article: 24/HR31/R315 PAGE 2(DJ\JAB) Conduct that "materially disrupts" shall not include conduct that is protected under the First Amendment to the United States Constitution or Section 14, Mississippi Constitution of 1890.
Such(a) protected“Benefit” conductmeans includes, but is not limited to, lawful protests in the outdoorfollowing: areas of campus generally accessible to the members of the public (except during times when those areas have been reserved in advance for other events), or minor, brief, or fleeting nonviolent disruptions of events that are isolated and short in duration.
(e)(1) "OutdoorRecognition; areas of campus" means the generally accessible outside areas of campus where members of the campus community are commonly allowed, such as grassy areas, walkways or other similar common areas and does not include outdoor areas where access is restricted from a majority of the campus community.
(f)(2) "StateRegistration; institution of higher learning" means any public technical institute, public junior college, public senior college or university, law school, medical or dental school, public state college, or other agency of higher education.
(g)(3) "Student"The meansuse anyof personfacilities whoof isthe enrolledinstitution onof ahigher full-timeeducation orfor part-timemeetings basisor inspeaking apurposes; state institution of higher learning.
(h)(4) "StudentThe organization"use means an officially recognized group at a state institution of higherchannels learning, or a group seeking official recognition, comprised of admittedcommunication; students H.
B.and (5) Funding sources that are otherwise available to other student organizations at the public institution of higher education.
No.(1) (b) “Campus community” includes students, administrators, faculty, and staff at the institution of higher education, and their invited guests;
326(2) *HR31/R315*(c) ~“Harassment” OFFICIALmeans ~an 24/HR31/R315expression PAGE 3(DJ\JAB) that receive,is orunwelcome, areso seekingsevere, topervasive, receive,and benefitsIntr. through the institution of higher education as defined in this section.
SECTIONHB 3.2023R1041 subjectively and objectively offensive that a student is effectively denied equal access to educational opportunities or benefits provided by the state institution of higher education or sexual harassment as defined by federal law and federal regulations applicable to state institutions of higher education;
Expressive(3) activities(d) protected“Materially underand thesubstantially provisionsdisrupts” ofmeans thisan actoccurrence include,where buta areperson notor limitedgroup to,significantly anyhinders lawfulanother verbal,person’s written, audio-visual or electronicgroup’s meansexpressive byactivity, whichprevents individualsthe maycommunication communicateof ideasthe tomessage, oneprevents another,the includingtransaction allof formsthe business of peacefula assembly,lawful protests,meeting, speechesgathering, andor guestprocession, speakers,or distributioninterferes ofwith literature,or carryingprevents signsthe operations and circulatingfunctions petitions.of a state institution of higher education by:
SECTION(A) 4.(1) Engaging in fighting, violent, or other unlawful behavior;
The(B) outdoor(2) areasPhysically ofblocking campusesor ofusing statethreats institutions of higherviolence learningto inprevent thisany stateperson shallfrom beattending, deemedlistening publicto, forumsviewing, for the campus community, and state institutions of higher learning shall not create "free speech zones" or otherotherwise designatedparticipating areasin ofan campus outside of which expressive activitiesactivity; are prohibited.
State(C) institutions(3) ofUsing highersound learningto maydrown maintainout andor enforcemuffle reasonableexpressive time,activity; place and manner restrictions narrowly tailored in service of a significant institutional interest only when such restrictions employ clear, published, content- and viewpoint-neutral criteria, and provide for ample alternative means of expression.
or (D) (4) Violating a state institution of higher education’s reasonable time, place, and manner restrictions.
(E) (5) Conduct that “materially and substantially disrupts” shall not include conduct that is protected under the First Amendment to the United States Constitution or West Virginia Constitution.
The protected conduct includes, but is not limited to, lawful protests in the outdoor areas of campus generally accessible to the members of the public (except during times when those areas have been reserved in advance for other events), or minor, brief, or fleeting nonviolent disruptions of events that are isolated and short in duration.
(4) (e) “Outdoor areas of campus” means the generally accessible outside areas of campus where members of the campus community are commonly allowed, such as grassy areas, walkways, or other similar common areas and does not include outdoor areas where access is restricted from a majority of the campus community.
(f) “Public institution of higher education” means any public technical institute, public junior Intr.
HB 2023R1041 college, public senior college or university, law school, medical or dental school, public state college, or other agency of higher education as defined in §18B-1-1, et seq of this code.
(5) (g) “State institution of higher education” means any university, college, or community and technical college under the jurisdiction of a governing board as defined in §18B-1-2 of this code.
(6) (h) “Student” means any person who is enrolled on a full-time or part-time basis in a state institution of higher education.
(7) (i) “Student organization” means an officially recognized group at a state institution of higher education, or a group seeking official recognition, comprised of admitted students that receive, or are seeking to receive, benefits through the institution of higher education as defined in this section.
§18B-20-3.
Public forums;
establishment of “free speech zones” prohibited.
The outdoor areas of campuses of state institutions of higher education shall be considered public forums for the campus community, and state institutions of higher education shall not limit free speech by creating “free speech zones” or other designated areas of campus outside of which expressive activities are prohibited.
Public institutions of higher education may maintain and enforce reasonable time, place and manner restrictions narrowly tailored in service of a significant institutional interest only when such restrictions employ clear, published, content- and viewpoint-neutral criteria, and provide for ample alternative means of expression.
TheNothing publicin forumthis protectionssection providedshall inbe thisinterpreted sectionas applylimiting onlythe toright expressiveof activities.student expression elsewhere on campus.
H.§18B-20-5.
B.Freedom of association and nondiscrimination against students and student organizations.
No.A state institution of higher education may not deny a religious, political, or ideological student organization which is open to all students any benefit or privilege made available to any Intr.
326HB *HR31/R315*2023R1041 ~other OFFICIALstudent ~organization 24/HR31/R315by PAGEthe 4(DJ\JAB)state Nothinginstitution inof thishigher sectioneducation, shallor beotherwise interpreteddiscriminate asagainst limitingan organization, based on the rightexpression of studentthe expressionorganization, elsewhereincluding onany campus.requirement that the leaders or members of such organization:
SECTION(a) 5.Affirm and adhere to the organization’s sincerely held beliefs;
(1)(b) AnyComply personwith who wishes to engage in noncommercial expressive activity on campus shall be permitted to do so freely, as long as the person'sorganization’s conductstandards is not unlawful and does not materially and substantially disrupt the functioning of theconduct; state institution of higher learning, subject only to the requirements of Section 4 of this act.
(2)or Nothing(c) inFurther thisthe actorganization’s shallmission prohibitor statepurpose, institutionsas ofdefined higherby learningthe fromstudent maintainingorganization. and enforcing reasonable time, place and manner restrictions that are narrowly tailored to serve a significant institutional interest only when such restrictions employ clear, published, content- and viewpoint-neutral criteria.
Any§18B-20-6. such restrictions shall allow for members of the campus community to spontaneously and contemporaneously assemble, speak and distribute literature.
(3)Development Nothing in this act shall be interpreted as preventing state institutions of higherpolicies learningand fromprocedures. prohibiting, limiting, or restricting expression that the First Amendment does not protect (e.g.
trueState threats,institutions expressionof directedhigher education shall develop materials to provokeeducate imminentthe lawlesscampus actionscommunity andon expressionthe incitinginstitution’s othersfree speech policies to commitensure unlawfulthat activity)those persons who have responsibility for discipline or prohibiteducation harassmentof students, such as definedadministrators, incampus Sectionpolice 2officers, 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 act.article.
(4)§18B-20-7. Nothing in this act shall enable individuals to engage in conduct that intentionally, materially, and substantially H.
B.Accountability to the public;
No.reporting requirement.
326(a) *HR31/R315*Each ~state OFFICIALinstitution ~of 24/HR31/R315higher PAGEeducation 5(DJ\JAB)shall disruptspublicly another'spost expressiveon activityits ifwebsite thatany activitypolicies isit occurringhas inenacted aregarding campusprotected spaceexpressive reserved for that activity under the exclusiveFirst useAmendment orto controlthe ofUnited aStates particularConstitution. group.
SECTION(b) 6.Each campus shall report to the Higher Education Policy Commission or the Council for Community and Technical College Education, as applicable, 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 speech.
NoThe statedescription institutionshall include the nature of highereach learningbarrier mayor denyincident, aas religious,well politicalas orwhat ideologicaldisciplinary studentaction, organizationif anyany, benefitwas ortaken privilegeagainst availablemembers of the campus community determined to anybe otherresponsible studentfor organization,those specific barriers or otherwiseincidents discriminateinvolving againststudents suchand anshall organization,be basedreported onwithout therevealing expressionthose ofstudents’ personally identifiable informationAnnually, by August 1, the organization,commission includingand anycouncil requirementshall thatreport to the leadersLegislative orOversight membersCommission ofon suchEducation organization:Intr.
(a)HB Affirm2023R1041 andAccountability adhereany barriers or incidents reported to thethem organization'spursuant sincerelyto heldthis beliefs;subsection.
(b)(c) ComplyEach withpublic institution of higher education shall publicly post on their website, as well as submit to the organization'sGovernor standardsand State Legislature by (30 days prior to the beginning of conduct;the state legislative session), a report which will detail the course of action implemented to be in compliance with the requirements of this article.
or (c) Further the organization's mission or purpose, as defined by the student organization.
SECTION 7.
State institutions of higher learning shall make public in their handbooks, on their websites, and through their orientation programs for students the policies, regulations and expectations of students regarding free expression on campus consistent with this act.
SECTION 8.
State institutions of higher learning shall develop materials, programs and procedures to ensure that those persons who have responsibility for discipline or education of students, such as administrators, campus police officers, residence life officials, and professors, understand the policies, H.
B.
No.
326 *HR31/R315* ~ OFFICIAL ~ 24/HR31/R315 PAGE 6(DJ\JAB) regulations and duties of state institutions of higher learning regarding free expression on campus consistent with this act.
SECTION 9.
(1) Each state institution of higher learning shall publicly post on their website, as well as annually submit to the Governor and Legislature, by December 1 of each year, a report which will detail the course of action implemented to be in compliance with the requirements of this act.
(a)(1) Accessible from the institution'sinstitution’s Internet website home page by use of not more than three (3) links;
(b)(2) Searchable by keywords and phrases;
and (c)(3) Accessible to the public without requiring registration or use of a user name, a passwordpassword, or another user identification.
(2)(d) The report shall include:
(a)(1) (i) 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 speech;speech.
and (ii) The description shall include the nature of each barrier or incident, as well as what disciplinary action, if any, was taken against members of the campus community determined to be responsible for those specific barriers or incidents.incidents involving students shall be reported without revealing those students’ personally identifiable information;
Theand H.(2) Any other information each public institution of higher education deems valuable 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 article.
B.(e) 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, or any amended complaint, must be submitted to the Governor and State Legislature within 30 days.
No.§18B-20-9.
326Statute *HR31/R315* ~ OFFICIAL ~ 24/HR31/R315 PAGE 7(DJ\JAB) description of anylimitations. barrier, incident or disciplinary action shall be reported without revealing those students' personally identifiable information;
andIntr. (b) Any other information each state institution of higher learning deems valuable 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 act.
(3)HB If2023R1041 aAny stateaction institutionbrought ofpursuant higherto learningthis isarticle suedshall forbe ancommenced allegednot violationlater ofthan Firstone Amendmentyear rights,after a supplementary report with a copy of the complaint,day or any amended complaint, must be submitted to the Governorcause andof Legislatureaction withinaccrues. thirty (30) days.
SECTIONFor 10.purposes of calculating the one-year limitation period, each day that the violation persists, and each day that a policy in violation of this section remains in effect, shall constitute a new day that the cause of action has accrued.
Any§18B-20-10. person or student association aggrieved by a violation of this act may bring an action against the state institution of higher learning and its employees acting in their official capacities, responsible for the violation and seek appropriate relief, including, but not limited to, injunctive relief, monetary damages, reasonable attorneys' fees and court costs.
IfImmunity. a court should find a violation of this act, it shall issue an award of at least Five Thousand Dollars ($5,000.00).
AnyThe personstate orwaives studentimmunity organizationunder aggrievedthe byEleventh aAmendment violation of thisthe actUnited mayStates assertConstitution suchand violationconsents asto asuit defense or counter claim in anya disciplinaryfederal actioncourt orfor inlawsuits anyarising civilout orof administrativethis proceedingsarticle. brought against such student or student organization.
NothingA inpublic H.institution of higher education that violates this article is not immune from suit or liability for the violation.
B.§18B-20-11.
No.Severability.
326If *HR31/R315*any ~provision OFFICIALof ~this 24/HR31/R315article PAGEor 8(DJ\JAB)any thisapplication sectionof shallsuch beprovision interpretedto any person or circumstance is held to limitbe anyunconstitutional, otherthe remediesremainder availableof this article and the application of the provision to any other person or studentcircumstance organization.shall not be affected.
SECTIONNOTE: 11.
AThe personpurpose shallof bethis requiredbill is to bringestablish suitthe forForming violationOpen ofand thisRobust actUniversity notMinds later(FORUM) thanAct onethrough (1)strengthening yearexisting afterfree theexpression dayon thecampus causelaws. of action accrues.
ForThe purposesbill ofprovides calculatingfor thelegislative one-yearfindings limitationregarding period, each day that the violationexercise persists,of andFirst eachAmendment dayrights thaton apublic policyuniversity campuses in violation of this actstate remainsas inbeing effect,critical shallcomponents constituteof a new day that the causeeducation ofexperience actionfor hasstudents. accrued.
SECTIONThe 12.bill clarifies the definition of public forums.
IfThe anybill provisionmodifies ofcertain thistime, actplace, or any application of such provision to any person or circumstance is held to be unconstitutional, the remainder of this act and themanner applicationrestrictions. of the provision to any other person or circumstance shall not be affected.
SECTIONThe 13.bill strengthens development of policies and procedures.
ThisThe actbill shallensures takea effectreporting requirement and beestablishes inthe forceframework fromfor andreporting afterrequirements. July 1, 2024.
H.The bill clarifies the statute of limitations.
B.The bill provides for immunity.
No.Finally, the bill provides for severability.
326Strike-throughs *HR31/R315*indicate ~language OFFICIALthat ~would 24/HR31/R315be ST:stricken from a heading or the present law and underscoring indicates new language that would be added.
"Forming Open and Robust University Minds PAGE 9(DJ\JAB) (FORUM) Act";
establish.