Comparing HB 326 → HB 5666 — The Forming Open and Robust University Minds (FORUM) Act

Struck = only in HB 326 · added = only in HB 5666.

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MISSISSIPPI LEGISLATURE REGULAR SESSION 2024 By:
WEST VIRGINIA LEGISLATURE REGULAR SESSION Introduced House Bill 5666 By Delegate Kimble [Introduced February 13, 2024;
Representative Hobgood-Wilkes To:
Referred to the Committee on Education then the Judiciary] Intr HB 2024R1108 A BILL to amend and reenact §18B-20-1, §18B-20-3, §18B-20-5, §18B-20-6, §18B-20-7, and §18B-20-9 of the Code of West Virginia, 1931, as amended;
Universities and Colleges HOUSE BILL NO.
and to amend said code by adding thereto two new sections, designated §18B-20-10 and §18B-20-11, all relating to establishing the Forming Open and Robust University Minds (FORUM) Act through strengthening existing free expression on campus laws;
326 AN ACT TO ESTABLISH THE "FORMING OPEN AND ROBUST UNIVERSITY MINDS (FORUM) ACT," AS IT RELATES TO FREEDOM OF SPEECH ON THE CAMPUSES OF STATE INSTITUTIONS OF HIGHER LEARNING;
providing for legislative findings regarding the exercise of First Amendment rights on public university campuses in this state as being critical components of the education experience for students;
TO PROHIBIT A STATE INSTITUTION OF HIGHER LEARNING FROM DENYING A RELIGIOUS, POLITICAL OR IDEOLOGICAL STUDENT ORGANIZATION A BENEFIT OR PRIVILEGE AVAILABLE TO ANOTHER STUDENT ORGANIZATION, OR OTHERWISE DISCRIMINATE AGAINST SUCH AN ORGANIZATION, BASED ON THE EXPRESSION OF THE ORGANIZATION;
clarifying the definition of public forums;
TO REQUIRE STATE INSTITUTIONS OF HIGHER LEARNING TO DEVELOP AND MAKE AVAILABLE MATERIALS EXPLAINING THE POLICY FOR CAMPUS STAFF AND STUDENTS;
modifying certain time, place, and manner restrictions;
TO REQUIRE STATE INSTITUTIONS OF HIGHER LEARNING TO SUBMIT A YEARLY REPORT DETAILING THE COURSE OF ACTION IMPLEMENTED TO COMPLY WITH THE POLICY;
strengthening development of policies and procedures;
TO PRESCRIBE A ONE-YEAR STATUTE OF LIMITATIONS FOR ACTIONS BROUGHT UNDER THIS ACT;
ensuring a reporting requirement and establishing the framework for reporting requirements;
AND FOR RELATED PURPOSES.
clarifying the statute of limitations;
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
providing for immunity;
SECTION 1.
and providing for severability.
This act shall be known and may be cited as the "Forming Open and Robust University Minds (FORUM) Act." SECTION 2.
Be it enacted by the Legislature of West Virginia:
As used in this act, the following terms shall have the meaning ascribed in this section, unless context of use clearly requires otherwise:
ARTICLE 20.
FREE EXPRESSION ON CAMPUS FORMING OPEN AND ROBUST UNIVERSITY MINDS (FORUM).
§18B-20-1.
Definitions Legislative findings and definitions.
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.
Furthermore, the Supreme Court has called public universities, "peculiarly the marketplace of ideas," Healy v.
James, 408 U.S.
169, 180 (1972), 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 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.
at 180.
Intr HB 2024R1108 This Legislature views the exercise of First Amendment rights on public university campuses in this state as critical components 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 whether on or off campus.
This Legislature also finds that 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.
The Supreme Court has warned that if public universities stifle student speech and prevent the open exchange of ideas on campus, "our civilization will stagnate and die." Sweezy v.
New Hampshire, 354 U.S.
234, 250 (1957).
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.
As used in this article:
(i) Recognition;
(1) Recognition;
(ii) Registration;
(2) Registration;
H.
(3) The use of facilities of the institution of higher education for meetings or speaking purposes;
B.
(4) The use of channels of communication;
No.
and (5) Funding sources that are otherwise available to other student organizations at the public institution of higher education.
326 *HR31/R315* ~ OFFICIAL ~ G1/2 24/HR31/R315 PAGE 1 (DJ\JAB) (iii) The use of facilities of the institution of higher education for meetings or speaking purposes;
(1) (b) "Campus community" includes students, administrators, faculty, and staff at the institution of higher education, and their invited guests;
(iv) The use of channels of communication;
(2) (c) "Harassment" means an expression that is unwelcome, so severe, pervasive, and Intr HB 2024R1108 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;
and (v) Funding sources that are otherwise available to other student organizations at the state institution of higher learning.
(3) (d) "Materially and substantially disrupts" means an occurrence where a person or group significantly hinders another person's or group's expressive activity, prevents the communication of the message, prevents the transaction of the business of a lawful meeting, gathering, or procession, or interferes with or prevents the operations and functions of a state institution of higher education by:
(b) "Campus community" includes students, administrators, faculty and staff at the institution of higher education and their invited guests.
(A) (1) Engaging in fighting, violent, or other unlawful behavior;
(c) "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.
(B) (2) Physically blocking or using threats of violence to prevent any person from attending, listening to, viewing, or otherwise participating in an expressive activity;
(d) "Materially and substantially disrupts" means when a person, with the intent to or with knowledge of doing so, significantly hinders another person's or group's expressive activity, prevents the communication of the message, or prevents the transaction of the business of a lawful meeting, gathering or procession by:
(C) (3) Using sound to drown out or muffle expressive activity;
(i) Engaging in fighting, violent, or other unlawful behavior;
or (D) (4) Violating a state institution of higher education’s reasonable time, place, and manner restrictions.
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or (ii) Physically blocking or using threats of violence to prevent any person from attending, listening to, viewing, or otherwise participating in an expressive activity.
(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.
H.
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.
B.
(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.
No.
(f) "Public institution of higher education" means any public technical institute, public junior Intr HB 2024R1108 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.
326 *HR31/R315* ~ OFFICIAL ~ 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.
of this code.
Such 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.
(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.
(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.
(6) (h) "Student" means any person who is enrolled on a full-time or part-time basis in a state institution of higher education.
(f) "State 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.
(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.
(g) "Student" means any person who is enrolled on a full-time or part-time basis in a state institution of higher learning.
§18B-20-3.
(h) "Student organization" means an officially recognized group at a state institution of higher learning, or a group seeking official recognition, comprised of admitted students H.
Public forums;
B.
establishment of "free speech zones" prohibited.
No.
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.
326 *HR31/R315* ~ OFFICIAL ~ 24/HR31/R315 PAGE 3(DJ\JAB) that receive, or are seeking to receive, benefits through the institution of higher education as defined in this section.
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.
SECTION 3.
Expressive activities protected under the provisions of this act include, but are not limited to, any lawful verbal, written, audio-visual or electronic means by which individuals may communicate ideas to one another, including all forms of peaceful assembly, protests, speeches and guest speakers, distribution of literature, carrying signs and circulating petitions.
SECTION 4.
The outdoor areas of campuses of state institutions of higher learning in this state shall be deemed public forums for the campus community, and state institutions of higher learning shall not create "free speech zones" or other designated areas of campus outside of which expressive activities are prohibited.
State institutions of higher learning 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.
The public forum protections provided in this section apply only to expressive activities.
Nothing in this section shall be interpreted as limiting the right of 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 HB 2024R1108 other student organization by the state institution of higher education, or otherwise discriminate against an organization, based on the expression of the organization, including any requirement that the leaders or members of such organization:
326 *HR31/R315* ~ OFFICIAL ~ 24/HR31/R315 PAGE 4(DJ\JAB) Nothing in this section shall be interpreted as limiting the right of student expression elsewhere on campus.
SECTION 5.
(1) Any person who wishes to engage in noncommercial expressive activity on campus 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 state institution of higher learning, subject only to the requirements of Section 4 of this act.
(2) Nothing in this act shall prohibit state institutions of higher learning from maintaining 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 such restrictions shall allow for members of the campus community to spontaneously and contemporaneously assemble, speak and distribute literature.
(3) Nothing in this act shall be interpreted as preventing state institutions of higher learning from prohibiting, limiting, or restricting expression that the First Amendment does not protect (e.g.
true threats, expression directed to provoke imminent lawless actions and expression inciting others to commit unlawful activity) or prohibit harassment as defined in Section 2 of this act.
(4) Nothing in this act shall enable individuals to engage in conduct that intentionally, materially, and substantially H.
B.
No.
326 *HR31/R315* ~ OFFICIAL ~ 24/HR31/R315 PAGE 5(DJ\JAB) disrupts another's expressive activity if that activity is occurring in a campus space reserved for that activity under the exclusive use or control of a particular group.
SECTION 6.
No state institution of higher learning may deny a religious, political or ideological student organization any benefit or privilege available to any other student organization, or otherwise discriminate against such an organization, based on the expression of the organization, including any requirement that the leaders or members of such organization:
SECTION 7.
§18B-20-6.
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.
Development of policies and procedures.
SECTION 8.
State institutions of higher education shall develop materials to educate the campus community on the institution's free speech policies.
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.
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, regulations, and duties of public institutions of higher education regarding free expression on campus consistent with this article.
B.
§18B-20-7.
No.
Accountability to the public;
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.
reporting requirement.
SECTION 9.
(a) Each state institution of higher education shall publicly post on its website any policies it has enacted regarding protected expressive activity under the First Amendment to the United States Constitution.
(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.
(b) 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.
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 involving students and shall be reported without revealing those students’ personally identifiable informationAnnually, by August 1, the commission and council shall report to the Legislative Oversight Commission on Education Intr HB 2024R1108 Accountability any barriers or incidents reported to them pursuant to this subsection.
(c) Each public institution of higher education shall publicly post on their website, as well as submit to the Governor and State Legislature by (30 days prior to the beginning of the state legislative session), a report which will detail the course of action implemented to be in compliance with the requirements of this article.
(a) Accessible from the institution's Internet website home page by use of not more than three (3) links;
(1) Accessible from the institution's Internet website home page by use of not more than three links;
(b) Searchable by keywords and phrases;
(2) Searchable by keywords and phrases;
and (c) Accessible to the public without requiring registration or use of a user name, a password or another user identification.
and (3) Accessible to the public without requiring registration or use of a user name, a password, or another user identification.
(2) The report shall include:
(d) The report shall include:
(a) (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;
(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 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.
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 involving students shall be reported without revealing those students' personally identifiable information;
The H.
and (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.
326 *HR31/R315* ~ OFFICIAL ~ 24/HR31/R315 PAGE 7(DJ\JAB) description of any barrier, incident or disciplinary action shall be reported without revealing those students' personally identifiable information;
Statute of limitations.
and (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.
Intr HB 2024R1108 Any action brought pursuant to this article shall be commenced not later than one year after the day the cause of action accrues.
(3) If a state institution of higher learning 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 Legislature within thirty (30) days.
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 section remains in effect, shall constitute a new day that the cause of action has accrued.
SECTION 10.
§18B-20-10.
Any 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.
Immunity.
If a court should find a violation of this act, it shall issue an award of at least Five Thousand Dollars ($5,000.00).
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 article.
Any person or student organization aggrieved by a violation of this act may assert such violation as a defense or counter claim in any disciplinary action or in any civil or administrative proceedings brought against such student or student organization.
A public institution of higher education that violates this article is not immune from suit or liability for the violation.
Nothing in H.
§18B-20-11.
B.
Severability.
No.
If any provision of this article or any application of such provision to any person or circumstance is held to be unconstitutional, the remainder of this article and the application of the provision to any other person or circumstance shall not be affected.
326 *HR31/R315* ~ OFFICIAL ~ 24/HR31/R315 PAGE 8(DJ\JAB) this section shall be interpreted to limit any other remedies available to any person or student organization.
NOTE:
SECTION 11.
The purpose of this bill is to establish the Forming Open and Robust University Minds (FORUM) Act through strengthening existing free expression on campus laws.
A person shall be required to bring suit for violation of this act not later than one (1) year after the day the cause of action accrues.
The bill provides for legislative findings regarding the exercise of First Amendment rights on public university campuses in this state as being critical components of the education experience for students.
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 act remains in effect, shall constitute a new day that the cause of action has accrued.
The bill clarifies the definition of public forums.
SECTION 12.
The bill modifies certain time, place, and manner restrictions.
If any provision of this act or any application of such provision to any person or circumstance is held to be unconstitutional, the remainder of this act and the application of the provision to any other person or circumstance shall not be affected.
The bill strengthens development of policies and procedures.
SECTION 13.
The bill ensures a reporting requirement and establishes the framework for reporting requirements.
This act shall take effect and be in force from and after July 1, 2024.
The bill clarifies the statute of limitations.
H.
The bill provides for immunity.
B.
Finally, the bill provides for severability.
No.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
326 *HR31/R315* ~ OFFICIAL ~ 24/HR31/R315 ST:
"Forming Open and Robust University Minds PAGE 9(DJ\JAB) (FORUM) Act";
establish.