Struck = only in HB 326 ·
added = only in HB 5666.
MISSISSIPPIWEST VIRGINIA LEGISLATURE REGULAR SESSION 2024Introduced By:House Bill 5666 By Delegate Kimble [Introduced February 13, 2024;
RepresentativeReferred Hobgood-Wilkesto 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;
Universitiesand to amend said code by adding thereto two new sections, designated §18B-20-10 and Colleges§18B-20-11, HOUSEall BILLrelating NO.to establishing the Forming Open and Robust University Minds (FORUM) Act through strengthening existing free expression on campus laws;
326providing ANfor ACTlegislative TOfindings ESTABLISHregarding THEthe "FORMINGexercise OPENof ANDFirst ROBUSTAmendment UNIVERSITYrights MINDSon (FORUM)public ACT,"university AScampuses ITin RELATESthis TOstate FREEDOMas OFbeing SPEECHcritical ONcomponents THEof CAMPUSESthe OFeducation STATEexperience INSTITUTIONSfor OFstudents; HIGHER LEARNING;
TOclarifying PROHIBITthe Adefinition STATEof INSTITUTIONpublic OFforums; 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;
TOmodifying REQUIREcertain STATEtime, INSTITUTIONSplace, OFand HIGHERmanner LEARNINGrestrictions; TO DEVELOP AND MAKE AVAILABLE MATERIALS EXPLAINING THE POLICY FOR CAMPUS STAFF AND STUDENTS;
TOstrengthening REQUIREdevelopment STATEof INSTITUTIONSpolicies OFand HIGHERprocedures; LEARNING TO SUBMIT A YEARLY REPORT DETAILING THE COURSE OF ACTION IMPLEMENTED TO COMPLY WITH THE POLICY;
TOensuring PRESCRIBEa Areporting ONE-YEARrequirement STATUTEand OFestablishing LIMITATIONSthe FORframework ACTIONSfor BROUGHTreporting UNDERrequirements; THIS ACT;
ANDclarifying FORthe RELATEDstatute PURPOSES.of limitations;
BEproviding ITfor ENACTEDimmunity; BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTIONand 1.providing for severability.
ThisBe actit shallenacted beby known and may be cited as the "FormingLegislature Openof andWest RobustVirginia: University Minds (FORUM) Act." SECTION 2.
AsARTICLE used20. in this act, the following terms shall have the meaning ascribed in this section, unless context of use clearly requires otherwise:
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)(1) Recognition;
(ii)(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(1) *HR31/R315*(b) ~"Campus OFFICIALcommunity" ~includes G1/2students, 24/HR31/R315administrators, PAGEfaculty, 1and (DJ\JAB)staff (iii)at The use of facilities of the institution of higher educationeducation, forand meetingstheir orinvited speakingguests; purposes;
(iv)(2) The(c) use"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 channelshigher education or sexual harassment as defined by federal law and federal regulations applicable to state institutions of communication;higher education;
(3) (d) "Materially and (v)substantially Fundingdisrupts" sourcesmeans thatan areoccurrence otherwisewhere availablea toperson otheror studentgroup organizationssignificantly athinders 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 learning.education by:
(b)(A) "Campus(1) community"Engaging includesin students,fighting, administrators,violent, facultyor andother staffunlawful atbehavior; the institution of higher education and their invited guests.
(c)(B) "Harassment"(2) shallPhysically meanblocking onlyor thatusing expressionthreats thatof isviolence unwelcome,to soprevent severe,any pervasive,person andfrom subjectivelyattending, andlistening objectivelyto, offensive,viewing, that a student is effectively denied equal access to educational opportunities or benefitsotherwise providedparticipating byin thean stateexpressive institutionactivity; of higher learning.
(d)(C) "Materially(3) andUsing substantiallysound disrupts" means when a person, with the intent to ordrown without knowledge of doing so, significantly hinders another person's or group'smuffle expressive activity,activity; prevents the communication of the message, or prevents the transaction of the business of a lawful meeting, gathering or procession by:
(i)or Engaging(D) in(4) fighting,Violating violent,a orstate otherinstitution unlawfulof behavior;higher education’s reasonable time, place, and manner restrictions.
or(E) (ii)(5) PhysicallyConduct blockingthat or"materially usingand threatssubstantially ofdisrupts" violenceshall tonot preventinclude anyconduct personthat fromis attending,protected listeningunder to,the viewing,First orAmendment otherwiseto participatingthe inUnited anStates expressiveConstitution activity.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.this code.
Such(5) protected(g) conduct"State includes,institution butof ishigher noteducation" limitedmeans to,any lawfuluniversity, protestscollege, inor thecommunity outdoorand areastechnical ofcollege campusunder generally accessible to the membersjurisdiction of thea publicgoverning (exceptboard duringas timesdefined when those areas have been reserved in advance§18B-1-2 for other events), or minor, brief, or fleeting nonviolent disruptions of eventsthis thatcode. are isolated and short in duration.
(e)(6) "Outdoor(h) areas"Student" of campus" means theany generallyperson accessiblewho outsideis areasenrolled ofon campusa wherefull-time members of the campus community are commonly allowed, such as grassy areas, walkways or otherpart-time similarbasis commonin areas and does not include outdoor areas where access is restricted from a majoritystate institution of thehigher campuseducation. community.
(f)(7) "State(i) "Student organization" means an officially recognized group at a state institution of higher learning"education, meansor anya publicgroup technicalseeking institute,official publicrecognition, juniorcomprised college,of publicadmitted seniorstudents collegethat receive, or university,are lawseeking school,to medicalreceive, orbenefits dentalthrough school,the publicinstitution stateof college,higher oreducation otheras agencydefined ofin higherthis education.section.
(g)§18B-20-3. "Student" means any person who is enrolled on a full-time or part-time basis in a state institution of higher learning.
(h)Public "Studentforums; organization" means an officially recognized group at a state institution of higher learning, or a group seeking official recognition, comprised of admitted students H.
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.
326Public *HR31/R315*institutions ~of OFFICIALhigher ~education 24/HR31/R315may PAGEmaintain 3(DJ\JAB)and thatenforce receive,reasonable ortime, areplace seekingand tomanner receive,restrictions benefitsnarrowly throughtailored thein institutionservice of highera educationsignificant asinstitutional definedinterest inonly thiswhen section.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.
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 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§18B-20-6. 7.
StateDevelopment institutions of higherpolicies learning shall make public in their handbooks, on their websites, and throughprocedures. their orientation programs for students the policies, regulations and expectations of students regarding free expression on campus consistent with this act.
SECTIONState 8.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.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;
326reporting *HR31/R315*requirement. ~ 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(a) 9.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)(b) Each statecampus institutionshall ofreport higherto learningthe shallHigher publiclyEducation postPolicy onCommission theiror website,the asCouncil wellfor asCommunity annuallyand submitTechnical toCollege theEducation, Governoras andapplicable, Legislature,a bydescription Decemberof 1any barriers to, or incidents of eachdisruption year,of, afree reportexpression whichoccurring willon detailcampus, theincluding, coursebut ofnot actionlimited implementedto, attempts to beblock inor complianceprohibit withspeakers theand requirementsinvestigations ofinto thisstudents act.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)(1) Accessible from the institution'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)HB 2024R1108 Any otheraction informationbrought eachpursuant stateto institutionthis ofarticle highershall learningbe deemscommenced valuablenot forlater thethan publicone toyear evaluateafter whetherthe freeday expressionthe rightscause for all members of theaction campusaccrues. community have been equally protected and enforced consistent with this act.
(3)For Ifpurposes aof statecalculating institutionthe ofone-year higherlimitation learningperiod, iseach suedday forthat anthe alleged violation ofpersists, Firstand Amendmenteach rights,day that a supplementarypolicy reportin withviolation a copy of thethis complaint,section orremains anyin amendedeffect, complaint,shall mustconstitute bea submittednew today that the Governorcause andof Legislatureaction withinhas thirtyaccrued. (30) days.
SECTION§18B-20-10. 10.
AnyImmunity. 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.
IfThe astate courtwaives shouldimmunity findunder athe violationEleventh Amendment of thisthe act,United itStates shallConstitution issueand anconsents awardto ofsuit atin leasta Fivefederal Thousandcourt Dollarsfor ($5,000.00).lawsuits arising out of this article.
AnyA personpublic orinstitution studentof organizationhigher aggrievededucation bythat aviolates violation of this actarticle mayis assertnot suchimmune violationfrom assuit a defense or counterliability claimfor inthe anyviolation. disciplinary action or in any civil or administrative proceedings brought against such student or student organization.
Nothing§18B-20-11. in H.
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.
326NOTE: *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.
SECTIONThe 11.purpose of this bill is to establish the Forming Open and Robust University Minds (FORUM) Act through strengthening existing free expression on campus laws.
AThe personbill shallprovides befor requiredlegislative tofindings bringregarding suitthe forexercise violation of thisFirst actAmendment notrights lateron thanpublic oneuniversity (1)campuses yearin afterthis thestate dayas thebeing causecritical components of actionthe accrues.education experience for students.
ForThe purposesbill ofclarifies calculating the one-yeardefinition limitation period, each day that the violation persists, and each day that a policy in violation of thispublic actforums. remains in effect, shall constitute a new day that the cause of action has accrued.
SECTIONThe 12.bill modifies certain time, place, and manner restrictions.
IfThe anybill provisionstrengthens ofdevelopment this act or any application of suchpolicies provision to any person or circumstance is held to be unconstitutional, the remainder of this act and theprocedures. application of the provision to any other person or circumstance shall not be affected.
SECTIONThe 13.bill ensures a reporting requirement and establishes the framework for reporting requirements.
ThisThe actbill shallclarifies takethe effectstatute andof belimitations. in force from and after July 1, 2024.
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.