[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4483 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 4483

    To amend the Higher Education Act of 1965 to ensure that public 
   institutions of higher education eschew policies that improperly 
constrain the expressive rights of students, and to ensure that private 
institutions of higher education are transparent about, and responsible 
                   for, their chosen speech policies.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 6, 2020

Mr. Cotton (for himself, Mr. McConnell, Mrs. Loeffler, and Mr. Cramer) 
introduced the following bill; which was read twice and referred to the 
          Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
    To amend the Higher Education Act of 1965 to ensure that public 
   institutions of higher education eschew policies that improperly 
constrain the expressive rights of students, and to ensure that private 
institutions of higher education are transparent about, and responsible 
                   for, their chosen speech policies.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Campus Free Speech Restoration 
Act''.

SEC. 2. PROTECTION OF STUDENT SPEECH AND ASSOCIATION RIGHTS.

    Section 112(a) of the Higher Education Act of 1965 (20 U.S.C. 
1011a(a)) is amended--
            (1) by redesignating paragraph (2) as paragraph (4); and
            (2) by inserting after paragraph (1) the following:
    ``(2) It is the sense of Congress that--
            ``(A) every individual should be free to profess, and to 
        maintain, the opinion of such individual in matters of religion 
        or philosophy, and that professing or maintaining such opinion 
        should in no way diminish, enlarge, or affect the civil 
        liberties or rights of such individual on the campus of an 
        institution of higher education; and
            ``(B) no public institution of higher education directly or 
        indirectly receiving financial assistance under this Act should 
        limit religious expression, free expression, or any other 
        rights provided under the First Amendment to the Constitution 
        of the United States.
    ``(3) It is the sense of Congress that--
            ``(A) free speech zones and restrictive speech codes are 
        inherently at odds with the freedom of speech guaranteed by the 
        First Amendment to the Constitution of the United States;
            ``(B) bias reporting systems are susceptible to abuses that 
        may put them at odds with the freedom of speech guaranteed by 
        the First Amendment to the Constitution of the United States; 
        and
            ``(C) no public institution of higher education directly or 
        indirectly receiving financial assistance under this Act should 
        restrict the speech of such institution's students through 
        improperly restrictive zones, codes, or bias reporting 
        systems.''.

SEC. 3. CAMPUS SPEECH POLICIES AT INSTITUTIONS OF HIGHER EDUCATION.

    Title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et 
seq.) is amended--
            (1) in section 487(a), by adding at the end the following:
            ``(30) In the case of an institution that is a public 
        institution, the institution will comply with the expressive 
        activity protections described in section 493E.''; and
            (2) in part G, by adding at the end the following:

``SEC. 493E. CAMPUS SPEECH POLICIES AT PUBLIC UNIVERSITIES.

    ``(a) Definition of Expressive Activities.--
            ``(1) In general.--In this section, the term `expressive 
        activity' includes--
                    ``(A) peacefully assembling, protesting, speaking, 
                or listening;
                    ``(B) distributing literature;
                    ``(C) carrying a sign;
                    ``(D) circulating a petition; or
                    ``(E) other expressive rights guaranteed under the 
                First Amendment to the Constitution of the United 
                States.
            ``(2) Exclusions.--In this section, the term `expressive 
        activity' does not include unprotected speech (as defined by 
        the precedents of the Supreme Court of the United States).
    ``(b) Expressive Activities at an Institution.--
            ``(1) In general.--Each public institution of higher 
        education participating in a program under this title may not 
        prohibit, subject to paragraph (2), a person from freely 
        engaging in noncommercial expressive activity in a generally 
        accessible outdoor area on the institution's campus if the 
        person's conduct is lawful.
            ``(2) Restrictions.--An institution of higher education 
        described in paragraph (1) may not maintain or enforce time, 
        place, or manner restrictions on an expressive activity in a 
        generally accessible outdoor area of the institution's campus 
        unless the restriction--
                    ``(A) is necessary to achieve a compelling 
                governmental interest;
                    ``(B) is the least restrictive means of furthering 
                that compelling governmental interest;
                    ``(C) is based on published, content-neutral, and 
                viewpoint-neutral criteria;
                    ``(D) leaves open ample alternative channels for 
                communication; and
                    ``(E) provides for spontaneous assembly and 
                distribution of literature.
            ``(3) Application.--The protections provided under 
        paragraph (1) do not apply to expressive activity in an area on 
        an institution's campus that is not a generally accessible 
        outdoor area.
            ``(4) Nonapplication to service academies.--This section 
        shall not apply to an institution of higher education whose 
        primary purpose is the training of individuals for the military 
        services of the United States, or the merchant marine.
    ``(c) Causes of Action.--
            ``(1) Authorization.--The following persons may bring an 
        action in a Federal court of competent jurisdiction to enjoin a 
        violation of subsection (b) or to recover compensatory damages, 
        reasonable court costs, or reasonable attorney fees:
                    ``(A) The Attorney General.
                    ``(B) A person claiming that the person's 
                expressive activity rights, as described in subsection 
                (b)(1), were violated.
            ``(2) Actions.--Notwithstanding any other provision of law, 
        in an action brought under this section, the Federal court 
        shall decide de novo all relevant questions of fact and law, 
        including the interpretation of constitutional, statutory, and 
        regulatory provisions, unless the parties stipulate otherwise. 
        In an action brought under this subsection, if the court finds 
        a violation of subsection (b), the court--
                    ``(A) shall--
                            ``(i) enjoin the violation; and
                            ``(ii) if a person whose expressive 
                        activity rights were violated brought the 
                        action, award the person--
                                    ``(I) not less than $500 for an 
                                initial violation; and
                                    ``(II) if the person notifies the 
                                institution of the violation, $50 for 
                                each day the violation continues after 
                                the notification if the institution did 
                                not act to discontinue the cause of the 
                                violation; and
                    ``(B) may award a prevailing plaintiff--
                            ``(i) compensatory damages;
                            ``(ii) reasonable court costs; or
                            ``(iii) reasonable attorney fees.
    ``(d) Statute of Limitations.--
            ``(1) In general.--Except as provided in paragraph (3), an 
        action under subsection (c) may not be brought later than 1 
        year after the date of the violation.
            ``(2) Continuing violation.--Each day that a violation of 
        subsection (b) continues after an initial violation of 
        subsection (b), and each day that an institution's policy in 
        violation of subsection (b) remains in effect, shall constitute 
        a continuing violation of subsection (b).
            ``(3) Extension.--For a continuing violation described in 
        paragraph (2), the limitation described in paragraph (1) shall 
        extend to 1 year after the date on which the most recent 
        violation occurs.
    ``(e) Federal Review of Speech Policies.--
            ``(1) No eligibility for funds.--
                    ``(A) In general.--No public institution of higher 
                education shall be eligible to receive funds under this 
                Act, including participation in any program under this 
                title, if the Secretary determines that the 
                institution--
                            ``(i) maintains a policy that infringes 
                        upon the expressive rights of students under 
                        the First Amendment to the Constitution of the 
                        United States; or
                            ``(ii) maintains or enforces time, place, 
                        or manner restrictions on an expressive 
                        activity in a generally accessible outdoor area 
                        of the institution's campus that do not comply 
                        with subparagraphs (A) through (E) of 
                        subsection (b)(2).
                    ``(B) Court review.--Notwithstanding any other 
                provision of law, the Secretary's determinations under 
                this subsection shall be reviewed de novo with respect 
                to all relevant questions of fact and law, including 
                the interpretation of constitutional, statutory, and 
                regulatory provisions, unless the parties stipulate 
                otherwise.
            ``(2) Designation of an employee to receive complaints.--
        The Secretary shall designate an employee in the Office of 
        Postsecondary Education of the Department to receive complaints 
        from students or student organizations at a given public 
        institution of higher education, or from any other person or 
        organization, regarding policies at the institution--
                    ``(A) that infringe upon the expressive rights of 
                students under the First Amendment to the Constitution 
                of the United States; or
                    ``(B) that maintain or enforce time, place, or 
                manner restrictions on an expressive activity in a 
                generally accessible outdoor area of the institution's 
                campus that do not comply with subparagraphs (A) 
                through (E) of subsection (b)(2).
            ``(3) Complaint.--A complaint submitted under subparagraph 
        (2)--
                    ``(A) shall include the provision of the 
                institution's policy the complainant believes either 
                infringes upon the expressive rights of students under 
                the First Amendment to the Constitution of the United 
                States or maintains or enforces time, place, or manner 
                restrictions on an expressive activity in a generally 
                accessible outdoor area of the institution's campus 
                that does not comply with subparagraphs (A) through (E) 
                of subsection (b)(2), along with any evidence regarding 
                the operation and enforcement of such policy the 
                complainant deems relevant; and
                    ``(B) may include an argument as to why the policy 
                in question either infringes upon the expressive rights 
                of students under the First Amendment to the 
                Constitution of the United States or maintains or 
                enforces time, place, or manner restrictions on an 
                expressive activity in a generally accessible outdoor 
                area of the institution's campus that does not comply 
                with subparagraphs (A) through (E) of subsection 
                (b)(2).
            ``(4) System of review.--
                    ``(A) First stage review.--
                            ``(i) Request for response.--Not later than 
                        7 days after the date of receipt of a complaint 
                        under paragraph (2), the Secretary shall review 
                        the complaint and request a response to the 
                        complaint from the institution.
                            ``(ii) Institution response.--Not later 
                        than 30 days after the date the Secretary 
                        requests a response under clause (i), the 
                        institution shall--
                                    ``(I) certify to the Secretary that 
                                the institution has entirely withdrawn 
                                the policy that occasioned the 
                                complaint;
                                    ``(II) submit a revised policy for 
                                review by the Secretary; or
                                    ``(III) submit a defense of the 
                                policy that occasioned the complaint.
                            ``(iii) Availability to complainant.--
                                    ``(I) In general.--Not later than 7 
                                days after the date of receipt of a 
                                revised policy or defense of the 
                                original policy as submitted by the 
                                institution pursuant to clause (ii), 
                                the Secretary shall make available to 
                                the complainant a copy of such revised 
                                policy or defense.
                                    ``(II) Response by complainant.--
                                Not later than 60 days after the date 
                                of receipt of a revised policy or 
                                defense of the original policy under 
                                subclause (I), the complainant may 
                                submit to the Secretary a response to 
                                the revised policy or defense of the 
                                original policy.
                                    ``(III) Submission to the 
                                institution of response.--Not later 
                                than 7 days after the date of receipt 
                                of a response under subclause (II), the 
                                Secretary shall submit to the 
                                institution a copy of such response.
                            ``(iv) Determinations.--If the institution 
                        declines to entirely withdraw the policy that 
                        occasioned the complaint and either submits a 
                        revised policy for review or submits a defense 
                        of the policy that occasioned the complaint, 
                        the Secretary shall, not later than 60 days 
                        after the date of the deadline for a response 
                        by the complaint as described in clause 
                        (iii)(II), make one of the following 
                        determinations:
                                    ``(I) Determine that the complaint 
                                in question has insufficient merit to 
                                proceed to Second Stage Review 
                                described in subparagraph (B).
                                    ``(II) Determine that the complaint 
                                in question has sufficient merit to 
                                proceed to Second Stage Review 
                                described in subparagraph (B).
                            ``(v) Notification.--Not later than 7 days 
                        after the date the Secretary makes a 
                        determination under clause (iv), the Secretary 
                        shall notify the institution and the 
                        complainant of such determination.
                            ``(vi) End.--The determination under clause 
                        (iv) shall constitute the end of First Stage 
                        Review.
                    ``(B) Second stage review.--
                            ``(i) In general.--In a Second Stage 
                        Review, the Secretary shall notify the 
                        institution and the complainant of the 
                        commencement of the Second Stage Review, and 
                        shall give the institution the option of 
                        entirely withdrawing the policy that occasioned 
                        the complaint or submitting a revised policy 
                        for review within 30 days of the commencement 
                        of the Second Stage Review. In such 
                        notification submitted to the institution and 
                        complainant, the Secretary shall indicate the 
                        relevant sections of the institution's policy 
                        in question and explain why these sections may 
                        be out of compliance.
                            ``(ii) Determination.--Not later than 90 
                        days from the commencement of the Second Stage 
                        Review, the Secretary shall determine whether 
                        the policy that occasioned the complaint, or 
                        the revised policy submitted during the First 
                        Stage Review, or the revised policy submitted 
                        within the first 30 days of the Second Stage 
                        Review, is in violation of student rights under 
                        the First Amendment to the Constitution of the 
                        United States or of the restrictions on the 
                        regulation of speech by time, place, and manner 
                        set forth in this section, thereby ending 
                        Second Stage Review.
                            ``(iii) Investigation.--During Second Stage 
                        Review, the Secretary may conduct an 
                        investigation in which further information may 
                        be sought or requested from the complainant, 
                        the institution, or any other source the 
                        Secretary determines pertinent.
                            ``(iv) Certification of withdrawal.--At any 
                        point during the Second Stage Review, the 
                        institution in question may certify to the 
                        Secretary that it has entirely withdrawn the 
                        policy that occasioned the complaint, thereby 
                        ending the Second Stage Review.
                            ``(v) Notification and justification.--If 
                        the Secretary determines by the conclusion of 
                        Second Stage Review that the policy that 
                        occasioned the complaint or the revised policy 
                        submitted for review during First Stage Review 
                        or Second Stage Review is consistent with the 
                        expressive rights of students under the First 
                        Amendment to the Constitution of the United 
                        States and the restrictions on the regulation 
                        of speech by time, place, and manner set forth 
                        in this Act--
                                    ``(I) the Secretary shall notify 
                                the complainant and the institution of 
                                such determination not more than 7 days 
                                after the date of the determination; 
                                and
                                    ``(II) the Secretary shall explain 
                                and justify such determination in a 
                                written decision citing relevant legal 
                                precedent, copies of which shall be 
                                sent to the complainant, the 
                                institution, and made available for 
                                public inspection, including for online 
                                reading by the public.
                    ``(C) Determination that institution is out of 
                compliance.--
                            ``(i) In general.--If, upon completion of 
                        the Second Stage Review, the Secretary 
                        determines that the policy that occasioned the 
                        complaint, or the revised policy submitted for 
                        review during the First Stage Review or Second 
                        Stage Review, violates the First Amendment to 
                        the Constitution of the United States or the 
                        restrictions on the regulation of speech set 
                        forth in this section, the Secretary shall 
                        notify the complainant and the institution not 
                        more than 7 days after the date of completion 
                        of Second Stage Review that the institution is 
                        out of compliance with the requirements for 
                        receiving funds under this Act, including 
                        participation in any program under this title, 
                        but will be granted a grace period of 120 days 
                        to return to compliance before being formally 
                        stripped of eligibility.
                            ``(ii) Posting; explanation; final 
                        review.--As part of the notification under 
                        clause (i), the Secretary shall--
                                    ``(I) require the institution to 
                                post the determination of the Secretary 
                                on the website of the institution 
                                within 2 clicks of the homepage, 
                                without a paywall, email login, or 
                                other restriction to access;
                                    ``(II) explain and justify the 
                                determination of the Secretary in a 
                                written decision citing relevant legal 
                                precedent, copies of which shall be 
                                sent to the complainant, the 
                                institution, and made available for 
                                public inspection, including for online 
                                reading by the public; and
                                    ``(III) inform the institution that 
                                Final Review has begun and that the 
                                institution must either certify to the 
                                Secretary that it has entirely 
                                withdrawn the policy that occasioned 
                                the complaint, or submit a revised 
                                policy for review to the Secretary not 
                                later than 60 days after the date of 
                                receipt of notice of the conclusion of 
                                Second Stage Review.
                    ``(D) Final review.--
                            ``(i) In general.--If an institution 
                        submits a revised policy for review as 
                        described in subparagraph (C)(ii)(III), the 
                        Secretary shall review such revised policy and 
                        determine not later than 120 days after the 
                        date of commencement of Final Review whether 
                        the revised policy is consistent with the 
                        expressive rights of students under the First 
                        Amendment to the Constitution of the United 
                        States and with the restrictions on the 
                        regulation of speech by time, place, and manner 
                        set forth in this Act.
                            ``(ii) Determination of compliance.--If the 
                        Secretary determines, as described in clause 
                        (i), that the revised policy is consistent with 
                        the expressive rights of students under the 
                        First Amendment to the Constitution of the 
                        United States and with the restrictions on the 
                        regulation of speech by time, place, and manner 
                        set forth in this Act, the Secretary shall 
                        notify the complainant and the institution of 
                        such determination not more than 7 days after 
                        the date the determination is made, thereby 
                        ending the final Stage Review.
                            ``(iii) Determination of violation.--If the 
                        Secretary determines, as described in clause 
                        (i), that the revised policy violates the 
                        expressive rights of students under the First 
                        Amendment to the Constitution of the United 
                        States or the restrictions on the regulation of 
                        speech by time, place, and manner set forth in 
                        this Act, the Secretary shall--
                                    ``(I) notify the complainant and 
                                the institution of such determination 
                                not more than 7 days after the date the 
                                determination is made, thereby ending 
                                the final Stage Review; and
                                    ``(II) explain and justify the 
                                determination in a written decision 
                                citing relevant legal precedent, copies 
                                of which shall be sent to the 
                                complainant, the institution, and made 
                                available for public inspection, 
                                including for online reading by the 
                                public.
                    ``(E) Loss of eligibility.--
                            ``(i) In general.--If the Secretary 
                        determines, during the Final Stage Review, that 
                        the institution's policy in question violates 
                        the expressive rights of students under the 
                        First Amendment to the Constitution of the 
                        United States or the restrictions on the 
                        regulation of speech by time, place, and manner 
                        set forth in this Act, the Secretary shall--
                                    ``(I) notify the complainant and 
                                the institution not more than 7 days 
                                after the date of the determination 
                                that the institution will lose 
                                eligibility to receive funds under this 
                                Act, including participation in any 
                                program under this title, in accordance 
                                with this subparagraph;
                                    ``(II) notify the institution that 
                                the loss of eligibility shall go into 
                                effect beginning with any student 
                                notified of acceptance for admission to 
                                the institution during the academic 
                                year subsequent to the academic year 
                                during which the determination is made, 
                                and that no restoration of eligibility 
                                for ineligible students in subsequent 
                                academic years will occur prior to the 
                                beginning of the third academic year 
                                subsequent to the academic year during 
                                which the determination is made;
                                    ``(III) explain and justify the 
                                determination in a written decision 
                                citing relevant legal precedent, copies 
                                of which shall be sent to the 
                                complainant, the institution, and made 
                                available for public inspection, 
                                including for online reading by the 
                                public; and
                                    ``(IV) require the institution to 
                                post the determination of the Secretary 
                                on the website of the institution, 
                                within two clicks of the homepage, 
                                without a paywall, email login, or 
                                other restriction to access.
                            ``(ii) Continued eligibility.--Each student 
                        enrolled at the institution during the academic 
                        year in which eligibility is lost as described 
                        in this subparagraph, and each student notified 
                        of acceptance for admission to the institution 
                        during the academic year in which eligibility 
                        is lost as described in this subparagraph, 
                        shall continue to be eligible to participate, 
                        through the institution, in programs funded 
                        under this Act during the 5-year period after 
                        the date of the loss of eligibility.
                    ``(F) Restoration of eligibility.--
                            ``(i) In general.--Not later than 7 days 
                        after the loss of eligibility under 
                        subparagraph (E), the Secretary shall inform 
                        the institution that it may restore 
                        eligibility, either by certifying to the 
                        Secretary that it has entirely withdrawn the 
                        policy that precipitated loss of eligibility, 
                        or by submitting a revised policy for review at 
                        any time following the failure of the Final 
                        Review.
                            ``(ii) Review of revised policy.--The 
                        Secretary shall review a revised policy 
                        submitted for review after the loss of 
                        eligibility and determine not later than 120 
                        days after the date the revised policy is 
                        submitted whether it is consistent with the 
                        expressive rights of students under the First 
                        Amendment to the Constitution of the United 
                        States and with the restrictions on the 
                        regulation of speech by time, place, and manner 
                        set forth in this Act.
                            ``(iii) Investigation.--While conducting a 
                        review to restore eligibility under this 
                        subparagraph, the Secretary may conduct an 
                        investigation in which further information may 
                        be sought or requested from the institution, or 
                        any other source the Secretary determines 
                        pertinent.
                            ``(iv) Written decision.--In making a 
                        determination of whether a revised policy 
                        submitted for review after the loss of 
                        eligibility is either consistent or 
                        inconsistent with the expressive rights of 
                        students under the First Amendment to the 
                        Constitution of the United States and with the 
                        restrictions on the regulation of speech by 
                        time, place, and manner set forth in this Act, 
                        the Secretary shall explain and justify the 
                        determination in a written decision citing 
                        relevant legal precedent, copies of which shall 
                        be sent to the complainant, the institution, 
                        and made available for public inspection, 
                        including for online reading by the public.
                            ``(v) Limit on review.--The Secretary may 
                        conduct not more than 1 review to restore 
                        eligibility for a single institution in any 
                        given academic year.
                            ``(vi) Restoration.--If an institution 
                        certifies to the Secretary that the policy that 
                        precipitated the loss of eligibility has been 
                        entirely withdrawn, or if Secretary determines 
                        that the revised policy submitted for review is 
                        consistent with the expressive rights of 
                        students under the First Amendment to the 
                        Constitution of the United States and with the 
                        restrictions on the regulation of speech by 
                        time, place, and manner set forth in this Act, 
                        the institution's eligibility to receive funds 
                        under this Act, including participation in any 
                        program under this title, shall be restored not 
                        earlier than the beginning of the third 
                        academic year following the year in which 
                        notification of loss of eligibility was 
                        received.
                    ``(G) Good faith representation.--
                            ``(i) In general.--The Secretary shall 
                        inform any institution undergoing review of its 
                        campus speech policies that it expects the 
                        institution to represent its policies, along 
                        with any proposed revisions in such policies, 
                        in good faith.
                            ``(ii) Misrepresentation.--
                                    ``(I) Complaints.--A student, 
                                student organization, or any other 
                                person or organization may file, with 
                                the employee in the Office of 
                                Postsecondary Education of the 
                                Department designated by the Secretary 
                                under paragraph (2) to receive 
                                complaints, a complaint that an 
                                institution has substantially 
                                misrepresented its speech policies, or 
                                withheld information requested by the 
                                Secretary during an investigation, or 
                                attempted to circumvent the review 
                                process by reinstituting a policy under 
                                review in a substantially similar form 
                                without informing the Secretary.
                                    ``(II) Loss of eligibility.--If the 
                                Secretary determines upon 
                                investigation, or after receiving a 
                                complaint under subclause (I), that an 
                                institution has substantially 
                                misrepresented its speech policies, or 
                                withheld information requested by the 
                                Secretary during an investigation, or 
                                attempted to circumvent the review 
                                process by reinstituting a policy under 
                                review in a substantially similar form 
                                without informing the Secretary, the 
                                institution shall lose eligibility to 
                                receive funds under this Act, including 
                                participation in any program under this 
                                title.
                            ``(iii) Loss of eligibility.--If an 
                        institution loses eligibility under clause 
                        (ii), the Secretary shall notify the 
                        institution, not later than 7 days after the 
                        determination, that the loss of eligibility 
                        shall go into effect beginning with any student 
                        notified of acceptance for admission to the 
                        institution during the academic year subsequent 
                        to the academic year during which the 
                        determination is made, and that no restoration 
                        of eligibility for students admitted in 
                        subsequent academic years will occur prior to 
                        the beginning of the third academic year 
                        subsequent to the academic year during which 
                        the determination is made.
    ``(f) Retaliation Prohibited.--
            ``(1) In general.--No person may intimidate, threaten, 
        coerce, or discriminate against any individual because the 
        individual has made a report or complaint, testified, assisted, 
        or participated or refused to participate in any manner in an 
        investigation, proceeding, or hearing under this section.
            ``(2) Specific circumstances.--
                    ``(A) Exercise of first amendment rights.--The 
                exercise of rights protected under the First Amendment 
                to the Constitution of the United States does not 
                constitute retaliation prohibited under paragraph (1).
                    ``(B) Code of conduct violation for materially 
                false statement.--Charging an individual with a code of 
                conduct violation for making a materially false 
                statement in bad faith in the course of a grievance 
                proceeding under this section does not constitute 
                retaliation prohibited under paragraph (1). A 
                determination regarding responsibility, alone, is not 
                sufficient to conclude that any party made a materially 
                false statement in bad faith.

``SEC. 493F. CAMPUS SPEECH POLICIES AT PRIVATE UNIVERSITIES.

    ``(a) In General.--Each private institution of higher education 
eligible to receive funds under this Act, including any program under 
this title, shall--
            ``(1) post in one place on the website of the institution 
        all policies that pertain to the protection and regulation of 
        the expressive rights of students, including the right to 
        submit a complaint under this section, within 2 clicks of the 
        homepage, without a paywall, email login, or other restriction 
        to access;
            ``(2) include a copy of such policies in a handbook 
        distributed to new students; and
            ``(3) send a copy of--
                    ``(A) such policies to the employee of the 
                Department designated by the Secretary to receive such 
                policies; and
                    ``(B) any updates to such policies to such employee 
                not later than 60 days after the date of a change to 
                such policies.
    ``(b) Responsibility for Full Policy Disclosure.--Each private 
institution of higher education described in subsection (a) shall 
include with the copy of the policies described in subsection (a)--
            ``(1) a statement affirming that all policies pertinent to 
        the protection and regulation of the expressive rights of 
        students have been disclosed in the manner required by this 
        section, along with an acceptance of contractual obligation to 
        publicly disclose all such policies; and
            ``(2) a statement affirming that publication of such 
        policies as required by this section establishes a contractual 
        obligation on the part of the institution to its students to 
        maintain and enforce the disclosed policies, and only those 
        policies, in matters pertaining to the protection and 
        regulation of the expressive rights of students.
    ``(c) Cause of Action.--
            ``(1) Authorization.--A student claiming that a private 
        institution of higher education in which the student is 
        enrolled has violated any requirement or contractual obligation 
        imposed by this section may bring an action in a Federal court 
        of competent jurisdiction to enjoin such violation or to 
        recover compensatory damages, reasonable court costs, or 
        reasonable attorney fees.
            ``(2) Actions.--Notwithstanding any other provision of law, 
        in an action brought under this subsection, the Federal court 
        shall decide de novo all relevant questions of fact and law, 
        including the interpretation of constitutional, statutory, and 
        regulatory provisions, unless the parties stipulate otherwise. 
        In an action brought under this subsection, if the court finds 
        a violation of subsection (b), the court--
                    ``(A) shall--
                            ``(i) enjoin the violation; and
                            ``(ii) award the student--
                                    ``(I) not less than $500 for an 
                                initial violation; and
                                    ``(II) if the student notifies the 
                                institution of the violation, $50 for 
                                each day the violation continues after 
                                the notification if the institution did 
                                not act to discontinue the cause of the 
                                violation; and
                    ``(B) may award a prevailing plaintiff--
                            ``(i) compensatory damages;
                            ``(ii) reasonable court costs; or
                            ``(iii) reasonable attorney fees.
    ``(d) Secretarial Requirements.--
            ``(1) Designation of an employee.--The Secretary shall 
        designate an employee in the Office of Postsecondary Education 
        in the Department who shall--
                    ``(A) receive and compile updated copies of all 
                policies pertaining to the protection and regulation of 
                the expressive rights of students at private 
                institutions of higher education that receive funds 
                under this section, including any programs under this 
                title;
                    ``(B) preserve all records of such policies for a 
                period of not less than 10 years and make such 
                policies, and the dates they were disclosed, modified, 
                or withdrawn, available for public inspection, 
                including for online reading by the public;
                    ``(C) receive complaints from students, student 
                organizations, or from any other person or 
                organization, that believes a private institution of 
                higher education has not disclosed a policy pertaining 
                to the protection and regulation of the expressive 
                rights of students as required by this section, is 
                enforcing a policy pertaining to the expressive rights 
                of students that has not been disclosed as required by 
                this section, or has failed to make and publish a 
                statement affirming contractual responsibility for full 
                policy disclosure, or affirming contractual 
                responsibility for the enforcement of speech policies, 
                as required by this section;
                    ``(D) not more than 7 days after the date of 
                receipt of a complaint under subparagraph (C), review 
                the complaint and request a response from the 
                institution;
                    ``(E) undertake an investigation, in response to a 
                complaint under subparagraph (C) or at the Secretary's 
                independent initiative, to determine whether a private 
                institution of higher education has failed to disclose 
                a policy pertaining to the protection and regulation of 
                the expressive rights of students as required by this 
                section, is enforcing a policy pertaining to the 
                expressive rights of students that has not been 
                disclosed as required by this section, or has failed to 
                make and publish a statement affirming contractual 
                responsibility for full policy disclosure, or affirming 
                contractual responsibility for the enforcement of 
                speech policies, as required by this section; and
                    ``(F) determine, not later than 120 days after the 
                date of receipt of a complaint or 120 days after the 
                date of the start of an investigation opened at the 
                Secretary's independent initiative, whether the private 
                institution of higher education in question has failed 
                to disclose a policy pertaining to the protection and 
                regulation of the expressive rights of students as 
                required by this section, is enforcing a policy 
                pertaining to the expressive rights of students that 
                has not been disclosed as required by this section, or 
                has failed to make and publish a statement affirming 
                contractual responsibility for full speech policy 
                disclosure, or affirming contractual responsibility for 
                the enforcement of speech policies, as required by this 
                section.
            ``(2) Loss of eligibility.--
                    ``(A) In general.--If the Secretary determines that 
                a private institution of higher education has failed to 
                disclose a policy pertaining to the protection and 
                regulation of the expressive rights of students as 
                required by this section, is enforcing a policy 
                pertaining to the expressive rights of students that 
                has not been disclosed as required by this section, or 
                has failed to make and publish a statement affirming 
                contractual responsibility for full speech policy 
                disclosure, or affirming contractual responsibility for 
                the enforcement of speech policies, as required by this 
                section, the Secretary shall notify the institution 
                and, if applicable, the complainant, not more than 7 
                days after the date of such determination, that the 
                institution is out of compliance with the requirements 
                for receiving funds under this Act, including 
                participation in any program under this title, but will 
                be granted a grace period of 60 days to return to 
                compliance before formally losing eligibility for 
                receiving funds under this Act, including participation 
                in any program under this title.
                    ``(B) Specifications in notification.--As part of 
                the notification under subparagraph (A), the Secretary 
                shall specify which policies need to be disclosed and 
                which statements affirming contractual responsibility 
                for speech policy disclosure and contractual 
                responsibility for speech policy enforcement need to be 
                made and published in order for eligibility to be 
                restored.
                    ``(C) Notification of loss of eligibility.--
                            ``(i) In general.--If the Secretary 
                        determines that, 60 days after being notified 
                        that it is out of compliance as described in 
                        subparagraph (A), the institution has failed to 
                        return to compliance by making the appropriate 
                        speech policy disclosures, or statement 
                        affirming contractual responsibility for full 
                        speech policy disclosure, or statement 
                        affirming contractual responsibility for speech 
                        policy enforcement, the Secretary shall notify 
                        the institution and, if applicable, the 
                        complainant, not more than 7 days after the 
                        date of such determination--
                                    ``(I) that the institution will 
                                lose eligibility to receive funds under 
                                this Act, including participation in 
                                any program under this title;
                                    ``(II) that the loss of eligibility 
                                shall go into effect beginning with any 
                                student notified of acceptance for 
                                admission to the institution during the 
                                academic year subsequent to the 
                                academic year during which the 
                                determination is made, and that no 
                                restoration of eligibility for 
                                ineligible students in subsequent years 
                                will occur prior to the beginning of 
                                the third academic year subsequent to 
                                the academic year during which the 
                                determination is made; and
                                    ``(III) that the institution shall 
                                post the determination of the Secretary 
                                on the website of the institution, 
                                within two clicks of the homepage, 
                                without a paywall, email login, or 
                                other restriction to access.
                            ``(ii) Continued eligibility.--Each student 
                        enrolled at the institution during the academic 
                        year in which eligibility is lost as described 
                        in this subparagraph, and each student notified 
                        of acceptance for admission to the institution 
                        during the academic year in which eligibility 
                        is lost as described in this subparagraph, 
                        shall continue to be eligible to participate, 
                        through the institution, in programs funded 
                        under this Act during the 5-year period after 
                        the date of the loss of eligibility.
            ``(3) Restoration of eligibility.--
                    ``(A) In general.--Not later than 7 days after the 
                loss of eligibility under paragraph (2), the Secretary 
                shall inform the institution that it may restore 
                eligibility by making the appropriate speech policy 
                disclosures, or statement affirming contractual 
                responsibility for full speech policy disclosure, or 
                statement affirming contractual responsibility for 
                speech policy enforcement, as directed by the Secretary 
                in conformity with this section.
                    ``(B) Review.--The Secretary shall review any 
                policy disclosures, or statement affirming contractual 
                responsibility for full speech policy disclosure, or 
                statement affirming contractual responsibility for 
                speech policy enforcement, and determine whether they 
                are sufficient to restore eligibility for receiving 
                funds under this Act, including participation in any 
                program under this title, not later than 120 days after 
                the date of receipt of such disclosures or statement.
                    ``(C) Investigation.--While conducting a review to 
                restore eligibility under this paragraph, the Secretary 
                may conduct an investigation in which further 
                information may be sought or requested from the 
                institution, or any other source the Secretary 
                determines pertinent.
                    ``(D) Restoration.--If the Secretary determines 
                that the institution under review to restore 
                eligibility under this paragraph has made the policy 
                disclosures, and issued the statement affirming 
                contractual responsibility for full speech policy 
                disclosure, and the statement affirming contractual 
                responsibility for speech policy enforcement, as 
                required by this section, the institution's eligibility 
                to receive funds under this Act, including 
                participation in any program under this title, shall be 
                restored not earlier than the beginning of the third 
                academic year following the year in which notification 
                of loss of eligibility was received.
                    ``(E) Limit on review.--The Secretary may conduct 
                not more than 1 review to restore eligibility for a 
                single institution in any given academic year.
    ``(e) Nonapplication to Certain Institutions.--This section shall 
not apply to an institution of higher education that is controlled by a 
religious organization.''.
                                 <all>