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 494A.

; and

(2)in part G, by adding at the end the following:

494A.

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.

494B.

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 Act, 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

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.