free speech and academic freedom at University of Wisconsin System institutions and technical colleges, due process in disciplinary proceedings at University of Wisconsin System institutions and technical colleges, and causes of action against the Board of Regents of the University of Wisconsin System and technical college district boards

Wisconsin Legislature: SB498: Text as Enrolled

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SB498: Text as Enrolled

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Date of enactment:
2025 Senate Bill 498

Date of publication*:
2025 WISCONSIN ACT
An Act

to create
36.41, 36.42, 38.44 and 38.45 of the statutes;
relating to:
free speech and academic freedom at University of Wisconsin System institutions and technical colleges, due process in disciplinary proceedings at University of Wisconsin System institutions and technical colleges, and causes of action against the Board of Regents of the University of Wisconsin System and technical college district boards.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
SB498,1
Section
1
.
36.41 of the statutes is created to read:
36.41

Campus free speech and academic freedom.

(1)

Definitions.
In this section:
(a) “Employee” means a member of the faculty, academic staff, or university staff assigned to an institution. “Employee” also includes the institution’s graduate assistants and employees in training.
(b) 1. “Virtual space” means a forum utilizing electronic technology that satisfies all of the following:
a. It enables participants who are not in each other’s physical presence to communicate with each other simultaneously by sight and sound to conduct a meeting or gathering, have a discussion, hold an event, or otherwise convey information and ideas with each other in real time.
b. It is under the control or supervision of the institution or is being used for an institution-authorized purpose or activity.
2. “Virtual space” does not include a virtual classroom while it is in use for instructional purposes.
(2)

Principles of academic freedom and freedom of expression.
(a) The system and each institution shall adhere to the following principles of academic freedom and freedom of expression in order to achieve the system’s mission under s. 36.01 (2):
1. Academic freedom includes the freedom to explore all avenues of scholarship, research, and creative expression, and to reach conclusions according to one’s own scholarly discernment. Freedom of expression includes the right to discuss and present scholarly opinions and conclusions on all matters both in and outside the classroom. These freedoms include the right to speak and write as a member of an institution’s community or as a private citizen without institutional discipline or restraint on scholarly matters or on matters of public concern. The system and each institution shall remain committed to these principles and provide all members of an institution’s community the broadest possible latitude to explore ideas and to speak, write, listen, challenge, and learn.
2. Although different ideas in an institution’s community often and quite naturally conflict, it is not the proper role of an institution to attempt to shield individuals from ideas and opinions the institution or others find unwelcome, disagreeable, or even deeply offensive. Despite the great value of civility, concerns about civility and mutual respect may never be used as justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members within an institution’s community.
3. The freedom to debate and discuss the merits of competing ideas does not mean that members of an institution’s community may say whatever they wish, wherever they wish. Consistent with long-standing practice informed by law, the system and each institution may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or discriminatory harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of an institution. In addition, subject to sub. (3) (a) 2., the system and each institution may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt ordinary activities. However, these exceptions to the general principle of freedom of expression shall be construed narrowly and may not be applied in a manner that is inconsistent with the system’s and each institution’s commitment to a completely free and open discussion of ideas.
(b) The principles stated in par. (a) carry responsibilities, as follows:
1. Academic freedom carries the responsibility for the faithful performance of professional duties and obligations. All members of an institution’s community share in the responsibility for maintaining civility and a climate of mutual respect. Although members of an institution’s community are free to criticize and contest the views expressed on campus, they may not obstruct or otherwise interfere with the freedom of others, including speakers who are invited to campus, to express views they reject or even loathe.
2. Freedom of expression carries the obligation to make clear that when speaking on matters of public interest or concern, one is speaking on behalf of oneself, not the institution.
3. An institution has a solemn responsibility not only to promote lively and fearless exploration, deliberation, and debate of ideas, but also to protect those freedoms when others attempt to restrict them. Exploration, deliberation, and debate may not be suppressed because the ideas put forth are thought by some or even by most members of an institution’s community, or those outside the community, to be offensive, unwise, immoral, or wrongheaded. It is for the members of an institution’s community, not for the institution itself, to make those judgments for themselves, and to act on those judgments not by seeking to suppress exploration of ideas or expression of speech, but by openly and vigorously contesting the ideas that they oppose. Fostering the ability of members of an institution’s community to engage in such debate and deliberation in an effective and responsible manner is an essential part of an institution’s educational mission.
(3)

First Amendment protections.
(a) Except as specified in this section, an institution may not do any of the following:
1. Restrict speech protected under the First Amendment of the U.S. Constitution, including noncommercial expressive activities protected under the provisions of this section, which include all forms of peaceful assembly, protests, speeches, distribution of literature, carrying signs, circulating petitions, and the recording and lawful publication, including Internet publication, of video and audio lawfully recorded in public outdoor areas of the institution or public virtual spaces, if the speaker’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the institution.
2. Maintain and enforce time, place, and manner restrictions on expressive activities on the open outdoor areas of its campus that are generally accessible to the public and indoor areas and virtual spaces that have been designated as public forums, except classrooms while they are in use for instructional purposes, unless those restrictions meet all of the following requirements:
a. The restrictions are reasonable, in furtherance of a significant institutional interest, and employ clear, published, content-neutral, and viewpoint-neutral criteria.
b. The restrictions provide for ample alternative means for communication of the information and allow for members of the institution’s community to spontaneously and contemporaneously distribute literature and assemble.
3. Designate any area of a campus a “free speech zone” or otherwise create policies restricting noncommercial expressive activities to a particular area of a campus.
4. Require a permit from any individual or group as a condition of being allowed to engage in expressive activities protected under this section, unless the individual or group is seeking exclusive control of a location for its expressive activity at a reserved time. Any such permitting process may not be overly burdensome, and applications for permits shall be evaluated solely using published content and viewpoint-neutral criteria.
5. Charge security fees to a student or a student group, as part of an application for those expressive activities that require a permit, based on the content of the expression, the content of the expression of an invited guest, or the anticipated reaction to the student’s, student group’s, or invited guest’s expression. Whether the security fee is required and its amount may be determined only on the basis of content and viewpoint-neutral criteria. Content and viewpoint-neutral criteria include the time of the event, the location of the event, the anticipated size of the invited audience, and whether alcohol will be served. Any institution charging security fees pursuant to this subdivision shall publish the criteria it uses for assessing those charges and shall have a published process for waving the fees for those who cannot afford to pay them.
6. Sanction individuals or groups for discriminatory harassment unless the speech targets its victim on the basis of the victim’s membership in a class protected under federal, state, or local law, and is so severe, pervasive, and objectively offensive that it effectively bars a student from receiving equal access to educational opportunities or benefits. This subdivision does not preclude an institution from providing additional resources to a student affected by speech that cannot be sanctioned under this subdivision or from taking nonpunitive actions.
(b) All indoor areas and virtual spaces that have been designated as public forums and outdoor public areas generally accessible to the public and operated by an institution or under the institution’s jurisdiction, except classrooms while they are in use for instructional purposes, shall be governed by rules applicable to traditional public forums.
(c) 1. Nothing in this section enables individuals to engage in conduct that intentionally, materially, and substantially disrupts another’s expressive activity if that activity is occurring in a campus space, including a virtual space, reserved for that activity under the exclusive use or control of a particular group.
2. For purposes of subd. 1., and subject to subd. 3., “materially and substantially disrupts” means when a person, with the intent or knowledge of doing so, significantly hinders another person’s or group’s expressive activity, prevents the communication of the message, or prevents the transaction of the business of a lawful meeting, gathering, or procession by doing any of the following:
a. Engaging in fighting, violence, or seriously disruptive behavior.
b. Physically blocking or significantly hindering any person from attending, listening to, viewing, or otherwise participating in an expressive activity.
c. In a virtual space, gains unauthorized access to the virtual space or technologically interferes with the functioning of the virtual space or another’s ability to access the virtual space.
3. For purposes of subd. 1., the phrase “materially and substantially disrupts” does not include conduct that is protected under the First Amendment of the U.S. Constitution or article I, section 3, of the Wisconsin Constitution. This protected conduct includes lawful protests and counterprotests in the outdoor areas of campus generally accessible to members of the public and indoor areas and virtual spaces that have been designated as public forums, except classrooms while they are in use for instructional purposes, 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.
(d) Nothing in this section limits the right of student expression at campus locations that are not specified in this section.
(e) An institution shall do all of the following:
1. Conduct a biennial survey of students and employees on First Amendment rights, academic freedom, perceived political, ideological, or other bias at the institution, and whether campus culture promotes self-censorship. The survey shall be conducted using statistically sound methodology and in a manner that protects the confidentiality of the survey’s respondents.
2. Biennially submit to the legislature under s. 13.172 (2) a report detailing the results of the survey under subd. 1.
3. Annually provide all students and employees with instruction in academic freedom, due process, and First Amendment protections.
(4)

Academic freedom.
(a) No board policy, institution policy, or employee may limit the expressive rights and academic freedom of an instructor of an institution to do any of the following:
1. Conduct research, publish, lecture, or teach in the academic setting.
2. Require students to participate in instructional exercises with legitimate pedagogical purposes that involve exploring, or arguing for or against, any argument or assertion.
3. Speak publicly as a private citizen on matters of public concern.
(b) Nothing in this subsection shall be interpreted to prohibit an institution from requiring an instructor to perform the instructor’s academic duties or from setting performance standards consistent with this subsection or as required by other law of this state.
(5)

Notice.
(a) An institution that violates this section, for 4 years following the date of the finding of the violation under par. (b), shall include a disclaimer on all notices, both printed or electronic, to individuals regarding admission to the institution, in a type size no smaller than the majority of the rest of the notice, in substantially the following form: “NOTICE: We are required by the State of Wisconsin to inform you that within the last 4 years ... [insert name of institution] has violated the free speech or academic freedom provisions in the Wisconsin statutes.”
(b) The penalty under par. (a) applies if a state or federal court in this state finds, on the basis of a preponderance of the evidence, that the institution violated this section.
(6)

Cause of action.
(a) Any person identified in par. (b) may bring an action in circuit court against the board for violation of this section by an institution and may seek any of the following:
1. An injunction against violation of this section.
2. Recovery from the board of damages, court costs, and attorney fees for persons aggrieved by the violation.
(b) Any of the following persons may bring an action under par. (a):
1. The attorney general.
2. A district attorney.
3. Any person whose expressive rights were violated through the violation of this section.
(c) Subject to par. (d), in an action brought under par. (a), if the court finds a violation, the court shall award to the plaintiffs all of the following:
1. Total damages for all prevailing persons aggrieved by the violation of not less than $500 for the initial violation plus $50 for each day the violation remains ongoing, which shall accrue starting on the day after the complaint is served on the board.
2. Notwithstanding s. 814.04 (1), court costs and reasonable attorney fees.
(d) In an action brought under par. (a), the total damages, excluding court costs and attorney fees, that may be awarded to plaintiffs in a case or cases stemming from a single controversy may not exceed an aggregate amount of $100,000. In violations harming multiple plaintiffs, the court shall divide the damages equitably among them until the maximum award is exhausted, if applicable.
(e) If a court awards to plaintiffs damages, court costs, or attorney fees in an action brought under this subsection, the board shall pay the total amount of the award from moneys allocated under s. 36.09 (1) (h) to the violating institution for the institution’s administrative expenses.

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