Wyoming Higher Education Free Speech Protection Act.

2018
STATE OF WYOMING
18LSO-0057
Numbered
1.3

HOUSE BILL

NO.
HB0137

Wyoming Higher Education Free Speech Protection Act.

Sponsored by:
Representative(s) Biteman, Clem, Gray, Halverson, Laursen, Lindholm, Olsen, Salazar and Steinmetz and Senator(s) Bouchard

A BILL

for

AN ACT relating to higher education; creating the Wyoming Higher Education Free Speech Protection Act; requiring the University of Wyoming and community college district boards of trustees to adopt a policy in accordance with this act; providing for disciplinary sanctions and hearings; requiring notice of the policy; permitting judicial relief; excluding applicability of the Wyoming Governmental Claims Act; conforming provisions; requiring reports; superseding and nullifying inconsistent rules, regulations and policies; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S.
21
‑
1
6
‑
1
7
01 through 21
‑
1
6
‑
1
7
0
5
are created to read:

ARTICLE 1
7
FREE
DOM OF SPEECH
ON UNIVERSITY
AND COMMUNITY COLLEGE
CAMPUSES

21
‑
1
6
‑
1
7
01
.

Short title.

This act shall be known and may be cited as the
"
Wyoming
Higher Education
Free Speech Protection Act."

21
‑
1
6
‑
1
7
02
.

Definitions.

(a)

As used in this act:

(
i
)

"Board of trustees"
includes
the board of trustees of the University of Wyoming and any community college district board of trustees;

(ii)

"Faculty
member
" means any person,
whether or not

the person is compensated by an
institution and
regardless of political affiliation, who is tasked with providing scholarship, academic research or teaching
for an institution
. The term include
s
ten
ured and nontenured professors,
adjunct professors, visiting professors, lecturers, graduate student instructors and any other person
s
in

comparable position
s
at
an
institution
. The term
does
not include any person whose primary responsibilities are administrative or managerial;

(i
ii
)

"Free speech" means
any form of
speech, expression or assembly, verbal or written,
that is
protected by the
f
irst
a
mendment to the United States
c
onstitution or
a
rticle I,
s
ection 20

or
21
of the Wyoming
c
onstitution. The
term
does not include the promotion, sale or distribution of any product or service;

(
i
v)

"Free speech zone" means a
particular area
on the institution's campus

to which
the exercise of
free speech is

confined
;

(v)

"Institution" mea
ns the University of Wyoming or
any community college in this state;

(vi)

"Materially and substantially int
erfere
with a free speech event or activity
" means
to
prevent
, stop
or significantly
impair or hinder any authorized or lawful free speech event or activity
by
committing any of the following acts
:

(A)

Engaging in f
ighting or other violent behavior;

(B)

Making protracted commotion or utterances;

(
C
)

Physically blocking, preventing
or hindering
any person from

attending, participating in, listening or viewing the free speech event
or
activity
.

(v
i
i
)

"Student" means
an
individual who is enrolled in a course of study at
the
institution;

(vi
i
i
)

"Student
organization
" means an organization
comprised solely of
students
and registered with
the
institutio
n pursuant to institution rules;

(
ix
)

"
This act
"
means W.S. 21
‑
1
6
‑
1
7
01 through 21
‑
1
6
‑
1
7
0
5
.

21
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1
6
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1
7
03
.

Higher education
free speech
protection
policy
; notice of policy; disciplinary sanctions and hearings
.

(a)

N
ot later than January 1, 2019, each

board of trustees
shall adopt a
higher education
free speech protection
policy

that
is consistent with the following
:

(
i
)

Students
and any persons lawfully on campus
have a fundamental constitutional right to
engage in
free speech
activities on the institution's campus
;

(ii)

The primary function of the institution is
to foster
the discover
y
, improvement, transmission and dissemination
of knowledge through
research, teaching,
discussion and debate. To fulfill this function, t
he institution shall
allow

students
,
student organizations

and persons lawfully on campus
the broadest possible latitude
under the first amendment to the United States constitution and article I, section
s
20
and 21
of the Wyoming constitution
to speak, write, listen, challenge,
assemble,
learn and discuss any
idea
or issue
;

(iii)

The institution shall allow students, student organizations, faculty
members
and
persons lawfully on campus
to take positions on public controversies, but the institution itself shall endeavor to remain neutral on these controversies, except to the extent that administrative decisions on these issues are essential to the institution's day

to

day operations. The institution itself shall not
take action
on any public controversy so as to
require or compel
students, student organizations
or
faculty
members
to publicly express a given view of public controversy;

(i
v
)

It is for the institution's students
, student organizations
and faculty
members
to make judgments
about ideas for themselves and to act on those judgments not by seeking to suppress free speech
,
but by openly and vigorously contesting ideas they oppose;

(v
)

The institution shall maintain
its
campus as a marketplace of ideas for students
,
student organizations
,
faculty members
and persons lawfully on campus
, where
the free exchange of ideas
shall not
be suppressed because
certain
ideas are thought by some or even by most members of the institution's community
or
the
general public

to be
unwelcome, disagreeable or even deeply offensive
;

(v
i
)

I
t is not the proper role of
the
institution to attempt to shiel
d individuals from free speech
they
may
find
unwelcome, disagreeable or even deeply offensive
;

(vi
i
)

While
greatly valued
,
the institution shall
not
use
concerns about civility and mutual respect as a justification for
closing off

the

discussion of ideas, however
unwelcome, disagreeable or even deeply offensive

those ideas may be
to members of the institution's community or the
general public
;

(viii
)

A
lthough students
, student organizations
,
faculty
members
and persons lawfully on campus
are free to
express
their own views about and contest views expressed on campus and to
express
their own views
about
and contest
any
speaker
who is
invited to express
his
views on campus, they shall
not
, knowingly or
purposefully
,

materially and
substantially interfere with

a free speech event or activity at which the

speaker
express
es

or is scheduled to express
his views
. To this end,
the
institution
shall
promote
and protect
a lively and fearless freedom of debate and delib
eration
;

(
i
x
)

The
institution shall
maintain
an atmosphere that
fosters
speculation, experimentation and creation by students
, student organizations
,
faculty
members

and persons lawfully on campus
who shall always remain free to inquire,
to
study and evaluate and to gain new understanding
s
;

(x)

T
he primary responsibility of faculty
members
is to
dedicate themselves to
an honest, courageous and persistent effort to
discover
and communicate the truth that lies in their
areas of
competence;

(x
i
)

Although

faculty
members
are free
in the classroom

to discuss subjects within
their
areas of competence,
they
shall be cautious in expressing per
sonal views
in the classroom
and
endeavor
not to introduce controversial matters
bearing no relationship to the subject taught, especially matters in which they have no special competence or training
;

(x
ii
)

The
institution shall maintain
areas
of its
campus
that
are generally accessible
,
open and outdoor

as traditional public forums for free speech
;

(x
i
ii
)

The
institution shall not restrict free speech
to

a
free speech zone;

(x
i
v
)

Unless
allowed
under subparagraph (d)(iv)(A) of this section, t
he institution shall not
adopt
or maintain
permitting requirements that prohibi
t spontaneous
free speech activities
;

(x
v
)

The
institution shall not
deny a student organization any benefit or privilege available to any other student organization, or otherwise discriminate against a student organization,
based on the
student organization's
viewpoints;

(x
v
i
)

The
institution shall not charge student
s

or student organizations
security fees based on the content of
their
speech
or

that
of
a
speaker
they invite
or
based on
the anticipated reaction or opposition of listeners to
the
speaker,
student
or
student organization
's

speech;

(x
vii
)

The
institution shall allow students
, student organizations
and faculty
members
to invite
any
speaker to campus to engage in free speech regardless of the
speaker's
views
;

(x
viii
)

The
institution shall not disinvite a speaker invited by a student, student organization or
faculty
member
because
other

students,
student organizations,
faculty members, administrators, government officials or members of the
general
public
may find
the speaker's anticipated speech
to be

unwelcome, disagreeable or even deeply offensive
;

(
xix)

Any person subject to the institution's disciplinary authority who
, knowingly or purposefully,
material
ly
and substantially interferes with
a
free speech
event or
activity on the institution's campus is subject to disciplinary sanctions
as established
by t
he institution
, provided that

a student who violates this paragraph two (2) or more times

shall be
punish
ed
by suspension for a minimum of two (2) semesters or expulsion
;

(x
x)

Any student accused of violating paragraph (xix) of this s
ubsection is entitled to a disciplinary hearing under published procedures. At minimum, the procedures shall include:

(A)

The right to receive advanced written notice of the charges;

(B)

The right to review the evidence in support of the charges;

(C)

The right to
present a defense
;

(D)

The right to
confront witnesses
;

(E)

The right to call witnesses;

(F)

A decision by an impartial arbiter;

(G)

T
he right to counsel
if the violation is punishable by more than a thirty
(30)
day

suspension or expulsion
;

(H)

The right to
appeal.

(b)

T
he

institution shall make the
policy adopted pursuant to subsection (a)
of this section
available

to students and faculty
members
through one
(1)
or more of the following methods:

(
i
)

Publishing the policy
in the institution's student and faculty handbook
s
;

(ii)

Providing prominent
notice
of the policy
on the institution's internet
homepage
;

(iii)

Sending the policy
at least one (1) time per semester
to
student
s
and
faculty
members'

institutio
nal
email address
es
.

(c)

During freshman orientation programs, t
he institution shall
provide
notice and the location of the policy adopted pursuant to subsection (a) of this section
and a session explaining the policy
.

(
d
)

Nothing in this section shall be construed to
:

(
i
)

G
rant student
s
, student organization
s
,
faculty

member
s

or other persons lawfully on campus
the right to
prevent, hinder, impair, interfere with,
obstruct
or
disrupt previously scheduled or reserved activities
on the
institution's
campus
;

(ii)

Require an institution to fund
any
costs associated with free speech by
any
student
,
student organization
,
faculty member
or any other person lawfully on campus
;

(iii)

Restrict or prohibit
a board of trustees from exercising any authority provided
by
W.S.
6
‑
6
‑
301 through 6
‑
6
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307
in a manner that is

consistent with the provisions of this act
;

(iv)

Restrict or prohibit an institution's ability to
adopt or
impose measures
that
are consistent with
the
provisions of this act and
which
do not violate
the
f
irst
a
mendment to the United States
constitution or article I, section 20
or 21
of the Wyoming constitution
. Those measures may include
:

(A)

R
estrictions
on the time, place or manner of
free speech, except
those
provid
ing
for
a
free
speech zone, that are reasonable, content and viewpoint neutral and narrowly tailored to
achieve a compelling
institutional interest and which leave open ample alternative channels of communication
;

(B)

Restrictions on speech, conduct or assembly that is not protected by the first amendment to the United States constitution or article I, section 20
or 21
of the Wyoming constitution;

(
C
)

Any other measures that are consistent wit
h the provisions of this act,
the first amendment to the United States constitution and article I, section
s
20
and 21
of the Wyoming constitution.

21
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170
4
.

Judicial relief
.

(a)

The attorney general or any person
aggrieved by
a violation

of this act

or a policy adopted thereunder
may bring an action in a court of competent jurisdiction to enjoin
any

further
violation
of th
is act or policy
.

(b)

Upon a finding that a
violation of

this act
or a policy adopted thereunder
occurred, the court may
, in addition to

injunctive relief
, award
damages of not more than one thousand dollars ($1,000.00) or actual damages, whichever is higher
,
together with costs and attorney's fees,
provided that any award
under this subsection shall not exceed the limits provided in W.S. 1
‑
39
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118
.

(
c
)

Nothing in this
section
shall limit any additional civil or criminal liability under any other state or federal law.

(
d
)

Nothing in the Wyoming Governmental Claims Act shall be
deemed to
bar any
action
against an institution under this section.

21
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16
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170
5
.

Annual report on higher education free speech rights.

(a)

Not later than November 1, 2019, and by November 1 annually thereafter, each board of trustees shall provide a report on free speech rights and issues on its
institution's campus to the governor and the joint education interim committee. The report shall include:

(
i
)

A description of any barriers to or disruptions of free speech on the institution's campus and the
manner in which
the institution addressed or is planning to address those barriers or disruptions;

(ii)

A description of substantial difficulties, controversies and successes in maintaining administrative and institutional neutrality on public controversies;

(iii)

Any assessments, criticisms, commendations and recommendations regarding higher education free speech rights that the board of trustees may wish to provide.

Section
2
.

W.S.

1
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39
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104 by creating a new subsection (e),
21
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17
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204(a)(intro) and 21
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18
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304
(a)
by creating a new paragraph (xii) are amended to read:

1
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39
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104
.

Granting immunity from tort liability; liability on contracts; exceptions.

(e)

Nothing in this
act
shall be deemed to prov
ide immunity from liability in an action brought pursuant to
the Wyoming Higher Education Free Speech Protection Act.

21
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17
‑
204
.

Additional powers and duties; sectarian or partisan instruction or test prohibited.

(a)

The board of trustees shall prescribe rules for the government of the university and all its branches, elect the requisite officers, professors, instructors and employees, a director of finance and budget and a superintendent of buildings and grounds, any of whom may be removed for cause, and fix the salary and term of office of each. The board of trustees shall prescribe the studies to be pursued and the textbooks to be used, and determine the qualifications of applicants for admission to the various courses of study.
Not later than January 1, 2019, t
he board of trustees shall adopt a policy
regarding free speech rights on the university's campus in accordance with
the
Wyoming
Higher Education
Free
Speech Protection Act
, W.S. 21
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16
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1701 through 21
‑
16
‑
1705.
This policy shall supersede
and nullify any inconsistent
rules, r
egulations

and
policies
of the university
.
No instruction either sectarian in religion or partisan in politics shall ever be allowed in any department of the university, and no sectarian or partisan test shall ever be exercised or allowed in the appointment of trustees or in the election or removal of professors, teachers or other officers of the university or in the admission of students thereto, or for any purpose whatsoever. The board of trustees may:

21
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18
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304
.

District board generally; duties.

(a)

The community college district board shall:

(xii)

Not later than January 1, 2019, a
dopt a policy
regarding free speech rights on the campus of the community college under its jurisdiction in accordance with
the
Wyoming
Higher Education
Free Speech Protection Act
, W.S. 21
‑
16
‑
1701 through 21
‑
16
‑
1705
.
This policy shall supersede and nullify any inconsistent
rules, regulations
and
policies
of the community college.

Section
3
.

This act is effective July 1, 201
8
.

(END)

1
HB0137