Full Text of HB3409 102nd General Assembly
HB3409 102ND GENERAL ASSEMBLY |
| | 102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022 HB3409 Introduced 2/22/2021, by Rep. Thomas Morrison SYNOPSIS AS INTRODUCED: |
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Creates the Campus Free Speech Act. Requires the governing board of each public university and community college to develop and adopt a policy on free expression; sets forth what the policy must contain. Requires the Board of Higher Education to create a Committee on Free Expression to issue an annual report. Requires public institutions of higher education to include in their freshman orientation programs a section describing to all students the policies and rules regarding free expression that are consistent with the Act. Contains provisions concerning rules, construction of the Act, permitted restrictions, and enforcement.
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| | FISCAL NOTE ACT MAY APPLY | | STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT |
| | A BILL FOR |
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| 1 | | AN ACT concerning education.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 1. Short title. This Act may be cited as the Campus | 5 | | Free Speech Act. | 6 | | Section 5. Legislative findings. The General Assembly | 7 | | finds the following: | 8 | | (1) Section 4 of Article I of the Illinois | 9 | | Constitution recognizes that "all persons may speak, write | 10 | | and publish freely, being responsible for the abuse of | 11 | | that liberty. In trials for libel, both civil and | 12 | | criminal, the truth, when published
with good motives and | 13 | | for justifiable ends, shall be a
sufficient defense". | 14 | | (2) Public institutions of higher education have | 15 | | historically embraced a commitment to freedom of | 16 | | expression in policy. | 17 | | (3) In recent years, public institutions of higher | 18 | | education have abdicated their responsibility to uphold | 19 | | free-speech principles, and these failures make it | 20 | | appropriate for all public institutions of higher | 21 | | education to restate and confirm their commitment in this | 22 | | regard. | 23 | | (4) In 1974, the Committee on Free Expression at Yale |
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| 1 | | University issued a statement known as the Woodward Report | 2 | | that stands as a classic defense of free expression on | 3 | | campuses; in 2015, the Committee on Freedom of Expression | 4 | | at the University of Chicago issued a similar and widely | 5 | | respected report; and in 1967, the Kalven Committee Report | 6 | | of the University of Chicago articulated the principle of | 7 | | institutional neutrality regarding political and social | 8 | | issues and the essential role of such neutrality in | 9 | | protecting freedom of thought and expression at | 10 | | universities. The principles affirmed by these 3 highly | 11 | | regarded reports are inspiring articulations of the | 12 | | critical importance of free expression in higher | 13 | | education. | 14 | | (5) The General Assembly views freedom of expression | 15 | | as being of critical importance and requires that each | 16 | | public institution of higher education ensure free, | 17 | | robust, and uninhibited debate and deliberation by | 18 | | students of public institutions whether on or off campus. | 19 | | (6) The General Assembly has determined that it is a | 20 | | matter of statewide concern that all public institutions | 21 | | of higher education officially recognize freedom of speech | 22 | | as a fundamental right. | 23 | | Section 10. Definition. In this Act, "public institution" | 24 | | means a public university or public community college in this | 25 | | State. |
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| 1 | | Section 15. Policy on free expression required. The board | 2 | | of trustees of a public institution shall develop and adopt a | 3 | | policy on free expression that contains, at least, the | 4 | | following: | 5 | | (1) A statement that the primary function of an | 6 | | institution of higher education is the discovery, | 7 | | improvement, transmission, and dissemination of knowledge | 8 | | by means of research, teaching, discussion, and debate. | 9 | | This statement shall provide that, to fulfill this | 10 | | function, the institution must strive to ensure the | 11 | | fullest degree of intellectual freedom and free | 12 | | expression. | 13 | | (2) A statement that it is not the proper role of the | 14 | | institution to shield individuals from speech protected by | 15 | | the First Amendment, including, without limitation, ideas | 16 | | and opinions they find unwelcome, disagreeable, or even | 17 | | deeply offensive. | 18 | | (3) A statement that students and faculty have the | 19 | | freedom to discuss any problem that presents itself, as | 20 | | the First Amendment permits and within the limits of | 21 | | reasonable viewpoint and content-neutral restrictions on | 22 | | time, place, and manner of expression that are consistent | 23 | | with this Act and that are necessary to achieve a | 24 | | significant institutional interest; provided that these | 25 | | restrictions are clear, published, and provide ample |
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| 1 | | alternative means of expression. Students and faculty | 2 | | shall be permitted to assemble and engage in spontaneous | 3 | | expressive activity as long as the activity is not | 4 | | unlawful and does not materially and substantially disrupt | 5 | | the functioning of the institution, subject to the | 6 | | requirements of this Act. | 7 | | (4) A statement that any person lawfully present on | 8 | | campus may protest or demonstrate there. The statement | 9 | | shall make clear that protests and demonstrations that | 10 | | infringe upon the rights of others to engage in or listen | 11 | | to expressive activity shall not be permitted and shall be | 12 | | subject to sanction. This does not prohibit professors or | 13 | | other instructors from maintaining order in the classroom. | 14 | | (5) A statement that the campuses of the institution | 15 | | are open to any speaker whom students, student groups, or | 16 | | members of the faculty have invited. | 17 | | (6) A statement that the public areas of campuses of | 18 | | the institution are traditional public forums, open on the | 19 | | same terms to any speaker. | 20 | | (7) A range of disciplinary sanctions for anyone under | 21 | | the jurisdiction of the institution who interferes with | 22 | | the free expression of others. | 23 | | (8) A provision that, in all disciplinary cases | 24 | | involving expressive conduct, students are entitled to a | 25 | | disciplinary hearing under published procedures, | 26 | | including, at minimum: |
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| 1 | | (A) the right to receive advance written notice of | 2 | | the charges; | 3 | | (B) the right to review the evidence in support of | 4 | | the charges; | 5 | | (C) the right to confront witnesses against them; | 6 | | (D) the right to present a defense; | 7 | | (E) the right to call witnesses; | 8 | | (F) a decision by an impartial arbiter or panel; | 9 | | and | 10 | | (G) the right of appeal. | 11 | | When suspension for longer than 30 days or expulsion | 12 | | are potential penalties, students are entitled to a | 13 | | disciplinary hearing under published procedures, | 14 | | including, at minimum, all of the procedures listed in | 15 | | this subdivision (8), plus the right to active assistance | 16 | | of counsel. | 17 | | (9) A provision that any student who has twice been | 18 | | found responsible for infringing on the expressive rights | 19 | | of others will be suspended for a minimum of one year or | 20 | | expelled. | 21 | | (10) A statement that the institution (i) shall strive | 22 | | to remain neutral, as an institution, on the public policy | 23 | | controversies of the day and (ii) may not take action, as | 24 | | an institution, on the public policy controversies of the | 25 | | day in such a way as to require students or faculty to | 26 | | publicly express a given view of social policy. |
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| 1 | | (11) A statement that this policy supersedes and | 2 | | nullifies any prior provisions in the policies and | 3 | | regulations of the institution that restrict speech on | 4 | | campus and are, therefore, inconsistent with this policy | 5 | | on free expression. The institution shall remove or revise | 6 | | any such provisions in its policies and regulations to | 7 | | ensure compatibility with this policy on free expression. | 8 | | Section 20. Committee on Free Expression. | 9 | | (a) The Board of Higher Education shall create a single | 10 | | Committee on Free Expression consisting of all of the | 11 | | following members, all of whom shall serve without | 12 | | compensation but shall be reimbursed for their reasonable and | 13 | | necessary expenses from funds appropriated for that purpose: | 14 | | (1) One member representing the University of Illinois | 15 | | at Urbana-Champaign,
appointed by the university's board | 16 | | of trustees. | 17 | | (2) One member representing the University of Illinois | 18 | | at Springfield, appointed by the university's board of | 19 | | trustees. | 20 | | (3) One member representing the University of Illinois | 21 | | at Chicago, appointed by the university's board of | 22 | | trustees. | 23 | | (4) One member representing Southern Illinois | 24 | | University at Carbondale, appointed by the university's | 25 | | board of trustees. |
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| 1 | | (5) One member representing Southern Illinois | 2 | | University at Edwardsville, appointed by the university's | 3 | | board of trustees. | 4 | | (6) One member representing Western Illinois | 5 | | University, appointed by the university's board of | 6 | | trustees. | 7 | | (7) One member representing Eastern Illinois | 8 | | University, appointed by the university's board of | 9 | | trustees. | 10 | | (8) One member representing Illinois State University, | 11 | | appointed by the university's board of trustees. | 12 | | (9) One member representing Northern Illinois | 13 | | University, appointed by the university's board of | 14 | | trustees. | 15 | | (10) One member representing Chicago State University, | 16 | | appointed by the university's board of trustees. | 17 | | (11) One member representing Governors State | 18 | | University,
appointed by the university's board of | 19 | | trustees. | 20 | | (12) One member representing Northeastern Illinois | 21 | | University, appointed by the university's board of | 22 | | trustees. | 23 | | (13) Three members representing public community | 24 | | colleges, appointed by the Illinois Community College | 25 | | Board at its discretion. | 26 | | (b) The Committee on Free Expression shall meet initially |
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| 1 | | at the call of the Chairperson of the Board of Higher | 2 | | Education, shall select one member as chairperson at its | 3 | | initial meeting, and shall thereafter meet at the call of that | 4 | | chairperson. The Board of Higher Education shall provide | 5 | | administrative and other support to the Committee. | 6 | | (c) The Committee on Free Expression shall report to the | 7 | | public, the Board of Higher Education, the Governor, and the | 8 | | General Assembly on September 1 of every year. The report | 9 | | shall include all of the following: | 10 | | (1) A description of any barriers to or disruptions of | 11 | | free expression within public institutions. | 12 | | (2) A description of the administrative handling and | 13 | | discipline relating to these disruptions or barriers. | 14 | | (3) A description of substantial difficulties, | 15 | | controversies, or successes in maintaining a posture of | 16 | | administrative and institutional neutrality with regard to | 17 | | political or social issues. | 18 | | (4) Any assessments, criticisms, commendations, or | 19 | | recommendations the committee sees fit to include. | 20 | | Section 25. Freshman orientation information. Public | 21 | | institutions shall include in their freshman orientation | 22 | | programs a section describing to all students the policies and | 23 | | rules regarding free expression that are consistent with this | 24 | | Act. |
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| 1 | | Section 30. Rules; construction of Act; permitted | 2 | | restrictions. The Board of Higher Education is authorized to | 3 | | adopt rules to further the purposes of the policies adopted | 4 | | pursuant to this Act. Nothing in this Act shall be construed to | 5 | | prevent public institutions from regulating student speech or | 6 | | activity that is prohibited by law. Except as further limited | 7 | | by this Act, public institutions shall be allowed to restrict | 8 | | student expression only for expressive activity not protected | 9 | | by the First Amendment, including all of the following: | 10 | | (1) Violations of State or federal law. | 11 | | (2) Expression that a court has deemed unprotected | 12 | | defamation. | 13 | | (3) Harassment as follows: | 14 | | (A) Peer-on-peer harassment, which is defined as | 15 | | conduct directed by a student toward another | 16 | | individual student, on the basis of that student's | 17 | | membership or perceived membership in a protected | 18 | | class, that is so severe, pervasive, and objectively | 19 | | offensive that it effectively deprives the victim of | 20 | | access to the educational opportunities or benefits | 21 | | provided by the public institution. | 22 | | (B) Quid pro quo sexual harassment, which is | 23 | | defined as explicitly or implicitly conditioning a | 24 | | student's participation in an education program or | 25 | | activity or basing an educational decision on the | 26 | | student's submission to unwelcome sexual advances, |
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| 1 | | requests for sexual favors, or other verbal, | 2 | | nonverbal, or physical conduct of a sexual nature. | 3 | | (4) True threats, which are defined as statements | 4 | | meant by the speaker to communicate a serious expression | 5 | | of an intent to commit an act of unlawful violence to a | 6 | | particular individual or group of individuals. | 7 | | (5) An unjustifiable invasion of privacy or | 8 | | confidentiality not involving a matter of public concern. | 9 | | (6) An action that unlawfully disrupts the function of | 10 | | the public institution. | 11 | | (7) Reasonable time, place, and manner restrictions on | 12 | | expressive activities consistent with subdivision (3) of | 13 | | Section 15 of this Act.
| 14 | | Section 35. Restriction on expressive conduct; | 15 | | enforcement. | 16 | | (a) A public institution may restrict expressive conduct | 17 | | in the public areas of campus only if it demonstrates that the | 18 | | restriction: | 19 | | (1) is necessary to achieve a compelling governmental | 20 | | interest; | 21 | | (2) is the least restrictive means of furthering that | 22 | | compelling governmental interest; | 23 | | (3) leaves open ample other opportunities to engage in | 24 | | the expressive conduct; and | 25 | | (4) provides for spontaneous assembly and the |
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| 1 | | distribution of literature. | 2 | | (b) The following persons may bring an action in a court of | 3 | | competent jurisdiction to enjoin any violation of this Section | 4 | | or to recover reasonable court costs and reasonable attorney | 5 | | fees: | 6 | | (1) The Attorney General. | 7 | | (2) A person whose expressive rights are violated by a | 8 | | violation of this Section. | 9 | | (c) In an action brought under subsection (b) of this | 10 | | Section, if the court finds that a violation of this Section | 11 | | occurred, the court shall award the aggrieved person | 12 | | injunctive relief for the violation and shall award reasonable | 13 | | court costs and reasonable attorney fees. The court shall also | 14 | | award damages of $1,000 or actual damages, whichever is | 15 | | higher. | 16 | | (d) A person shall bring an action for a violation of this | 17 | | Section within one year after the date the cause of action | 18 | | accrues. For the purpose of calculating the one-year | 19 | | limitation period, each day that the violation persists or | 20 | | each day that a policy in violation of this Section remains in | 21 | | effect constitutes a new violation of this Section and shall | 22 | | be considered a day that the cause of action has accrued.
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