SB 498

This bill establishes certain standards related to free speech and academic freedom at University of Wisconsin System institutions and technical colleges. For violation of these standards, the Board of Regents of the UW System or technical college district board may be subject to a civil cause of action and must provide certain public notice of the violation. The bill also establishes certain due process standards in disciplinary proceedings at UW System institutions and technical colleges.

free speech and academic freedom

First Amendment protections

Under the bill, a UW institution or technical college may not do any of the following: 1) restrict speech protected under the First Amendment, if the speaker’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the UW institution or technical college; 2) maintain and enforce time, place, and manner restrictions on expressive activities on the publicly accessible, open outdoor areas of its campus 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 specified requirements; 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) subject to an exception, require a permit as a condition of being allowed to engage in expressive activities protected under the bill; 5) charge security fees, as part of a permit application, based on the content of expression or anticipated reaction; or 6) sanction individuals or groups for discriminatory harassment unless the speech targets its victim on the basis of a protected class under law, and is so severe, pervasive, and objectively offensive that it effectively bars a student from receiving equal access to educational opportunities or benefits. Under the bill, if a permit is required, the permitting process and any security fee must be content and viewpoint neutral. The bill defines a “virtual space” as an electronic forum that enables participants not in each other’s physical presence to communicate with each other in real time and that is controlled or supervised by, or used for an authorized purpose or activity of, a UW institution or technical college, not including a virtual classroom.

The bill also specifies that all of an institution’s or technical college’s indoor areas and virtual spaces that have been designated as public forums and publicly accessible outdoor areas, except classrooms while they are in use for instructional purposes, are governed by rules applicable to traditional public forums. The bill specifies that its provisions do not 1) enable individuals to engage in conduct that intentionally, materially, and substantially disrupts another’s expressive activity in a campus space reserved for that activity; or 2) limit the right of student expression at campus locations not specified in the bill.

The bill requires an institution or technical college to do all of the following: 1) conduct a survey biennially of students and employees on First Amendment rights, academic freedom, perceived political or other bias at the institution or technical college, and whether campus culture promotes self-censorship; 2) submit a report biennially to the legislature detailing the results of this survey; and 3) annually provide all students and employees with instruction in academic freedom, due process, and First Amendment protections.

Academic freedom

Under the bill, a UW or technical college policy or employee may not limit the expressive rights and academic freedom of an instructor to 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; or 3) speak publicly as a private citizen on matters of public concern.

Principles

The bill sets forth principles of academic freedom and freedom of expression to which the UW System and each institution must adhere, as well as UW System and institution responsibilities associated with these principles.

Notice and cause of action

The bill requires a UW institution or technical college that is found by a state or federal court, by a preponderance of the evidence, to have violated any of the free speech or academic freedom provisions described above to include, for four years, the following disclaimer on all notices to individuals regarding admission to the UW institution or technical college: “NOTICE: We are required by the State of Wisconsin to inform you that within the last four years ... [insert name of UW institution or technical college] has violated the free speech or academic freedom provisions in the Wisconsin statutes.”

Under the bill, the attorney general, a district attorney, or any person whose expressive rights were violated may bring a court action against the Board of Regents of the UW System or the technical college district board for violation by a UW institution or technical college of any of the free speech or academic freedom provisions described above and may seek an injunction and recovery of damages, court costs, and attorney fees for persons aggrieved by the violation. In such an action, if the court finds a violation, the court must 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 after the complaint is served that the violation remains ongoing, but not exceeding an aggregate amount of $100,000 for all cases stemming from a single controversy; and 2) court costs and reasonable attorney fees. An award to the plaintiffs of damages, court costs, or attorney fees must be paid from the UW institution’s or technical college’s administrative expense moneys.

due process in disciplinary proceedings

Due process guarantees

Under the bill, a student enrolled in a UW institution or technical college has a property interest in maintaining the student’s status as a student that may be terminated against the student’s will only for due cause, including failure to meet academic standards or attendance requirements, failure to pay tuition or other fees, or violating conduct rules. A student accused of a disciplinary or conduct violation that carries a potential penalty of expulsion or suspension of more than nine days, and a UW institution’s or technical college’s employee accused of a disciplinary or conduct violation, have the right to be represented, at the person’s own expense, by a licensed attorney or non-attorney advocate who is permitted to fully participate during the disciplinary proceeding. The same right applies to a student organization, employee organization, or independent organization recognized by the UW institution or technical college (organization) accused of a violation and to a complaining student if the disciplinary proceeding arises from the student’s complaint. Prior to initiating a disciplinary proceeding or investigation, a UW institution or technical college must notify the student, employee, or organization that a complaint has been made and inform the student, employee, or organization of the student’s, employee’s, or organization’s due process rights. A UW institution or technical college must ensure that all parties to a disciplinary proceeding, including if applicable an accusing student, have access to all material evidence, including both inculpatory and exculpatory evidence, not later than one week prior to the start of any formal hearing or similar adjudicatory proceeding. Before a disciplinary proceeding is scheduled, and at least two business days before a student, employee, or organization may be questioned about allegations of violations of the institution’s or technical college’s disciplinary or conduct rules, the institution or technical college must advise the student, employee, or organization in writing of these rights. A UW institution or technical college is not obligated to follow the state’s rules of evidence in a disciplinary proceeding, but must make a good faith effort to include only relevant, probative evidence and must exclude evidence that is neither relevant nor probative. A UW institution or technical college must ensure that a disciplinary proceeding is carried out free from conflicts of interest by prohibiting overlap of administrative or adjudicative roles.

Under this bill, if a UW institution or technical college violates any of these due process provisions more than once in a five-year period, it must freeze tuition for all students for the following two academic years. For a UW institution, the Board of Regents of the UW System must also ensure that the institution’s allocation of funding is reduced commensurate with the tuition freeze.