This Week at the Statehouse – Week 9

This week, both the Senate and the House adopted the bill on free speech and free expression on public higher education campuses, which would apply to the three Regents universities and Iowa’s community colleges. Once the bill is enrolled, it will be sent to Governor Reynolds. She will then have three days for her signature. When signed, the law would go into effect immediately.

Senate File 274 creates a new code section in the Iowa Code, 261H. The bill requires the Iowa Board of Regents and the Board of Directors of each community college to adopt a policy that includes all of the following statements:

1. That the primary function of an institution of higher education is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate. This statement shall provide that, to fulfill this function, the institution must strive to ensure the fullest degree of intellectual freedom and free expression allowed under the first amendment to the Constitution of the United States.
2. 2. (a) That it is not the proper role of an institution of higher education to shield individuals from speech protected by the first amendment to the Constitution of the United States, which may include ideas and opinions the individual finds unwelcome, disagreeable, or even offensive; and (b) That it is the proper role of an institution of higher education to encourage diversity of thoughts, ideas, and opinions and to encourage, within the bounds of the first amendment to the Constitution of the United States, the peaceful, respectful, and safe exercise of first amendment rights.
3. That students and faculty have the freedom to discuss any problem that presents itself, assemble, and engage in spontaneous expressive activity on campus, within the bounds of established principles of the first amendment to the Constitution of the United States, and subject to reasonable time, place, and manner restrictions that are consistent with established first amendment principles.
4. That the outdoor areas of campus of an institution of higher education are public forums, open on the same terms to any invited speaker subject to reasonable time, place, and manner restrictions that are consistent with established principles of the first amendment to the Constitution of the United States.

The bill then moves on to protected activities:

1. Noncommercial expressive activities protected under the provisions of this chapter include but are not limited to any lawful oral or written means by which members of the campus community may communicate ideas to one another, including but not limited to all forms of peaceful assembly, protests, speeches including by invited speakers, distribution of literature, circulating petitions, and publishing, including publishing or streaming on an internet site, audio or video recorded in outdoor areas of campus.
2. A member of the campus community who wishes to engage in noncommercial expressive activity in outdoor areas of campus must be permitted to do so freely, subject to reasonable time, place, and manner restrictions, and as long as the member’s conduct is not unlawful, does not impede others’ access to a facility or use of walkways, and does not disrupt the functioning of the public institution of higher education, subject to the protections of subsection 1. The public institution of higher education may designate other areas of campus available for use by the campus community according to institutional policy, but in all cases access to designated areas of campus shall be granted on a viewpoint-neutral basis within the bounds of established first amendment principles.
3. A public institution of higher education shall not deny benefits or privileges available to student organizations based on the viewpoint of a student organization or the expression of the viewpoint of a student organization by the student organization or its members protected by the first amendment to the Constitution of the United States. In addition, a public institution of higher education shall not deny any benefit or privilege to a student organization based on the student organization’s requirement that the leaders of the student organization agree to and support the student organization’s beliefs, as those beliefs are interpreted and applied by the organization, and to further the student organization’s mission.
4. This section shall not be interpreted as limiting the right of student expression in a counter demonstration held in an outdoor area of campus as long as the conduct at the counter demonstration is not unlawful, does not materially and substantially prohibit the free expression rights of others in an outdoor area of campus or disrupt the functioning of the public institution of higher education, and does not impede others’ access to a facility or use of walkways, subject to reasonable time, place, and manner restrictions that are consistent with established principles of the first amendment to the Constitution of the United States.
5. This chapter shall not be interpreted as preventing public institutions of higher education from prohibiting, limiting, or restricting expression that the first amendment of the Constitution of the United States does not protect, including but not limited to a threat of serious harm and expression directed or likely directed to provoke imminent unlawful actions; or from prohibiting harassment, including but not limited to expression which is so severe, pervasive, and subjectively and objectively offensive that the expression unreasonably interferes with an individual’s access to educational opportunities or benefits provided by a public institution of higher education.

Public forums on campus and freedom of association are then explained:

1. The outdoor areas of campuses of public institutions of higher education in this state shall be deemed public forums. Public institutions of higher education may maintain and enforce clear, published, reasonable viewpoint-neutral time, place, and manner restrictions that are narrowly tailored in furtherance of a significant institutional interest, but shall allow members of the campus community to engage in spontaneous expressive activity and to distribute literature. Restrictions instituted by a public institution of higher education under this section shall provide for ample alternative means of expression.
2. Except as provided in this chapter, and subject to reasonable time, place, and manner restrictions, a public institution of higher education shall not designate any area of campus a free-speech zone or otherwise create policies restricting expressive activities to a particular outdoor area of campus.
3. Nothing in this chapter shall be construed to grant individuals the right to engage in conduct that intentionally, materially, and substantially disrupts the expressive activity of a person or student organization if the public institution of higher education has reserved space in an outdoor area of campus for activity by the person or student organization in accordance with this chapter.

Finally, the bill spells out the remedies, statute of limitations and immunity:

1. A member of the campus community aggrieved by a violation of this chapter may file a complaint with the governing body of the public institution of higher education.
2. A member of the campus community aggrieved by a violation of this chapter may assert such violation as a defense or counterclaim in a disciplinary action or in a civil or administrative proceeding brought against the member of the campus community.
3. A member of the campus community shall bring a claim for violation of this chapter pursuant to this section not later than one year after the day the cause of action accrues.
4. This section shall not be interpreted to limit any other remedies available to a member of the campus community.
5. Nothing in this section shall be construed to make any administrator, officer, employee, or agent of a public institution of higher education personally liable for acts taken pursuant to the individual’s official duties.

Upcoming Deadlines

April 5 is the Legislature’s second funnel date. This is when Senate bills and joint resolutions must be reported out of House committees and House bills and joint resolutions must be reported out of Senate committees.

May 3 is the 110th calendar day of the session and the legislator’s daily per diem expenses end.