II
115th CONGRESS
2d Session
S. 2394
IN THE SENATE OF THE UNITED STATES
February 7, 2018
Mr. Hatch introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions
A BILL
To amend the Higher Education Act of 1965 to ensure that public institutions of higher education protect expressive activities in the outdoor areas on campus.
Short title
This Act may be cited as the Free Right to Expression in Education Act
.
Campus individual rights
Title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.) is amended—
in section 487(a), by adding at the end the following:
In the case of an institution that is a public institution, the institution will comply with the expressive activity protections described in section 493E.
; and
in part G, by adding at the end the following:
Campus individual rights
Definition of expressive activities
In general
In this section, the term expressive activity
includes—
peacefully assembling, protesting, or speaking;
distributing literature;
carrying a sign; or
circulating a petition.
Exclusions
In this section, the term expressive activity
does not include violence, harassment, or obscenity (as defined by the Secretary in accordance with the precedents of the Supreme Court of the United States).
Expressive activities at an institution
In general
Each public institution of higher education participating in a program under this title may not prohibit, subject to paragraph (2), a person from freely engaging in noncommercial expressive activity in an outdoor area on the institution's campus if the person's conduct is lawful.
Restrictions
An institution of higher education described in paragraph (1) may maintain and enforce reasonable time, place, or manner restrictions on an expressive activity in an outdoor area of the institution's campus, if the restriction—
is narrowly tailored to serve a significant institutional interest;
is based on published, content-neutral, and viewpoint-neutral criteria; and
leaves open ample alternative channels for communication.
Application
The protections provided under paragraph (1) do not apply to expressive activity in an area on an institution's campus that is not an outdoor area.
Causes of action
Authorization
The following persons may bring an action in a Federal court of competent jurisdiction to enjoin a violation of this section or to recover compensatory damages, reasonable court costs, or reasonable attorney fees:
The Attorney General.
A person claiming that the person's expressive activity rights, as described in subsection (b)(1), were violated.
Actions
In an action brought under this subsection, if the court finds a violation of this section, the court—
shall—
enjoin the violation; and
if a person whose expressive activity rights were violated brought the action, award the person—
not less than $500 for an initial violation; and
if the person notifies the institution of the violation, $50 for each day the violation continues after the notification if the institution did not act to discontinue the cause of the violation; and
may award a prevailing plaintiff—
compensatory damages;
reasonable court costs; or
reasonable attorney fees.
Statute of limitations
In general
Except as provided in paragraph (3), an action under this section may not be brought later than 1 year after the date on which the cause of action accrues.
Continuing violation
Each day that a violation of this section continues after an initial violation of this section, and each day that an institution's policy in violation of this section remains in effect, shall constitute a continuing violation of this section.
Extension
For a continuing violation described in paragraph (2), the limitation described in paragraph (1) shall extend to 1 year after the date on which the most recent violation occurs.
.
