II 

115TH CONGRESS 

2D SESSION S. 2394 

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. 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Free Right to Expres5 sion in Education Act’’. 

6 SEC. 2. CAMPUS INDIVIDUAL RIGHTS. 

7 Title IV of the Higher Education Act of 1965 (20 

8 U.S.C. 1070 et seq.) is amended— 


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1 (1) in section 487(a), by adding at the end the 

2 following: 

3 ‘‘(30) In the case of an institution that is a 

4 public institution, the institution will comply with 

5 the expressive activity protections described in sec6 tion 493E.’’; and 

7 (2) in part G, by adding at the end the fol8 lowing: 

9 ‘‘SEC. 493E. CAMPUS INDIVIDUAL RIGHTS. 

10 ‘‘(a) DEFINITION OF EXPRESSIVE ACTIVITIES.— 

11 ‘‘(1) IN GENERAL.—In this section, the term 

12 ‘expressive activity’ includes— 

13 ‘‘(A) peacefully assembling, protesting, or 

14 speaking; 

15 ‘‘(B) distributing literature; 

16 ‘‘(C) carrying a sign; or 

17 ‘‘(D) circulating a petition. 

18 ‘‘(2) EXCLUSIONS.—In this section, the term 

19 ‘expressive activity’ does not include violence, har20 assment, or obscenity (as defined by the Secretary in 

21 accordance with the precedents of the Supreme 

22 Court of the United States). 

23 ‘‘(b) EXPRESSIVE ACTIVITIES AT AN INSTITUTION.— 

24 ‘‘(1) IN GENERAL.—Each public institution of 

25 higher education participating in a program under 


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1 this title may not prohibit, subject to paragraph (2), 

2 a person from freely engaging in noncommercial ex3 pressive activity in an outdoor area on the institu4 tion’s campus if the person’s conduct is lawful. 

5 ‘‘(2) RESTRICTIONS.—An institution of higher 

6 education described in paragraph (1) may maintain 

7 and enforce reasonable time, place, or manner re8 strictions on an expressive activity in an outdoor 

9 area of the institution’s campus, if the restriction— 

10 ‘‘(A) is narrowly tailored to serve a signifi11 cant institutional interest; 

12 ‘‘(B) is based on published, content-neu13 tral, and viewpoint-neutral criteria; and 

14 ‘‘(C) leaves open ample alternative chan15 nels for communication. 

16 ‘‘(3) APPLICATION.—The protections provided 

17 under paragraph (1) do not apply to expressive ac18 tivity in an area on an institution’s campus that is 

19 not an outdoor area. 

20 ‘‘(c) CAUSES OF ACTION.— 

21 ‘‘(1) AUTHORIZATION.—The following persons 

22 may bring an action in a Federal court of competent 

23 jurisdiction to enjoin a violation of this section or to 

24 recover compensatory damages, reasonable court 

25 costs, or reasonable attorney fees: 


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1 ‘‘(A) The Attorney General. 

2 ‘‘(B) A person claiming that the person’s 

3 expressive activity rights, as described in sub4 section (b)(1), were violated. 

5 ‘‘(2) ACTIONS.—In an action brought under 

6 this subsection, if the court finds a violation of this 

7 section, the court— 

8 ‘‘(A) shall— 

9 ‘‘(i) enjoin the violation; and 

10 ‘‘(ii) if a person whose expressive ac11 tivity rights were violated brought the ac12 tion, award the person— 

13 ‘‘(I) not less than $500 for an 

14 initial violation; and 

15 ‘‘(II) if the person notifies the in16 stitution of the violation, $50 for each 

17 day the violation continues after the 

18 notification if the institution did not 

19 act to discontinue the cause of the 

20 violation; and 

21 ‘‘(B) may award a prevailing plaintiff— 

22 ‘‘(i) compensatory damages; 

23 ‘‘(ii) reasonable court costs; or 

24 ‘‘(iii) reasonable attorney fees. 

25 ‘‘(d) STATUTE OF LIMITATIONS.— 


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1 ‘‘(1) IN GENERAL.—Except as provided in para2 graph (3), an action under this section may not be 

3 brought later than 1 year after the date on which 

4 the cause of action accrues. 

5 ‘‘(2) CONTINUING VIOLATION.—Each day that 

6 a violation of this section continues after an initial 

7 violation of this section, and each day that an insti8 tution’s policy in violation of this section remains in 

9 effect, shall constitute a continuing violation of this 

10 section. 

11 ‘‘(3) EXTENSION.—For a continuing violation 

12 described in paragraph (2), the limitation described 

13 in paragraph (1) shall extend to 1 year after the 

14 date on which the most recent violation occurs.’’. 

Æ 


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