II 

117TH CONGRESS 

1ST SESSION S. 3026 

To amend the Higher Education Act of 1965 to ensure that public institutions 

of higher education eschew policies that improperly constrain the expressive rights of students, and to ensure that private institutions of higher 

education are transparent about, and responsible for, their chosen speech 

policies. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 20, 2021 

Mr. COTTON (for himself, Mr. MCCONNELL, Mrs. BLACKBURN, Mr. MARSHALL, Mr. BOOZMAN, Mr. DAINES, Mr. SCOTT of Florida, Mr. CRAMER, 

Ms. LUMMIS, Mr. RUBIO, and Mr. BRAUN) 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 eschew policies that improperly constrain the expressive rights of 

students, and to ensure that private institutions of higher 

education are transparent about, and responsible for, 

their chosen speech policies. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Campus Free Speech 

3 Restoration Act’’. 

4 SEC. 2. PROTECTION OF STUDENT SPEECH AND ASSOCIA5 TION RIGHTS. 

6 Section 112(a) of the Higher Education Act of 1965 

7 (20 U.S.C. 1011a(a)) is amended— 

8 (1) by redesignating paragraph (2) as para9 graph (4); and 

10 (2) by inserting after paragraph (1) the fol11 lowing: 

12 ‘‘(2) It is the sense of Congress that— 

13 ‘‘(A) every individual should be free to profess, 

14 and to maintain, the opinion of such individual in 

15 matters of religion or philosophy, and that pro16 fessing or maintaining such opinion should in no 

17 way diminish, enlarge, or affect the civil liberties or 

18 rights of such individual on the campus of an insti19 tution of higher education; and 

20 ‘‘(B) no public institution of higher education 

21 directly or indirectly receiving financial assistance 

22 under this Act should limit religious expression, free 

23 expression, or any other rights provided under the 

24 First Amendment to the Constitution of the United 

25 States. 

26 ‘‘(3) It is the sense of Congress that— 


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1 ‘‘(A) free speech zones and restrictive speech 

2 codes are inherently at odds with the freedom of 

3 speech guaranteed by the First Amendment to the 

4 Constitution of the United States; 

5 ‘‘(B) bias reporting systems are susceptible to 

6 abuses that may put them at odds with the freedom 

7 of speech guaranteed by the First Amendment to the 

8 Constitution of the United States; and 

9 ‘‘(C) no public institution of higher education 

10 directly or indirectly receiving financial assistance 

11 under this Act should restrict the speech of such in12 stitution’s students through improperly restrictive 

13 zones, codes, or bias reporting systems.’’. 

14 SEC. 3. CAMPUS SPEECH POLICIES AT INSTITUTIONS OF 

15 HIGHER EDUCATION. 

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

17 U.S.C. 1070 et. seq.) is amended— 

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

19 following: 

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

21 public institution, the institution will comply with 

22 the expressive activity protections described in sec23 tion 493E.’’; and 

24 (2) in part G, by adding at the end the fol25 lowing: 


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1 ‘‘SEC. 493E. CAMPUS SPEECH POLICIES AT PUBLIC UNIVER2 SITIES. 

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

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

5 ‘expressive activity’ includes— 

6 ‘‘(A) peacefully assembling, protesting, 

7 speaking, or listening; 

8 ‘‘(B) distributing literature; 

9 ‘‘(C) carrying a sign; 

10 ‘‘(D) circulating a petition; or 

11 ‘‘(E) other expressive rights guaranteed 

12 under the First Amendment to the Constitution 

13 of the United States. 

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

15 ‘expressive activity’ does not include unprotected 

16 speech (as defined by the precedents of the Supreme 

17 Court of the United States). 

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

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

20 higher education participating in a program under 

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

22 a person from freely engaging in noncommercial ex23 pressive activity in a generally accessible outdoor 

24 area on the institution’s campus if the person’s con25 duct is lawful. 


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

2 education described in paragraph (1) may not main3 tain or enforce time, place, or manner restrictions on 

4 an expressive activity in a generally accessible out5 door area of the institution’s campus unless the re6 striction— 

7 ‘‘(A) is necessary to achieve a compelling 

8 governmental interest; 

9 ‘‘(B) is the least restrictive means of fur10 thering that compelling governmental interest; 

11 ‘‘(C) is based on published, content-neu12 tral, and viewpoint-neutral criteria; 

13 ‘‘(D) leaves open ample alternative chan14 nels for communication; and 

15 ‘‘(E) provides for spontaneous assembly 

16 and distribution of literature. 

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

18 under paragraph (1) do not apply to expressive ac19 tivity in an area on an institution’s campus that is 

20 not a generally accessible outdoor area. 

21 ‘‘(4) NONAPPLICATION TO SERVICE ACAD22 EMIES.—This section shall not apply to an institu23 tion of higher education whose primary purpose is 

24 the training of individuals for the military services 

25 of the United States, or the merchant marine. 


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1 ‘‘(c) CAUSES OF ACTION.— 

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

3 may bring an action in a Federal court of competent 

4 jurisdiction to enjoin a violation of subsection (b) or 

5 to recover compensatory damages, reasonable court 

6 costs, or reasonable attorney fees: 

7 ‘‘(A) The Attorney General. 

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

9 expressive activity rights, as described in sub10 section (b)(1), were violated. 

11 ‘‘(2) ACTIONS.—Notwithstanding any other 

12 provision of law, in an action brought under this sec13 tion, the Federal court shall decide de novo all rel14 evant questions of fact and law, including the inter15 pretation of constitutional, statutory, and regulatory 

16 provisions, unless the parties stipulate otherwise. In 

17 an action brought under this subsection, if the court 

18 finds a violation of subsection (b), the court— 

19 ‘‘(A) shall— 

20 ‘‘(i) enjoin the violation; and 

21 ‘‘(ii) if a person whose expressive ac22 tivity rights were violated brought the ac23 tion, award the person— 

24 ‘‘(I) not less than $500 for an 

25 initial violation; and 


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1 ‘‘(II) if the person notifies the in2 stitution of the violation, $50 for each 

3 day the violation continues after the 

4 notification if the institution did not 

5 act to discontinue the cause of the 

6 violation; and 

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

8 ‘‘(i) compensatory damages; 

9 ‘‘(ii) reasonable court costs; or 

10 ‘‘(iii) reasonable attorney fees. 

11 ‘‘(d) STATUTE OF LIMITATIONS.— 

12 ‘‘(1) IN GENERAL.—Except as provided in para13 graph (3), an action under subsection (c) may not 

14 be brought later than 1 year after the date of the 

15 violation. 

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

17 a violation of subsection (b) continues after an ini18 tial violation of subsection (b), and each day that an 

19 institution’s policy in violation of subsection (b) re20 mains in effect, shall constitute a continuing viola21 tion of subsection (b). 

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

23 described in paragraph (2), the limitation described 

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

25 date on which the most recent violation occurs. 


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1 ‘‘(e) FEDERAL REVIEW OF SPEECH POLICIES.— 

2 ‘‘(1) NO ELIGIBILITY FOR FUNDS.— 

3 ‘‘(A) IN GENERAL.—No public institution 

4 of higher education shall be eligible to receive 

5 funds under this Act, including participation in 

6 any program under this title, if the Secretary 

7 determines that the institution— 

8 ‘‘(i) maintains a policy that infringes 

9 upon the expressive rights of students 

10 under the First Amendment to the Con11 stitution of the United States; or 

12 ‘‘(ii) maintains or enforces time, 

13 place, or manner restrictions on an expres14 sive activity in a generally accessible out15 door area of the institution’s campus that 

16 do not comply with subparagraphs (A) 

17 through (E) of subsection (b)(2). 

18 ‘‘(B) COURT REVIEW.—Notwithstanding 

19 any other provision of law, the Secretary’s de20 terminations under this subsection shall be re21 viewed de novo with respect to all relevant ques22 tions of fact and law, including the interpreta23 tion of constitutional, statutory, and regulatory 

24 provisions, unless the parties stipulate other25 wise. 


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1 ‘‘(2) DESIGNATION OF AN EMPLOYEE TO RE2 CEIVE COMPLAINTS.—The Secretary shall designate 

3 an employee in the Office of Postsecondary Edu4 cation of the Department to receive complaints from 

5 students or student organizations at a given public 

6 institution of higher education, or from any other 

7 person or organization, regarding policies at the in8 stitution— 

9 ‘‘(A) that infringe upon the expressive 

10 rights of students under the First Amendment 

11 to the Constitution of the United States; or 

12 ‘‘(B) that maintain or enforce time, place, 

13 or manner restrictions on an expressive activity 

14 in a generally accessible outdoor area of the in15 stitution’s campus that do not comply with sub16 paragraphs (A) through (E) of subsection 

17 (b)(2). 

18 ‘‘(3) COMPLAINT.—A complaint submitted 

19 under subparagraph (2)— 

20 ‘‘(A) shall include the provision of the in21 stitution’s policy the complainant believes either 

22 infringes upon the expressive rights of students 

23 under the First Amendment to the Constitution 

24 of the United States or maintains or enforces 

25 time, place, or manner restrictions on an exVerDate Sep 11 2014 00:14 Oct 26, 2021 Jkt 029200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3026.IS S3026

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1 pressive activity in a generally accessible out2 door area of the institution’s campus that does 

3 not comply with subparagraphs (A) through (E) 

4 of subsection (b)(2), along with any evidence re5 garding the operation and enforcement of such 

6 policy the complainant deems relevant; and 

7 ‘‘(B) may include an argument as to why 

8 the policy in question either infringes upon the 

9 expressive rights of students under the First 

10 Amendment to the Constitution of the United 

11 States or maintains or enforces time, place, or 

12 manner restrictions on an expressive activity in 

13 a generally accessible outdoor area of the insti14 tution’s campus that does not comply with sub15 paragraphs (A) through (E) of subsection 

16 (b)(2). 

17 ‘‘(4) SYSTEM OF REVIEW.— 

18 ‘‘(A) FIRST STAGE REVIEW.— 

19 ‘‘(i) REQUEST FOR RESPONSE.—Not 

20 later than 7 days after the date of receipt 

21 of a complaint under paragraph (2), the 

22 Secretary shall review the complaint and 

23 request a response to the complaint from 

24 the institution. 


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1 ‘‘(ii) INSTITUTION RESPONSE.—Not 

2 later than 30 days after the date the Sec3 retary requests a response under clause (i), 

4 the institution shall— 

5 ‘‘(I) certify to the Secretary that 

6 the institution has entirely withdrawn 

7 the policy that occasioned the com8 plaint; 

9 ‘‘(II) submit a revised policy for 

10 review by the Secretary; or 

11 ‘‘(III) submit a defense of the 

12 policy that occasioned the complaint. 

13 ‘‘(iii) AVAILABILITY TO COMPLAIN14 ANT.— 

15 ‘‘(I) IN GENERAL.—Not later 

16 than 7 days after the date of receipt 

17 of a revised policy or defense of the 

18 original policy as submitted by the in19 stitution pursuant to clause (ii), the 

20 Secretary shall make available to the 

21 complainant a copy of such revised 

22 policy or defense. 

23 ‘‘(II) RESPONSE BY COMPLAIN24 ANT.—Not later than 60 days after 

25 the date of receipt of a revised policy 


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1 or defense of the original policy under 

2 subclause (I), the complainant may 

3 submit to the Secretary a response to 

4 the revised policy or defense of the 

5 original policy. 

6 ‘‘(III) SUBMISSION TO THE IN7 STITUTION OF RESPONSE.—Not later 

8 than 7 days after the date of receipt 

9 of a response under subclause (II), 

10 the Secretary shall submit to the in11 stitution a copy of such response. 

12 ‘‘(iv) DETERMINATIONS.—If the insti13 tution declines to entirely withdraw the 

14 policy that occasioned the complaint and 

15 either submits a revised policy for review 

16 or submits a defense of the policy that oc17 casioned the complaint, the Secretary shall, 

18 not later than 60 days after the date of the 

19 deadline for a response by the complaint as 

20 described in clause (iii)(II), make one of 

21 the following determinations: 

22 ‘‘(I) Determine that the com23 plaint in question has insufficient 

24 merit to proceed to Second Stage Re25 view described in subparagraph (B). 


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1 ‘‘(II) Determine that the com2 plaint in question has sufficient merit 

3 to proceed to Second Stage Review 

4 described in subparagraph (B). 

5 ‘‘(v) NOTIFICATION.—Not later than 

6 7 days after the date the Secretary makes 

7 a determination under clause (iv), the Sec8 retary shall notify the institution and the 

9 complainant of such determination. 

10 ‘‘(vi) END.—The determination under 

11 clause (iv) shall constitute the end of First 

12 Stage Review. 

13 ‘‘(B) SECOND STAGE REVIEW.— 

14 ‘‘(i) IN GENERAL.—In a Second Stage 

15 Review, the Secretary shall notify the insti16 tution and the complainant of the com17 mencement of the Second Stage Review, 

18 and shall give the institution the option of 

19 entirely withdrawing the policy that occa20 sioned the complaint or submitting a re21 vised policy for review within 30 days of 

22 the commencement of the Second Stage 

23 Review. In such notification submitted to 

24 the institution and complainant, the Sec25 retary shall indicate the relevant sections 


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1 of the institution’s policy in question and 

2 explain why these sections may be out of 

3 compliance. 

4 ‘‘(ii) DETERMINATION.—Not later 

5 than 90 days from the commencement of 

6 the Second Stage Review, the Secretary 

7 shall determine whether the policy that oc8 casioned the complaint, or the revised pol9 icy submitted during the First Stage Re10 view, or the revised policy submitted within 

11 the first 30 days of the Second Stage Re12 view, is in violation of student rights under 

13 the First Amendment to the Constitution 

14 of the United States or of the restrictions 

15 on the regulation of speech by time, place, 

16 and manner set forth in this section, there17 by ending Second Stage Review. 

18 ‘‘(iii) INVESTIGATION.—During Sec19 ond Stage Review, the Secretary may con20 duct an investigation in which further in21 formation may be sought or requested 

22 from the complainant, the institution, or 

23 any other source the Secretary determines 

24 pertinent. 


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1 ‘‘(iv) CERTIFICATION OF WITH2 DRAWAL.—At any point during the Second 

3 Stage Review, the institution in question 

4 may certify to the Secretary that it has en5 tirely withdrawn the policy that occasioned 

6 the complaint, thereby ending the Second 

7 Stage Review. 

8 ‘‘(v) NOTIFICATION AND JUSTIFICA9 TION.—If the Secretary determines by the 

10 conclusion of Second Stage Review that 

11 the policy that occasioned the complaint or 

12 the revised policy submitted for review dur13 ing First Stage Review or Second Stage 

14 Review is consistent with the expressive 

15 rights of students under the First Amend16 ment to the Constitution of the United 

17 States and the restrictions on the regula18 tion of speech by time, place, and manner 

19 set forth in this Act— 

20 ‘‘(I) the Secretary shall notify the 

21 complainant and the institution of 

22 such determination not more than 7 

23 days after the date of the determina24 tion; and 


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1 ‘‘(II) the Secretary shall explain 

2 and justify such determination in a 

3 written decision citing relevant legal 

4 precedent, copies of which shall be 

5 sent to the complainant, the institu6 tion, and made available for public in7 spection, including for online reading 

8 by the public. 

9 ‘‘(C) DETERMINATION THAT INSTITUTION

10 IS OUT OF COMPLIANCE.— 

11 ‘‘(i) IN GENERAL.—If, upon comple12 tion of the Second Stage Review, the Sec13 retary determines that the policy that occa14 sioned the complaint, or the revised policy 

15 submitted for review during the First 

16 Stage Review or Second Stage Review, vio17 lates the First Amendment to the Con18 stitution of the United States or the re19 strictions on the regulation of speech set 

20 forth in this section, the Secretary shall 

21 notify the complainant and the institution 

22 not more than 7 days after the date of 

23 completion of Second Stage Review that 

24 the institution is out of compliance with 

25 the requirements for receiving funds under 


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1 this Act, including participation in any 

2 program under this title, but will be grant3 ed a grace period of 120 days to return to 

4 compliance before being formally stripped 

5 of eligibility. 

6 ‘‘(ii) POSTING; EXPLANATION; FINAL

7 REVIEW.—As part of the notification under 

8 clause (i), the Secretary shall— 

9 ‘‘(I) require the institution to 

10 post the determination of the Sec11 retary on the website of the institu12 tion within 2 clicks of the homepage, 

13 without a paywall, email login, or 

14 other restriction to access; 

15 ‘‘(II) explain and justify the de16 termination of the Secretary in a writ17 ten decision citing relevant legal 

18 precedent, copies of which shall be 

19 sent to the complainant, the institu20 tion, and made available for public in21 spection, including for online reading 

22 by the public; and 

23 ‘‘(III) inform the institution that 

24 Final Review has begun and that the 

25 institution must either certify to the 


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1 Secretary that it has entirely with2 drawn the policy that occasioned the 

3 complaint, or submit a revised policy 

4 for review to the Secretary not later 

5 than 60 days after the date of receipt 

6 of notice of the conclusion of Second 

7 Stage Review. 

8 ‘‘(D) FINAL REVIEW.— 

9 ‘‘(i) IN GENERAL.—If an institution 

10 submits a revised policy for review as de11 scribed in subparagraph (C)(ii)(III), the 

12 Secretary shall review such revised policy 

13 and determine not later than 120 days 

14 after the date of commencement of Final 

15 Review whether the revised policy is con16 sistent with the expressive rights of stu17 dents under the First Amendment to the 

18 Constitution of the United States and with 

19 the restrictions on the regulation of speech 

20 by time, place, and manner set forth in 

21 this Act. 

22 ‘‘(ii) DETERMINATION OF COMPLI23 ANCE.—If the Secretary determines, as de24 scribed in clause (i), that the revised policy 

25 is consistent with the expressive rights of 


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1 students under the First Amendment to 

2 the Constitution of the United States and 

3 with the restrictions on the regulation of 

4 speech by time, place, and manner set 

5 forth in this Act, the Secretary shall notify 

6 the complainant and the institution of such 

7 determination not more than 7 days after 

8 the date the determination is made, there9 by ending the final Stage Review. 

10 ‘‘(iii) DETERMINATION OF VIOLA11 TION.—If the Secretary determines, as de12 scribed in clause (i), that the revised policy 

13 violates the expressive rights of students 

14 under the First Amendment to the Con15 stitution of the United States or the re16 strictions on the regulation of speech by 

17 time, place, and manner set forth in this 

18 Act, the Secretary shall— 

19 ‘‘(I) notify the complainant and 

20 the institution of such determination 

21 not more than 7 days after the date 

22 the determination is made, thereby 

23 ending the final Stage Review; and 

24 ‘‘(II) explain and justify the de25 termination in a written decision citVerDate Sep 11 2014 00:14 Oct 26, 2021 Jkt 029200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S3026.IS S3026

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1 ing relevant legal precedent, copies of 

2 which shall be sent to the complain3 ant, the institution, and made avail4 able for public inspection, including 

5 for online reading by the public. 

6 ‘‘(E) LOSS OF ELIGIBILITY.— 

7 ‘‘(i) IN GENERAL.—If the Secretary 

8 determines, during the Final Stage Review, 

9 that the institution’s policy in question vio10 lates the expressive rights of students 

11 under the First Amendment to the Con12 stitution of the United States or the re13 strictions on the regulation of speech by 

14 time, place, and manner set forth in this 

15 Act, the Secretary shall— 

16 ‘‘(I) notify the complainant and 

17 the institution not more than 7 days 

18 after the date of the determination 

19 that the institution will lose eligibility 

20 to receive funds under this Act, in21 cluding participation in any program 

22 under this title, in accordance with 

23 this subparagraph; 

24 ‘‘(II) notify the institution that 

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1 fect beginning with any student noti2 fied of acceptance for admission to the 

3 institution during the academic year 

4 subsequent to the academic year dur5 ing which the determination is made, 

6 and that no restoration of eligibility 

7 for ineligible students in subsequent 

8 academic years will occur prior to the 

9 beginning of the third academic year 

10 subsequent to the academic year dur11 ing which the determination is made; 

12 ‘‘(III) explain and justify the de13 termination in a written decision cit14 ing relevant legal precedent, copies of 

15 which shall be sent to the complain16 ant, the institution, and made avail17 able for public inspection, including 

18 for online reading by the public; and 

19 ‘‘(IV) require the institution to 

20 post the determination of the Sec21 retary on the website of the institu22 tion, within two clicks of the home23 page, without a paywall, email login, 

24 or other restriction to access. 


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1 ‘‘(ii) CONTINUED ELIGIBILITY.—Each 

2 student enrolled at the institution during 

3 the academic year in which eligibility is 

4 lost as described in this subparagraph, and 

5 each student notified of acceptance for ad6 mission to the institution during the aca7 demic year in which eligibility is lost as de8 scribed in this subparagraph, shall con9 tinue to be eligible to participate, through 

10 the institution, in programs funded under 

11 this Act during the 5-year period after the 

12 date of the loss of eligibility. 

13 ‘‘(F) RESTORATION OF ELIGIBILITY.— 

14 ‘‘(i) IN GENERAL.—Not later than 7 

15 days after the loss of eligibility under sub16 paragraph (E), the Secretary shall inform 

17 the institution that it may restore eligi18 bility, either by certifying to the Secretary 

19 that it has entirely withdrawn the policy 

20 that precipitated loss of eligibility, or by 

21 submitting a revised policy for review at 

22 any time following the failure of the Final 

23 Review. 

24 ‘‘(ii) REVIEW OF REVISED POLICY.— 

25 The Secretary shall review a revised policy 


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1 submitted for review after the loss of eligi2 bility and determine not later than 120 

3 days after the date the revised policy is 

4 submitted whether it is consistent with the 

5 expressive rights of students under the 

6 First Amendment to the Constitution of 

7 the United States and with the restrictions 

8 on the regulation of speech by time, place, 

9 and manner set forth in this Act. 

10 ‘‘(iii) INVESTIGATION.—While con11 ducting a review to restore eligibility under 

12 this subparagraph, the Secretary may con13 duct an investigation in which further in14 formation may be sought or requested 

15 from the institution, or any other source 

16 the Secretary determines pertinent. 

17 ‘‘(iv) WRITTEN DECISION.—In making 

18 a determination of whether a revised policy 

19 submitted for review after the loss of eligi20 bility is either consistent or inconsistent 

21 with the expressive rights of students 

22 under the First Amendment to the Con23 stitution of the United States and with the 

24 restrictions on the regulation of speech by 

25 time, place, and manner set forth in this 


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1 Act, the Secretary shall explain and justify 

2 the determination in a written decision cit3 ing relevant legal precedent, copies of 

4 which shall be sent to the complainant, the 

5 institution, and made available for public 

6 inspection, including for online reading by 

7 the public. 

8 ‘‘(v) LIMIT ON REVIEW.—The Sec9 retary may conduct not more than 1 review 

10 to restore eligibility for a single institution 

11 in any given academic year. 

12 ‘‘(vi) RESTORATION.—If an institu13 tion certifies to the Secretary that the pol14 icy that precipitated the loss of eligibility 

15 has been entirely withdrawn, or if Sec16 retary determines that the revised policy 

17 submitted for review is consistent with the 

18 expressive rights of students under the 

19 First Amendment to the Constitution of 

20 the United States and with the restrictions 

21 on the regulation of speech by time, place, 

22 and manner set forth in this Act, the insti23 tution’s eligibility to receive funds under 

24 this Act, including participation in any 

25 program under this title, shall be restored 


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1 not earlier than the beginning of the third 

2 academic year following the year in which 

3 notification of loss of eligibility was re4 ceived. 

5 ‘‘(G) GOOD FAITH REPRESENTATION.— 

6 ‘‘(i) IN GENERAL.—The Secretary 

7 shall inform any institution undergoing re8 view of its campus speech policies that it 

9 expects the institution to represent its poli10 cies, along with any proposed revisions in 

11 such policies, in good faith. 

12 ‘‘(ii) MISREPRESENTATION.— 

13 ‘‘(I) COMPLAINTS.—A student, 

14 student organization, or any other 

15 person or organization may file, with 

16 the employee in the Office of Postsec17 ondary Education of the Department 

18 designated by the Secretary under 

19 paragraph (2) to receive complaints, a 

20 complaint that an institution has sub21 stantially misrepresented its speech 

22 policies, or withheld information re23 quested by the Secretary during an 

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1 tuting a policy under review in a sub2 stantially similar form without inform3 ing the Secretary. 

4 ‘‘(II) LOSS OF ELIGIBILITY.—If 

5 the Secretary determines upon inves6 tigation, or after receiving a complaint 

7 under subclause (I), that an institu8 tion has substantially misrepresented 

9 its speech policies, or withheld infor10 mation requested by the Secretary 

11 during an investigation, or attempted 

12 to circumvent the review process by 

13 reinstituting a policy under review in 

14 a substantially similar form without 

15 informing the Secretary, the institu16 tion shall lose eligibility to receive 

17 funds under this Act, including par18 ticipation in any program under this 

19 title. 

20 ‘‘(iii) LOSS OF ELIGIBILITY.—If an in21 stitution loses eligibility under clause (ii), 

22 the Secretary shall notify the institution, 

23 not later than 7 days after the determina24 tion, that the loss of eligibility shall go into 

25 effect beginning with any student notified 


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1 of acceptance for admission to the institu2 tion during the academic year subsequent 

3 to the academic year during which the de4 termination is made, and that no restora5 tion of eligibility for students admitted in 

6 subsequent academic years will occur prior 

7 to the beginning of the third academic year 

8 subsequent to the academic year during 

9 which the determination is made. 

10 ‘‘(f) RETALIATION PROHIBITED.— 

11 ‘‘(1) IN GENERAL.—No person may intimidate, 

12 threaten, coerce, or discriminate against any indi13 vidual because the individual has made a report or 

14 complaint, testified, assisted, or participated or re15 fused to participate in any manner in an investiga16 tion, proceeding, or hearing under this section. 

17 ‘‘(2) SPECIFIC CIRCUMSTANCES.— 

18 ‘‘(A) EXERCISE OF FIRST AMENDMENT

19 RIGHTS.—The exercise of rights protected 

20 under the First Amendment to the Constitution 

21 of the United States does not constitute retalia22 tion prohibited under paragraph (1). 

23 ‘‘(B) CODE OF CONDUCT VIOLATION FOR

24 MATERIALLY FALSE STATEMENT.—Charging an 

25 individual with a code of conduct violation for 


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1 making a materially false statement in bad 

2 faith in the course of a grievance proceeding 

3 under this section does not constitute retalia4 tion prohibited under paragraph (1). A deter5 mination regarding responsibility, alone, is not 

6 sufficient to conclude that any party made a 

7 materially false statement in bad faith. 

8 ‘‘SEC. 493F. CAMPUS SPEECH POLICIES AT PRIVATE UNI9 VERSITIES. 

10 ‘‘(a) IN GENERAL.—Each private institution of high11 er education eligible to receive funds under this Act, in12 cluding any program under this title, shall— 

13 ‘‘(1) post in one place on the website of the in14 stitution all policies that pertain to the protection 

15 and regulation of the expressive rights of students, 

16 including the right to submit a complaint under this 

17 section, within 2 clicks of the homepage, without a 

18 paywall, email login, or other restriction to access; 

19 ‘‘(2) include a copy of such policies in a hand20 book distributed to new students; and 

21 ‘‘(3) send a copy of— 

22 ‘‘(A) such policies to the employee of the 

23 Department designated by the Secretary to re24 ceive such policies; and 


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1 ‘‘(B) any updates to such policies to such 

2 employee not later than 60 days after the date 

3 of a change to such policies. 

4 ‘‘(b) RESPONSIBILITY FOR FULL POLICY DISCLO5 SURE.—Each private institution of higher education de6 scribed in subsection (a) shall include with the copy of the 

7 policies described in subsection (a)— 

8 ‘‘(1) a statement affirming that all policies per9 tinent to the protection and regulation of the expres10 sive rights of students have been disclosed in the 

11 manner required by this section, along with an ac12 ceptance of contractual obligation to publicly disclose 

13 all such policies; and 

14 ‘‘(2) a statement affirming that publication of 

15 such policies as required by this section establishes 

16 a contractual obligation on the part of the institu17 tion to its students to maintain and enforce the dis18 closed policies, and only those policies, in matters 

19 pertaining to the protection and regulation of the ex20 pressive rights of students. 

21 ‘‘(c) CAUSE OF ACTION.— 

22 ‘‘(1) AUTHORIZATION.—A student claiming 

23 that a private institution of higher education in 

24 which the student is enrolled has violated any re25 quirement or contractual obligation imposed by this 


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1 section may bring an action in a Federal court of 

2 competent jurisdiction to enjoin such violation or to 

3 recover compensatory damages, reasonable court 

4 costs, or reasonable attorney fees. 

5 ‘‘(2) ACTIONS.—Notwithstanding any other 

6 provision of law, in an action brought under this 

7 subsection, the Federal court shall decide de novo all 

8 relevant questions of fact and law, including the in9 terpretation of constitutional, statutory, and regu10 latory provisions, unless the parties stipulate other11 wise. In an action brought under this subsection, if 

12 the court finds a violation of subsection (b), the 

13 court— 

14 ‘‘(A) shall— 

15 ‘‘(i) enjoin the violation; and 

16 ‘‘(ii) award the student— 

17 ‘‘(I) not less than $500 for an 

18 initial violation; and 

19 ‘‘(II) if the student notifies the 

20 institution of the violation, $50 for 

21 each day the violation continues after 

22 the notification if the institution did 

23 not act to discontinue the cause of the 

24 violation; and 

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


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1 ‘‘(i) compensatory damages; 

2 ‘‘(ii) reasonable court costs; or 

3 ‘‘(iii) reasonable attorney fees. 

4 ‘‘(d) SECRETARIAL REQUIREMENTS.— 

5 ‘‘(1) DESIGNATION OF AN EMPLOYEE.—The 

6 Secretary shall designate an employee in the Office 

7 of Postsecondary Education in the Department who 

8 shall— 

9 ‘‘(A) receive and compile updated copies of 

10 all policies pertaining to the protection and reg11 ulation of the expressive rights of students at 

12 private institutions of higher education that re13 ceive funds under this section, including any 

14 programs under this title; 

15 ‘‘(B) preserve all records of such policies 

16 for a period of not less than 10 years and make 

17 such policies, and the dates they were disclosed, 

18 modified, or withdrawn, available for public in19 spection, including for online reading by the 

20 public; 

21 ‘‘(C) receive complaints from students, stu22 dent organizations, or from any other person or 

23 organization, that believes a private institution 

24 of higher education has not disclosed a policy 

25 pertaining to the protection and regulation of 


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1 the expressive rights of students as required by 

2 this section, is enforcing a policy pertaining to 

3 the expressive rights of students that has not 

4 been disclosed as required by this section, or 

5 has failed to make and publish a statement af6 firming contractual responsibility for full policy 

7 disclosure, or affirming contractual responsi8 bility for the enforcement of speech policies, as 

9 required by this section; 

10 ‘‘(D) not more than 7 days after the date 

11 of receipt of a complaint under subparagraph 

12 (C), review the complaint and request a re13 sponse from the institution; 

14 ‘‘(E) undertake an investigation, in re15 sponse to a complaint under subparagraph (C) 

16 or at the Secretary’s independent initiative, to 

17 determine whether a private institution of high18 er education has failed to disclose a policy per19 taining to the protection and regulation of the 

20 expressive rights of students as required by this 

21 section, is enforcing a policy pertaining to the 

22 expressive rights of students that has not been 

23 disclosed as required by this section, or has 

24 failed to make and publish a statement affirm25 ing contractual responsibility for full policy disVerDate Sep 11 2014 00:14 Oct 26, 2021 Jkt 029200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S3026.IS S3026

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1 closure, or affirming contractual responsibility 

2 for the enforcement of speech policies, as re3 quired by this section; and 

4 ‘‘(F) determine, not later than 120 days 

5 after the date of receipt of a complaint or 120 

6 days after the date of the start of an investiga7 tion opened at the Secretary’s independent ini8 tiative, whether the private institution of higher 

9 education in question has failed to disclose a 

10 policy pertaining to the protection and regula11 tion of the expressive rights of students as re12 quired by this section, is enforcing a policy per13 taining to the expressive rights of students that 

14 has not been disclosed as required by this sec15 tion, or has failed to make and publish a state16 ment affirming contractual responsibility for 

17 full speech policy disclosure, or affirming con18 tractual responsibility for the enforcement of 

19 speech policies, as required by this section. 

20 ‘‘(2) LOSS OF ELIGIBILITY.— 

21 ‘‘(A) IN GENERAL.—If the Secretary deter22 mines that a private institution of higher edu23 cation has failed to disclose a policy pertaining 

24 to the protection and regulation of the expres25 sive rights of students as required by this secVerDate Sep 11 2014 00:14 Oct 26, 2021 Jkt 029200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\S3026.IS S3026

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1 tion, is enforcing a policy pertaining to the ex2 pressive rights of students that has not been 

3 disclosed as required by this section, or has 

4 failed to make and publish a statement affirm5 ing contractual responsibility for full speech 

6 policy disclosure, or affirming contractual re7 sponsibility for the enforcement of speech poli8 cies, as required by this section, the Secretary 

9 shall notify the institution and, if applicable, 

10 the complainant, not more than 7 days after 

11 the date of such determination, that the institu12 tion is out of compliance with the requirements 

13 for receiving funds under this Act, including 

14 participation in any program under this title, 

15 but will be granted a grace period of 60 days 

16 to return to compliance before formally losing 

17 eligibility for receiving funds under this Act, in18 cluding participation in any program under this 

19 title. 

20 ‘‘(B) SPECIFICATIONS IN NOTIFICATION.— 

21 As part of the notification under subparagraph 

22 (A), the Secretary shall specify which policies 

23 need to be disclosed and which statements af24 firming contractual responsibility for speech 

25 policy disclosure and contractual responsibility 


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1 for speech policy enforcement need to be made 

2 and published in order for eligibility to be re3 stored. 

4 ‘‘(C) NOTIFICATION OF LOSS OF ELIGI5 BILITY.— 

6 ‘‘(i) IN GENERAL.—If the Secretary 

7 determines that, 60 days after being noti8 fied that it is out of compliance as de9 scribed in subparagraph (A), the institu10 tion has failed to return to compliance by 

11 making the appropriate speech policy dis12 closures, or statement affirming contrac13 tual responsibility for full speech policy 

14 disclosure, or statement affirming contrac15 tual responsibility for speech policy en16 forcement, the Secretary shall notify the 

17 institution and, if applicable, the complain18 ant, not more than 7 days after the date 

19 of such determination— 

20 ‘‘(I) that the institution will lose 

21 eligibility to receive funds under this 

22 Act, including participation in any 

23 program under this title; 

24 ‘‘(II) that the loss of eligibility 

25 shall go into effect beginning with any 


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1 student notified of acceptance for ad2 mission to the institution during the 

3 academic year subsequent to the aca4 demic year during which the deter5 mination is made, and that no res6 toration of eligibility for ineligible stu7 dents in subsequent years will occur 

8 prior to the beginning of the third 

9 academic year subsequent to the aca10 demic year during which the deter11 mination is made; and 

12 ‘‘(III) that the institution shall 

13 post the determination of the Sec14 retary on the website of the institu15 tion, within two clicks of the home16 page, without a paywall, email login, 

17 or other restriction to access. 

18 ‘‘(ii) CONTINUED ELIGIBILITY.—Each 

19 student enrolled at the institution during 

20 the academic year in which eligibility is 

21 lost as described in this subparagraph, and 

22 each student notified of acceptance for ad23 mission to the institution during the aca24 demic year in which eligibility is lost as de25 scribed in this subparagraph, shall conVerDate Sep 11 2014 00:14 Oct 26, 2021 Jkt 029200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\S3026.IS S3026

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1 tinue to be eligible to participate, through 

2 the institution, in programs funded under 

3 this Act during the 5-year period after the 

4 date of the loss of eligibility. 

5 ‘‘(3) RESTORATION OF ELIGIBILITY.— 

6 ‘‘(A) IN GENERAL.—Not later than 7 days 

7 after the loss of eligibility under paragraph (2), 

8 the Secretary shall inform the institution that it 

9 may restore eligibility by making the appro10 priate speech policy disclosures, or statement 

11 affirming contractual responsibility for full 

12 speech policy disclosure, or statement affirming 

13 contractual responsibility for speech policy en14 forcement, as directed by the Secretary in con15 formity with this section. 

16 ‘‘(B) REVIEW.—The Secretary shall review 

17 any policy disclosures, or statement affirming 

18 contractual responsibility for full speech policy 

19 disclosure, or statement affirming contractual 

20 responsibility for speech policy enforcement, 

21 and determine whether they are sufficient to re22 store eligibility for receiving funds under this 

23 Act, including participation in any program 

24 under this title, not later than 120 days after 


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1 the date of receipt of such disclosures or state2 ment. 

3 ‘‘(C) INVESTIGATION.—While conducting a 

4 review to restore eligibility under this para5 graph, the Secretary may conduct an investiga6 tion in which further information may be 

7 sought or requested from the institution, or any 

8 other source the Secretary determines perti9 nent. 

10 ‘‘(D) RESTORATION.—If the Secretary de11 termines that the institution under review to re12 store eligibility under this paragraph has made 

13 the policy disclosures, and issued the statement 

14 affirming contractual responsibility for full 

15 speech policy disclosure, and the statement af16 firming contractual responsibility for speech 

17 policy enforcement, as required by this section, 

18 the institution’s eligibility to receive funds 

19 under this Act, including participation in any 

20 program under this title, shall be restored not 

21 earlier than the beginning of the third academic 

22 year following the year in which notification of 

23 loss of eligibility was received. 

24 ‘‘(E) LIMIT ON REVIEW.—The Secretary 

25 may conduct not more than 1 review to restore 


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1 eligibility for a single institution in any given 

2 academic year. 

3 ‘‘(e) NONAPPLICATION TO CERTAIN INSTITUTIONS.— 

4 This section shall not apply to an institution of higher 

5 education that is controlled by a religious organization.’’. 

Æ 


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