Campus Free Speech Restoration Act

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. Short title This Act may be cited as the Campus Free Speech Restoration Act 2. Protection of student speech and association rights Section 112(a) of the Higher Education Act of 1965 ( 20 U.S.C. 1011a(a) (1) by redesignating paragraph (2) as paragraph (3); and (2) by inserting after paragraph (1) the following: (2) It is the sense of Congress that— (A) every individual should be free to profess, and to maintain, the opinion of such individual in matters of religion or philosophy, and that professing or maintaining such opinion should in no way diminish, enlarge, or affect the civil liberties or rights of such individual on the campus of an institution of higher education; (B) no public institution of higher education directly or indirectly receiving financial assistance under this Act should limit religious expression, free expression, or any other rights provided under the First Amendment to the Constitution of the United States; (C) free speech zones and restrictive speech codes are inherently at odds with the freedom of speech guaranteed by the First Amendment to the Constitution of the United States; (D) bias reporting systems are susceptible to abuses that may put them at odds with the freedom of speech guaranteed by the First Amendment to the Constitution of the United States; and (E) no public institution of higher education directly or indirectly receiving financial assistance under this Act should restrict the speech of such institution’s students through improperly restrictive zones, codes, or bias reporting systems. . 3. Campus speech policies at institutions of higher education Title IV of the Higher Education Act of 1965 ( 20 U.S.C. 1070 et seq. (1) in section 487(a), by adding at the end the following: (30) (A) In the case of a public institution (other than an institution described in section 494A(b)(4)), the institution will comply with the expressive activity protections described in section 494A. (B) In the case of a private institution (other than an institution described in section 494B(e)), the institution will comply with the expressive activity requirements described in section 494B. ; and (2) in part G, by adding at the end the following: 494A. Campus speech policies at public universities (a) Definition of expressive activities (1) In general In this section, the term expressive activity (A) peacefully assembling, protesting, speaking, or listening; (B) distributing literature; (C) carrying a sign; (D) circulating a petition; or (E) other expressive rights guaranteed under the First Amendment to the Constitution of the United States, including religious rights. (2) Exclusions In this section, the term expressive activity (b) Expressive activities at an institution (1) 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 a generally accessible area on the institution’s campus if the person’s conduct is lawful. (2) Restrictions An institution of higher education described in paragraph (1) may not maintain or enforce time, place, or manner restrictions on an expressive activity in a generally accessible area of the institution’s campus unless the restriction— (A) is necessary to achieve a compelling governmental interest; (B) is the least restrictive means of furthering that compelling governmental interest; (C) is based on published, content-neutral, and viewpoint-neutral criteria; (D) leaves open ample alternative channels for communication; and (E) provides for spontaneous assembly and distribution of literature. (3) Application The protections provided under paragraph (1) do not apply to expressive activity in an area on an institution’s campus that is not a generally accessible area. (4) Nonapplication to service academies This section shall not apply to an institution of higher education whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine. (c) Causes of action (1) Authorization The following persons may bring an action in a Federal court of competent jurisdiction to enjoin a violation of subsection (b) or to recover compensatory damages, reasonable court costs, or reasonable attorney fees: (A) The Attorney General. (B) A person claiming that the person's expressive activity rights, as described in subsection (b)(1), were violated. (2) Actions Notwithstanding any other provision of law, in an action brought under this section, the Federal court shall decide de novo all relevant questions of fact and law, including the interpretation of constitutional, statutory, and regulatory provisions, unless the parties stipulate otherwise. In an action brought under this subsection, if the court finds a violation of subsection (b), the court— (A) shall— (i) enjoin the violation; and (ii) if a person whose expressive activity rights were violated brought the action, award the person— (I) not less than $500 for an initial violation; and (II) 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 (B) may award a prevailing plaintiff— (i) compensatory damages; (ii) reasonable court costs; or (iii) reasonable attorney fees. (3) Basis for enactment This subsection is enacted as an exercise of the enforcement power of the Congress under section 5 of the Fourteenth Amendment to the Constitution to protect expressive activities. (d) Statute of limitations (1) In general Except as provided in paragraph (3), an action under subsection (c) may not be brought later than 1 year after the date of the violation. (2) Continuing violation Each day that a violation of subsection (b) continues after an initial violation of subsection (b), and each day that an institution's policy in violation of subsection (b) remains in effect, shall constitute a continuing violation of subsection (b). (3) 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. (e) Federal review of speech policies (1) No eligibility for funds (A) In general No public institution of higher education shall be eligible to receive funds under this Act, including participation in any program under this title, if the Secretary determines that the institution— (i) maintains a policy that infringes upon the expressive rights of students under the First Amendment to the Constitution of the United States; or (ii) maintains or enforces time, place, or manner restrictions on an expressive activity in a generally accessible area of the institution's campus that do not comply with subparagraphs (A) through (E) of subsection (b)(2). (B) Prohibition The Secretary may not conduct an investigation for purposes of making a determination under subparagraph (A) with respect to an institution of higher education, unless such an investigation is conducted under paragraph (4) with respect to a complaint received under paragraph (2). (C) Court review Notwithstanding any other provision of law, the Secretary’s determinations under this subsection shall be reviewed de novo with respect to all relevant questions of fact and law, including the interpretation of constitutional, statutory, and regulatory provisions, unless the parties stipulate otherwise. (2) Designation of an employee to receive complaints The Secretary shall designate an employee in the Office of Postsecondary Education of the Department to receive complaints (whether electronically or by mail) from students or student organizations at a given public institution of higher education, or from any other person or organization, regarding policies at the institution that meet the description of clause (i) or (ii) of paragraph (1)(A). (3) Complaint A complaint submitted under subparagraph (2)— (A) shall include the provision of the institution’s policy the complainant believes meets the description of clause (i) or (ii) of paragraph (1)(A), along with any evidence regarding the operation and enforcement of such policy the complainant deems relevant; and (B) may include an argument and any other supplemental information as to why the policy in question meets such description. (4) System of review (A) First stage review (i) Request for response Not later than 7 days after the date of receipt of a complaint under paragraph (2), the Secretary shall review the complaint and request a response to the complaint from the institution. (ii) Institution response Not later than 30 days after the date the Secretary requests a response under clause (i), the institution shall— (I) certify to the Secretary that the institution has entirely withdrawn the policy that occasioned the complaint; (II) submit a revised policy for review by the Secretary; or (III) submit a defense of the policy that occasioned the complaint. (iii) Availability to complainant (I) In general Not later than 7 days after the date of receipt of a revised policy or defense of the original policy as submitted by the institution pursuant to clause (ii), the Secretary shall make available to the complainant a copy of such revised policy or defense. (II) Response by complainant Not later than 60 days after the date of receipt of a revised policy or defense of the original policy under subclause (I), the complainant may submit to the Secretary a response to the revised policy or defense of the original policy. (III) Submission to the institution of response Not later than 7 days after the date of receipt of a response under subclause (II), the Secretary shall submit to the institution a copy of such response. (iv) Determinations If the institution declines to entirely withdraw the policy that occasioned the complaint and either submits a revised policy for review or submits a defense of the policy that occasioned the complaint, the Secretary shall, not later than 60 days after the date of the deadline for a response by the complaint as described in clause (iii)(II), make one of the following determinations: (I) Determine that the complaint in question has insufficient merit to proceed to Second Stage Review described in subparagraph (B). (II) Determine that the complaint in question has sufficient merit to proceed to Second Stage Review described in subparagraph (B). (v) Notification Not later than 7 days after the date the Secretary makes a determination under clause (iv), the Secretary shall notify the institution and the complainant of such determination. (vi) End The determination under clause (iv) shall constitute the end of First Stage Review. (B) Second stage review (i) In general In a Second Stage Review, the Secretary shall notify the institution and the complainant of the commencement of the Second Stage Review, and shall give the institution the option of entirely withdrawing the policy that occasioned the complaint or submitting a revised policy for review within 30 days of the commencement of the Second Stage Review. In such notification submitted to the institution and complainant, the Secretary shall indicate the relevant sections of the institution’s policy in question and explain why these sections may be out of compliance. (ii) Determination Not later than 90 days from the commencement of the Second Stage Review, the Secretary shall determine whether the policy that occasioned the complaint, or the revised policy submitted during the First Stage Review, or the revised policy submitted within the first 30 days of the Second Stage Review, is in violation of student rights under the First Amendment to the Constitution of the United States or of the restrictions on the regulation of speech by time, place, and manner set forth in this section, thereby ending Second Stage Review. (iii) Investigation During Second Stage Review, the Secretary may conduct an investigation in which further information may be sought or requested from the complainant, the institution, or any other pertinent source. (iv) Certification of withdrawal At any point during the Second Stage Review, the institution in question may certify to the Secretary that it has entirely withdrawn the policy that occasioned the complaint, thereby ending the Second Stage Review. (v) Notification and justification If the Secretary determines by the conclusion of Second Stage Review that the policy that occasioned the complaint or the revised policy submitted for review during First Stage Review or Second Stage Review is consistent with the expressive rights of students under the First Amendment to the Constitution of the United States and the restrictions on the regulation of speech by time, place, and manner set forth in this Act— (I) the Secretary shall notify the complainant and the institution of such determination not more than 7 days after the date of the determination; and (II) the Secretary shall explain and justify such determination in a written decision citing relevant legal precedent, copies of which shall be sent to the complainant, the institution, the authorizing committees, and made available for public inspection, including for online reading by the public. (C) Determination that institution is out of compliance (i) In general If, upon completion of the Second Stage Review, the Secretary determines that the policy that occasioned the complaint, or the revised policy submitted for review during the First Stage Review or Second Stage Review, violates the First Amendment to the Constitution of the United States or the restrictions on the regulation of speech set forth in this section, the Secretary shall notify the complainant and the institution not more than 7 days after the date of completion of Second Stage Review that the institution is out of compliance with the requirements for receiving funds under this Act, including participation in any program under this title, but will be granted a grace period of 120 days to return to compliance before being formally stripped of eligibility. (ii) Posting; explanation; final review As part of the notification under clause (i), the Secretary shall— (I) require the institution to post the determination of the Secretary on the website of the institution within 2 clicks of the homepage, without a paywall, email login, or other restriction to access; (II) explain and justify the determination of the Secretary in a written decision citing relevant legal precedent, copies of which shall be sent to the complainant, the institution, the authorizing committees, and made available for public inspection, including for online reading by the public; and (III) inform the institution that Final Review has begun and that the institution must either certify to the Secretary that it has entirely withdrawn the policy that occasioned the complaint, or submit a revised policy for review to the Secretary not later than 60 days after the date of receipt of notice of the conclusion of Second Stage Review. (D) Final review (i) In general If an institution submits a revised policy for review as described in subparagraph (C)(ii)(III), the Secretary shall review such revised policy and determine not later than 120 days after the date of commencement of Final Review whether the revised policy is consistent with the expressive rights of students under the First Amendment to the Constitution of the United States and with the restrictions on the regulation of speech by time, place, and manner set forth in this section. (ii) Determination of compliance If the Secretary determines, as described in clause (i), that the revised policy is consistent with the expressive rights of students under the First Amendment to the Constitution of the United States and with the restrictions on the regulation of speech by time, place, and manner set forth in this section, the Secretary shall notify the complainant and the institution of such determination not more than 7 days after the date the determination is made, thereby ending the final Stage Review. (iii) Determination of violation If the Secretary determines, as described in clause (i), that the revised policy violates the expressive rights of students under the First Amendment to the Constitution of the United States or the restrictions on the regulation of speech by time, place, and manner set forth in this section, the Secretary shall— (I) notify the complainant and the institution of such determination not more than 7 days after the date the determination is made, thereby ending the final Stage Review; and (II) explain and justify the determination in a written decision citing relevant legal precedent, copies of which shall be sent to the complainant, the institution, and made available for public inspection, including for online reading by the public. (E) Loss of eligibility (i) In general If the Secretary determines, during the Final Stage Review, that the institution’s policy in question violates the expressive rights of students under the First Amendment to the Constitution of the United States or the restrictions on the regulation of speech by time, place, and manner set forth in this section, the Secretary shall— (I) notify the complainant and the institution not more than 7 days after the date of the determination that the institution will lose eligibility to receive funds under this Act, including participation in any program under this title, in accordance with this subparagraph; (II) notify the institution that the loss of eligibility shall take effect beginning with any student notified of acceptance for admission to the institution during the award year subsequent to the award year during which the determination is made, and that no restoration of eligibility for ineligible students in subsequent award years will occur prior to the beginning of the third award year subsequent to the award year during which the determination is made; (III) explain and justify the determination in a written decision citing relevant legal precedent, copies of which shall be sent to the complainant, the institution, the authorizing committees, and made available for public inspection, including for online reading by the public; and (IV) require the institution to post the determination of the Secretary on the website of the institution, within two clicks of the homepage, without a paywall, email login, or other restriction to access. (ii) Continued eligibility Each student enrolled at the institution during the award year in which eligibility is lost as described in this subparagraph, and each student notified of acceptance for admission to the institution during the award year in which eligibility is lost as described in this subparagraph, shall continue to be eligible to participate, through the institution, in programs funded under this Act during the 3-year period after the date of the loss of eligibility. (F) Restoration of eligibility (i) In general Not later than 7 days after the loss of eligibility under subparagraph (E), the Secretary shall inform the institution that the institution may restore eligibility, either by certifying to the Secretary that the institution has entirely withdrawn the policy that precipitated loss of eligibility, or by submitting a revised policy for review at any time following the failure of the Final Review. (ii) Review of revised policy The Secretary shall review a revised policy submitted for review after the loss of eligibility and determine not later than 120 days after the date the revised policy is submitted whether such policy is consistent with the expressive rights of students under the First Amendment to the Constitution of the United States and with the restrictions on the regulation of speech by time, place, and manner set forth in this Act. (iii) Investigation While conducting a review to restore eligibility under this subparagraph, the Secretary may conduct an investigation in which further information may be sought or requested from the institution, or any other source the Secretary determines pertinent. (iv) Written decision In making a determination of whether a revised policy submitted for review after the loss of eligibility is either consistent or inconsistent with the expressive rights of students under the First Amendment to the Constitution of the United States and with the restrictions on the regulation of speech by time, place, and manner set forth in this Act, the Secretary shall explain and justify the determination in a written decision citing relevant legal precedent, copies of which shall be sent to the complainant, the institution, the authorizing committees, and made available for public inspection, including for online reading by the public. (v) Limit on review The Secretary may conduct not more than 1 review to restore eligibility for a single institution in any given award year. (vi) Restoration If an institution certifies to the Secretary that the policy that precipitated the loss of eligibility has been entirely withdrawn, or if Secretary determines that the revised policy submitted for review is consistent with the expressive rights of students under the First Amendment to the Constitution of the United States and with the restrictions on the regulation of speech by time, place, and manner set forth in this section, the institution’s eligibility to receive funds under this Act, including participation in any program under this title, shall be restored not earlier than the beginning of the third award year following the year in which notification of loss of eligibility was received. (G) Good faith representation (i) In general The Secretary shall inform any institution undergoing review of its campus speech policies that it expects the institution to represent its policies, along with any proposed revisions in such policies, in good faith. (ii) Misrepresentation (I) Complaints A student, student organization, or any other person or organization may file, with the employee in the Office of Postsecondary Education of the Department designated by the Secretary under paragraph (2) to receive complaints, a complaint that an institution has substantially misrepresented its speech policies, or withheld information requested by the Secretary during an investigation, or attempted to circumvent the review process by reinstituting a policy under review in a substantially similar form without informing the Secretary. (II) Loss of eligibility If the Secretary determines upon investigation, or after receiving a complaint under subclause (I), that an institution has substantially misrepresented its speech policies, or withheld information requested by the Secretary during an investigation, or attempted to circumvent the review process by reinstituting a policy under review in a substantially similar form without informing the Secretary, the institution shall lose eligibility to receive funds under this Act, including participation in any program under this title. (iii) Loss of eligibility If an institution loses eligibility under clause (ii), the Secretary shall notify the institution, not later than 7 days after the determination, that the loss of eligibility shall take effect beginning with any student notified of acceptance for admission to the institution during the award year subsequent to the award year during which the determination is made, and that no restoration of eligibility for students admitted in subsequent award years will occur prior to the beginning of the third award year subsequent to the award year during which the determination is made. (f) Retaliation prohibited (1) In general No person may intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this section. (2) Specific circumstances (A) Exercise of first amendment rights The exercise of rights protected under the First Amendment to the Constitution of the United States does not constitute retaliation prohibited under paragraph (1). (B) Code of conduct violation for materially false statement Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this section does not constitute retaliation prohibited under paragraph (1). A determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. (g) Judicial review A public institution of higher education participating in a program under this title may seek judicial review of an agency action under this section in accordance with chapter 7 494B. Campus speech policies at private universities (a) In general Each private institution of higher education eligible to receive funds under this Act, including any program under this title, shall— (1) post in one place on the website of the institution all policies that pertain to the protection and regulation of the expressive rights of students, including the right to submit a complaint under this section, within 2 clicks of the homepage, without a paywall, email login, or other restriction to access; and (2) include a copy of such policies in a handbook distributed to new students. (b) Responsibility for full policy disclosure Each private institution of higher education described in subsection (a) shall include with the copy of the policies described in subsection (a)— (1) a statement affirming that all policies pertinent to the protection and regulation of the expressive rights of students have been disclosed in the manner required by this section; and (2) a statement affirming that publication of such policies as required by this section and instructions for students on how to contact the employee designated in the Office of Postsecondary Education in the Department under subsection (d)(1) to file a complaint. (c) Cause of action (1) Authorization A student claiming that a private institution of higher education in which the student is enrolled has violated published policy regarding expressive rights imposed by this section may bring an action in a Federal court of competent jurisdiction to enjoin such violation or to recover compensatory damages, reasonable court costs, or reasonable attorney fees. (2) Actions Notwithstanding any other provision of law, in an action brought under this subsection, the Federal court shall decide de novo all relevant questions of fact and law, including the interpretation of constitutional, statutory, and regulatory provisions, unless the parties stipulate otherwise. In an action brought under this subsection, if the court finds a violation of subsection (b), the court— (A) shall— (i) enjoin the violation; and (ii) award the student— (I) not less than $500 for an initial violation; and (II) if the student 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 (B) may award a prevailing plaintiff— (i) compensatory damages; (ii) reasonable court costs; or (iii) reasonable attorney fees. (d) Secretarial requirements (1) Designation of an employee The Secretary shall designate an employee in the Office of Postsecondary Education in the Department who shall— (A) receive copies of all complaints pertaining to the protection and regulation of the expressive rights of students at private institutions of higher education that receive funds under this section, including any programs under this title; (B) preserve all records of such policies for a period of not less than 10 years; (C) receive complaints from students, student organizations, or from any other person or organization, that believes a private institution of higher education has not disclosed a policy pertaining to the protection and regulation of the expressive rights of students as required by this section, is enforcing a policy pertaining to the expressive rights of students that has not been disclosed as required by this section, or has failed to make a full policy disclosure, for the enforcement of speech policies, as required by this section; (D) not more than 7 days after the date of receipt of a complaint under subparagraph (C), review the complaint and request a response from the institution; (E) undertake an investigation, in response to a complaint under subparagraph (C), to determine whether a private institution of higher education has failed to disclose a policy pertaining to the protection and regulation of the expressive rights of students as required by this section or is enforcing a policy pertaining to the expressive rights of students that has not been disclosed as required by this section; and (F) determine, not later than 120 days after the date of receipt of a complaint, whether the private institution of higher education in question has failed to disclose a policy pertaining to the protection and regulation of the expressive rights of students as required by this section or is enforcing a policy pertaining to the expressive rights of students that has not been disclosed as required by this section. (2) Loss of eligibility (A) In general If the Secretary determines that a private institution of higher education has failed to disclose a policy pertaining to the protection and regulation of the expressive rights of students as required by this section or is enforcing a policy pertaining to the expressive rights of students that has not been disclosed as required by this section, the Secretary shall notify the institution and the complainant, not more than 7 days after the date of such determination, that the institution is out of compliance with the requirements for receiving funds under this Act, including participation in any program under this title, but will be granted a grace period of 60 days to return to compliance before formally losing eligibility for receiving funds under this Act, including participation in any program under this title. (B) Specifications in notification As part of the notification under subparagraph (A), the Secretary shall specify which policies need to be disclosed and published in order for eligibility to be restored. (C) Notification of loss of eligibility (i) In general If the Secretary determines that, 60 days after being notified that the institution is out of compliance as described in subparagraph (A), the institution has failed to return to compliance by making the appropriate speech policy disclosures, the Secretary shall notify the institution and the complainant, not more than 7 days after the date of such determination— (I) that the institution will lose eligibility to receive funds under this Act, including participation in any program under this title; (II) that the loss of eligibility shall take effect beginning with any student notified of acceptance for admission to the institution during the award year subsequent to the award year during which the determination is made, and that no restoration of eligibility for ineligible students in subsequent years will occur prior to the beginning of the third award year subsequent to the award year during which the determination is made; and (III) that the institution shall post the determination of the Secretary on the website of the institution, within two clicks of the homepage, without a paywall, email login, or other restriction to access. (ii) Continued eligibility Each student enrolled at the institution during the award year in which eligibility is lost as described in this subparagraph, and each student notified of acceptance for admission to the institution during the award year in which eligibility is lost as described in this subparagraph, shall continue to be eligible to participate, through the institution, in programs funded under this Act during the 3-year period after the date of the loss of eligibility. (3) Restoration of eligibility (A) In general Not later than 7 days after the loss of eligibility under paragraph (2), the Secretary shall inform the institution that the institution may restore eligibility by making the appropriate speech policy disclosures, as directed by the Secretary in conformity with this section. (B) Review The Secretary shall review any policy disclosures and determine whether the policy disclosures are sufficient to restore eligibility for receiving funds under this Act, including participation in any program under this title, not later than 120 days after the date of receipt of such disclosures or statement. (C) Investigation While conducting a review to restore eligibility under this paragraph, the Secretary may conduct an investigation in which further information may be sought or requested from the institution, or other source pertinent to the case. (D) Restoration If the Secretary determines that the institution under review to restore eligibility under this paragraph has made the policy disclosures as required by this section, the institution’s eligibility to receive funds under this Act, including participation in any program under this title, shall be restored not earlier than the beginning of the third award year following the year in which notification of loss of eligibility was received. (E) Limit on review The Secretary may conduct not more than 1 review to restore eligibility for a single institution in any given award year. (4) Prohibition The Secretary may not conduct an investigation under this subsection for purposes of making a determination under paragraph (2)(A) with respect to an institution of higher education, unless such an investigation is conducted with respect to a complaint received under paragraph (1). (e) Nonapplication to certain institutions This section shall not apply to an institution of higher education that is controlled by a religious organization. (f) Judicial review A private institution of higher education participating in a program under this title may seek judicial review of an agency action under this section in accordance with chapter 7 .

Summary: Campus Free Speech Restoration Act This bill addresses expressive activities (e.g., peacefully assembling, distributing literature, or carrying signs) on college campuses. First, the bill generally prohibits a public institution of higher education (IHE) that participates in federal student-aid programs from restricting noncommercial expressive activities on campus. Further, the bill prohibits a public IHE from receiving federal funds if the Department of Education determines that the public IHE (1) maintains a policy that infringes upon the expressive rights of students; or (2) maintains or enforces time, place, or manner restrictions on expressive activities, except in limited circumstances. In addition, the bill prohibits retaliation against an individual because the individual reported or complained about restrictions on expressive activities or participated in an investigation or hearing. The bill also requires a private IHE that receives federal funds to provide students with its policies related to expressive rights. The bill also establishes a framework for investigating complaints and for IHEs to regain eligibility for federal funds.