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.

1. Short title This Act may be cited as the Free Right to Expression in Education Act . 2. Campus individual rights Title IV of the Higher Education Act of 1965 ( 20 U.S.C. 1070 et seq.) is amended— (1) in section 487(a), by adding at the end the following: (30) 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 (2) in part G, by adding at the end the following: 493E. Campus individual rights (a) Definition of expressive activities (1) In general In this section, the term expressive activity includes— (A) peacefully assembling, protesting, or speaking; (B) distributing literature; (C) carrying a sign; or (D) circulating a petition. (2) 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). (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 an outdoor 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 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— (A) is narrowly tailored to serve a significant institutional interest; (B) is based on published, content-neutral, and viewpoint-neutral criteria; and (C) leaves open ample alternative channels for communication. (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 an outdoor area. (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 this section 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 In an action brought under this subsection, if the court finds a violation of this section, 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. (d) Statute of limitations (1) 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. (2) 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. (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. .