Assigned to ED AS
PASSED BY COMMITTEE
Assigned to ED AS
PASSED BY COMMITTEE
ARIZONA STATE SENATE
Fifty-Third Legislature, Second Regular Session
AMENDED
postsecondary institutions; free expression policies
Purpose
Requires the Arizona Board of Regents (ABOR) and community college district governing boards to develop and adopt free expression policies.
Background
Statute currently prohibits universities and community colleges from restricting a student's right to speak in a public forum or impose restrictions on the time, place and manner of student protected first amendment speech in a public forum unless restrictions are: 1) reasonable; 2) justified without reference to the content of the speech; 3) narrowly tailored to serve a significant governmental interest; or 4) leave ample alternative channels of communication open. The Attorney General and a student who has had their expressive rights violated are permitted to bring an action in court for violations of these requirements within one year of the violation (A.R.S. § 15-1864).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
University and Community College Free Expression Policies
1. Directs ABOR and each community college governing board to adopt free expression policy that contains statements and requirements that:
a) require the institution to strive to ensure the fullest degree of intellectual freedom and free expression;
b) establish that it is not the proper role of a higher education institution to shield individuals from speech protected by the First Amendment, including that which is unwelcome or offensive;
c) establish the freedom of students and faculty to discuss any problem and to assemble and engage in spontaneous expressive activities so long as they are not unlawful and do not materially or substantially disrupt the functioning of the university or community college;
d) establish a range of disciplinary actions for a student who engages in conduct that materially and substantially infringes on the rights of other persons to engage in or listen to expressive activity;
e) establish that a student is entitled to a disciplinary hearing under procedures that include all of the following:
i. the right to receive advanced written notice of the allegations;
ii. the right to review the evidence in support of the allegations;
iii. the right to confront witnesses who testify against that student;
iv. the right to present a defense;
v. the right to call witnesses;
vi. a decision by an impartial person or panel;
vii. the right to an appeal; and
viii. the right to active assistance of counsel under certain circumstances;
f) declare the sense of the Legislature is that suspension or expulsion may be appropriate if a student has repeatedly infringed upon the rights of other persons to engage in or listen to expressive activity; and
g) establish that these requirements supersede any previous university or community college policies that restrict speech on campuses and direct each university and community college to remove or revise its policies or rules to comply.
2. Allows ABOR and each community college district governing board to adopt rules to further the purposes of the free expression policy, including those which restrict student expression that is:
a) a violation of state or federal law;
b) an expression that a court has deemed unprotected defamation;
c) harassment;
d) a true threat;
e) an unjustifiable invasion of privacy or confidentiality that does not involve a matter of public concern; or
f) an action that unlawfully disrupts the function of the university or community college.
3. Allows, rather than prohibits, the restriction on a student's right to speak in a public forum and allows restrictions on the time, place and manner of student speech that:
a) are necessary to achieve a compelling governmental interest, rather than are narrowly tailored to serve a significant governmental interest;
b) are the least restrictive means to further that interest; and
c) prevent spontaneous assembly and distribution of literature.
4. Allows a person who is lawfully present on a university or community college campus to protest or demonstrate on that campus and prohibits individual conduct that materially or substantially infringes on the rights of other persons to engage in or listen to expressive activity.
5. Declares that the public areas of university and community college campuses are public forums and are open on the same terms to any speaker.
6. Establishes that university and community college campuses are open to any speaker invited by a student, student group or faculty member.
7. Specifies faculty members are not prohibited from maintaining classroom order.
9. Prohibits a university or community college from charging security fees based on the content of the speech of the speaker or the person who invited them.
10. Allows a university or community college to restrict the use of its nonpublic facilities to invited individuals.
11. Allows university or community college students, faculty or staff members to take a position on the public policy controversies of the day, but encourages the institution to remain neutral unless the issues are essential to the day-to-day functioning of the institution.
12. Prohibits universities and community colleges from taking action on public policy controversies in a way that requires students or faculty to publicly express or endorse a particular view.
13. Allows a person whose expressive rights were violated to bring court action against any violation by a university, community college, faculty member or administrator.
14. Directs the court to award the greater of $1,000 or actual damages.
15. Requires each university and community college to include in its freshman orientation program information describing the policies and rules regarding free expression.
Committees on Free Expression
16. Requires ABOR to establish a Committee on Free Expression (Committee) consisting of at least 15 members.
17. Requires community college district governing boards to jointly establish a Committee.
18. Requires each Committee to submit annual reports as directed that include:
a) barriers or disruptions to free expression;
b) the administrative handling and discipline relating to barriers or disruptions to free expression;
c) substantial difficulties, controversies or successes in maintaining a posture of administrative and institutional neutrality;
d) any assessments, criticisms, commendations or recommendations from the Committees; and
e) an accounting of how student activity fees were allocated in the prior year.
19. Terminates the Committees on July 1, 2026.
Miscellaneous
20. Defines terms.
21. Makes technical and conforming changes.
22. Becomes effective on the general effective date.
Amendments Adopted by Committee
1. Allows, rather than prohibits, universities and community colleges to restrict a student's right to speak and allows restrictions on the time, place and manner of student speech that prevent spontaneous assembly and distribution of literature.
2. Requires universities and community colleges to make reasonable efforts and make available reasonable resources to address, rather than ensure, the safety of an invited speaker and others in attendance.
3. Removes the requirement that the Committee established by the community colleges consist of at least 15 members.
4. Extends the deadline of the annual report of the Committee established by the community colleges from September 1 to December 1.
5. Removes the requirement that a community college district in a county with a population of at least two million persons submit a copy of the Committee's annual report to the Secretary of State and instead requires the Committee to submit the copy to the Secretary of State.
House Action Senate Action
ED 2/12/18 DPA 8-3-0-0 ED 3/15/18 DPA 6-1-0
3rd Read 2/22/18 34-22-4
Prepared by Senate Research
March 19, 2018
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