A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ENACTING THE "FORMING OPEN AND ROBUST UNIVERSITY MINDS (FORUM) ACT" BY ADDING CHAPTER 148 TO TITLE 59 SO AS TO DEFINE NECESSARY TERMS, TO PROVIDE MEASURES TO PROTECT EXPRESSIONS BY STUDENTS AND STUDENT ORGANIZATIONS IN CERTAIN PLACES ON THE CAMPUSES OF PUBLIC INSTITUTIONS OF HIGHER LEARNING IN THIS STATE, TO PROVIDE RELATED REQUIREMENTS FOR POLICIES AND PROCEDURES, TO PROVIDE SPECIFIC RESPONSIBILITIES OF PUBLIC INSTITUTIONS OF HIGHER LEARNING, AND TO PROVIDE MEANS OF REDRESS FOR VIOLATIONS OF THIS ACT, AMONG OTHER THINGS.

 

Whereas, the South Carolina General Assembly finds that the First Amendment of the United States Constitution and the South Carolina Constitution protect the rights of free speech, freedom of the press, freedom of religion, and freedom of association and to petition the government for all citizens; and

 

Whereas, the South Carolina General Assembly finds that in Healy v. James, 408 U.S. 169, 180 (1972), the Supreme Court of the United States called public universities, "peculiarly the marketplace of ideas" where young adults learn to exercise these constitutional rights necessary to participate in our system of government and to tolerate others' exercise of the same rights, and there is "no room for the view that First Amendment protections should apply with less force on college campuses than in the community at large"; and

 

Whereas, the South Carolina General Assembly views the exercise of First Amendment rights on public university campuses in this State as critical components of the education experience for students and requires that each public college and university in this State ensure free, robust, and uninhibited debate and deliberations by students whether on or off campus; and

 

Whereas, the South Carolina General Assembly finds that public colleges and universities in this State and elsewhere must provide adequate safeguards for the First Amendment rights of their students leading to a stifling of expression on campuses; and

 

Whereas, the South Carolina General Assembly finds that the United States Supreme Court has warned in Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957), that if public universities stifle student speech and prevent the open exchange of ideas on campuses, "our civilization will stagnate and die"; and

 

Whereas, the South Carolina General Assembly finds that a significant amount of taxpayer dollars are appropriated to public institutions of higher learning each year and as such, this General assembly must ensure that all public institutions of higher learning receiving state funds recognize freedom of speech as a fundamental right for all. Now, therefore,

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  This act may be cited as the "Forming Open and Robust University Minds (FORUM) Act."

 

SECTION 2.  Title 59 of the S.C. Code is amended by adding:

 

CHAPTER 148

 

Forming Open and Robust University Minds (FORUM) Act

 

    Section 59-148-110.  As used in this chapter:

    (1) "Benefit" means the following:

       (a) recognition;

       (b) registration;

       (c) the use of facilities of the institution of higher education for meetings or speaking purposes;

       (d) the use of channels of communication; and

       (e) funding sources that are otherwise available to other student organizations at the public institution of higher education.

    (2) "Campus Community" means students, administrators, faculty, and staff at the institution of higher education and their invited guests.

    (3) "Harassment" means only that expression that is unwelcome, so severe, pervasive, and subjectively and objectively offensive, that a student is effectively denied equal access to educational opportunities or benefits provided by the public institution of higher education.

    (4) "Materially and substantially disrupts" means when a person, with the intent to or with knowledge of doing so, significantly hinders another person's or group's expressive activity, prevents the communication of the message, or prevents the transaction of the business of a lawful meeting, gathering, or procession by:

       (a) engaging in fighting, violent, or other unlawful behavior; or

       (b) physically blocking or using threats of violence to prevent any person from attending, listening to, viewing, or otherwise participating in an expressive activity. Conduct that "materially and substantially disrupts" may not include conduct that is protected under the First Amendment to the United States Constitution or the Constitution of this State. Such protected conduct includes, but is not limited to, lawful protests in the outdoor areas of campus generally accessible to the members of the public, except during times when those areas have been reserved in advance for other events, or minor, brief, or fleeting nonviolent disruptions of events that are isolated and short in duration.

    (5) "Outdoor areas of campus" means the generally accessible outside areas of campus where members of the campus community are commonly allowed, such as grassy areas, walkways or other similar common areas and does not include outdoor areas where access is restricted from a majority of the campus community.

    (6) "Public institution of higher education" means state supported postsecondary educational institutions, including technical and comprehensive educational institutions.

    (7) "Student" means any person who is enrolled on a full-time or part-time basis in a public institution of higher education.

    (8) "Student organization" means an officially recognized group at a public institution of higher education, or a group seeking official recognition, comprised of admitted students that receive, or are seeking to receive, benefits through the institution of higher education as defined in this section.

 

    Section 59-148-120.  Expressive activities protected under the provisions of this chapter include, but are not limited to, any lawful verbal, written, audio-visual, or electronic means by which individuals may communicate ideas to one another, including all forms of peaceful assembly, protests, speeches and guest speakers, distribution of literature, carrying signs, and circulating petitions.

 

    Section 59-148-130.  (A) The outdoor areas of campuses of public institutions of higher education in this State must be considered public forums for the campus community, and public institutions of higher education may not create "free speech zones" or other designated areas of campus outside of which expressive activities are prohibited. Public institutions of higher education may maintain and enforce reasonable time, place and manner restrictions narrowly tailored in service of a significant institutional interest only when such restrictions employ clear, published, content-neutral and viewpoint-neutral criteria, and provide for ample alternative means of expression. Any such restrictions must allow for members of the campus community to spontaneously and contemporaneously assemble and distribute literature.

    (B) Nothing in this section may be interpreted as limiting the right of student expression elsewhere on campus.

 

    Section 59-148-140.  (A) Any person who wishes to engage in noncommercial expressive activity on campus must be permitted to do so freely, as long as the person's conduct is not unlawful and does not materially and substantially disrupt the functioning of the public institution of higher education, subject only to the requirements of Section 59-148-130.

    (B) Nothing in this section may be construed to prohibit public institutions of higher education from maintaining and enforcing reasonable time, place, and manner restrictions that are narrowly tailored to serve a significant institutional interest only when such restrictions employ clear, published, content and viewpoint-neutral criteria. Any such restrictions must allow for members of the campus community to spontaneously and contemporaneously assemble, speak, and distribute literature.

    (C) Nothing in this section may be interpreted as preventing public institutions of higher education from prohibiting, limiting, or restricting expression that the First Amendment does not protect or prohibiting harassment as defined in Section 59-148-110.

    (D) Nothing in this section may be construed to enable individuals to engage in conduct that intentionally, materially, and substantially disrupts another's expressive activity if that activity is occurring in a campus space reserved for that activity under the exclusive use or control of a particular group.

 

    Section 59-148-150.  No public institution of higher education may deny a religious, political, or ideological student organization any benefit or privilege available to any other student organization, or otherwise discriminate against such an organization, based on the expression of the organization, including any requirement that the leaders or members of such organization:

    (1) affirm and adhere to the organization's sincerely held beliefs;

    (2) comply with the organization's standards of conduct; or

    (3) further the organization's mission or purpose, as defined by the student organization.

 

    Section 59-148-160.  (A) Public institutions of higher education shall make public in their handbooks, on their websites, and through their orientation programs for students the policies, regulations, and expectations of students regarding free expression on campus consistent with this chapter.

    (B) Public institutions of higher education shall develop materials, programs, and procedures to ensure that those persons who have responsibility for discipline or education of students, such as administrators, campus police officers, residence life officials, and professors, understand the policies, regulations, and duties of public institutions of higher education regarding free expression on campus consistent with this chapter.

 

    Section 59-148-170.  (A) Each public institution of higher education shall publicly post on their website, as well as submit to the governor and general assembly by December first, a report which will detail the course of action implemented to be in compliance with the requirements of this chapter. A report must also be given in the instance of any changes or updates to the chosen course of action. The information required in the report must be:

       (1) accessible from the institution's internet website homepage by use of not more than three links;

       (2) searchable by keywords and phrases; and

       (3) accessible to the public without requiring registration or use of a username, a password, or another user identification.

    (B) The report must include:

       (1) a description of any barriers to or incidents of disruption of free expression occurring on campus including, but not limited to, attempts to block or prohibit speakers and investigations into students or student organizations for their speech. The description must include the nature of each barrier or incident, as well as what disciplinary action, if any, was taken against members of the campus community determined to be responsible for those specific barriers or incidents involving students and must be reported without revealing those students' personally identifiable information; and

       (2) any other information each public institution of higher education considers valuable for the public to evaluate whether free expression rights for all members of the campus community have been equally protected and enforced consistent with this chapter.

    (C) If a public institution of higher education is sued for an alleged violation of First Amendment rights, a supplementary report with a copy of the complaint, or any amended complaint, must be submitted to the Governor and General Assembly within thirty days.

 

    Section 59-148-180.  Any person or student association aggrieved by a violation of this chapter may bring an action against the public institution of higher education and its employees acting in their official capacities, responsible for the violation and seek appropriate relief including, but not limited to, injunctive relief, monetary damages, reasonable attorney's fees, and court costs. If a court finds a violation of this chapter, it shall issue an award of at least five thousand dollars. Any person or student organization aggrieved by a violation of this chapter may assert such violation as a defense or counter claim in any disciplinary action or in any civil or administrative proceedings brought against such student or student organization. Nothing in this section may be interpreted to limit any other remedies available to any person or student organization.

 

    Section 59-148-190.  A person shall bring suit for violation of this section, if at all, no later than one year after the day the cause of action accrues. For purposes of calculating the one-year limitation period, each day that the violation persists, and each day that a policy in violation of this section remains in effect, constitutes a new day that the cause of action has accrued.

 

    Section 59-148-200.  The State waives immunity under the Eleventh Amendment of the United States Constitution and consents to suit in a federal court for lawsuits arising out of this chapter. A public institution of higher education that violates this chapter is not immune from suit or liability for the violation.

 

SECTION 3.  If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 4.  This act takes effect upon approval by the Governor.

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