A5731

An Act requiring public institutions of higher education to adopt policies on freedom of expression and supplementing chapter 3B of Title 18A of the New Jersey Statutes

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

“Benefit” means the recognition, registration, use of facilities of a public institution of higher education for meetings or speaking purposes, use of channels of communications, and funding sources that are available to student organizations at the public institution of higher education.

“Campus community” means a public institution of higher education’s students, administrators, faculty, and staff, as well as those individuals’ invited guests.

“Free speech zone” means an area on campus of a public institution of higher education that is designated for the purpose of engaging in an expressive activity.

“Harassment” means expression that is so severe, pervasive, and subjectively and objectively offensive that it effectively denies access to an educational opportunity or benefit provided by the public institution of higher education.

“Materially and substantially disrupts” means disruption that occurs when a person:

a. Significantly hinders the protected expressive activity of another person or group;

b. Prevents the communication of a message of another person or group;

c. Prevents the transaction of the business of a lawful meeting, gathering, or procession by engaging in fighting, violence, or other unlawful behavior; or

d. Physically blocks or uses threats of violence to prevent any person from attending, listening to, viewing, or otherwise participating in an expressive activity.

“Outdoor area of the campus” means the generally accessible outside areas of the campus of a public institution of higher education, where members of the campus community are commonly allowed including, but not limited to, grassy areas, walkways, and other common areas.

“Protected expressive activity” means speech and other conduct protected by the First Amendment to the United States Constitution or Article I, paragraph 6 of the New Jersey Constitution, to the extent that the activity is lawful and does not significantly and substantially disrupt the functioning of the institution or materially and substantially disrupt the rights of others to engage in or listen to expressive activity, including all of the following:

a. Communication through any lawful verbal, written, or electronic means;

b. Participating in peaceful assembly;

c. Protesting;

d. Making speeches;

e. Distributing literature;

f. Making comments to the media;

g. Carrying signs or hanging posters; and

h. Circulating petitions.

“Public institution of higher education” means Rutgers, The State University, the New Jersey Institute of Technology, Rowan University, Montclair State University, the State colleges or universities established pursuant to chapter 64 of Title 18A of the New Jersey Statutes, the county colleges, and any other public university or college now or hereafter established or authorized by State law.

“Student” means any person who is enrolled in a class at a public institution of higher education.

“Student organization” means an officially recognized group at a public institution of higher education or a group seeking official recognition, composed of admitted students that receive or are seeking to receive benefits through the institution.

2. Each public institution of higher education shall develop, adopt, and enforce a written policy concerning freedom of expression in accordance with section 3 of this act. The policy shall include reasonable provisions for the time, place, and manner of student freedom of expression. The policy may include limitations on speech that may be defined as profane, harassing, threatening, or intimidating.

3. a. The written policy required pursuant to section 2 of this act shall provide that:

(1) the primary function of the public institution of higher education is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate, and that, to fulfill that function, the institution shall, to the fullest degree possible, strive to ensure intellectual freedom and free expression;

(2) it is not the proper role of the institution to shield individuals from speech protected by the First Amendment to the United States Constitution or Article I, paragraph 6 of the New Jersey Constitution;

(3) students and faculty are free to take positions on public issues, to engage in expressive activity protected by the First Amendment to the United States Constitution or Article I, paragraph 6 of the New Jersey Constitution in outdoor areas of the campus of the institution, and to spontaneously and contemporaneously assemble, speak, and distribute literature;

(4) the outdoor areas of the campus shall be deemed to be a public forum for members of the campus community and their invited guests, and the institution shall not create free speech zones or other designated outdoor areas of the campus in order to limit or prohibit protected expressive activities;

(5) the campus of the institution shall be open to any speaker invited by students, student groups, or members of the faculty, take all reasonable measures to make available sufficient resources to ensure the safety of the campus community and invited guests, and not charge security fees based on the protected expressive activity of the member of the campus community or the member’s organization, on the content of the invited guest’s speech, or on the anticipated reaction or opposition of the listeners to the speech;

(6) the institution shall not permit members of the campus community to engage in conduct that materially and substantially disrupts another person’s expressive activity or infringes on the rights of others to engage in or listen to expressive activity and shall adopt a range of disciplinary sanctions for anyone under the jurisdiction of the institution who materially and substantially disrupts the free expression of others;

(7) the institution may maintain and enforce reasonable time, place and manner restrictions for outdoor areas of the campus only when the restrictions are narrowly tailored to serve a significant institutional interest and when the restrictions employ clear, published, content-neutral, and viewpoint-neutral criteria, and provide for ample alternative means of expression;

(8) the institution shall support free association and shall not deny a student organization any benefit or privilege available to any other student organization or otherwise discriminate against an organization based on the expression of the organization, including any requirement of the organization that the leaders or members of the organization affirm and adhere to an organization’s sincerely held beliefs or statement of principles, comply with the organization’s standard of conduct, or further the organization’s mission or purpose, as defined by the student organization;

(9) the institution shall strive to remain neutral, as an institution, on current public policy issues, except as far as administrative decisions on the issues are essential to the day-to-day functioning of the university, and that the institution shall not require students, faculty, or staff to publicly express a given view regarding a public policy issue;

(10) if a member of the campus community has twice been determined to have materially and substantially disrupted the expressive rights of others, a minimum punishment of a one-term suspension during the regular academic year may be appropriate; and

(11) if a punishment less than a one-term suspension is issued upon a second offense as defined in paragraph (10) of this subsection, the institution shall submit an explanation in writing to the institution’s Committee on Free Expression, established pursuant to section 5 of this act, within two weeks of the determination to impose the lesser punishment.

b. The policy developed pursuant to this section shall supersede and nullify any prior provisions in the policies of the institution that restrict speech on campus and are, therefore, inconsistent with the policy. The institution shall remove or revise any of these provisions in its policies to ensure compatibility with the policy established pursuant to this section.

c. Each public institution of higher education shall distribute the policy developed pursuant to this section to each new student, new faculty member, and new staff member, and shall make the policy available on its Internet website.

d. This section shall not authorize or protect expression by a student that:

(1) is libelous or slanderous;

(2) constitutes an unwarranted invasion of privacy;

(3) violates federal or State law; or

(4) so incites students as to create a clear and present danger of the commission of an unlawful act, the violation of policies of the public institution of higher education, or the material and substantial disruption of the orderly operation of the institution.

4. Within 90 days of the effective date of this act, each public institution of higher education shall submit to the Governor, and to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), a report that details the institution’s strategies and actions taken to develop, adopt, and implement the written policy concerning student freedom of expression required pursuant to section 2 of this act.

5. a. Each public institution of higher education shall appoint an independent Committee on Free Expression consisting of no less than five members. A minimum of 50 percent of the members of each institution’s Committee on Free Expression shall be selected from among the recognized alumni of the institution.

b. On September 1 of each year, the Committee on Free Expression shall submit to the institution, to the Governor, and to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), a report regarding issues related to the policy concerning freedom of expression required pursuant to section 2 of this act. The report shall include the following:

(1) a description of any barriers to or disruptions of free expression within the institution;

(2) a description of the administrative handling and discipline relating to these disruptions or barriers;

(3) a description of substantial difficulties, controversies, or successes in maintaining a posture of administrative and institutional neutrality; and

(4) any assessments, criticisms, commendations, or recommendations the committee sees fit to include.

The institution shall annually make the Committee on Free Expression’s report available on its Internet website.

6. The following persons may bring an action in a court of competent jurisdiction to enjoin any violation of this act or a policy adopted pursuant to this act:

a. The Attorney General; and

b. A person whose expressive rights are violated by a violation of this act or a violation of the policy required pursuant to section 2 of this act.

7. This act shall take effect immediately and shall first apply to the first full academic year following the date of enactment.

STATEMENT

This bill requires public institutions of higher education in the State to adopt written policies on freedom of expression. The policy will include reasonable provisions for the time, place, and manner of student freedom of expression. The policy may include limitations on speech that may be defined as profane, harassing, threatening, or intimidating.

Specifically, the bill requires that each public institution of higher education’s policy will provide, among other things, that: the institution will strive to ensure intellectual freedom and free expression; the institution will not shield students from constitutionally protected speech or ideas with which the students may disagree; students and faculty are free to take positions on public issues and that they may engage in expressive activity protected by the constitution in outdoor areas of the campus, with certain exceptions; outdoor areas of the institution’s campus will be a public forum for members of the campus community and invited guests; the institution will be open to any speaker that members of the campus community invite to speak and that the institution will make reasonable efforts to ensure the security of invited speakers; the institution will not permit members of the campus community to materially and substantially disrupt others’ protected expressive activity; the institution may only maintain and enforce reasonable restrictions on student freedom of expression when such restrictions are narrowly tailored to serve a significant institutional interest; the institution will support free association and will not deny a student organization any benefit or privilege available to any other student organization; and the institution will strive to remain neutral on current public policy issues.

The policy will also permit a minimum punishment of one academic term in the event that an individual has twice been determined to have materially and substantially disrupted the expressive rights of other. If a punishment less than a one-term suspension is issued upon a second offense, the institution will submit an explanation in writing to the institution’s Committee on Free Expression within two weeks of the determination to impose the lesser punishment. Under the bill, each public institution of higher education will appoint an independent Committee on Free Expression, which will issue an annual report on the handling of issues related to freedom of expression.

The bill requires each public institution of higher education to submit to the Governor and to the Legislature a report that details the institution’s strategies and actions taken to develop, adopt, and implement the written policy concerning student freedom of expression.

Various states throughout the country have already taken action to protect freedom of expression and free speech on campuses of institutions of higher education. As of January 2019, lawmakers in at least 23 states had introduced or adopted legislation similar to this bill. States that have enacted similar protections include Arizona, Colorado, North Carolina, Tennessee, Utah, and Virginia.