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 Legislature 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 recognition, registration, the use of facilities for meeting or speaking purposes, the use of channels of communication, and the use of funding sources that otherwise are available to student organizations at a public institution of higher learning.

    (2) "Campus community" means students, student organizations, administrators, faculty and staff at the institution of higher learning and their invited guests.

    (3) "Campus" means a building or real property owned or controlled by a public institution of higher learning within the same reasonably contiguous geographic area and used by the institution in direct support of, or in a manner related to, the institution's educational, research, or public service purposes or functions.

    (4) "Student-on-student 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.

    (5) "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) initiating measures designed to prohibit the transmission of a person's or group's message;

       (c) 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" does not include lawful actions of law enforcement or the institution's employees or agents taken to protect persons or property, to enforce the law or lawful policies, or to address a violation of the law, nor does it include conduct protected under the First Amendment to the United States Constitution or the Constitution of this State. This protected conduct includes, but is not limited to:

           (i) lawful protests in the outdoor areas of campus generally accessible to members of the public, except during times when those areas have been reserved in advance for other events; or

           (ii) minor, brief, or fleeting nonviolent disruptions of events that are isolated and short in duration.

    (6) "Outdoor area of campus" means generally accessible outside areas of campus where members of the campus community are commonly allowed, including grassy areas, walkways, or other similar common areas, but specifically excluding outdoor areas where access is restricted to a majority of the campus community.

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

    (8) "Student" means a person who is currently enrolled in a public institution of higher learning, or who is accepted for admission or readmission to the institution, or who has been enrolled at the institution in a prior semester or summer session and is eligible to continue enrollment in the semester or summer session that immediately follows, or who is attending an educational program sponsored by the institution while that person is on campus.

    (9) "Student organization" means an officially recognized group at a public institution of higher learning or a group seeking official recognition, comprised of admitted students that receive, or are seeking to receive, benefits through the institution of higher learning.

 

    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 peaceful assembly, peaceful protests, speeches, guest speakers, literature distribution, sign carrying, and petition circulation.

 

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

 

    Section 59-148-140.  A public institution of higher education may charge security fees to a student or student group as part of an application for those expressive activities that require a permit, provided that no public institution of higher education shall charge security fees to a student or a student group based on the content of their expression, the content of the expression of their invited guest, or the anticipated reaction to the student's, student group's, or invited guest's expression. Whether the security fee is required and its amount may only be determined on the basis of content-neutral and viewpoint-neutral criteria. Examples of content-neutral and viewpoint-neutral criteria include the time of the event, the location of the event, the anticipated size of the invited audience, and whether alcohol will be served. Any public institution of higher education charging security fees pursuant to this section must publish the criteria it uses for assessing those charges.

 

    Section 59-148-150.  (A) A public institution of higher learning may not deny any religious, political, or ideological student organization a benefit or privilege available to another student organization, or otherwise discriminate against such an organization, based on the content or viewpoint of the beliefs or expression of the organization, including a requirement that the leaders or members of the 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 self-defined mission or purpose.

    (B) Nothing in this section may be interpreted as preventing public institutions of higher learning from prohibiting, limiting, or restricting expression that the First Amendment does not protect or prohibiting unlawful student-on-student harassment.

 

    Section 59-148-160.  (A) A public institution of higher learning shall make its policies, regulations, and expectations of students regarding free expression on campus consistent with this chapter available publicly in its handbooks, on its website, and in its student orientation programs.

    (B) A public institution of higher learning 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 the institution regarding free expression on campus, consistent with this chapter.

 

    Section 59-148-170.  (A) A public institution of higher learning annually, before January fifteenth, shall prepare and publicly post on its website, as well as submit to the Commission on Higher Education, a report of the previous calendar year which details the course of action implemented to comply with the requirements of this chapter. The Commission of Higher Education shall develop the format for the report. The institution also shall report any changes or updates to the chosen course of action.

    (B) The information in the report must be:

       (1) accessible from the respective internet website home pages of the institution and the Commission on Higher Education by use of no 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.

    (C) The contents of the report must include:

       (1) a description of any barriers to or incidents of disruption of free expression occurring on campus that were reported to the institution by students, faculty, or staff including, but not limited to, attempts to block or prohibit speakers and investigations into students or student organizations for their speech, with this description to include the nature of each barrier or incident and what disciplinary action, if any, was taken against responsible students who were members of the campus community. This description may not reveal personally identifiable information of those students; and

       (2) other information each institution 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.

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

 

    Section 59-148-180.  (A) A person or student organization aggrieved by a violation of this chapter may bring an action against the public institution of higher learning and any other officials acting in their official capacities who are responsible for the violation and seek appropriate relief including, but not limited to, injunctive relief, monetary damages, reasonable attorney's fees, and court costs. A person or student organization who is aggrieved by a provision of this chapter may assert such violation as a defense or counter claim in a disciplinary action or in a civil or administrative proceeding brought against the student or student organization.

    (B) The provisions of this section may not be construed to limit any other remedies available to a person or student organization aggrieved by a violation of this chapter.

 

    Section 59-148-190.  A person may bring suit for a violation of this chapter 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 violation of this chapter and a new day that the cause of action has accrued.

 

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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