State of South Dakota NINETY-FOURTH SESSION LEGISLATIVE ASSEMBLY, 2019 348B0336 HOUSE BILL NO. 1087 Introduced by: Representatives Peterson (Sue), Haugaard, and Qualm and Senators Stalzer, Greenfield (Brock), Langer, and Maher 1 2 FOR AN ACT ENTITLED, An Act to promote intellectual diversity at certain institutions of higher education. 3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 4 Section 1. That chapter 13-53 be amended by adding a NEW SECTION to read: 5 As used in sections 2 to 10, inclusive, of this Act, the term: 6 (1) "Benefit," means: 7 (a) Recognition; 8 (b) Registration; 9 (c) The use of facilities at a public institution of higher education for assemblies, 10 gatherings, meetings, or speaking purposes; 11 (d) The use of channels of communication; and 12 (e) Funding sources that are available to student associations at a public 13 14 15 institution of higher education; (2) "Free expression," includes the right to discuss and present scholarly opinions and conclusions on all matters, within the boundaries of a public institution of higher 100 copies were printed on recycled paper by the South Dakota Legislative Research Council at a cost of $.167 per page. v Insertions into existing statutes are indicated by underscores. Deletions from existing statutes are indicated by overstrikes. -2- HB 1087 1 education, whether outdoors or indoors, without fear of institutional discipline or 2 restraint, and the right to speak and write on matters of public concern, as a member 3 of the institution's administration, faculty, other staff, and student body, or as a 4 private citizen; 5 (3) 6 7 8 9 "Institution of higher education," means a public degree-granting institution under the control of the Board of Regents; (4) "Intellectual diversity," means a learning environment that exposes students to and encourages exploration regarding a variety of ideological and political perspectives. Section 2. That chapter 13-53 be amended by adding a NEW SECTION to read: 10 Except as otherwise provided, expressive activity is protected under this section and sections 11 3 to 10 of this Act, inclusive. Expressive activity includes any lawful verbal or written means 12 by which one person communicates ideas to another, and includes peaceful assembly, protests, 13 speeches, including by guest speakers, the distribution of literature, the carrying of signs, and 14 the circulation of petitions. 15 Section 3. That chapter 13-53 be amended by adding a NEW SECTION to read: 16 Any outdoor area within the boundaries of a public institution of higher education 17 constitutes a public forum for the benefit of students, faculty, administrators, other employees, 18 and their invited guests, unless access to the area is commonly restricted. 19 A public institution of higher education may maintain and enforce reasonable restrictions 20 regarding use of an outdoor area, including the time, place, and manner in which expressive 21 activities may occur, provided the restrictions are clear, published, include viewpoint-neutral 22 criteria, and provide an alternative means of expression. 23 A restriction under this section may not prohibit or limit students, faculty, administrators, 24 other employees, or their invited guests, from spontaneously and contemporaneously -31 2 3 HB 1087 assembling, distributing literature, or engaging in both activities. Nothing in this section limits the right of a student to engage in an expressive activity elsewhere within the boundaries of the institution. 4 Section 4. That chapter 13-53 be amended by adding a NEW SECTION to read: 5 A person may engage in noncommercial expressive activity, as described in section 2 of this 6 Act, within the boundaries of a public institution of higher education, whether outdoors or 7 indoors, provided the person's conduct is not unlawful and that the person's conduct does not 8 materially or substantially disrupt the functioning of the institution. 9 An institution may maintain and enforce reasonable restrictions on the time, place, and 10 manner in which expressive activities may occur, in accordance with this section, provided the 11 restrictions are clear, published, include viewpoint-neutral criteria, and provide an alternative 12 means of expression. 13 A restriction under this section may not prohibit or limit students, faculty, administrators, 14 other employees, and their invited guests from spontaneously and contemporaneously 15 assembling, distributing literature, or engaging in both activities. 16 Nothing in this section prevents an institution from prohibiting, limiting, or restricting 17 expression that is not protected under the First Amendment to the United States Constitution, 18 including a true threat or any expression intended to provoke and likely to produce imminent 19 lawless action. 20 Nothing in this section prevents a public institution of higher education from prohibiting 21 expression that is unwelcome, so severe, pervasive, and subjectively and objectively offensive 22 that a student is effectively denied equal access to educational opportunities or benefits provided 23 by the institution. 24 Nothing in this section authorizes an individual or a group to engage in conduct that -4- HB 1087 1 intentionally, materially, and substantially disrupts another's expressive activity, provided the 2 expressive activity is occurring in a location within the boundaries of the institution that is 3 reserved for the activity and is under the exclusive use or control of the particular individual or 4 group. 5 Section 5. That chapter 13-53 be amended by adding a NEW SECTION to read: 6 A public institution of higher education may not: 7 (1) 8 9 privilege available to any other student organization; (2) 10 11 Deny an ideological, political, or religious student organization any benefit or Discriminate against an ideological, political, or religious student organization based on the expression of the organization; or (3) Require that either the leaders of the ideological, political, or religious student 12 organization, the members of the organization, or both: 13 (a) Affirm and adhere to the organization's sincerely held beliefs; 14 (b) Comply with the organization's standards of conduct; or 15 (c) Further the organization's mission or purpose, as defined by the organization. 16 Section 6. That chapter 13-53 be amended by adding a NEW SECTION to read: 17 Each public institution of higher education shall include in the institution's handbooks, 18 publish on the institution's website, and include in any student orientation programs all policies, 19 rules, and expectations of students with respect to free expression and expressive activity within 20 the boundaries of the institution. 21 Section 7. That chapter 13-53 be amended by adding a NEW SECTION to read: 22 Each public institution of higher education shall, through the development of materials, 23 programs, procedures, and protocols, ensure that administrators, faculty, and other employees, 24 including campus security personnel and residence life officials, are apprised of the institution's -5- HB 1087 1 policies, rules, and expectations, with respect to free expression and expressive activity within 2 the boundaries of the institution. 3 Section 8. That chapter 13-53 be amended by adding a NEW SECTION to read: 4 On or before January first of each year, each public institution of higher education shall 5 prepare a report that sets forth all actions taken by the institution to promote and ensure 6 intellectual diversity and the free exchange of ideas, and to otherwise comply with this Act. The 7 institution shall also: 8 (1) 9 Describe in the report any barriers to free expression within the boundaries of the institution or any incidents in which free expression was disrupted, and include: 10 (a) Any attempts to block or prohibit a speaker; 11 (b) Any investigation into students or student organizations based on their speech; 12 and 13 (c) Any disciplinary action that resulted from an incident, provided that any 14 description of an incident involving a student may not include or reveal the 15 student's personally identifiable information; 16 (2) 17 Post the report on the institution's website, in a manner that is readily accessible and clearly defined using a separately identified tab on the website's navigation bar; 18 (3) Make the report searchable by the use of keywords and phrases; 19 (4) Make the report accessible without requiring registration, a user name, a password, 20 21 or any other identifier; (5) 22 23 24 Provide a copy of each report to the Governor, the Board of Regents, and to each member of the Legislature; and (6) If subjected to legal action resulting from an alleged violation of the First Amendment, provide a revised report together with a copy of any complaint or -6- HB 1087 1 amended complaint to the Governor and the members of the Legislature within thirty 2 days. 3 Section 9. That chapter 13-53 be amended by adding a NEW SECTION to read: 4 The Board of Regents shall by policy require each institution under its control to maintain 5 a commitment to the principles of free expression and encourage the timely and rational 6 discussion of topics that promote the ethical and intellectual development and intellectual 7 diversity of students enrolled in the institutions. 8 The policy required by this section shall: 9 (1) Recognize the right of administrators, faculty, other staff, and students to discuss any 10 problem or issue that presents itself, even if there are varying perspectives regarding 11 the problem or issue and even if the problem or issue conflicts with the institution's 12 values and principles; 13 (2) Recognize that an individual should not be institutionally shielded from a viewpoint 14 that the individual finds to be unwelcome, disagreeable, or offensive, provided the 15 viewpoint is shared in a manner that evidences civility and mutual respect; 16 (3) Recognize that the right to engage in free expression is constitutionally protected; 17 (4) Recognize that encouraging intellectual diversity and fostering the ability of the 18 administrators, faculty, other staff, and students to engage in debate and deliberation 19 in an effective and responsible manner is an essential part of each institution's 20 educational mission; 21 (5) Recognize that while administrators, faculty, other employees, and students are free 22 to criticize and contest views expressed within the boundaries of an institution, and 23 to criticize and contest speakers who are invited to the institution, administrators, 24 faculty, other employees, and students may not obstruct or otherwise interfere with -71 2 HB 1087 the conduct of the institution or the freedom of others to express views; (6) Permit the maintenance and enforcement of reasonable restrictions on the time, place, 3 and manner in which expressive activities may occur, as provided for in sections 3 4 and 4 of this Act; and 5 (7) Permit the restriction of expression that: 6 (a) Violates the law; 7 (b) Falsely defames an individual; 8 (c) Constitutes a genuine threat; 9 (d) Constitutes harassment; 10 (e) Unjustifiably invades privacy or confidentiality interests; or 11 (f) Is otherwise directly incompatible with the functioning of the institution. 12 Section 10. That chapter 13-53 be amended by adding a NEW SECTION to read: 13 The Board of Regents shall implement a policy that offers equal opportunities in 14 employment, as required by law, to all persons qualified by academic preparation, experience, 15 and ability, without discrimination based on intellectual diversity. 16 Section 11. That chapter 13-53 be amended by adding a NEW SECTION to read: 17 Any student graduating after January 1, 2020, with a baccalaureate degree from a public 18 institution of higher education under the control of the Board of Regents shall, as a condition 19 of graduation, demonstrate the successful completion of three credits in the area of United States 20 history and three credits in the area of United States government. 21 Section 12. That chapter 13-53 be amended by adding a NEW SECTION to read: 22 For purposes of this section, the term, civics test, means the one hundred questions that, as 23 of January 1, 2019, officers of the United States citizenship and immigration services use as the 24 basis for selecting the questions posed to applicants for naturalization, in order that the -8- HB 1087 1 applicants can demonstrate a knowledge and understanding of the fundamentals of United States 2 history and the principles and form of United States government, as required by 8 U.S.C. 3 ยง 1423. 4 Any student graduating after January 1, 2020, with a baccalaureate degree from a public 5 institution of higher education under the control of the Board of Regents shall, as a condition 6 of graduation, correctly answer at least eighty-five percent of the questions on the civics test. 7 The Board of Regents shall provide for the administration of the civics test at each 8 applicable institution and shall, upon request, provide to the person administering the civics test 9 the correct answer or acceptable answers to each question. 10 A student may take the test, in whole or in part, at any time after enrolling at an institution 11 of higher education and may repeat the test, as often as necessary, to achieve the required 12 percentage of correct answers. 13 14 Neither the Board of Regents nor any public institution of higher education may impose or collect any fees or charges in connection with this section.