PRINTER'S NO. 138
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
179
Session of
2023
INTRODUCED BY D'ORSIE, GLEIM, JAMES, HAMM, M. JONES, ROWE,
LEADBETER, ZIMMERMAN, KEEFER AND SCIALABBA, MARCH 8, 2023
REFERRED TO COMMITTEE ON EDUCATION, MARCH 8, 2023
AN ACT
Amending the act of March 10, 1949 (P.L.30, No.14), entitled "An
act relating to the public school system, including certain
provisions applicable as well to private and parochial
schools; amending, revising, consolidating and changing the
laws relating thereto," providing for free speech in higher
education.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The act of March 10, 1949 (P.L.30, No.14), known
as the Public School Code of 1949, is amended by adding an
article to read:
ARTICLE XX-L
FREE SPEECH IN HIGHER EDUCATION
Section 2001-L. Definitions.
The following words and phrases when used in this article
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Benefit." A privilege granted to a student organization,
including the use of a facility, the use of a channel of
communication or a funding source that is available to all
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student organizations at a public institution of higher
education.
"Bias reporting system." The formal or explicit process for
the reporting or solicitation of a bias incident from a campus
community member concerning offensive or unwanted speech,
including satire or speech labeled as a microaggression,
regardless of whether the speech occurs on or off the campus of
a public institution of higher education.
"Campus community member." Any student, student
organization, administrator, faculty member, staff member or
invited guest at a public institution of higher education.
"Invited guest." An invited guest of any student, student
organization, administrator, faculty member or staff member at a
public institution of higher education.
"Protected expressive activity." An expression of speech by
a campus community member that is protected by Federal or State
law, including speech pertaining to an opinion or a political
belief or affiliation, through the use of verbal, written,
audio-visual or electronic means to communicate an idea to
another, regardless of whether the expression occurs on or off
the campus of a public institution of higher education. The term
includes a form of peaceful assembly, a protest, a speech, a
guest speaker, the distribution of literature, carrying a sign
or circulating a petition.
"Public institution of higher education." Any of the
following:
(1) A community college operating under Article XIX-A.
(2) A rural regional college established under Article
XIX-G.
(3) A university within the State System of Higher
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Education under Article XX-A.
(4) A State-related institution as defined in section
2001-C.
(5) The Thaddeus Stevens College of Technology.
(6) The Pennsylvania College of Technology.
"Quid pro quo sexual harassment." Explicitly or implicitly
conditioning a student's participation in an education program
or activity or basing an educational decision on the student's
submission to unwelcome sexual advances, requests for sexual
favors or other verbal, nonverbal or physical conduct of a
sexual nature.
"Student." An individual who is enrolled on a full-time or
part-time basis as an undergraduate or graduate student in a
public institution of higher education.
"Student-on-student harassment." Conduct directed by a
student or student organization toward another student or
student organization that is so unwelcome, severe, pervasive and
subjectively and objectively offensive that the student or
student organization is effectively denied equal access to an
educational opportunity or benefit provided by a public
institution of higher education.
"Student organization." Any of the following:
(1) An officially recognized group, comprised of
students, at a public institution of higher education.
(2) A group seeking official recognition that receives,
or is seeking to receive, a benefit.
"True threat." A statement by a speaker that communicates a
serious expression of an intent to commit an act of violence
against a particular individual or group of individuals.
Section 2002-L. Prohibition on bias reporting system.
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A public institution of higher education may not establish,
maintain or otherwise implement a bias reporting system.
Section 2003-L. Prohibition on punishment for protected speech.
A public institution of higher education may not investigate,
threaten disciplinary action or otherwise punish a campus
community member for a protected expressive activity.
Section 2004-L. Establishment of student-on-student harassment
policy.
A public institution of higher education shall establish and
maintain a policy that prohibits student-on-student harassment.
The public institution of higher education may not threaten
disciplinary action or otherwise punish a student or student
organization's expression as student-on-student harassment if
the expression does not constitute student-on-student
harassment.
Section 2005-L. Prohibition on excessive security fee.
A public institution of higher education may not charge a
security fee in excess of the standard fee to secure an event
for a student or student organization based on any of the
following:
(1) The content of the student or student organization's
expression.
(2) The content of an invited guest's expression.
(3) The anticipated reaction to an invited guest's
expression.
Section 2006-L. Construction.
Nothing in this article shall be construed to prevent a
public institution of higher education from doing any of the
following:
(1) Investigating or soliciting information about
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potentially illegal speech, speech associated with a
potentially illegal activity or an incident when protected
expressive activity may have been potentially curtailed.
(2) Imposing a reasonable time, place and manner
restriction on a protected expressive activity that is
narrowly tailored to serve a significant institutional
interest.
(3) Restricting speech that is not protected by the
First Amendment to the Constitution of the United States,
including:
(i) A violation of Federal or State law.
(ii) An expression that a court has deemed
unprotected defamation.
(iii) Student-on-student harassment.
(iv) Quid pro quo sexual harassment.
(v) A true threat.
(vi) An unjustifiable invasion of privacy or
confidentiality not involving a matter of public concern.
Section 2007-L. Remedies.
(a) Actions.--A current or former campus community member
aggrieved by a violation of this article may bring an action in
a court of competent jurisdiction to enjoin a violation of this
article or to seek appropriate relief, including reasonable
court costs, reasonable attorney fees and actual damages.
(b) Awards.--If a court finds that a current or former
campus community member is aggrieved by a violation of this
article, the court shall award the aggrieved person damages of
at least $5,000, or actual damages, whichever is greater.
(c) Defenses or counterclaims.--A current or former campus
community member aggrieved by a violation of this article may
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assert the violation as a defense or counterclaim in a
disciplinary action or in a civil or administrative proceeding
involving the current or former campus community member.
(d) Limitations.--A current or former campus community
member shall bring an action for a violation of this article
within one year after the date the cause of action accrues. For
the purpose of calculating the one-year limitation period, each
day that the violation persists, or each day that a policy in
violation of this article remains in effect, constitutes a new
violation of this article and shall be considered a day that the
cause of action has accrued.
(e) Immunity.--A public institution of higher education that
violates this article shall not be immune from suit or liability
for the violation.
(f) Construction.--Nothing in this article shall be
interpreted to limit other remedies available to a current or
former campus community member.
Section 2. This act shall take effect in 60 days.
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