H-3055.2

HOUSE BILL 2488


State of Washington	64th Legislature	2016 Regular Session

By Representatives Manweller, Zeiger, Haler, Van Werven, Parker, Stambaugh, Holy, Rodne, Hargrove, Buys, Magendanz, Hayes, and Scott

Read first time 01/14/16. Referred to Committee on Higher Education.

NEW SECTION. Sec. 1. The legislature finds that free speech is one of the most important values protected by the federal and state Constitutions. The legislature also finds that free expression on the campuses of Washington's public colleges and universities is particularly important for fostering a true marketplace of ideas, where students can be exposed to a variety of ideas and learn tolerance for those ideas with which they disagree. The history of university life has been to introduce students to ideas, concepts, and values they may object to or even be offended by. The legislature finds that speech on Washington's campuses has been chilled by increasing regulations that are not viewpoint neutral. It is the intent of the legislature to afford campus speech the highest level of judicial protection.

(b) The governing board of the institution of higher education may impose content-neutral and viewpoint-neutral time, place, and manner restrictions on the use of the outdoor area of the campus for expressive activities that are necessary to serve a compelling state interest and narrowly drawn to achieve that interest. These restrictions must allow members of the institution community to spontaneously and contemporaneously assemble. In addition, the restrictions must be well-defined and published, at a minimum, on the web site of the institution and as part of any printed materials covering the rules and policies of the institution.

(3) A person who wishes to engage in noncommercial expressive activity on the campus of an institution of higher education 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 orderly operation of the institution.

(4) Nothing in this section may be construed as narrowing a student's rights of expression under the First Amendment to the United States Constitution or Article I, section 5 of the Washington state Constitution.

(5)(a) The attorney general or a person whose rights under this section have been violated may bring an action in a court of competent jurisdiction against the institution of higher education, members of the institution's governing board, deans, chairs, or faculty or staff members.

(ii) For subsequent violations, award the aggrieved person: (A) Compensatory damages of no less than five hundred dollars for the initial violation, plus fifty dollars for each day the violation remains ongoing; (B) reasonable court costs; (C) attorneys' fees, including expert fees; and (D) any other relief in equity or law deemed appropriate.

(c) An action to enforce a right or obligation arising under this section must commence within one year after the cause of action accrues. A cause of action accrues when the section is violated. Each day that a violation of this section persists, and each day that a policy or rule in violation of the section remains in effect, is a new violation of the section, and therefore, another day that a cause of action accrues.

(6) As used in this section, "expression," "expressive activity," or "expressive activities" includes all forms of peaceful assembly, protest, speech, distributing literature, carrying signs, and circulating petitions. The term does not include fighting words, libelous statements, or obscene material, as defined by the United States supreme court.

NEW SECTION. Sec. 3. TRIGGER WARNINGS. (1) An institution of higher education must allow a faculty or staff member to use trigger warnings at the faculty or staff member's discretion.

(2) An institution of higher education may not take, or maintain a policy or rule that allows it to take, punitive action against a faculty or staff member, with respect to tenure, promotion, or disciplinary action, for not using trigger warnings.

(3)(a) A person whose rights under this section have been violated may bring an action in a court of competent jurisdiction against the institution of higher education, members of the institution's governing board, deans, chairs, or faculty or staff members.

(b) If the court finds a violation of this section, the court shall award the aggrieved person: (i) Compensatory damages of no less than five hundred dollars for the initial violation, plus fifty dollars for each day the violation remains ongoing; (ii) reasonable court costs; (iii) attorneys' fees, including expert fees; and (iv) any other relief in equity or law deemed appropriate.

(4) As used in this section, "trigger warning" includes a warning provided by a faculty or staff member in advance of assigning material that contains content that might trigger a difficult emotional response for a student.

NEW SECTION. Sec. 4. MICROAGGRESSIONS. (1) An institution of higher education may not take, or maintain a policy or rule that allows it to take, adverse action against, discipline, or otherwise punish a student or a faculty or staff member for using microaggressions.

(4) As used in this section, "microaggression" includes brief verbal, behavioral, and environmental indignities, whether intentional or unintentional, that are perceived to communicate hostile, derogatory, or negative racial, gender, or sexual orientation, or religious slights and insults to the target person or group.

NEW SECTION. Sec. 5. ACADEMIC FREEDOM AND WHISTLEBLOWER PROTECTION. (1) This section may be known and cited as the academic freedom and whistleblower protection act.

(2) An institution of higher education may not take adverse personnel action, or maintain a policy or rule that allows it to take adverse personnel action, against a faculty or staff member in retaliation for:

(a) Expression related to scholarship, academic research, or teaching, including posts on social media, letters to the editor, personal blogs, and memberships in private organizations; or

(3)(a) An institution of higher education may not take, or maintain a policy or rule that allows it to take, disciplinary action against a student in retaliation for expression or other communication that, when engaged in outside the institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Article I, section 5 of the Washington state Constitution.

(b) An institution of higher education may not take adverse personnel action against a faculty or staff member solely for acting to protect a student engaged in conduct authorized under this section, or for refusing to infringe upon conduct that is protected by this section, section 2 of this act, the First Amendment to the United States Constitution, or Article I, section 5 of the Washington state Constitution.

(4)(a) A person whose rights under this section have been violated may bring an action in a court of competent jurisdiction against the institution of higher education, members of the institution's governing board, deans, chairs, or faculty or staff members.

(b) In an action brought under this section, if the court finds that the protected expression, as defined in subsection (2) or (3) of this section, was a significant motivating factor behind the institution of higher education's decision to take an adverse personnel action against a faculty or staff member or a disciplinary action against a student, the court shall award the aggrieved person: (i) Compensatory damages; (ii) reasonable court costs; (iii) attorneys' fees, including expert fees; (iv) and any other relief in equity or law deemed appropriate, unless the institution demonstrates that it would have taken the same personnel action in the absence of the protected expression.

(c) An action to enforce a right or obligation arising under this section must commence within one year after the cause of action accrues. A cause of action accrues on the date that the aggrieved person receives final notice of discipline from the institution of higher education or the date that the act of retaliation occurs, whichever is later.

(a) "Adverse personnel action" includes dismissal, suspension, discipline, reassignment, transfer, denial of promotion, or other retaliation against a student, or faculty or staff member.

(c) "Faculty" or "faculty member" means a person, whether or not compensated by an institution of higher education, tasked with providing scholarship, academic research, or teaching. The term includes tenured and nontenured professors, adjunct professors, visiting professors, lecturers, graduate student instructors, and those in comparable positions however titled. The term does not include a person whose primary responsibilities are administrative or managerial.

NEW SECTION. Sec. 6. DISCIPLINARY PROCEEDINGS. (1) A student enrolled at an institution of higher education who is accused of a violation of the institution's disciplinary or conduct rules that carries a potential penalty of expulsion has the right to be represented, at the student's expense, by a licensed attorney or, if the student prefers, a nonattorney advocate, who, in either case, may fully participate during the disciplinary proceeding or other procedure adopted and used by the institution. When disciplinary proceedings subject to this section arise from a complaint by a student against another student, the complaining student has the right to be represented, at the student's expense, by a licensed attorney, or, if the student prefers, a nonattorney advocate.

(4) This section does not require an institution of higher education to use formal rules of evidence in a disciplinary proceeding. The institution, however, must make good faith efforts to include relevant evidence and exclude evidence that is neither relevant nor probative.

(5) Before a student may be questioned by an institution of higher education, or by an agent of the institution of higher education, about an allegation of a violation of the institution's disciplinary or conduct rules that carries a potential penalty of expulsion, the institution must advise the student of the student's rights under this section.

(6) Upon discovering exculpatory evidence related to a student under investigation for a violation of the institution's disciplinary or conduct rules that also constitutes a crime under Title 9A RCW, the administration or the law enforcement component of the institution of higher education must immediately notify, in writing, the accused student of the exculpatory evidence.

(7)(a) A student whose rights under this section have been violated may bring an action in a court of competent jurisdiction against the institution of higher education, members of the institution's governing board, deans, chairs, or faculty or staff members.

(b) If the court finds a violation of this section, the court shall award the aggrieved student: (i) Compensatory damages; (ii) reasonable court costs; (iii) attorneys' fees, including expert fees; (iv) monetary damages of not less than the cost of tuition paid by the student, or on the student's behalf, to the institution of higher education for the academic term during which the violation of this section occurred; (v) monetary damages of not less than the amount of any scholarship funding lost as a result of the disciplinary proceeding; and (vi) any other relief in equity or law deemed appropriate including a de novo rehearing at the institution of higher education in accordance with this section.

(c) An action to enforce a right or obligation arising under this section must commence within one year after the cause of action accrues. A cause of action accrues on the date that the student or student organization receives final notice of discipline from the institution of higher education.

(a) "Disciplinary proceeding" includes an investigatory interview or hearing or any other procedure conducted by the institution of higher education relating to the alleged violation that the student or student organization reasonably believes may result in disciplinary action against the student or student organization.

(b) "Fully participate" includes the opportunity to make opening and closing statements, to examine and cross-examine witnesses, and to provide the accuser or accused with support, guidance, and advice.