Arizona Passes New Law to Bolster Campus Free Speech

by Ballard Spahr LLP
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In the midst of heightened political activism among students and employees at academic institutions across the nation, Arizona has enacted legislation designed to protect free speech on its college campuses.

Late last month, Governor Doug Ducey signed House Bill 2563 (HB 2563) into law "to reaffirm to all of our college campus communities that we should continue to preserve the First Amendment rights of faculty, staff and students."

The new law expands upon Arizona's legislative efforts over the past seven years to protect students' First Amendment rights by prohibiting restrictive speech violations and protecting freedom of association. It encourages constructive debate, diversity of thought, and free speech on university and community college campuses.

Generally, the law confirms that any restriction on speech should be "content-neutral," allowing only reasonable time, place and manner restrictions but not any limitations on the position or type of message conveyed if such speech is protected under the First Amendment.

Specifically, the law clarifies that public areas of a campus are public forums that are open not only to students, institutional faculty members, and employees, but also to "any speaker whom a student, student group, or faculty member has invited."

Furthermore, HB 2563 permits any person lawfully present on a public campus to protest or demonstrate there. It also prohibits any individual from engaging in conduct that materially and substantially infringes on the rights of other persons to engage in or listen to expressive activity.

To help advance the goals of HB 2563, universities and community colleges are required to make reasonable efforts, and make available reasonable resources, to address the safety of the invited speaker and attendees. But they cannot charge "security fees" based on the content of the speech.

To strengthen free speech protections, HB 2563 gives students, faculty and staff members the right to take any position on public policy controversies. The law also bars universities and community colleges from requiring their students and institutional employees to express or endorse publicly any particular point of view. The schools are encouraged to remain neutral regarding any public policy controversies unless administrative decisions on such issues are essential to the day-to-day functioning of the institution.

HB 2563 imposes new mandates on the Arizona Board of Regents and community college district governing boards. In particular, they must develop and adopt a policy on free expression that contains certain statements emphasizing that an academic institution should promote the discovery and dissemination of knowledge, not shield individuals from unwelcome or deeply offensive ideas and opinions, and present opportunities for open dialogue within the parameters of the First Amendment.

Further, these policies must establish a range of disciplinary actions for students that engage in conduct that materially and substantially infringes on the right of other persons to engage in or listen to expressive activities. The law provides mandatory procedures for this disciplinary process to ensure due process (e.g., advance written notice of allegations, right to present a defense, and right to appeal) and recognizes that suspension or expulsion may be appropriate for repeat offenders.

Under HB 2563, the Arizona Board of Regents and each community college district governing board are required to establish committees on free expression that must submit annual reports to the Governor and legislature regarding free expression issues on their campuses. The annual reports must include the following:

  • descriptions of any barriers to free expression;

  • descriptions of any administrative handling or discipline related to free expression;

  • descriptions of any difficulties of the institutions in remaining neutral on public policy controversies;

  • any assessments or recommendations of the committee; and

  • accounting of how student activity fees were allocated in support of activities concerning expression.

Arizona's enactment of HB 2563 may encourage other states to pass similar legislation bolstering free speech and fostering safe public discourse at academic institutions nationwide.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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