Under existing law, there are 4 segments of higher education in this state. These segments are the University of California, the California State University, the California Community Colleges, and independent institutions of higher education.

This bill would express the intent of the Legislature to enact legislation relating to postsecondary education in this state.

Date of Hearing: April 18, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2374

Author:(Kiley) – As Amended Ver:March 15, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY: This bill requires the California State University (CSU) and the California Community Colleges (CCC), and requests the University of California (UC), to make and disseminate free speech statements and offer supplemental educational materials and programs.

FISCAL EFFECT:

Minor and likely absorbable costs to CSU, CCC, and UC to write free speech statements. Potentially significant General Fund cost pressures to institutions to provide supplemental materials and programming about free speech to students. Campuses could interpret this bill broadly to include reference to free speech policies during student orientation, which would be less expensive, to providing in depth educational programming, which would be more expensive. CSU and UC would absorb any additional costs. The state would need to reimburse these costs for CCC, were the Commission on State Mandates to find these requirements to be a reimbursable state mandate.

COMMENTS:

Background. CCCs already are required to adopt rules and regulations relating to the exercise of free speech. CSU has developed a handbook on free speech policies and most UC campuses have free speech statements and policies, most of which are accessible on campus websites. It is unclear how many campuses provide supplemental programming to inform students of their free speech rights.

Related Legislation. ACR 21 (Kiley), Resolution Chapter 103, Statutes of 2017, urged all private and public universities in California to consider free speech statements that are consistent with specified principles to be a model for developing and adopting free speech statements.

Analysis Prepared by: Natasha Collins / APPR. / (916) 319-2081

Date of Hearing: April 10, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2374

Author:(Kiley and Quirk) – As Amended Ver:March 15, 2018

PROPOSED CONSENT

SUBJECT: Postsecondary education: Free Speech on Campus Act of 2018

KEY ISSUE:  Should california's Public colleges and universities make and disseminate statements affirming the importance of free expression and develop educational materials and programs that supplement these statements?

SYNOPSIS

This bill is one of several recent measures that have come before this Committee that address the issue of free speech on college campuses.  These measures have ranged from uncontroversial resolutions merely affirming the value of free expression, to constitutional amendments that would impose highly prescriptive campus free speech policies.  This bill falls somewhere in between.  It sets forth findings and declarations highlighting the importance of freedom of expression and the role of universities, in particular, in facilitating the free and unfettered expression of ideas.  The substantive part of the bill requires the California State University and the California Community Colleges – and requests the University of California – to make and disseminate free speech statements affirming each campus's commitment to protecting and promoting freedom of expression.  The statement must include assurances that students and controversial speakers will be protected from exclusionary behavior that impinges upon freedom of expression.  In addition, this bill requires campuses to supplement these statements with educational material, including online resources, and to develop educational programs on free speech as part of student orientation or in other appropriate settings.  The bill is supported by the University of California, the AMCHA Initiative, and the Slavic-American Chamber of Commerce.  The bill is also supported by Boalt Law School Dean, Erwin Chemerinsky, and U.C. Chancellor, Howard Gillman, in their individual capacities.  Chemerinsky and Gillman co-authored Free Speech on Campus, a 2017 book that examines the tension between a commitment to free expression, on the one hand, and to civil discourse and safe and inclusive learning environments, on the other hand.  There is no known opposition to this measure.

SUMMARY:  Requires the California State University and the California Community Colleges, and requests the University of California, to make and disseminate free speech statements and offer supplemental educational materials and programs.  Specifically, this bill: 

1. Makes findings and declarations about the centrality of freedom of expression in our constitutional democracy, in general, and about the importance of the free and unfettered exchange of ideas on college campuses, in particular.  Notes the potential threats to freedom of expression when controversial speakers are prevented from speaking on college campuses.
2. Requires a campus of the California Community Colleges or the California State University, and requests a campus of the University of California, to do all of the following:
   1. Make and disseminate a free speech statement that affirms the importance of, and the campus's commitment to, freedom of expression.  Specifies that the statement shall include assurances that students and controversial speakers will be protected from exclusionary behavior that violates freedom of expression.
   2. Supplements the statements described above with educational programs and materials, including online sources, which may be part of student orientation or delivered in another setting where it will effectively reach students.  Specifies that the programming shall include descriptions of free speech policies and protocols, encourage the expression of a wide range of views in a productive and respectful manner, and inculcate an understanding of the First Amendment and its role in supporting the academic mission of the campus.

EXISTING LAW: 

1. Prohibits governments from adopting any law or policy abridging the freedom of speech, or of the press, or of the right of the people to peaceably assemble, and to petition the Government for redress of grievances.  (United States Constitution, Amendments I and XIV.)
2. Provides that every person may freely speak, write, and publish his or her sentiments on all subjects, being responsible for the abuse of this right, and prohibits any law that restrains or abridges liberty of speech or press.  (California Constitution, Article I, Section 2.)
3. Requires the governing board of a community college district to adopt rules and regulations relating to the exercise of free expression by students upon the premises of each community college maintained by the district, which shall include reasonable provisions for the time, place, and manner of conducting such activities.  (Education Code Section 76120.)

FISCAL EFFECT:  As currently in print this bill is keyed fiscal.

COMMENTS:  Between February and September of 2017, the campus of the University of California at Berkeley became the site of disruptive and sometimes violent clashes over events featuring controversial speakers, on occasion leading to the cancelation of speaking events.  Not surprisingly, such unfortunate results have been criticized by free speech advocates across the political spectrum.  In addition, these events have created a dilemma for administrators at our public campuses: on the one hand, universities, even more than other public spaces, should welcome the free and robust exchange of controversial ideas; on the other hand, campus administrators have an obligation to ensure that such events do not disrupt core educational functions or endanger students, faculty, staff, or campus visitors.  Contests over the parameters of free expression on colleges campuses – especially when that expression has been at odds with our state's values of tolerance and inclusivity – has resulted in a number of measures before this Committee in the past two years.  Last year this Committee heard ACR 21 (Res. Chap. 103, Stats. 2017) which urged all public and private colleges in California to consider adopting "model" free speech statements.  Earlier this year, the Committee passed HR 63 (Gallagher), which urged California colleges to condemn groups that use violence and intimidation in an effort to silence opposing viewpoints.  Other bills introduced in the 2017-2018 session include ACA 14 (Melendez, 2017), AB 2081 (Melendez, 2018), SB 472 (Neilsen, 2017), SB 1381 (Neilsen, 2018), and SB 1388 (Anderson, 2018).  All of these measures, in various ways, seek to promote the development of campus free speech policies that would ensure the expression of a variety of political views, no matter how controversial. 

This modest bill sets forth findings and declarations highlighting the importance of freedom of expression and the role of universities, in particular, in facilitating the free and unfettered expression of ideas.  The substantive part of the bill requires the California State University and the California Community Colleges – and requests the University of California – to make and disseminate free speech statements affirming each campus's commitment to protecting and promoting freedom of expression.  The statement must include assurances that students and controversial speakers will be protected from exclusionary behavior that impinges upon freedom of expression.  In addition, this bill requires campuses to supplement these statements with educational material, including online resources, and with educational programs on free speech as part of student orientation, or at some other time as determined by the campus. 

Community colleges are already required to adopt rules and regulations relating to the exercise of free speech.  The California State University has developed a handbook on free speech policies and most, if not all, of the individual campuses of the University of California appear to have free speech statements and policies, most of which are accessible on the campus website.  It is not clear how many of California's public colleges, if any, provide educational programs for all students, whether as a standard part of student orientation or in some other manner.  Regardless of whatever policies a college may adopt, those polices are only valid to the extent that they conform to the requirements of the First Amendment.

Free Expression, Hate Speech, and College Campuses.  On October 3, 2017, the California Senate Judiciary Committee held an informational hearing entitled, "Combatting Hate While Protecting the Constitution," which focused to a large extent on recent clashes between "hate groups" and counter-protestors, and the extent to which state or government agencies, including public colleges and universities, could constitutionally limit hate speech.  The conclusion of its key witness, Professor Erwin Chemerinsky – Dean of the UC Berkeley Law School and one of the nation's preeminent constitutional scholars – appeared to be that, while colleges may impose reasonable and content-neutral time, place, and manner restrictions, they must nonetheless tolerate speech, no matter how hateful or offensive others might find it.  Only where speech rises to the level of a "true threat," unlawful "harassment," or is likely to incite imminent violence can the state suppress or limit that speech.  Professor Chemerinsky also noted that older doctrines, such as the "fighting words" doctrine, which might seem a useful tool for limiting highly offensive and deliberately provocative speech, has largely fallen into disuse.  The "fighting words" doctrine generally only applies when words are directed to a particular individual and calculated to provoke a violent response.  Professor Chemerinsky also pointed out that public campuses are without question public forums, where First Amendment speech rights have generally been afforded maximum protection. 

Professor Chemerinsky and Howard Gillman, Chancellor of the University of California, recently co-authored a book entitled Free Speech on Campus (New Haven: Yale University Press, 2017).  This book acknowledges the genuine dilemma confronted by college administrators who must simultaneously protect freedom of expression as well as the safety of students, staff, faculty, and campus visitors.  The events in Berkeley – which costs the University nearly $4 million in extra security costs last year – exposed just how difficult, and expensive, this balancing act can be.  While Chemerinsky and Gillman argued that colleges must provide supportive learning environments for an increasingly diverse student body, colleges at the same time are constitutionally limited in their ability to prohibit offensive speech, or even "hate speech," however one might define that term.

Notably, both Chemerinsky and Gilman have written letters, as individuals, in support of this bill.  Consistent with the dilemma identified by these authors, this bill seeks to promote free, lively, and robust expression, while at the same time urging educational programs that teach and encourage expression of a wide range of views "in a productive and respectful manner."  If Professors Chemerinsky and Gillman are correct, no one should expect this to be easy.

ARGUMENTS IN SUPPORT:  According to the authors, "Freedom of speech is at the foundation of our democracy, and universities should be lively environments where First Amendment freedoms flourish."  To serve this purpose "it is important that students have an understanding of free speech, and how it relates to our nation."  The authors believe that AB 2374 will accomplish this objective by requiring colleges "to make and disseminate a free speech statement that affirms the importance of freedom of expression and the University's commitment to promoting it." 

The University of California (UC) writes that it is "committed to assuring that all persons may exercise constitutionally protected rights of free expression, speech, assembly, and worship."  UC believes that "AB 2374 provides statutory recognition of the importance of free speech with respect to the educational and public service missions of California's public higher education segments."

AMCHA Initiative, a nonprofit group that seeks to combat anti-Semitism on college campuses, believes this measure is needed in order to counter "an uptick in profoundly intolerant behavior [on California campuses] that aims to prevent some individuals and groups from expressing their opinions, beliefs or identity, and/or fully participating in campus life."  AMCHA supports this measure not only because it calls upon public colleges in California to adopt and commit to free speech principles, but also because it "prioritizes the importance of developing educational programs."  AMCHA believes that we "must help students recognize and avoid intolerant behavior, teach and encourage students to express their diverse views in a productive and respectful manner, and foster a tolerance and appreciation of diverse opinions and identifies."

Related Pending And Recent Legislation.  AB 2081 (Melendez, 2018) would have established the Campus Free Speech Act, which would, among other things, require colleges in California to adopt policies on free expression that contain specified components, including freshman orientation programs describing the institutions' polices on free expression.  The Act would have made colleges that did not comply with the bill's provision ineligible for Cal Grants.  Failed, Assembly Higher Education Committee.

HR 63 (Gallagher, 2018) urges public colleges in California to condemn the use of violence or intimidation to prevent free expression of opposing viewpoints, and urges California's public colleges to secure the rights of individuals to free speech and to take actions to ensure that violence and intimidation are not used to suppress the free speech of others.  Passed Assembly Judiciary Committee 10-0; adopted by Assembly on April, 2, 2018.

ACA 14 (Melendez, 2017), as a constitutional amendment, would have established the Campus Free Speech Act, which, among other things, required the appropriate governing body of each higher education institution to develop and adopt a policy on free expression that contains specified components.  The proposed amendment was virtually identical to AB 2081, described above.  Died, Assembly Judiciary Committee.

ACR 21 (Kiley) urges all private and public universities in California to adopt free speech statements consistent with the principles articulated by the Chancellor of the UC Irvine, and the Free Expression Statement formally adopted by The University of Chicago.  Res. Ch. 103, Stats. 2017.

REGISTERED SUPPORT / OPPOSITION:

Support

AMCHA Initiative

Slavic-American Chamber of Commerce

University of California

Erwin Chemerinsky, Dean, U.C. Berkeley School of Law (as an individual)

Howard Gilman, Chancellor, University of California (as an individual)

Opposition

None on file

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334

Date of Hearing: April 3, 2018

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Jose Medina, Chair

ABPCA Bill Id:AB 2374 (

Author:Kiley and Quirk) – As Amended Ver:March 15, 2018

[Note: This bill is doubled referred to the Assembly Judiciary Committee and will be heard by that Committee as it relates to issues under its jurisdiction.]

SUBJECT: Postsecondary education: Free Speech on Campus Act of 2018.

SUMMARY: Requires a campus of the California Community Colleges (CCC) or the California State University (CSU), and requests a campus of the University of California (UC), to make and disseminate a free speech statement that affirms the importance of, and the campus’s commitment to promoting, freedom of expression; specifies that the statement be supplemented with educational programing, including, but not limited to, online resources, part of student orientation or classroom instruction, or delivered in another setting where it will effectively reach students. Specifically, this bill:

1. Makes numerous declarations and findings, including, but not limited to:
   1. The First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
   2. The First Amendment prohibits, with narrowly defined exceptions, governmental entities such as state universities from restricting free speech; and,
   3. Several campuses of the CSU and the UC have adopted free speech statements.
2. Creates the Free Speech on Campus Act of 2018.
3. Requires a campus of the CCC or the CSU, and requests a campus of the UC, to do all of the following:
   1. Make and disseminate a free speech statement that affirms the importance of, and the campus’s commitment to promoting, freedom of expression and specifies that the statement shall include assurances that students and controversial speakers will be protected from exclusionary behavior that violates freedom of expression;
   2. Supplement the statement required pursuant to (3)(a) above, with educational programming, including, but not limited to, online resources; specifies that the educational programming may be part of student orientation or classroom instruction, or may be delivered in another setting where it will effectively reach students; and, the educational programming shall include all of the following:
      1. Descriptions of campus policies, procedures, and protocols that protect freedom of expression and prohibit exclusionary behavior;
      2. Lessons that teach and encourage the expression of a wide range of views in a productive and respectful manner; and,
      3. Lessons that inculcate an understanding of the First Amendment to the United States Constitution and its role in supporting the academic mission of the campus.

EXISTING LAW:

Federal law.

Prohibits Congress from making any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances (First Amendment to the United States Constitution).

State law.

1. Provides that every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. Existing law prohibits a law from restraining or abridging liberty of speech or press (California Constitution, Article I, Section 2).
2. Prohibits the UC Regents, the CSU Trustees, the governing board of a community college district, and an administrator of any campus of those institutions, from making or enforcing a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction (Education Code (EC) Section 66301).
3. Provides that (2) and (3) above do not prohibit an institution from adopting rules and regulations that are designed to prevent hate violence from being directed at students in a manner that denies them their full participation in the educational process, if the rules and regulations conform to standards established by the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution for citizens generally. Authorizes a student to commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon a motion, a court may award attorney’s fees to a prevailing plaintiff in a civil action pursuant to this section (EC Sections 66301 and 94367).
4. Requires the governing board of a community college district to adopt rules and regulations relating to the exercise of free expression by students upon the premises of each community college maintained by the district, which shall include reasonable provisions for the time, place, and manner of conducting such activities. Provides that such rules and regulations shall not prohibit the right of students to exercise free expression, except that expression which is obscene, libelous or slanderous according to current legal standards, or which so incites students as to create a clear and present danger of the commission of unlawful acts on community college premises, or the violation of lawful community college regulations, or the substantial disruption of the orderly operation of the community college, shall be prohibited (EC Section 76120).

FISCAL EFFECT: Unknown

COMMENTS: Free speech and codes of conduct. Freedom of speech on public college and university campuses is allowed within the confines of codes of conduct and time, place, and manner restrictions. Institutions cannot discipline a student for engaging in a free speech activity, but can discipline a student if the free speech activity crosses into unlawful behavior, or otherwise violates the institution’s time, place and manner restrictions.

Postsecondary educational institutions maintain time, place, and manner restrictions to ensure safety, security, and order. As an example, CSU, Sacramento’s policy states:

“A. Overview: All activities set forth in this policy are subject to these general time, place, and manner restrictions as specified below:

B. Time: At all times except for non-University affiliated organizations and individuals, who are limited to normal operating hours.

C. Place: Freedom of expression activities may take place anywhere on campus with the following exceptions: inside parking lots and structures, inside University buildings, and near any location in which instructional, educational, and/or official business activities are being conducted (generally within 20 feet). Popular locations for freedom of expression activities are the Library Quad, Main Quad, and South Green.

D. Manner: 

1. Freedom of expression, which includes marches and/or moving protests, must be conducted in a manner that (1) shall not interfere with or obstruct the free flow of pedestrian or vehicular traffic; (2) shall not interfere with or disrupt the conduct of University business; (3) shall be carried out without creating excessive noise by use of a device; (4) shall not unreasonably interfere with classes in session or other scheduled academic, educational, co-curricular, and/or cultural/arts programs; (5) shall not promote an unlawful end, such as promoting actual violence or bodily or property harms, terrorist threats, defamation, obscenity, and false advertising; and (6) shall not violate any federal, state, or local safety code, such as regulations set by the State Fire Marshal, or University policy.
2. For any public meeting, demonstration, rally, etc., held on University grounds, advance reservations are advised to avoid conflict with previously reserved activities. Use of space shall not conflict with prior reservation of that space for another use. (Casual or unscheduled users will not be allowed to interfere with scheduled, organized, or traditional use). Use of any campus buildings for this purpose requires advance reservations and is restricted to non-profit organizations or student organizations, and faculty-, staff- or administration-sponsored events. To maintain access and safety, the use of ramps, entrances, breezeways, hallways, and other pedestrian pathways is not authorized for such purposes.
3. The scheduling process will ensure order and adequate preparation for the event and a suitable space for the intended use and expected attendance. Policies and procedures for reserving campus facilities are available in the Student Organizations & Leadership office and the Office of Space Management. Requests for student organization-sponsored events shall be directed to the Student Organizations & Leadership office. Requests for faculty-, staff- and administration-sponsored, and community events shall be directed to the Office of Space Management or the office that oversees reservations for that particular venue (e.g., requests for University Union space must be made through the University Union Events Services Office).  Please consult the University’s Office of Space Management’s website for information relating to the appropriate office to contact to make reservations for a particular location on the University’s campus” (http://www.csus.edu/umanual/student/stu-0125.htm).

Need for the measure. According to the author, "While every person in the United States has the First Amendment right of free speech, the law does not require our colleges and universities to educate our students on their right to free speech". The author contends that higher education needs to have a holistic approach in how it educates students; that ensuring students' understanding of their right to free speech must be part of the holistic approach.

This measure requires the CCC and CSU, and requests the UC, to have a free speech statement and supplement the statement with consistent educational programming, which could be presented during new student orientation, or classroom instruction, or delivered in another setting whereby it effectively reaches students.

Committee comments. As currently drafted, the Legislative findings and declarations section of this measure has several long excerpts from speeches by various individuals regarding free speech. Some of the quotes may not necessarily need to be stated in this measure.

Moving forward, the author may wish to consider deleting some of the excerpts.

Additionally, Committee Staff understands that the intent of the author is to ensure collegiate students are educated about their right to free speech; however, as presently drafted, this measure would only apply to students attending public institutions of higher learning.

Moving forward, the author may wish to consider including the independent postsecondary institutions.

Related legislation. AB 2081 (Melendez), which will be heard by this Committee today, creates The Campus Free Speech Act, which, in part, would make a higher education institution that does not comply with the act ineligible for any state funding except pursuant to the Cal Grant Program or a successor state-funded student financial aid program.

SB 1381 (Nielsen), which is set to be heard by the Senate Education Committee on April 4, 2018, in part, requires a person who wishes to engage in expressive activity on the campus of a public postsecondary institution to be permitted to do so freely, as long as that person’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the institution.

SB 1388 (Anderson), which is set to be heard by the Senate Education Committee on April 4, 2018, establishes the Forming Open and Robust University Minds Act, which, in part, requires that the outdoor areas of a public institution of higher education be deemed traditional public forums, subject to certain exceptions, and requires that a person who wishes to engage in noncommercial expressive activity in the outdoor areas of a public institution of higher education be permitted to do so freely, as long as the person’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the public institution of higher education.

Previous legislation. ACA 14 (Melendez) of 2017, which the author did not move through the Legislative Process, created the Campus Free Speech Act, which, in part, would make a higher education institution that does not comply with the act ineligible for any state funding except pursuant to the Cal Grant Program or a successor state-funded student financial aid program.

ACR 21 (Kiley), Resolution Chapter 103, Statutes of 2017, which urged all private and public universities in California to consider free speech statements that are consistent with specified principles to be a model for developing and adopting free speech statements.

SB 472 (Nielsen) of 2017, which was held on the Senate Appropriations Suspense File, was virtually identical to SB 1381 (as described in the "Related legislation" section of this analysis).

REGISTERED SUPPORT / OPPOSITION:

Support

AMCHA Initiative

Slavic-American Chamber of Commerce

University of California

Two individuals

Opposition

None on file.

Analysis Prepared by: Jeanice Warden / HIGHER ED. / (916) 319-3960