Last week, the “Wyoming Higher Education Free Speech Protection Act” (House Bill 0137) was introduced in the Wyoming House of Representatives. While the bill would advance some protections for student and faculty speech rights at public colleges and universities in the state, there are some troubling provisions that need to be amended before FIRE can support the bill.
HB 0137 would prevent universities from quarantining student expression into so-called “free speech zones.” These misleadingly-named zones unconstitutionally restrict where, when, and how students express themselves on campus. Legislatively eliminating these zones is a worthwhile goal and one that FIRE supports. FIRE’s model legislation, the CAFE Act, eliminates free speech zones at public institutions of higher education and has been signed into law with bipartisan support in several states, including Missouri, Colorado, and Utah.
The bill would also prevent public colleges from charging students or student organizations “security fees based on the content of their speech or that of a speaker they invite or based on the anticipated reaction or opposition of listeners to the speaker, student or student organization’s speech.” This would statutorily prohibit the unconstitutional practice of requiring a “speech tax” to bring speakers to campus, a tactic that FIRE has seen universities use time and time again. Over the years, FIRE has been successful in assisting students in fighting these speech taxes, including a successful settlement following a lawsuit against Western Michigan University courtesy of FIRE’s Stand Up For Speech Litigation Project.
Unfortunately, there are some provisions in the bill that FIRE cannot support. For example, FIRE objects to legislation mandating specific punishments for students when those students disrupt another person or groups’ expressive rights. HB 0137 requires universities to suspend “for a minimum of (2) semesters or expulsion” any student who “knowingly or purposefully, materially and substantially interferes with a free speech event or activity on the institution’s campus” on two or more occasions. While FIRE believes that universities should maintain a set of sanctions for students who intentionally, materially, and substantially disrupt the free expressive rights of others, mandatory minimum sanctions do not allow for fact-finders to assess an individual student’s personal degree of culpability or the seriousness of their actions. As such, they are ripe for abuse.
Another section of the bill reads:
Nothing in this section shall be construed to:
Require an institution to fund any costs associated with free speech by any student, student organization, faculty member or any other person lawfully on campus.
The bill could be read by a university as excusing it from providing security or other resources to protect student expression from a heckler’s veto, which is a responsibility borne by government actors and which no statute can set aside. Accordingly, this needs rewriting.
HB 0137 also threatens academic freedom on campus by giving an institution’s board of trustees the power to “prescribe the studies to be pursued and the textbooks to be used” at institutions of higher education. First of all, the provision removes the ability of academic departments to decide which courses they will offer. Secondly, by requiring professors to use textbooks prescribed by the board of trustees, the bill seriously infringes on professors’ academic freedom right to decide — based on their subject matter expertise — the materials with which their students will engage.
Another sentence in the bill reads: “No instruction either sectarian in religion or partisan in politics shall ever be allowed in any department of the university . . .” This provision also seriously threatens academic freedom. It isn’t difficult to imagine that a law prohibiting sectarian instruction would prevent a professor from teaching a course on the history of religion. Jewish studies and Islamic studies would similarly be threatened. The same principles are at play on the blanket ban on instruction in partisan politics. The provision is overbroad and should be removed.
While HB 0137 does have some positive aspects, it will require substantial revisions in order to earn FIRE’s support. We look forward to working with legislators in Wyoming to revise the bill so that student and faculty speech rights in Wyoming are protected.