On Monday, the Arizona Senate passed HB 2563, sending the bill back to the Arizona House of Representatives after the Senate amended the bill in its chamber. The bill, modeled after the Goldwater Institute model legislation, has some positive aspects but also contains problematic provisions that need revision.
For example, while FIRE is happy to see that the bill provides a cause of action for individuals who have had their expressive rights violated, the bill language leaves it open to the interpretation that a student could bring suit against a fellow student if that student “materially and substantially interferes” with their expressive activities. FIRE believes that the bill should be amended to insure that only institutions of higher education and their agents acting in official capacities can be sued for violating an individual’s expressive rights and to avoid situations where students use litigation to silence each other.
HB 2563 also changes the law in Arizona with regard to free speech zones. Ordinarily this would be a good thing, but Arizona already passed a law in 2016 which sets the appropriate standard for reasonable time, place, and manner restrictions on college campuses. While the Supreme Court has used intermediate scrutiny in its analysis of time, place, and manner restrictions, this bill would raise the standard of review to strict scrutiny. This inconsistency is likely to confuse administrators, many of whom already have a poor grasp of the issue. Moreover, elevating the standard of review to strict scrutiny is not necessary to eliminate free speech zones. In fact, courts have had no problem finding them unconstitutional under the standard already set forth in current Arizona law.
Another provision in the bill provides certain due process protections in university disciplinary proceedings for students accused of materially and substantially interfering with another individual’s expressive rights. The bill allows students facing “a suspension of more than thirty days or expulsion” the right to the active assistance of counsel. FIRE would prefer that this right be guaranteed when the possibility of suspension is nine days or longer, the point at which the Supreme Court has said that the constitutional right to due process definitely attaches in the K-12 context. There is no reason to specify that college students must face more severe punishment in order to have their rights respected.
The bill also includes language to encourage institutions “to attempt to remain neutral, as an institution, on the public policy controversies of the day unless the administrative decisions on such issues are essential to the day-to-day functioning of the university or community college.” There are some topics that FIRE thinks campus administrators should weigh in on because it is helpful to fostering the learning environment, that might not strictly speaking be “essential to the day-today functioning” of the institution. As we have written about similar language appearing in a bill in Wisconsin:
FIRE believes that for academic freedom to thrive, institutions should avoid taking official institutional positions on controversial issues unrelated to the functioning of the institution, but we also recognize that there are many controversial issues that do directly impact the functioning of institutions, such as levels of funding, affirmative action policies, and, of course, concerns about free speech.
While the language in the bill does not require institutional neutrality on such issues, we nevertheless have suggested to legislators that the aspirational clause be omitted so that institutions are simply required to adopt policies that state “[t]hat each institution shall not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.” That language would ensure that institutions may take positions, so long as they are not compelling others to agree. For example, under our proposed revision, an institution could take a position on marijuana legalization and could maintain a policy prohibiting its use on campus, but it could not prohibit students from publicly expressing their opinions that marijuana use should be legal. This would strike the appropriate balance that would help free speech flourish on Wisconsin’s campuses.
Additionally, FIRE is concerned that the bill language fails to define harassment in a way consistent with the Supreme Court’s standard in Davis v. Monroe County Board of Education (1999). For starters, the bill does not define harassment as an anti-discrimination matter, as required by Davis. Furthermore, HB 2563 uses the term “harassment” instead of “peer-on-peer harassment” or “student-on-student harassment.” That subtle difference could be interpreted as prohibiting the punishment of quid-pro-quo harassment. To avoid this possibility, the term should be replaced to ensure that quid-pro-quo harassment is still, indeed, prohibited, while also cabining peer-on-peer harassment to protected classes.
While we are happy that legislators in Arizona are interested in protecting free expression on campus, the bill would need revisions in order to earn FIRE’s full support. The good news is that the necessary changes are simple, and we stand ready to assist legislators in Arizona making them.