May 21, The Honorable Orrin Hatch 104 Hart Senate Office Building Washington, DC Dear Senator Hatch,

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1 May 21, 2018 The Honorable Orrin Hatch 104 Hart Senate Office Building Washington, DC Dear Senator Hatch, Thank you for the opportunity to provide feedback on the Free Right to Expression in Education Act, S Public universities strongly support constitutionally-protected expression and ideals of freedom of thought and inquiry. We are, however, concerned this legislation would upend the existing authorities offered to public institutions to ensure safe and secure campuses. In your National Review op-ed, Protecting Freedom of Speech Where it Matters Most, on the College Campus, you wrote, College campuses should be a place where students can explore their beliefs, debate conflicting ideas, and find common ground. In the college experience, students should be exposed to a variety of views, some of which they may find uncomfortable or offensive. America s campuses should reflect a real-world environment where we are free to express our beliefs. We can do this while fostering respect for differing opinions. The Association of Public and Land-grant Universities (APLU) wholeheartedly agrees with these comments. As expressed in a letter I sent in advance of the Senate Judiciary Committee s hearing last year on campus free speech, Free speech is the lifeblood of our democracy. It is the foundation of academic inquiry. And it is essential to the educational experience and part of our commitment to provide a robust learning environment for an increasingly diverse student body. Public universities firmly believe their students should be exposed to an array of ideas and opinions not only those with which they agree, but also those that challenge their perspectives and worldview. Any attempt to limit the free exchange of ideas is an affront to our shared values as Americans. Current case law provides important protections for expression of free speech, while enabling universities to put in place reasonable, view-point neutral restrictions to protect public safety of campuses and speakers and enable the higher education mission. The role of public universities is critical not just because we are appropriate forums of discussion of some of the most contentious issues of our time, but because we also have the responsibility to provide examples for the next generation of Americans. This is not incidental to public universities; it is fundamental to our mission. It is with a mutual appreciation of the importance of campus free speech and public safety that I share concerns with the legislation. APLU worked with a small group of public university counsels throughout the country to provide these comments. The university counsels are in red, blue, and purple states with campuses in urban and rural areas. In summary, university counsels expressed strong concerns that: 1307 New York Avenue, NW, Suite 400, Washington, DC fax

2 1) The legislation severely limits public universities ability to act in a constitutional manner to protect the safety of the campus community and ensure outdoor property can be used for its intended purpose. In a highly unusual manner, the legislation would apply new standards to public universities as state actors that would not apply to any other entities of government. 2) The legislation unnecessarily creates a new cause of action against public universities with ambiguous requirements of notice and unclear opportunity to rectify violations. 3) The bill purports to impose monetary liability on state universities, but it does not meet the constitutional standards to abrogate sovereign immunity or to exact a waiver of sovereign immunity. Thank you again for the opportunity to provide comments. APLU looks forward to continuing to work together on the many issues in which public universities have collaborated with you throughout your distinguished career in public service. Sincerely, Peter McPherson President Association of Public and Land-grant Universities Under the proposed legislation, public colleges and universities would have fewer tools and less power than any other governing authority to regulate expression in outdoor areas. Public universities would become even bigger targets for provocateurs. As with other state actors, the power of public colleges and universities to regulate expression is circumscribed by the First Amendment. But the First Amendment does not protect all speech (e.g., fighting words and true threats, among other categories of speech), and even for expression protected by the First Amendment, the Constitution allows governing authorities to restrict expression if the regulation would survive heightened First Amendment scrutiny. The First Amendment also allows governing authorities to adopt content-neutral, reasonable regulations of expression aimed at preserving public property for a particular use. By protecting free expression while allowing governing authorities to advance the public s purposes, First Amendment jurisprudence gets it right. Congress should not by statute take away from colleges and universities constitutionally-viable tools tools available to all other governing authorities that facilitate expression yet protect the operation of a campus, ensure public property is preserved for its primary purpose, and provide for public safety. For example, the proposed legislation does not recognize all categories of unprotected speech. Thus, the proposed legislation would give colleges and universities less power than other governing authorities to deal with unprotected expression, like defamation, the incitement of imminent lawless action, fighting words, or true threats, merely because the expression takes place outdoors. Also, local, state, and federal governments may dedicate publicly-owned property to particular public purposes or uses. For example, the federal government may dedicate public property for use in military

3 training. States may dedicate public land for the preservation of wilderness or wildlife or for recreational use. Local governments may use public land as a public school, a golf course, little league fields, botanical gardens, and the like. In this context, the First Amendment allows governments to adopt reasonable regulations of expression to advance the property s dedicated use so long as the regulation is content-neutral. The proposed legislation, however, seeks to treat property that is managed on behalf of the public by a college or university differently than all other public property. In doing so, the legislation presumes all university-owned outdoor spaces are just like city streets or the town square (traditional public fora). But universities own, maintain, and operate outdoor spaces dedicated to a variety of public purposes, from intramural fields to biological field stations, from sewage treatment plants to residential plazas, from airport runways to golf courses, from football stadiums to forest lands and experimental farms, from shooting ranges to ropes courses. Just like the federal government, other state agencies, and cities, public universities should continue to have the power to adopt reasonable regulations to ensure that these outdoor spaces, dedicated to a particular public purpose, are used exclusively for that purpose. There is no rational basis to treat a golf course owned by a university differently from one owned by another governing authority; both should be able to operate the golf course to serve the public s need and to regulate expressive activity accordingly. The same principle for managing public property holds true for a sewage treatment plant, an athletics venue, or an experimental farm or field station. The First Amendment accounts for these dedicated uses. The proposed legislation does not. Similarly, on days like commencement or football gamedays, when a rural campus may swell to 80,000 people or more, every campus resource is dedicated to managing a safe and successful event. In this context, the First Amendment allows a public university to adopt rational limitations on expression that are content-neutral. The proposed legislation, however, would limit public colleges and universities ability to ensure these events serve their public purposes. The bill does so by limiting public colleges and universities to time, place, or manner regulations of outdoor expression, which is a particular application of intermediate constitutional scrutiny. Ironically, even if the college regulation would serve a compelling state interest and survive the strictest constitutional scrutiny, it may not survive the proposed statutory test if the regulation does not relate to the time, place or manner of speech. For example, if there were an active shooter on campus, a bomb threat, a riot or some other extraordinary security need, a public university may take extraordinary steps to ensure safety, including regulations of expression that go beyond time, place or manner of speech. Under the proposed legislation, however, a public college or university could not do so. Similarly, the legislation would go well beyond the First Amendment in protecting conduct associated with protests. Demonstrations often include accompanying conduct as a part of a protest: symbolic dieins, sit-ins, occupations, even temporary shelters or campsites like those used by the Occupy Wall Street movement. The First Amendment distinguishes between conduct that accompanies protest or expression, like blocking traffic or carrying torches, and expressive conduct that itself conveys a message, like flag-burning. The proposed legislation recognizes no such distinction. Campuses, like cities, should be able to adopt content-neutral regulations of conduct, even when that conduct is part of a protest, so long as the regulation is reasonable. For example, a city or college campus may prohibit torches and open flames, poles or sticks (even if flags are mounted on them), or blocking traffic or entrances to buildings. These sorts of regulations, while they impact expression, do not implicate the First Amendment. But under the legislation, conduct that is a part of a protest may be

4 protected expressive activities. Thus, colleges and universities would have fewer tools to deal with disruptions to their primary mission: the development and dissemination of knowledge. The legislation unnecessarily creates a new cause of action against public universities with ambiguous requirements of notice and unclear opportunity to rectify violations. 42 U.S.C. Section 1983 (commonly referred to as Section 1983 ) establishes a cause of action for any person who wishes to allege deprivation of rights secured by the Constitution or laws of the United States by a person acting under color of state law. This would include an allegation against a public college or university official in his or her individual capacity of violating the First Amendment. Because state universities generally are not persons for purposes of Section 1983, Section 1983 generally cannot be used to sue the institution itself but may be used to sue an institutional official in his or her official capacity for injunctive relief or in his or her individual capacity for monetary relief. If the plaintiff can demonstrate that the university official has violated the plaintiff s First Amendment rights and if the plaintiff can establish that the law is clearly established, then the plaintiff can recover actual damages as well as attorney s fees. If the plaintiff establishes a constitutional violation, but cannot demonstrate the law is clearly established, then the plaintiff can still recover attorney fees. Given the availability of Section 1983 against individual officials in their individual capacities, a new private right of action is not necessary. The remedy in the proposed legislation is particularly problematic. The bill provides for a $50 per day penalty for each day the violation continues after the notification if the institution did not act to discontinue the cause of the violation. The legislation also states that each day that an institution s policy in violation of this section remains in effect, shall constitute a continuing violation of this section. While APLU does not think a new cause of action should be created, there are three unique concerns with this continuing violation concept: 1) The bill fails to define what type of notice the aggrieved party is required to provide. An offhanded remark to any faculty or staff member about a potential violation may be considered notice under the statute. 2) The bill fails to define a continuing violation and related procedures. For example, if a student is prevented on April 3rd from protesting a campus speaker, notifies the institution on April 4th and sues the university a year later, can that student argue that the violation continued during the ensuing year because the university did not take some sort of action? Presumably, the cause of the violation was an incorrect or inappropriate application of a university policy. Once the speaker has left campus, what action could/should the university take to discontinue the cause of the violation? 3) Finally, we are concerned that the bill does not provide institutions with any reasonable time to correct policies that are out of compliance. Universities must follow a faculty governance process to update policies which can take some time. In attempting to create a new, unnecessary cause of action for money damages against a public college or university, the bill does not meet the constitutional mark for abrogating sovereign immunity or for exacting a waiver of sovereign immunity. The overwhelming majority of public universities and colleges are arms of the State for the purposes of the Eleventh Amendment. Consequently, these public colleges and universities have sovereign

5 immunity from all damages claims. Although there are exceptions to sovereign immunity, the bill does not meet the constitutional standards to invoke the exceptions. Abrogating sovereign immunity. While the Supreme Court recognizes Congress may abrogate sovereign immunity as a means of enforcing the Fourteenth Amendment, the Court insists Congress: (1) must make its intention to abrogate unmistakably clear in the text of the statute; (2) must identify a pattern of constitutional violations by the States; and (3) must tailor a remedy congruent and proportional to the documented violations. As written, the bill does not make the intention to abrogate clear. Even if Congress was clear in its intent to abrogate, it is uncertain whether Congress could identify a pattern of constitutional violations by the States or whether abolishing the immunity of all States is a proportionate response to violations by some States. Exacting a waiver of sovereign immunity through the Spending Clause. Most of the federal courts of appeals have held Congress may use the Spending Clause to exact a waiver of a state university s sovereign immunity, but recent Supreme Court decisions cast doubt on this reasoning at least in those contexts where the requested waiver is unrelated to the purpose of the federal spending. Even if the Supreme Court were to accept the possibility of using the Spending Clause to exact a waiver, the bill does not contain the clear and unambiguous language necessary to accomplish such a waiver.