Campus Free Speech Restoration Act
This bill generally prohibits public institutions of higher education (IHEs) that participate in federal student-aid programs from restricting noncommercial expressive activities (e.g., peacefully assembling, distributing literature, or carrying signs) on campus. It also requires private IHEs that receive federal funds to provide students with their policies related to expressive rights.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4483 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 4483
To amend the Higher Education Act of 1965 to ensure that public
institutions of higher education eschew policies that improperly
constrain the expressive rights of students, and to ensure that private
institutions of higher education are transparent about, and responsible
for, their chosen speech policies.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 6, 2020
Mr. Cotton (for himself, Mr. McConnell, Mrs. Loeffler, and Mr. Cramer)
introduced the following bill; which was read twice and referred to the
Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the Higher Education Act of 1965 to ensure that public
institutions of higher education eschew policies that improperly
constrain the expressive rights of students, and to ensure that private
institutions of higher education are transparent about, and responsible
for, their chosen speech policies.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Campus Free Speech Restoration
Act''.
SEC. 2. PROTECTION OF STUDENT SPEECH AND ASSOCIATION RIGHTS.
Section 112(a) of the Higher Education Act of 1965 (20 U.S.C.
1011a(a)) is amended--
(1) by redesignating paragraph (2) as paragraph (4); and
(2) by inserting after paragraph (1) the following:
``(2) It is the sense of Congress that--
``(A) every individual should be free to profess, and to
maintain, the opinion of such individual in matters of religion
or philosophy, and that professing or maintaining such opinion
should in no way diminish, enlarge, or affect the civil
liberties or rights of such individual on the campus of an
institution of higher education; and
``(B) no public institution of higher education directly or
indirectly receiving financial assistance under this Act should
limit religious expression, free expression, or any other
rights provided under the First Amendment to the Constitution
of the United States.
``(3) It is the sense of Congress that--
``(A) free speech zones and restrictive speech codes are
inherently at odds with the freedom of speech guaranteed by the
First Amendment to the Constitution of the United States;
``(B) bias reporting systems are susceptible to abuses that
may put them at odds with the freedom of speech guaranteed by
the First Amendment to the Constitution of the United States;
and
``(C) no public institution of higher education directly or
indirectly receiving financial assistance under this Act should
restrict the speech of such institution's students through
improperly restrictive zones, codes, or bias reporting
systems.''.
SEC. 3. CAMPUS SPEECH POLICIES AT INSTITUTIONS OF HIGHER EDUCATION.
Title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et
seq.) is amended--
(1) in section 487(a), by adding at the end the following:
``(30) In the case of an institution that is a public
institution, the institution will comply with the expressive
activity protections described in section 493E.''; and
(2) in part G, by adding at the end the following:
``SEC. 493E. CAMPUS SPEECH POLICIES AT PUBLIC UNIVERSITIES.
``(a) Definition of Expressive Activities.--
``(1) In general.--In this section, the term `expressive
activity' includes--
``(A) peacefully assembling, protesting, speaking,
or listening;
``(B) distributing literature;
``(C) carrying a sign;
``(D) circulating a petition; or
``(E) other expressive rights guaranteed under the
First Amendment to the Constitution of the United
States.
``(2) Exclusions.--In this section, the term `expressive
activity' does not include unprotected speech (as defined by
the precedents of the Supreme Court of the United States).
``(b) Expressive Activities at an Institution.--
``(1) In general.--Each public institution of higher
education participating in a program under this title may not
prohibit, subject to paragraph (2), a person from freely
engaging in noncommercial expressive activity in a generally
accessible outdoor area on the institution's campus if the
person's conduct is lawful.
``(2) Restrictions.--An institution of higher education
described in paragraph (1) may not maintain or enforce time,
place, or manner restrictions on an expressive activity in a
generally accessible outdoor area of the institution's campus
unless the restriction--
``(A) is necessary to achieve a compelling
governmental interest;
``(B) is the least restrictive means of furthering
that compelling governmental interest;
``(C) is based on published, content-neutral, and
viewpoint-neutral criteria;
``(D) leaves open ample alternative channels for
communication; and
``(E) provides for spontaneous assembly and
distribution of literature.
``(3) Application.--The protections provided under
paragraph (1) do not apply to expressive activity in an area on
an institution's campus that is not a generally accessible
outdoor area.
``(4) Nonapplication to service academies.--This section
shall not apply to an institution of higher education whose
primary purpose is the training of individuals for the military
services of the United States, or the merchant marine.
``(c) Causes of Action.--
``(1) Authorization.--The following persons may bring an
action in a Federal court of competent jurisdiction to enjoin a
violation of subsection (b) or to recover compensatory damages,
reasonable court costs, or reasonable attorney fees:
``(A) The Attorney General.
``(B) A person claiming that the person's
expressive activity rights, as described in subsection
(b)(1), were violated.
``(2) Actions.--Notwithstanding any other provision of law,
in an action brought under this section, the Federal court
shall decide de novo all relevant questions of fact and law,
including the interpretation of constitutional, statutory, and
regulatory provisions, unless the parties stipulate otherwise.
In an action brought under this subsection, if the court finds
a violation of subsection (b), the court--
``(A) shall--
``(i) enjoin the violation; and
``(ii) if a person whose expressive
activity rights were violated brought the
action, award the person--
``(I) not less than $500 for an
initial violation; and
``(II) if the person notifies the
institution of the violation, $50 for
each day the violation continues after
the notification if the institution did
not act to discontinue the cause of the
violation; and
``(B) may award a prevailing plaintiff--
``(i) compensatory damages;
``(ii) reasonable court costs; or
``(iii) reasonable attorney fees.
``(d) Statute of Limitations.--
``(1) In general.--Except as provided in paragraph (3), an
action under subsection (c) may not be brought later than 1
year after the date of the violation.
``(2) Continuing violation.--Each day that a violation of
subsection (b) continues after an initial violation of
subsection (b), and each day that an institution's policy in
violation of subsection (b) remains in effect, shall constitute
a continuing violation of subsection (b).
``(3) Extension.--For a continuing violation described in
paragraph (2), the limitation described in paragraph (1) shall
extend to 1 year after the date on which the most recent
violation occurs.
``(e) Federal Review of Speech Policies.--
``(1) No eligibility for funds.--
``(A) In general.--No public institution of higher
education shall be eligible to receive funds under this
Act, including participation in any program under this
title, if the Secretary determines that the
institution--
``(i) maintains a policy that infringes
upon the expressive rights of students under
the First Amendment to the Constitution of the
United States; or
``(ii) maintains or enforces time, place,
or manner restrictions on an expressive
activity in a generally accessible outdoor area
of the institution's campus that do not comply
with subparagraphs (A) through (E) of
subsection (b)(2).
``(B) Court review.--Notwithstanding any other
provision of law, the Secretary's determinations under
this subsection shall be reviewed de novo with respect
to all relevant questions of fact and law, including
the interpretation of constitutional, statutory, and
regulatory provisions, unless the parties stipulate
otherwise.
``(2) Designation of an employee to receive complaints.--
The Secretary shall designate an employee in the Office of
Postsecondary Education of the Department to receive complaints
from students or student organizations at a given public
institution of higher education, or from any other person or
organization, regarding policies at the institution--
``(A) that infringe upon the expressive rights of
students under the First Amendment to the Constitution
of the United States; or
``(B) that maintain or enforce time, place, or
manner restrictions on an expressive activity in a
generally accessible outdoor area of the institution's
campus that do not comply with subparagraphs (A)
through (E) of subsection (b)(2).
``(3) Complaint.--A complaint submitted under subparagraph
(2)--
``(A) shall include the provision of the
institution's policy the complainant believes either
infringes upon the expressive rights of students under
the First Amendment to the Constitution of the United
States or maintains or enforces time, place, or manner
restrictions on an expressive activity in a generally
accessible outdoor area of the institution's campus
that does not comply with subparagraphs (A) through (E)
of subsection (b)(2), along with any evidence regarding
the operation and enforcement of such policy the
complainant deems relevant; and
``(B) may include an argument as to why the policy
in question either infringes upon the expressive rights
of students under the First Amendment to the
Constitution of the United States or maintains or
enforces time, place, or manner restrictions on an
expressive activity in a generally accessible outdoor
area of the institution's campus that does not comply
with subparagraphs (A) through (E) of subsection
(b)(2).
``(4) System of review.--
``(A) First stage review.--
``(i) Request for response.--Not later than
7 days after the date of receipt of a complaint
under paragraph (2), the Secretary shall review
the complaint and request a response to the
complaint from the institution.
``(ii) Institution response.--Not later
than 30 days after the date the Secretary
requests a response under clause (i), the
institution shall--
``(I) certify to the Secretary that
the institution has entirely withdrawn
the policy that occasioned the
complaint;
``(II) submit a revised policy for
review by the Secretary; or
``(III) submit a defense of the
policy that occasioned the complaint.
``(iii) Availability to complainant.--
``(I) In general.--Not later than 7
days after the date of receipt of a
revised policy or defense of the
original policy as submitted by the
institution pursuant to clause (ii),
the Secretary shall make available to
the complainant a copy of such revised
policy or defense.
``(II) Response by complainant.--
Not later than 60 days after the date
of receipt of a revised policy or
defense of the original policy under
subclause (I), the complainant may
submit to the Secretary a response to
the revised policy or defense of the
original policy.
``(III) Submission to the
institution of response.--Not later
than 7 days after the date of receipt
of a response under subclause (II), the
Secretary shall submit to the
institution a copy of such response.
``(iv) Determinations.--If the institution
declines to entirely withdraw the policy that
occasioned the complaint and either submits a
revised policy for review or submits a defense
of the policy that occasioned the complaint,
the Secretary shall, not later than 60 days
after the date of the deadline for a response
by the complaint as described in clause
(iii)(II), make one of the following
determinations:
``(I) Determine that the complaint
in question has insufficient merit to
proceed to Second Stage Review
described in subparagraph (B).
``(II) Determine that the complaint
in question has sufficient merit to
proceed to Second Stage Review
described in subparagraph (B).
``(v) Notification.--Not later than 7 days
after the date the Secretary makes a
determination under clause (iv), the Secretary
shall notify the institution and the
complainant of such determination.
``(vi) End.--The determination under clause
(iv) shall constitute the end of First Stage
Review.
``(B) Second stage review.--
``(i) In general.--In a Second Stage
Review, the Secretary shall notify the
institution and the complainant of the
commencement of the Second Stage Review, and
shall give the institution the option of
entirely withdrawing the policy that occasioned
the complaint or submitting a revised policy
for review within 30 days of the commencement
of the Second Stage Review. In such
notification submitted to the institution and
complainant, the Secretary shall indicate the
relevant sections of the institution's policy
in question and explain why these sections may
be out of compliance.
``(ii) Determination.--Not later than 90
days from the commencement of the Second Stage
Review, the Secretary shall determine whether
the policy that occasioned the complaint, or
the revised policy submitted during the First
Stage Review, or the revised policy submitted
within the first 30 days of the Second Stage
Review, is in violation of student rights under
the First Amendment to the Constitution of the
United States or of the restrictions on the
regulation of speech by time, place, and manner
set forth in this section, thereby ending
Second Stage Review.
``(iii) Investigation.--During Second Stage
Review, the Secretary may conduct an
investigation in which further information may
be sought or requested from the complainant,
the institution, or any other source the
Secretary determines pertinent.
``(iv) Certification of withdrawal.--At any
point during the Second Stage Review, the
institution in question may certify to the
Secretary that it has entirely withdrawn the
policy that occasioned the complaint, thereby
ending the Second Stage Review.
``(v) Notification and justification.--If
the Secretary determines by the conclusion of
Second Stage Review that the policy that
occasioned the complaint or the revised policy
submitted for review during First Stage Review
or Second Stage Review is consistent with the
expressive rights of students under the First
Amendment to the Constitution of the United
States and the restrictions on the regulation
of speech by time, place, and manner set forth
in this Act--
``(I) the Secretary shall notify
the complainant and the institution of
such determination not more than 7 days
after the date of the determination;
and
``(II) the Secretary shall explain
and justify such determination in a
written decision citing relevant legal
precedent, copies of which shall be
sent to the complainant, the
institution, and made available for
public inspection, including for online
reading by the public.
``(C) Determination that institution is out of
compliance.--
``(i) In general.--If, upon completion of
the Second Stage Review, the Secretary
determines that the policy that occasioned the
complaint, or the revised policy submitted for
review during the First Stage Review or Second
Stage Review, violates the First Amendment to
the Constitution of the United States or the
restrictions on the regulation of speech set
forth in this section, the Secretary shall
notify the complainant and the institution not
more than 7 days after the date of completion
of Second Stage Review that the institution is
out of compliance with the requirements for
receiving funds under this Act, including
participation in any program under this title,
but will be granted a grace period of 120 days
to return to compliance before being formally
stripped of eligibility.
``(ii) Posting; explanation; final
review.--As part of the notification under
clause (i), the Secretary shall--
``(I) require the institution to
post the determination of the Secretary
on the website of the institution
within 2 clicks of the homepage,
without a paywall, email login, or
other restriction to access;
``(II) explain and justify the
determination of the Secretary in a
written decision citing relevant legal
precedent, copies of which shall be
sent to the complainant, the
institution, and made available for
public inspection, including for online
reading by the public; and
``(III) inform the institution that
Final Review has begun and that the
institution must either certify to the
Secretary that it has entirely
withdrawn the policy that occasioned
the complaint, or submit a revised
policy for review to the Secretary not
later than 60 days after the date of
receipt of notice of the conclusion of
Second Stage Review.
``(D) Final review.--
``(i) In general.--If an institution
submits a revised policy for review as
described in subparagraph (C)(ii)(III), the
Secretary shall review such revised policy and
determine not later than 120 days after the
date of commencement of Final Review whether
the revised policy is consistent with the
expressive rights of students under the First
Amendment to the Constitution of the United
States and with the restrictions on the
regulation of speech by time, place, and manner
set forth in this Act.
``(ii) Determination of compliance.--If the
Secretary determines, as described in clause
(i), that the revised policy is consistent with
the expressive rights of students under the
First Amendment to the Constitution of the
United States and with the restrictions on the
regulation of speech by time, place, and manner
set forth in this Act, the Secretary shall
notify the complainant and the institution of
such determination not more than 7 days after
the date the determination is made, thereby
ending the final Stage Review.
``(iii) Determination of violation.--If the
Secretary determines, as described in clause
(i), that the revised policy violates the
expressive rights of students under the First
Amendment to the Constitution of the United
States or the restrictions on the regulation of
speech by time, place, and manner set forth in
this Act, the Secretary shall--
``(I) notify the complainant and
the institution of such determination
not more than 7 days after the date the
determination is made, thereby ending
the final Stage Review; and
``(II) explain and justify the
determination in a written decision
citing relevant legal precedent, copies
of which shall be sent to the
complainant, the institution, and made
available for public inspection,
including for online reading by the
public.
``(E) Loss of eligibility.--
``(i) In general.--If the Secretary
determines, during the Final Stage Review, that
the institution's policy in question violates
the expressive rights of students under the
First Amendment to the Constitution of the
United States or the restrictions on the
regulation of speech by time, place, and manner
set forth in this Act, the Secretary shall--
``(I) notify the complainant and
the institution not more than 7 days
after the date of the determination
that the institution will lose
eligibility to receive funds under this
Act, including participation in any
program under this title, in accordance
with this subparagraph;
``(II) notify the institution that
the loss of eligibility shall go into
effect beginning with any student
notified of acceptance for admission to
the institution during the academic
year subsequent to the academic year
during which the determination is made,
and that no restoration of eligibility
for ineligible students in subsequent
academic years will occur prior to the
beginning of the third academic year
subsequent to the academic year during
which the determination is made;
``(III) explain and justify the
determination in a written decision
citing relevant legal precedent, copies
of which shall be sent to the
complainant, the institution, and made
available for public inspection,
including for online reading by the
public; and
``(IV) require the institution to
post the determination of the Secretary
on the website of the institution,
within two clicks of the homepage,
without a paywall, email login, or
other restriction to access.
``(ii) Continued eligibility.--Each student
enrolled at the institution during the academic
year in which eligibility is lost as described
in this subparagraph, and each student notified
of acceptance for admission to the institution
during the academic year in which eligibility
is lost as described in this subparagraph,
shall continue to be eligible to participate,
through the institution, in programs funded
under this Act during the 5-year period after
the date of the loss of eligibility.
``(F) Restoration of eligibility.--
``(i) In general.--Not later than 7 days
after the loss of eligibility under
subparagraph (E), the Secretary shall inform
the institution that it may restore
eligibility, either by certifying to the
Secretary that it has entirely withdrawn the
policy that precipitated loss of eligibility,
or by submitting a revised policy for review at
any time following the failure of the Final
Review.
``(ii) Review of revised policy.--The
Secretary shall review a revised policy
submitted for review after the loss of
eligibility and determine not later than 120
days after the date the revised policy is
submitted whether it is consistent with the
expressive rights of students under the First
Amendment to the Constitution of the United
States and with the restrictions on the
regulation of speech by time, place, and manner
set forth in this Act.
``(iii) Investigation.--While conducting a
review to restore eligibility under this
subparagraph, the Secretary may conduct an
investigation in which further information may
be sought or requested from the institution, or
any other source the Secretary determines
pertinent.
``(iv) Written decision.--In making a
determination of whether a revised policy
submitted for review after the loss of
eligibility is either consistent or
inconsistent with the expressive rights of
students under the First Amendment to the
Constitution of the United States and with the
restrictions on the regulation of speech by
time, place, and manner set forth in this Act,
the Secretary shall explain and justify the
determination in a written decision citing
relevant legal precedent, copies of which shall
be sent to the complainant, the institution,
and made available for public inspection,
including for online reading by the public.
``(v) Limit on review.--The Secretary may
conduct not more than 1 review to restore
eligibility for a single institution in any
given academic year.
``(vi) Restoration.--If an institution
certifies to the Secretary that the policy that
precipitated the loss of eligibility has been
entirely withdrawn, or if Secretary determines
that the revised policy submitted for review is
consistent with the expressive rights of
students under the First Amendment to the
Constitution of the United States and with the
restrictions on the regulation of speech by
time, place, and manner set forth in this Act,
the institution's eligibility to receive funds
under this Act, including participation in any
program under this title, shall be restored not
earlier than the beginning of the third
academic year following the year in which
notification of loss of eligibility was
received.
``(G) Good faith representation.--
``(i) In general.--The Secretary shall
inform any institution undergoing review of its
campus speech policies that it expects the
institution to represent its policies, along
with any proposed revisions in such policies,
in good faith.
``(ii) Misrepresentation.--
``(I) Complaints.--A student,
student organization, or any other
person or organization may file, with
the employee in the Office of
Postsecondary Education of the
Department designated by the Secretary
under paragraph (2) to receive
complaints, a complaint that an
institution has substantially
misrepresented its speech policies, or
withheld information requested by the
Secretary during an investigation, or
attempted to circumvent the review
process by reinstituting a policy under
review in a substantially similar form
without informing the Secretary.
``(II) Loss of eligibility.--If the
Secretary determines upon
investigation, or after receiving a
complaint under subclause (I), that an
institution has substantially
misrepresented its speech policies, or
withheld information requested by the
Secretary during an investigation, or
attempted to circumvent the review
process by reinstituting a policy under
review in a substantially similar form
without informing the Secretary, the
institution shall lose eligibility to
receive funds under this Act, including
participation in any program under this
title.
``(iii) Loss of eligibility.--If an
institution loses eligibility under clause
(ii), the Secretary shall notify the
institution, not later than 7 days after the
determination, that the loss of eligibility
shall go into effect beginning with any student
notified of acceptance for admission to the
institution during the academic year subsequent
to the academic year during which the
determination is made, and that no restoration
of eligibility for students admitted in
subsequent academic years will occur prior to
the beginning of the third academic year
subsequent to the academic year during which
the determination is made.
``(f) Retaliation Prohibited.--
``(1) In general.--No person may intimidate, threaten,
coerce, or discriminate against any individual because the
individual has made a report or complaint, testified, assisted,
or participated or refused to participate in any manner in an
investigation, proceeding, or hearing under this section.
``(2) Specific circumstances.--
``(A) Exercise of first amendment rights.--The
exercise of rights protected under the First Amendment
to the Constitution of the United States does not
constitute retaliation prohibited under paragraph (1).
``(B) Code of conduct violation for materially
false statement.--Charging an individual with a code of
conduct violation for making a materially false
statement in bad faith in the course of a grievance
proceeding under this section does not constitute
retaliation prohibited under paragraph (1). A
determination regarding responsibility, alone, is not
sufficient to conclude that any party made a materially
false statement in bad faith.
``SEC. 493F. CAMPUS SPEECH POLICIES AT PRIVATE UNIVERSITIES.
``(a) In General.--Each private institution of higher education
eligible to receive funds under this Act, including any program under
this title, shall--
``(1) post in one place on the website of the institution
all policies that pertain to the protection and regulation of
the expressive rights of students, including the right to
submit a complaint under this section, within 2 clicks of the
homepage, without a paywall, email login, or other restriction
to access;
``(2) include a copy of such policies in a handbook
distributed to new students; and
``(3) send a copy of--
``(A) such policies to the employee of the
Department designated by the Secretary to receive such
policies; and
``(B) any updates to such policies to such employee
not later than 60 days after the date of a change to
such policies.
``(b) Responsibility for Full Policy Disclosure.--Each private
institution of higher education described in subsection (a) shall
include with the copy of the policies described in subsection (a)--
``(1) a statement affirming that all policies pertinent to
the protection and regulation of the expressive rights of
students have been disclosed in the manner required by this
section, along with an acceptance of contractual obligation to
publicly disclose all such policies; and
``(2) a statement affirming that publication of such
policies as required by this section establishes a contractual
obligation on the part of the institution to its students to
maintain and enforce the disclosed policies, and only those
policies, in matters pertaining to the protection and
regulation of the expressive rights of students.
``(c) Cause of Action.--
``(1) Authorization.--A student claiming that a private
institution of higher education in which the student is
enrolled has violated any requirement or contractual obligation
imposed by this section may bring an action in a Federal court
of competent jurisdiction to enjoin such violation or to
recover compensatory damages, reasonable court costs, or
reasonable attorney fees.
``(2) Actions.--Notwithstanding any other provision of law,
in an action brought under this subsection, the Federal court
shall decide de novo all relevant questions of fact and law,
including the interpretation of constitutional, statutory, and
regulatory provisions, unless the parties stipulate otherwise.
In an action brought under this subsection, if the court finds
a violation of subsection (b), the court--
``(A) shall--
``(i) enjoin the violation; and
``(ii) award the student--
``(I) not less than $500 for an
initial violation; and
``(II) if the student notifies the
institution of the violation, $50 for
each day the violation continues after
the notification if the institution did
not act to discontinue the cause of the
violation; and
``(B) may award a prevailing plaintiff--
``(i) compensatory damages;
``(ii) reasonable court costs; or
``(iii) reasonable attorney fees.
``(d) Secretarial Requirements.--
``(1) Designation of an employee.--The Secretary shall
designate an employee in the Office of Postsecondary Education
in the Department who shall--
``(A) receive and compile updated copies of all
policies pertaining to the protection and regulation of
the expressive rights of students at private
institutions of higher education that receive funds
under this section, including any programs under this
title;
``(B) preserve all records of such policies for a
period of not less than 10 years and make such
policies, and the dates they were disclosed, modified,
or withdrawn, available for public inspection,
including for online reading by the public;
``(C) receive complaints from students, student
organizations, or from any other person or
organization, that believes a private institution of
higher education has not disclosed a policy pertaining
to the protection and regulation of the expressive
rights of students as required by this section, is
enforcing a policy pertaining to the expressive rights
of students that has not been disclosed as required by
this section, or has failed to make and publish a
statement affirming contractual responsibility for full
policy disclosure, or affirming contractual
responsibility for the enforcement of speech policies,
as required by this section;
``(D) not more than 7 days after the date of
receipt of a complaint under subparagraph (C), review
the complaint and request a response from the
institution;
``(E) undertake an investigation, in response to a
complaint under subparagraph (C) or at the Secretary's
independent initiative, to determine whether a private
institution of higher education has failed to disclose
a policy pertaining to the protection and regulation of
the expressive rights of students as required by this
section, is enforcing a policy pertaining to the
expressive rights of students that has not been
disclosed as required by this section, or has failed to
make and publish a statement affirming contractual
responsibility for full policy disclosure, or affirming
contractual responsibility for the enforcement of
speech policies, as required by this section; and
``(F) determine, not later than 120 days after the
date of receipt of a complaint or 120 days after the
date of the start of an investigation opened at the
Secretary's independent initiative, whether the private
institution of higher education in question has failed
to disclose a policy pertaining to the protection and
regulation of the expressive rights of students as
required by this section, is enforcing a policy
pertaining to the expressive rights of students that
has not been disclosed as required by this section, or
has failed to make and publish a statement affirming
contractual responsibility for full speech policy
disclosure, or affirming contractual responsibility for
the enforcement of speech policies, as required by this
section.
``(2) Loss of eligibility.--
``(A) In general.--If the Secretary determines that
a private institution of higher education has failed to
disclose a policy pertaining to the protection and
regulation of the expressive rights of students as
required by this section, is enforcing a policy
pertaining to the expressive rights of students that
has not been disclosed as required by this section, or
has failed to make and publish a statement affirming
contractual responsibility for full speech policy
disclosure, or affirming contractual responsibility for
the enforcement of speech policies, as required by this
section, the Secretary shall notify the institution
and, if applicable, the complainant, not more than 7
days after the date of such determination, that the
institution is out of compliance with the requirements
for receiving funds under this Act, including
participation in any program under this title, but will
be granted a grace period of 60 days to return to
compliance before formally losing eligibility for
receiving funds under this Act, including participation
in any program under this title.
``(B) Specifications in notification.--As part of
the notification under subparagraph (A), the Secretary
shall specify which policies need to be disclosed and
which statements affirming contractual responsibility
for speech policy disclosure and contractual
responsibility for speech policy enforcement need to be
made and published in order for eligibility to be
restored.
``(C) Notification of loss of eligibility.--
``(i) In general.--If the Secretary
determines that, 60 days after being notified
that it is out of compliance as described in
subparagraph (A), the institution has failed to
return to compliance by making the appropriate
speech policy disclosures, or statement
affirming contractual responsibility for full
speech policy disclosure, or statement
affirming contractual responsibility for speech
policy enforcement, the Secretary shall notify
the institution and, if applicable, the
complainant, not more than 7 days after the
date of such determination--
``(I) that the institution will
lose eligibility to receive funds under
this Act, including participation in
any program under this title;
``(II) that the loss of eligibility
shall go into effect beginning with any
student notified of acceptance for
admission to the institution during the
academic year subsequent to the
academic year during which the
determination is made, and that no
restoration of eligibility for
ineligible students in subsequent years
will occur prior to the beginning of
the third academic year subsequent to
the academic year during which the
determination is made; and
``(III) that the institution shall
post the determination of the Secretary
on the website of the institution,
within two clicks of the homepage,
without a paywall, email login, or
other restriction to access.
``(ii) Continued eligibility.--Each student
enrolled at the institution during the academic
year in which eligibility is lost as described
in this subparagraph, and each student notified
of acceptance for admission to the institution
during the academic year in which eligibility
is lost as described in this subparagraph,
shall continue to be eligible to participate,
through the institution, in programs funded
under this Act during the 5-year period after
the date of the loss of eligibility.
``(3) Restoration of eligibility.--
``(A) In general.--Not later than 7 days after the
loss of eligibility under paragraph (2), the Secretary
shall inform the institution that it may restore
eligibility by making the appropriate speech policy
disclosures, or statement affirming contractual
responsibility for full speech policy disclosure, or
statement affirming contractual responsibility for
speech policy enforcement, as directed by the Secretary
in conformity with this section.
``(B) Review.--The Secretary shall review any
policy disclosures, or statement affirming contractual
responsibility for full speech policy disclosure, or
statement affirming contractual responsibility for
speech policy enforcement, and determine whether they
are sufficient to restore eligibility for receiving
funds under this Act, including participation in any
program under this title, not later than 120 days after
the date of receipt of such disclosures or statement.
``(C) Investigation.--While conducting a review to
restore eligibility under this paragraph, the Secretary
may conduct an investigation in which further
information may be sought or requested from the
institution, or any other source the Secretary
determines pertinent.
``(D) Restoration.--If the Secretary determines
that the institution under review to restore
eligibility under this paragraph has made the policy
disclosures, and issued the statement affirming
contractual responsibility for full speech policy
disclosure, and the statement affirming contractual
responsibility for speech policy enforcement, as
required by this section, the institution's eligibility
to receive funds under this Act, including
participation in any program under this title, shall be
restored not earlier than the beginning of the third
academic year following the year in which notification
of loss of eligibility was received.
``(E) Limit on review.--The Secretary may conduct
not more than 1 review to restore eligibility for a
single institution in any given academic year.
``(e) Nonapplication to Certain Institutions.--This section shall
not apply to an institution of higher education that is controlled by a
religious organization.''.
<all>
Introduced in Senate
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
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