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ARIZONA STATE SENATE
Fifty-Sixth Legislature, Second Regular Session
postsecondary institutions; free expression; policies
Purpose
Requires the Arizona Board of Regents (ABOR) and each community college district governing board to adopt an enforceable free expression policy and requires the policy to specify that students and faculty may assemble or engage in expressive activities without penalty or retaliation.
Background
ABOR is responsible for maintaining Northern Arizona University, Arizona State University and the University of Arizona. The universities must have colleges, schools and departments and give courses of study and academic degrees as ABOR approves. ABOR must have and exercise the powers necessary for the effective governance and administration of the institutions under its control and may adopt, and authorize each university to adopt such regulations, policies, rules or measures as are deemed necessary (A.R.S. §§ 15-1601 and 15-1626).
Community college district boards are responsible for maintaining each community college under its jurisdiction for a period of at least eight months in each year and, if the monies of the district are sufficient, maintain each community college for a longer period. Each community college district board must remove any officer or employee if, in the community college district board's judgement, the interests of education in Arizona require the removal (A.R.S. § 15-1444).
A person who is lawfully present on a public university or community college campus may protest or demonstrate on that campus. Individual conduct that materially and substantially infringes on other persons' rights to engage or listen to expressive activity is prohibited and subject to sanction. A public university or community college may impose time, place and manner restrictions on student speech that occurs in a public forum and is protected by the First Amendment to the U.S. Constitution, if the restrictions: 1) are reasonable, justified without reference to the content of the regulated speech, necessary to achieve a compelling governmental interest and the least restrictive means to further that compelling government interest; 2) leave open ample alternative channels for communication of the information; and 3) allow spontaneous assembly and distribution of literature. ABOR and each community college district governing board must develop and adopt a policy on free expression that contains statutorily outlined statements and requirements and may adopt rules to further the purposes of those policies (A.R.S. §§ 15-1864 and 15-1866).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Requires ABOR and each community college district governing board to adopt an enforceable free expression policy and requires the policy to specify that students and faculty may assemble and engage in expressive activities without penalty or retaliation.
2. Requires the free expression policy adopted by ABOR and each community college district governing board to state that there is a range of disciplinary actions for an administrator, faculty member or other employee who is subject to the jurisdiction of a university or community college and who engages in individual conduct that materially and substantially infringes on the rights of other persons to engage in or listen to expressive activity.
3. Subjects any investigation of the conduct of an administrator, faculty member or employee that allegedly, materially and substantially infringes on the rights of other persons to engage in or listen to expressive activity to the following requirements:
a) a university or community college may not investigate the allegations until after the university or community college has notified the administrator, faculty member or employee who is subject to investigation about the specific allegations and has given the administrator, faculty member or employee a reasonable opportunity to respond to the allegations;
b) the person responsible for an investigation must disclose all conclusions and recommendations relating to the investigation to the administrator, faculty member or employee who is the subject of the investigation before submitting the final report and recommendations to the university or community college; and
c) the final report and recommendations for an investigation must include any response that the university or community college received from the administrator, faculty member or employee who is the subject of the investigation or that the administrator, faculty member or employee submitted in response to the outlined conclusions and recommendations.
4. Stipulates that in an outlined disciplinary proceeding involving administrators, faculty members or other employees, the individual who is subject to discipline is entitled to the right to active assistance of counsel if the termination of employment is a potential consequence of the disciplinary proceeding.
5. Stipulates that if an administrator, faculty member or other employee has repeatedly been determined to have engaged in individual conduct that materially and substantially infringes on the rights of other persons to engage in or listen to expressive activity, a punishment of suspension, expulsion or termination of employment from the university or community college may be appropriate.
6. Requires ABOR and each community college district governing board to:
a) publish all policies, regulations and other materials that describe the rights and responsibilities of students, administrators, faculty members and other employees relating to free expression on campus; and
b) develop materials, programs and procedures to ensure that any individual who has disciplinary authority understands the outlined policies, regulations and other materials and understands the university's or community college's responsibilities relating to free expression on campus.
7. Stipulates that the outlined publication includes publication on websites and in all handbooks and orientation program materials for students and employees of ABOR, each institution under the jurisdiction of ABOR and each community college district governing board.
8. Allows universities and community colleges to restrict administrators, faculty members or other employee's expression only for expressive activity that is not protected by the U.S. Constitution.
9. Requires ABOR to adopt personnel policies for all employees of ABOR and the universities that:
a) require all officers and employees of ABOR and of the universities to protect the rights of students, administrators, faculty members and other employees as outlined by the U.S. Constitution and Arizona Constitution;
b) prohibit the president, administrators, faculty members and other employees of each institution from retaliating against any individual, including an administrator, faculty member, employee or student, for outlined rights; and
c) require the president of each institution under the jurisdiction of ABOR to adopt policies and procedures to enforce outlined protections.
10. Defines individual who has disciplinary authority as administrators, campus police officers, individuals who are responsible for maintaining order in a shared student housing setting under the jurisdiction of the university or community college an any individual who provides instruction to students or school employees.
11. Becomes effective on the general effective date.
Prepared by Senate Research
February 6, 2024
ZD/SB/cs