Campus Anti-Harassment Act Exposed

The Campus Anti-Harassment Act was adopted by ALEC's Education and Workforce Development Task Force at the Annual Meeting on July 28, 2016, approved by the Board of Directors September 12, 2016. (Accessed October 24, 2016).

ALEC Bill Text

Summary

The Campus Anti-Harassment Act clarifies the definition of “harassment” on university campuses, and makes clear that “student-on-student speech” that does not rise to that definition is protected by the First Amendment.

General Description

This bill enacts provisions related to harassment at an institution of higher education.

Highlighted Provisions

This bill:

• defines terms;
• enacts requirements related to how an institution of higher education addresses discriminatory harassment;
• prohibits an institution of higher education from punishing certain acts of speech that do not constitute discriminatory harassment;
• creates causes of action related to discriminatory harassment at an institution of higher education; and
• enacts other provisions related to discriminatory harassment at an institution of higher education.

Be it enacted by the State Legislature:

Section 1. {Definitions}

As used in this act:

(1) “Institution” means a public institution of higher education.

(2) “Discriminatory harassment” means student-on-student speech that is:

(a) unwelcome;

(b) discriminatory on the basis of race, color, national origin, disability, religion, age, sex, or sexual orientation; and

(c) so severe, pervasive, and objectively offensive, and that so undermines and detracts from a student’s educational experience, that the student is effectively denied equal access to an institution’s resource or opportunity.[i] [ii]

(3) “Student” means an individual enrolled at an institution.

(4)

(a) “Student-on-student speech” means verbal, written, or other communication that is:

(i) communicated by a student; and

(ii) directed at a student.

(b) “Student-on-student speech” does not include acts of physical contact between a student and another student.

Section 2. {Institution duties}

(1)

(a) If an institution gains actual knowledge of an act of discriminatory harassment in the institution’s program or activity, the institution shall:

(i) take immediate action to eliminate the known act of discriminatory harassment; and

(ii) address the effects of the known act of discriminatory harassment.

(b) An institution that is deliberately indifferent to a known act of discriminatory harassment is in violation of this part.

(2)

(a) An institution may not punish, as discriminatory harassment, student-on-student speech that does not constitute discriminatory harassment.

(b) An institution is not liable under this part for failing to punish a student who communicates student-on-student speech that is not discriminatory harassment.

(3) Nothing in this part prevents an institution from punishing student-on-student speech that is otherwise not protected under the First Amendment to the United States Constitution.

Section 3 {Causes of action}

(1) The following persons may bring an action in any state court of competent jurisdiction to enjoin a violation of this part:

(a) the attorney general; or

(b) a person claiming to be aggrieved by a violation of this part.

(2) In an action brought under this part, if the court finds a violation of this part, the court:

(a) shall enjoin the violation;

(b) shall, if a person claiming to be aggrieved brought the suit, award the aggrieved person at least $1,000; and

(c) may award a prevailing plaintiff:

(i) compensatory damages;

(ii) reasonable court costs;

(iii) reasonable attorney fees and expert fees; or

(iv) any other relief that the court considers appropriate.

(3) In an action brought under this part, the court may award a prevailing defendant reasonable attorney fees if the action was vexatious, frivolous, or brought to harass or embarrass the defendant.

(4) The state waives immunity under the Eleventh Amendment of the United States Constitution and consents to suit in a federal court for lawsuits arising out of this part.

(5) An institution that violates this section is not immune from suit or liability for the violation.

Section 4 {Statute of limitations}

(1) Except as provided in Subsection (3)(b), an action under this part may not be brought later than one year after the day on which the cause of action accrues.

(2) For an action alleging a violation of Section 2 (2)(a), the cause of action accrues on the day on which the student receives final notice, from the institution, of punishment that violates Section 2 (2)(a).

(3)

(a) For an action alleging a violation of Section 2 (1)(b), the cause of action accrues on the day on which the institution receives knowledge of the act of discriminatory harassment.

(b) For an action described in Subsection (3)(a), the limitation described in Subsection (1) shall extend to one year after the day on which the most recent known act of discriminatory harassment, involving the same parties as a prior known act of discriminatory harassment, occurs.

[i] Alternate language 1: (2) “Discriminatory harassment” means student-on-student conduct, including speech that is:

(a) unwelcome;

(b) discriminatory on the basis of race, color, national origin, disability, religion, age, sex, sexual orientation, or gender identity; and

(c) so severe, pervasive, and objectively offensive, and that so undermines and detracts from a student’s educational experience, that the student is effectively denied equal access to an institution’s resource or opportunity.

[ii] Alternate language 2: (2) “Discriminatory harassment” means student-on-student conduct, including speech that is:

(a) unwelcome; and

(b) so severe, pervasive, and objectively offensive, and that so undermines and detracts from a student’s educational experience, that the student is effectively denied equal access to an institution’s resource or opportunity.