Sb 339 - Education

SB 339 - Education

Daniel F. Barrett
Georgia State University College of Law, dbarrett9@student.gsu.edu

Alexander Hegner
Georgia State University College of Law, ahegner1@student.gsu.edu

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History

In passing Senate Bill (SB) 339, Georgia joined a growing number of states across the country to address a pressing question regarding free speech. Universities and the cities that host them have increasingly faced issues in determining whether they place greater value in the dissemination of speech and ideas or in the maintenance of order and the prevention of violence. Georgia demonstrated, through its introduction of SB 339, its willingness to risk hostility on the campuses of its public colleges and universities to ensure free speech rights remain a priority.

Free speech on college campuses has been and remains a topic of vigorous debate across the country. The Charlottesville, Virginia, riots that broke out in August 2017 reflect the gravest fears of college and university administrators. There, white nationalist demonstrations led to counter-protests and culminated in numerous injuries and even a death.¹ On the other side of the issue, however, many fear the results of some measures to prevent the offensive and violent results of controversial speech. There exists no better example than at the University of California, Berkley, when conservative speakers Milo Yiannopoulos and Ann Coulter scheduled speeches on campus. Students' threats of protest and even violence in response to the scheduled speeches sparked outrage among conservative commentators and fierce proponents of free speech and added more fuel to the national debate. On a national scale, the topic of free speech remains a vibrant one both on and off college campuses. The Cato Institute, a Libertarian think tank, the Cato Institute, published a story in 2017 explaining that "[n]early three-fourths (71%) of Americans believe that political correctness has done more to silence important discussions our society needs to have" and that 66% of

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Americans believe colleges and universities are not sufficiently teaching the values of free speech.²

Georgia's own controversies regarding speech suppression did nothing to quell these same beliefs among many Georgians, including lawmakers. The University System of Georgia has faced numerous incidents of student resistance to policies and even lawsuits against it for those policies. For example, the Philadelphia-based Foundation for Individual Rights in Education targeted the University of North Georgia in October 2017 for its code of conduct, which the Foundation asserted allowed the University to restrict or even discipline speech "simply because someone finds it subjectively demeaning or degrading."³

Moreover, Kennesaw State University recently faced a firestorm of criticism and even legal action in response to two separate events. The first incident occurred when the university president took steps to prevent a group of cheerleaders from kneeling during the national anthem before university football games.⁴ More recently, the university encountered a lawsuit filed by a group of students associated with conservative activist group, Young Americans for Freedom.⁵ The student group alleged that the university intentionally sabotaged its efforts to invite conservative speaker Katie Pavlich to campus by charging additional "security" costs and refusing "activity fee funding" that would help the group cover those costs.⁶

Finally, Alliance Defending Freedom (ADF), an Arizona-based Christian non-profit, has been very active in pursuing legal action against Georgia colleges and universities since 2006. In 2006, ADF

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sued the Georgia Institute of Technology, arguing that a portion of its "Safe Space" training manual contained unconstitutional directives; in 2014, it sued the University of Georgia to strike down its policy that required students to obtain a permit to demonstrate outside of two designated free speech zones.⁷ Each policy was ultimately changed as a result of the lawsuit, and now ADF has become active again—it currently represents Chike Uzuegbunam in a dispute with Georgia Gwinnett College over his evangelization in certain areas of campus, an issue which has drawn the national spotlight and caused Attorney General Jeff Sessions to issue a statement of interest in support of the lawsuit.⁸

Bill Tracking of SB 339

Consideration and Passage by the Senate

Senators William Ligon (R-3rd), David Shafer (R-4th), Joshua McKoon (R-29th) and Lindsey Tippins (R-37th) sponsored SB 339 in the Senate.⁹ The Senate read the bill for the first time on January 22, 2018, and committed it to the Senate Higher Education Committee.¹⁰ The Senate Higher Education Committee modified the bill and favorably reported the Committee substitute.¹¹ The Senate read the bill for the second time on February 22, 2018, and for the third time on February 26, 2018.¹² On February 26, 2018, the Senate successfully passed and adopted the bill by Committee substitute.¹³

The Committee substitute changed most of the introduced bill's original text.¹⁴ The Committee substitute changed almost all of the

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language found in Section 1 of the bill, beginning at line fourteen.¹⁵ The language, which required the Board of Regents of the University System of Georgia to establish "a Committee on Free Expression, consisting of no fewer than [fifteen] members" and mandated the Committee to "report to the public, the board of regents, the Governor, and the General Assembly on September 1 of every year," was removed.¹⁶ Instead, the Committee substitute provided that "[t]he board of regents shall report to the public, the Governor, and the General Assembly."¹⁷

The Committee substitute also removed language found under the amendments to Code section 20-3-48.4, relating to instances when the University System of Georgia may restrict the expressive conduct of persons in public areas of campuses.¹⁸ Yet, like many changes throughout the substitute, the edits to Code section 20-3-48.4 were not replaced with any additional language and the previous Code section remained unchanged.¹⁹ The Committee substitute also removed subsection (8) for the proposed additions to Code section 20-3-48, which provided "a disciplinary hearing under published procedures" for any students charged with violating SB 339.²⁰ However, the Committee removed this requirement and replaced it with the reporting standard mentioned above.²¹ No further amendments were proposed by the Senate, and they passed the Committee substitute of SB 339 on February 26, 2018, by a vote of 33 to 19.²²

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Consideration and Passage by the House

Representative Earl Ehrhart (R-36th) sponsored SB 339 in the House.²³ The House first read SB 339 on February 28, 2018.²⁴ The House read SB 339 a second time on March 1, 2018.²⁵ The bill was assigned to the House Judiciary Committee, which, like the Senate Higher Education Committee, chose to put forth substantial edits in the form of a substitute.²⁶

The House Committee added language relating to free press as well as free speech.²⁷ The Committee revised subsection (a) of Code section 20-3-48, disallowing Georgia University System institutions from shielding students from free speech so long as "any invited speaker whom a student group or members of the faculty have invited . . . complies with the applicable institution's content-neutral time, place...