93
rd Legislative Session _ 2018
Committee: Senate Education
Thursday, February 22, 2018
P - Present
E - Excused
A - Absent
Roll Call
P Heinert
P Jensen (Phil)
P Klumb
P Monroe
P Soholt
P Solano, Vice-Chair
P Bolin, Chair
OTHERS PRESENT: See Original Minutes
The meeting was called to order by Senator Bolin, Chairman.
MOTION: TO APPROVE THE MINUTES OF FEBRUARY 20, 2018
Moved by: Jensen (Phil)
Second by: Klumb
Action: Prevailed by voice vote.
Nick Wendell, Executive Director of the Board of Technical Education, introduced Scott Knuppe,
Executive Appointee to the Board of Technical Education. (Handout(s): #1)
Proponent: Mike Rush, Board of Regents
MOTION: TO RECOMMEND SENATE ADVISE AND CONSENT TO THE
APPOINTMENT OF SCOTT KNUPPE OF PENNINGTON COUNTY, RAPID
CITY, SOUTH DAKOTA, TO THE SOUTH DAKOTA BOARD OF TECHNICAL
EDUCATION
Moved by: Solano
Second by: Jensen (Phil)
Action: Prevailed by roll call vote. (6-0-1-0)
Voting Yes: Jensen (Phil), Klumb, Monroe, Soholt, Solano, Bolin
Excused: Heinert
MOTION: PLACE APPOINTMENT ON CONSENT CALENDAR
Moved by: Klumb
Second by: Soholt
Action: Prevailed by voice vote.
SB 198: provide for the protection of free speech on the campuses of public institutions of
higher education.
Presented by: Senator Stalzer (Handout(s): #2, #3)
Proponents: Joe Cohn, Foundation for Individual Rights in Education, Philadelphia, PA
Blake Meadows, Alliance for Defending Freedom, Washington, DC
Andrew Curley, Americans for Prosperity
Norman Woods, Family Heritage Alliance Action
Tim Morgan, self, Mitchell
Shelby Emmett, self, Arlington, Virginia
Opponents: Mike Rush, Board of Regents
Guilherme Costa, Board of Regents
Teagan McNary, USD Student Government Association, Vermillion (Handout(s): #4)
Josh Anderson, USD Student Government Association, Vermillion (Handout(s): #4
Taylin Albrecht, SDSU Student Association, Brookings
Barry Dunn, President of SDSU
Kim Grieve, USD
Mary McCorkle, South Dakota Education Association
MOTION: AMEND SB 198
198cb
On the printed bill, delete everything after the enacting clause and insert:
" Section 1. That chapter 13-53 be amended by adding a NEW SECTION to read:
Terms used in this Act mean:
(1) "Campus community," students, administrators, faculty and staff at the institution of
higher education and their invited guests;
(2) "Materially and substantially disrupt," to significantly hinder, with intent or knowledge
of doing so, the expressive activity of another person or group, to prevent the
communication of the message, or to prevent the transaction of the business of a lawful
meeting, gathering, or procession by:
(a) Engaging in fighting, violent, or seriously disruptive behavior; or
(b) Physically blocking or significantly hindering any person from attending, listening
to, viewing, or otherwise participating in an expressive activity. Conduct that
materially disrupts may not include conduct that is protected under the First
Amendment to the United States Constitution. Protected conduct includes lawful
protests and counter-protests in the outdoor areas of campus generally accessible
to the members of the public, except during times when those areas have been
reserved in advance for other events, and any minor, brief, or fleeing nonviolent
disruption of events that is isolated and short term in duration;
(3) "Outdoor areas of campus," the generally accessible outside areas of campus where
members of the campus community are commonly allowed, such as grassy areas,
walkways, or other similar common areas not including outdoor areas where access is
restricted to a majority of the campus community;
(4) "Public institution of higher education," any institution of higher education under the
control of the Board of Regents;
(5) "Student," any person who is enrolled on a full-time or part-time basis in a public
institution of higher education;
(6) "Student-on-student harassment," expression that targets a person on the basis of
membership in a class protected under federal, state or local law that is so severe,
pervasive, and objectively offensive that it unreasonably interferes with the person's
access to educational opportunities or benefits provided by the public institution of higher
education;
(7) "Student organization," an officially recognized group at a public institution of higher
education comprised of admitted students that receive benefits through the public
institution of higher education.
Section 2. That chapter 13-53 be amended by adding a NEW SECTION to read:
An expressive activity protected under the provisions of this Act includes any lawful verbal or
written means by which persons may communicate ideas to one another, including all forms of
peaceful assembly, protests, speeches and guest speakers, distribution of literature, carrying signs,
circulating petitions, and the recording and publication of video and audio recorded in a public
outdoor area of a public institution of higher education.
Section 3. That chapter 13-53 be amended by adding a NEW SECTION to read:
Any outdoor area of a campus of a public institution of higher education in this state is a public
forum. A public institution of higher education may maintain and enforce reasonable time, place, and
manner restrictions applicable to those outdoor areas of campus if those restrictions are narrowly
tailored in service of a significant institutional interest and only if those restrictions employ clear,
published, content, and viewpoint-neutral criteria, and provide for ample alternative means of
expression. Any restriction shall allow for any student, student organization, faculty or any invited
guest of any student, student organization, or faculty to spontaneously and contemporaneously
assemble and distribute literature. Nothing in this section limits the right of student expression
elsewhere on campus.
Section 4. That chapter 13-53 be amended by adding a NEW SECTION to read:
Any person who wishes to engage in noncommercial expressive activity in the open outdoor
areas on campus may do so freely, as long as the person's conduct is not unlawful and does not
materially and substantially disrupt the functioning of the public institution of higher education,
subject only to the requirements in section 3 of this Act.
Nothing in this section may be interpreted to prevent a public institution of higher education from
prohibiting, limiting, or restricting expression that is not protected under the First Amendment to the
United States Constitution, including any true threat or expression intended to provoke and likely
to produce imminent lawless action, or prohibiting student-on-student harassment.
Nothing in this Act may be construed to enable any person, including any member of the campus
community, to engage in conduct that intentionally, materially, and substantially disrupts another
person's expressive activity if that activity is occurring in a campus space reserved for that activity
under the exclusive use or control of a particular group.
Section 5. That the code be amended by adding a NEW SECTION to read:
Nothing in this Act may be construed to prohibit any content restriction on speech that is
reasonably related to a legitimate pedagogical purpose, including classroom environment rules
enacted by faculty.
For purposes of this section, the classroom environment includes any location where and while
instruction is occurring.
Section 6. That chapter 13-53 be amended by adding a NEW SECTION to read:
Each public institution of higher education shall make public in the institution's handbook, on
the institution's website, and through the institution's orientation programs for students the policies,
regulations, and expectations of students regarding free expression on campus as provided in this
Act.
Section 7. That chapter 13-53 be amended by adding a NEW SECTION to read:
Each public institution of higher education shall develop materials, programs, and procedures
to ensure that those persons who have responsibility for discipline or education of students, such as
administrators, campus police officers, residence life officials, and professors, understand the
policies, regulations, and duties of the public institution of higher education regarding free
expression on campus as provided in this Act.
Section 8. That chapter 13-53 be amended by adding a NEW SECTION to read:
Any person whose right of expression has been violated by an action of an institution of higher
education or an agent of the institution acting in an official capacity that is prohibited under this Act
may bring an action against that institution or any agent of the institution acting in the agent's official
capacity in a court of competent jurisdiction to recover compensatory damages, plus court costs and
reasonable attorney fees. If the court finds that a violation of this section occurred, the court shall
award the aggrieved party at least five hundred dollars or reasonable compensatory damages,
whichever amount is greater, for each violation. The total compensatory damages available to the
plaintiff in a case arising from a single violation of this section may not exceed one hundred
thousand dollars, excluding court costs and reasonable attorney fees. If there are multiple plaintiffs,
the court shall divide the damages equally among the plaintiffs until the maximum award is
exhausted.
Section 9. That chapter 13-53 be amended by adding a NEW SECTION to read:
A person is required to bring suit for violation of this section no later than one year after the day
the cause of action accrues. For purposes of calculating the one-year limitation period, each day that
the violation persists, and each day that a policy in violation of this section remains in effect,
constitutes a new violation of this section and, therefore, a new day that the cause of action has
accrued."
Moved by: Solano
Second by: Soholt
Action: Prevailed by voice vote.
MOTION: AMEND SB 198
198ja
On the previously adopted amendment (198cb), in Section 9, delete the last sentence.
Moved by: Klumb
Second by: Solano
Action: Prevailed by voice vote.
Committee recessed until 12:00 PM.
MOTION: AMEND SB 198
198jb
On the previously adopted amendment (198cb), in Section 9, line one, change "section" to "Act"
and in line two, after "accrues." insert "Before bringing a claim pursuant to this Act, students or
student organizations shall provide written notice and the school or responsible parties have thirty
days to resolve the problem before the commencing of the suit."
Moved by: Soholt
Second by: Klumb
Action: Prevailed by voice vote.
MOTION: DO PASS SB 198 AS AMENDED
Moved by: Klumb
Second by: Jensen (Phil)
Action: Failed by roll call vote. (3-4-0-0)
Voting Yes: Jensen (Phil), Klumb, Monroe
Voting No: Heinert, Soholt, Solano, Bolin
MOTION: DEFER SB 198 TO THE 41
ST LEGISLATIVE DAY
Moved by: Soholt
Second by: Heinert
Action: Prevailed by roll call vote. (4-3-0-0)
Voting Yes: Heinert, Soholt, Solano, Bolin
Voting No: Jensen (Phil), Klumb, Monroe
MOTION: ADJOURN
Moved by: Klumb
Second by: Monroe
Action: Prevailed by voice vote.
Mona Oehlerking
____________________________
Committee Secretary
Jim Bolin, Chair
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