15-10.4-02. Adoption of campus free speech policy
The state board of higher education and each institution shall adopt a policy that:
1. Protects students' rights to free speech, assembly, and expression;
2. Permits institutions to establish and enforce reasonable and constitutional time, place,
and manner restrictions on free speech, assembly, and expression;
3. Protects the academic freedom and free speech rights of faculty by guaranteeing, at a
minimum, no faculty member will face adverse employment action for classroom
speech, unless the speech is not reasonably germane to the subject matter of the
class as broadly construed and comprises a substantial portion of classroom
instruction;
4. Prohibits student-on-student discriminatory harassment consistent with the following
requirements:
a. An institution may not enforce the student-on-student discriminatory harassment
policy by disciplining or otherwise imposing any sanction on a student for a
violation of the policy stemming from expression unless:
(1) The speech or expression is unwelcome, targets the victim on a basis
protected under federal, state, or local law, and is so severe, pervasive, and
objectively offensive that a student effectively is denied equal access to
educational opportunities or benefits provided by the institution; or
(2) The speech or expression explicitly or implicitly conditions a student's
participation in an education program or activity or bases an educational
decision on the student's submission to unwelcome sexual advances or
requests for sexual favors;
b. An institution may sanction or discipline student-on-student speech or expression
that does not meet the definition of student-on-student harassment only when the
speech or expression is not protected under the First Amendment to the United
States Constitution or section 4 of article I of the Constitution of North Dakota;
and
c. An institution may respond to student-on-student speech that is not discriminatory
harassment by taking nonpunitive actions designed to promote a welcoming,
inclusive environment; and
5. Complies with the following principles of free speech:
a. An institution shall maintain the generally accessible, open, outdoor areas of the
institution's campus as traditional public forums for free speech by students,
faculty, and invited guests, subject to reasonable time, place, and manner
restrictions on free speech, assembly, and expression which are applicable to the
publicly accessible outdoor areas of campus, do not violate the First Amendment
to the United States Constitution or section 4 of article I of the Constitution of
North Dakota, and are clear, published, reasonable, content-neutral,
viewpoint-neutral, and narrowly tailored to satisfy a significant institutional
interest, and leave open alternative channels for the communication of
information or a message;
b. An institution may not restrict students' free speech to particular areas of campus,
sometimes known as "free speech zones";
c. An institution may not deny student activity fee funding to a student organization
based on the viewpoints the student organization advocates;
d. An institution may not establish permitting requirements prohibiting spontaneous
outdoor assemblies or outdoor distribution of literature, except an institution may
maintain a policy granting an individual or organization the right to reserve the
exclusive use of certain outdoor spaces, and may prohibit spontaneous
assemblies or distribution of literature inside reserved outdoor spaces;
e. An institution may not charge students or student organizations security fees
based on the content of the student's or student organization's speech, the
content of the speech of guest speakers invited by students, or the anticipated
reaction or opposition of listeners to the speech. Any security fees charged to a
student or student organization may not exceed the actual costs incurred by the
institution, and the institution shall refund any overpayment. Institutions shall set
forth empirical and objective criteria for calculating security fees and shall make
the criteria available to the public;
f. An institution shall allow students, student organizations, and faculty to invite
guest speakers to campus to engage in free speech regardless of the views of
the guest speakers or viewpoint or content of the anticipated speech;
g. An institution may not retract or compel a student, student organization, or faculty
member to retract a guest speaker's invitation to speak at the institution based on
the guest speaker's viewpoints or the content of the anticipated speech; and
h. An institution may not discriminate against a student organization with respect to
a benefit available to any other student organization based on a requirement of
the organization that leaders or voting members of the organization:
(1) Adhere to the organization's viewpoints or sincerely held beliefs; or
(2) Be committed to furthering the organization's beliefs or religious missions.
