Indiana passes bill establishing protections for campus free speech in state law

Earlier this week, Indiana Gov. Eric Holcomb signed House Bill 1190 into law after it unanimously passed the Indiana House and Senate. FIRE testified in support of the law, which was authored by Rep. Jack Jordan and provides important free speech protections for students enrolled at state institutions of higher education.

First, HB 1190 bans so-called “free speech zones,” which unconstitutionally quarantine expression to restricted areas of campus. The law establishes that “an individual may, on any outdoor area of campus, freely engage in noncommercial protected expressive activity,” so long as the activity is lawful and does not materially and substantially disrupt the functioning of the institution. 

With this provision, Indiana becomes the 22nd state to ban free speech zones, joining Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Iowa, Kentucky, Louisiana, Missouri, Montana, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Virginia, and West Virginia.

HB 1190 bans so-called “free speech zones,” which unconstitutionally quarantine expression to restricted areas of campus.

HB 1190 also adopts the speech-protective definition of student-on-student harassment set forth by the U.S. Supreme Court in Davis v. Monroe County Board of Education, which defined student-on-student harassment as conduct “so severe, pervasive and objectively offensive” that a student-victim is effectively denied equal access to educational opportunities or benefits. Colleges must use the Davis standard if they are to meet their dual legal responsibilities of addressing discriminatory, harassing conduct and protecting free expression. 

The new law also states that public colleges and universities may not discriminate against “a religious, political, or ideological student organization on the basis of protected expressive activity of the student organization,” including any student organization rule that requires their leaders or members to:

(1) Affirm or adhere to the sincerely held beliefs of the student organization. 

(2) Comply with a standard of conduct of the student organization. 

(3) Further the mission or purpose of the student organization.

This provision aims to remedy the threat to freedom of association created by the Supreme Court in CLS v. Martinez. In a sharply divided 5-4 decision, the Court held, despite its own long-standing precedent upholding freedom of association, that a public university may require its student organizations to accept any student as a voting member or leader, regardless of whether the student openly disagrees with — or is even hostile to — the group’s fundamental beliefs.

HB 1190 also adopts the speech-protective definition of student-on-student harassment set forth by the U.S. Supreme Court.

To ensure compliance with its provisions, HB 1190 requires state colleges and universities to adopt “student protected expressive activity policies” in student handbooks and to “develop materials, programs, and procedures” that educate campus administrators and other university officials on their responsibilities with regards to expressive activity on campus. The law also establishes, among other enforcement mechanisms, a cause of action allowing any student or student organization to “bring an action for a violation of . . . rights under this chapter.”

As we have already done with dozens of institutions across the country, FIRE stands ready to assist Indiana colleges as they revise their policies in light of the law’s requirements. This work is performed free of charge to institutions or taxpayers, in accordance with FIRE’s charitable mission.