North Dakota enacts law ensuring colleges and universities fulfill their First Amendment obligations

BISMARCK, N.D., April 19, 2021 — North Dakota Gov. Doug Burgum codified important free speech protections for students and faculty at North Dakota’s public colleges and universities today by signing into law HB 1503.

The law — which the Foundation for Individual Rights in Education, a national, nonpartisan civil liberties organization, supported in the legislative process through testimony, cooperation with legislators, and research on the policies maintained by North Dakota universities — amends the flawed statute passed in the 2019 legislative session. 

The law:

• Adopts the speech-protective definition of student-on-student harassment set forth by the Supreme Court of the United States’ holding in Davis v. Monroe County Board of Education, which defined student-on-student harassment as conduct that is “so severe, pervasive and objectively offensive” that it effectively bars a student-victim from receiving equal access to educational opportunities or benefits;
• clarifies that public institutions of higher education are prohibited from quarantining student expression into small, misleadingly labeled “free speech zones” and establishes outdoor areas of campus as public forums for free speech by students, faculty, and invited guests;
• requires that students, student organizations, and faculty be allowed to invite guest speakers to campus regardless of the views of the guest speakers or viewpoint or content of the anticipated speech;
• prevents colleges from charging security fees to students and student organizations based on the content of their expression or the anticipated reaction to an invited guest’s speech;
• instructs public colleges and universities to fund student organizations in a viewpoint-neutral manner and protects the right of belief-based student organizations to ensure that their leadership reflects their particular beliefs; and
• protects the academic freedom and free speech of faculty by ensuring that faculty have a safe harbor protecting them from discipline for classroom speech that is germane to the subject of the class.

In addition to establishing a speech protective policy framework for campuses going forward, HB 1503 addresses timely and urgent issues within the policies maintained by several North Dakota institutions of higher education. Internal FIRE research found that not a single North Dakota institution consistently defines student-on-student harassment in line with the Davis standard. Additionally, we found that almost two-thirds of state institutions’ written policies apply security fees for speakers invited by students and faculty based on the anticipation of a negative reaction, which is a violation of U.S. Supreme Court precedent.

“By locking in court-recognized standards for campus free speech, the North Dakota legislature ensures that the written policies at schools across the state will respect free speech rights,” said Joe Cohn, FIRE’s legislative and policy director. “Having already passed legislation guaranteeing a free campus press and due process rights for accused students in disciplinary hearings, North Dakota is now the national leader in securing the civil liberties of its students.”

The bill was sponsored in the North Dakota House of Representatives by Speaker Kim Koppelman and Reps. Rick Becker, Mary Johnson, and Bernie Satrom, and in the Senate by Sens. Dick Dever, Michael Dwyer, and Ray Holmberg.

With HB 1503’s passage, North Dakota joins Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Iowa, Kentucky, Louisiana, Missouri, Montana, North Carolina, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Virginia as the 20th state to pass legislation banning public colleges and universities from relegating student expression to so-called “free speech zones.” Additionally, North Dakota joins Alabama, Arkansas, Montana, Ohio, Oklahoma, Tennessee, and Utah as the eighth state to require colleges and universities to align their anti-harassment policies with First Amendment jurisprudence. Regulations promulgated by the federal government in 2020 also adopted the Davis standard to govern Title IX cases.

As it has already done with dozens of institutions across the country, FIRE stands ready to assist North Dakota 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.

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

CONTACT:

Katie Kortepeter, Media Relations Associate, FIRE: 215-717-3473; media@thefire.org