Higher education free expression bill halted in committee
Sen. Dan Sullivan sits in the Senate chamber on Jan. 23, 2023. (Courtesy Arkansas Senate)
After an hour of debate among Senate Education Committee members on Wednesday, Sen. Dan Sullivan (R-Jonesboro) pulled down a bill he said was designed to protect free expression on college campuses.
“The intent of the bill is to allow students to be expressive and we’re seeing a lot of bills now that seek to restrict expressive behavior,” Sullivan said. “This bill allows for expressive behavior and allows people not to be penalized as long as they’re not disruptive, which I think is a good standard.”
Committee members questioned who would define disruptive. Sullivan responded that each university administration would have to decide what’s considered a disruption at their institution.
The legislation builds upon 2019’s Forming Open and Robust University Minds or FORUM Act. Sullivan sponsored that legislation, which eliminated free speech zones at higher education institutions and designated outdoor campus spaces as public forums.
Senate Bill 125 would change the FORUM Act’s name to the Free Thought in Higher Education Act and extend the rights to free expression in outdoor spaces to indoor areas, Sullivan said.
Sen. Jim Dotson (R-Bentonville) co-sponsored the FORUM Act in 2019 and said while he appreciated what Sullivan was trying to accomplish, the new bill appears to go beyond simply adopting existing rules for interior spaces.
Both Republicans and Democrats on the committee expressed similar concerns about alterations to the language of the original bill, most notably the striking of text referencing speech and conduct protected by the First Amendment to the U.S. Constitution.
“It just strikes me that we’re going to strike something out that takes out the First Amendment,” Sen. Kim Hammer (R-Benton) said. “I don’t understand that.”
Sullivan argued that Americans’ protections under the First Amendment are already guaranteed and that the bill does not take that away. Removing some references to the First Amendment simplifies the bill, which includes additional language that expands upon what free expression looks like, he said.
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When Hammer requested a real-life example that would necessitate this bill because someone doesn’t already have protection, Sullivan discussed a scenario where a professor could tell students to be respectful of someone’s preferred pronouns.
If someone disagrees, the university has the potential to make a policy that does not allow students and staff to misgender anybody, but this bill prohibits that, Sullivan said.
“I’m not aware in Arkansas, but I’m aware of universities nationally who’ve banned certain words and certain behaviors, and they make policies to do that,” Sullivan said. “This bill stops that. It provides further protection of your First Amendment rights.”
The bill specifically addresses pronouns, saying that a state-supported institution of higher education shall “not mandate the use of specific words, including without limitation pronouns.”
Sen. Greg Leding (D-Fayetteville) said that language raises a red flag for him.
“In this particular instance, we are carving out space for people not to honor how somebody wants to express themselves…and it’s not really even an expression, it’s at the core of their identity,” he said.
Leding also questioned if the legislation creates a policy that would allow someone to intentionally disregard how somebody chooses to express themselves.
“The First Amendment already allows you to intentionally disregard somebody’s pronouns,” Sullivan said. “The First Amendment also allows you to intentionally dress how you want, and if people disagree with that, they’re free to express that.”
While Sullivan said SB 125 is designed to protect free expression, the bill includes restrictions on how and when free expression may be enacted on campus.
For example, the legislation requires that “speech and expressive conduct” do not interfere with state and federal laws prohibiting harassment and discrimination. It also allows public colleges and universities to “impose reasonable restrictions regarding the time, place or manner of expressive activities.”
Following several questions from his colleagues, Sullivan asked to withdraw his bill and said that if it could be improved upon, he would try.
Sullivan first ran a Free Thought in Higher in Education Act during the 2021 session. It died in the Senate Education Committee and did not become law.
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