Early Trends in 2018 State Legislation
Most state legislatures started their 2018 legislative session in January and while it’s still fairly early in the session to have a solid sense of trends across the country, this post provides an initial look at a few of the top issues NASPA’s Policy and Advocacy Team tracks: campus free speech, rights for trans individuals, and state-level immigration-related policies regarding sanctuary campuses or tuition and financial aid for undocumented immigrants. Some legislation introduced in 2017 is still under consideration in many states with biennial state legislative sessions, though this post will focus mostly on new legislation introduced in 2018 or that has been recently updated or acted on.
A dozen new pieces of state legislation pertaining to free speech on college campuses have been introduced since the start of 2018. Several of these, such as West Virginia House Bill 4203 (WV HB 4203), Kansas Senate Bill 340 (KS SB 340), and Washington House Bill 2223 (WA HB 2223) follow the model established with the Goldwater model Legislation that appeared in many statehouses at the start of 2017. More information about the Goldwater model Legislation and actions by states related to it can be found in our August 2017 post Campus Free Speech 2017 Legislative Round-up & Considerations Following Charlottesville. While North Carolina enacted a bill (NC HB 527) based on the Goldwater model legislation in 2017, the most recent action on California Assembly Constitutional Amendment 14 (CA ACA 14), another Goldwater-based bill, appears to arrest progression of the bill following the cancellation of a hearing by the bill sponsors.
Several states are considering legislation following the Forming Open and Robust University Minds (FORUM) Act model legislation provided by the controversial conservative organization American Legislative Executive Council (ALEC). While these bills, such as South Carolina House bill 4440 (SC H 4440) and West Virginia Senate Bill 111 (WV SB 111), eliminate the ability of campuses to designate controversial free speech zones, they nonetheless retain more flexibility for campuses than the Goldwater model legislation. The FORUM Act requires campuses to establish appropriate policies and procedures around campus speech incidents. The model legislation does not require that campuses introduce mandatory expulsion-level sanctions for students who disrupt speech, though it does require the development of a clearly documented sanctions policy. The bills focus on the establishment and communication of institutional policies and create an accountability process for institutions to report on free speech issues to their state legislatures. Of concern in the model FORUM Act as proposed by ALEC is an “optional” clause that would prohibit campus leaders from speaking out or taking action as an institution on “the public policy controversies of the day,” though it appears that this clause is not included in much of the current legislation being considered.
Also of note is Washington Senate Bill 5832 (WA SB 5832), which establishes that institutions can neither restrict nor require the use of trigger warnings by faculty and prohibits institutional sanctions against students for speech that would be lawful if it occurred off-campus. The national conversation surrounding trigger warnings is covered in more detail in NASPA’s Policy and Practice Brief: Safe Spaces and Brave Spaces, released in October 2017.
Changes in federal regulation regarding the rights of trans individuals made in 2017 have continued to influence state legislation. Since the start of the 2018 State Legislative Session, the Policy and Advocacy Team at NASPA has seen movement on eight bills relating to rights for trans individuals in six states. Tennessee House Bill 888 (TN HB 888), introduced on January 17, 2018, would require both K12 and colleges students to use a restroom and locker room “assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.” Missouri Senate Bill 690 (MO SB 690) and
Oklahoma Senate Bill 1223 (OK SB 1223), the Oklahoma Privacy Accommodation Act, apply to elementary and secondary school districts and would restrict the accommodations school districts could provide to trans students by expressly excluding “access to a restroom or changing facility that is designated for use by members of the opposite sex”. The bills allow for access to single-occupancy facilities or employee facilities upon request of the student. Another Oklahoma bill (OK SB 1250), which is scheduled to be introduced next week, would prevent local jurisdictions from expanding anti-discrimination policies to religious organizations. On the other hand, bills in Hawaii (HI SB 2523), Washington (WA HB 2866), and Idaho (ID H 408) would extend the right to freedom from discrimination to include gender identity or expression or otherwise preserve Title IX protections rescinded by the Trump Administration for students in their states.
While immigration policy is set at the federal level, many states have laws and policies related to use of state funds to support undocumented students who wish to attend college; the revocation of the Deferred Action for Childhood Arrivals (DACA) program in September has prompted new activity in several states. Since the start of the 2018 State Legislative Session, NASPA’s Policy and Advocacy Team has seen movement on nine bills across seven states regarding in-state tuition for undocumented immigrants. A bill introduced in South Dakota (SD SB 103) would not only prohibit any undocumented individuals from receiving financial aid, it would also prohibit them from attending any public college or university. While a bill that would allow undocumented individuals to receive in-state tuition died in committee in Mississippi (MS HB 33) on January 30, 2018, bills to allow the same are under consideration in Florida (FL HB 363), Indiana (IN SB 227 / IN HB 1205), New Jersey (NJ S 699), New York (NY S 1350), and Virginia (VA SB 237 / VA HB 1447).
The increase in cities and campuses declaring themselves as sanctuary jurisdiction for undocumented immigrants following increased enforcement activity under the Trump Administration has also caused state legislatures to consider policies related to these entities. The legal status of sanctuary jurisdictions is still unsettled and there has been little movement to advance bills related to sanctuary jurisdictions since the start of the 2018 state legislative sessions. Tennessee House Bill 271 (TN HB 271), first introduced on January 31, 2017, picked up a new sponsor on January 30, 2018 but has otherwise not progressed. Mississippi House Bill 1508 (MS HB 1508), known as "The Mississippi First Higher Education Act", would have removed policies which support affirmative action, multiculturalism and sanctuary of undocumented immigrants, but it failed in committee on January 30, 2018.
As state legislatures across the country continue to debate and consider legislation, it’s important for them to hear the impacts of policies on their constituents. Student affairs professionals see first-hand both the triumphs and the struggles of students in ways that few other campus administrators can. Telling the stories of our students, stories that complement data showing what we know to be true across the country, is a powerful policy advocacy tool. Each student story is unique, but student affairs professionals work with students across campus, allowing perspective to identify trends and patterns in students’ experiences. Every day, student affairs professionals advocate for student success on campus; NASPA can help support and carry that advocacy to the next level, but we need your voice. Sign up to learn more about the issues above at our upcoming free live briefings on immigration and international students (March 13, 2018), free speech and intellectual diversity on campus (May 10, 2018), and engaging in state advocacy (June 14, 2018). Then join #SAadvocates around the country on the National Student Affairs Day of Action (July 17, 2018) to share your expertise and insight with policymakers.
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