1. Definitions for Terms Used in this Section

a. Constitutional time, place, and manner restrictions – Restrictions on free speech which are content-neutral, narrowly tailored to serve a significant interest, and leave open alternative methods of communicating the message in question.

b. Employee - means any person acting on behalf of VCSU in an official capacity, temporarily or permanently, with or without compensation. The term does not include an independent contractor.

c. Free speech or Free Expression – The rights to speech, expression, and assembly protected by the First Amendment to the United States Constitution or Article I, Section 4 of the Constitution of North Dakota. Such rights include, but are not limited to, all forms of peaceful assembly, protests, demonstrations, rallies, vigils, marches, public speaking, distribution of printed materials, the display of signs or banners, or the circulation of petitions. For the purposes of this policy, “free speech” or “free expression” is not intended to include commercial speech.
i. Commercial Speech – The promotion, sale, or distribution of a product or service. For the purposes of this section, commercial speech does not include the incidental promotion, sale, or distribution of a product as part of the exercise of non-commercial speech.

d. Materially and Substantially Disruptive Conduct
– Conduct by an individual or group which constitutes knowing or intentional affirmative steps to limit the free speech of an individual or a group, prevents the communication of a message, or disrupts a lawful meeting, gathering, or procession through violent or obstructive behavior. Protected conduct does not constitute a material and substantial disruption.

e. Protected Conduct – Free Speech or Free Expression protected by the First Amendment to the United States Constitution or Article I, Section 4 of the Constitution of North Dakota, subject to reasonable time, place, and manner restrictions, permitting requirements under institutional policies or procedures, and the reasonable safety and security needs of the institution.

f. Student – an individual enrolled in one or more courses at an institution.

g. Student-on-Student Harassment – (1) Unwelcome conduct directed to an individual which a reasonable person would find offensive or defamatory and which does not constitute protected conduct, (2) conduct which violates North Dakota criminal laws prohibiting harassment, stalking, or similar behavior, or (3) conduct which would constitute a violation of Title VI or VII of the Civil Rights Act of 1964, as amended or Title IX of the Education Amendments of 1972 (or similar state and federal laws). Institutions shall ensure that their existing codes of conduct are not enforced beyond this definition and are not used to limit protected conduct.

h. Student Organization – An officially recognized organization, or an organization seeking recognition by an institution, comprised of students, whether or not that organization seeks or receives institutional funds.

2. VCSU Policy on Free Speech and Expression

a. VCSU recognizes that students and employees have a fundamental right to free speech and expression under the First Amendment to the United States Constitution and Article I, Section 4 of the North Dakota Constitution, and as a result VCSU shall ensure that students and employees have the freedom to speak, write, listen, challenge, learn, and discuss any issue, subject to reasonable and constitutionally-recognized limitations.

b. VCSU shall not engage in viewpoint- or content-based discrimination or suppression of speech and shall to the greatest extent possible permit and facilitate the open discussion and debate of ideas and issues, regardless of the content of those issues.

c. As a general rule, VCSU shall not use the concepts of civility or mutual respect as a basis to suppress or limit the discussion of ideas, regardless of content, except as reasonably necessary in the educational setting.

d. VCSU generally shall not seek to shield individuals from the free speech or expression of others.

e. VCSU shall control the availability of campus spaces for free speech and expressive activity as follows:
i. VCSU shall maintain the generally accessible, open, outdoor areas of its campus as traditional public fora for free speech by students, employees, student organizations, and members of the public, subject to reasonable and constitutional time, place, and manner restrictions. Institutions may require students, employees, student organizations, and members of the public to obtain a permit to reserve the exclusive use of an outdoor space constituting a traditional public forum. Such permits may not be issued or denied based on the content of the message or viewpoint the permit requester seeks to convey.
ii. VCSU designates as restricted or designated forums: (1) those areas inside buildings which have not otherwise been treated as traditional public fora; (2) areas in residential areas of campus during evening and overnight hours; (3) areas immediately surrounding academic buildings during times when classes are held in that building; (4) areas which must be restricted due to reasonable safety and security concerns; (5) areas which must be restricted to enable the flow of pedestrian or vehicle traffic; and (6) areas surrounding building entrances and exits to provide for safe and convenient ingress and egress from those buildings. VCSU may grant permits to students, employees, student organizations, or others to exercise free speech or expression in such restricted or designated fora based on content-neutral criteria.

f. Students, employees and student organizations shall be permitted to invite guest speakers or groups to campus, and VCSU may not prohibit or dis-invite such guest speakers based on the anticipated content or viewpoint of their speech or expression.

g. VCSU may not impose security fees on students, employees or student organizations who invite guest speakers or groups to campus based on the anticipated content or viewpoint of the guest speaker or group’s speech or expression, and VCSU is not required to subsidize the free speech and expression of students, employees or student organizations. As a result, VCSU may, in its discretion, impose security and logistic fees based on venue, anticipated attendance, anticipated protest activity, and other non-content-based factors. Such fees may not exceed the actual costs incurred by VCSU, and VCSU must refund any over payment. VCSU shall set forth empirical and objective criteria for calculating such fees, and such criteria shall be made publicly available.

h. VCSU may make their facilities available to guest speakers or groups invited by students, employees or student organizations, and may subject such guest speakers or groups to the same terms and conditions governing use of the facilities for other outside groups. If VCSU chooses to make facilities available to guest speakers or groups invited by students, employees or student groups, those facilities will be made equally available to all such speakers or groups.

i. VCSU may prohibit materially and substantially disruptive conduct.

j. VCSU may impose measures regarding student and employee free speech and expression which comport with the First Amendment of the United States Constitution and Article I, Section 4 of the Constitution of North Dakota, including, but not limited to:
i. Constitutional time, place, and manner restrictions on the use of traditional public fora;
ii. Reasonable and viewpoint-neutral restrictions on the use of restricted or designated fora;
iii. Prioritizing the use of institution resources and property for students, employees and student organizations over individuals and groups not affiliated with the institution;
iv. Prohibiting or limiting speech, expression, or assemblies not protected by the First Amendment to the United States Constitution and Article I, Section 4 of the Constitution of North Dakota, such as defamatory speech, true threats, and other recognized exceptions; and
v. Content-based restrictions reasonably related to a legitimate educational or pedagogical purpose, such as rules for behavior in the classroom.

k. The university is traditionally a place that respects free speech and the interchange of ideas and as such also guarantees the constitutional free speech rights of employees. The free speech rights of one campus constituent neither abridge nor supersede the free speech rights of other constituencies.

3. Distribution of Publications, Hanging of Banners, or Chalking

Reference VCSU Policy 401.02.

4. Reports of Violations of this Policy

Individuals who believe this policy (or an institutional policy covering the same or similar subject matter) has been violated may report any violation through an existing reporting process at an institution. Alternatively, individuals may report violations to the NDUS Office’s Director of Student Affairs (the “Director”). In the event that a report is made to the Director, he or she shall determine the appropriate institution official to address the report in consultation with the Vice Chancellor of Academic and Student Affairs. Pursuant to SBHE Policy 308.2, no NDUS employee, officer or member of the SBHE shall retaliate against an individual for making a report under this paragraph.

Sponsor:  VPAA and VPSA
Effective: August 2019
Revised:  December 2019