[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4897 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 4897
To make reforms at institutions of higher education.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 20, 2022
Mr. Cotton introduced the following bill; which was read twice and
referred to the Committee on Finance
_______________________________________________________________________
A BILL
To make reforms at institutions of higher education.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Student Loan Reform Act of 2022''.
SEC. 2. PLUS LOAN REFORMS.
(a) In General.--Section 455(a) of the Higher Education Act of 1965
(20 U.S.C. 1087e(a)) is amended by adding at the end the following:
``(4) Termination and restriction of authority to make
federal direct plus loans.--
``(A) Termination of authority to make federal
direct plus loans to graduate or professional students
who are not covered healthcare students.--
Notwithstanding any provision of this part or part B,
for any period of instruction beginning on or after
July 1, 2023, a graduate or professional student
(except for a covered healthcare student) shall not be
eligible to receive a Federal Direct PLUS Loan under
this part for the student's graduate or professional
studies.
``(B) Exception for parent borrowers and covered
healthcare students.--Notwithstanding any provision of
this part or part B, for any period of instruction
beginning on or after July 1, 2023 and for any parent
borrower of a Federal Direct PLUS loan or any covered
healthcare student--
``(i) the maximum annual amount of any
Federal Direct PLUS Loan shall not exceed
$10,000; and
``(ii) the maximum aggregate lifetime
amount of any Federal Direct PLUS Loans shall
not exceed $40,000.
``(C) Covered healthcare student.--In this
paragraph, the term `covered healthcare student'
means--
``(i) a student who is in a course of study
to--
``(I) become a Doctor of Allopathic
Medicine, Doctor of Osteopathic
Medicine, Doctor of Dentistry, Doctor
of Optometry, Doctor of Podiatric
Medicine, Doctor of Naturopathic
Medicine, Doctor of Naturopathy, Doctor
of Veterinary Medicine, Doctor of
Pharmacy, or Doctor of Chiropractic; or
``(II) earn a doctoral degree in
clinical psychology or a masters or
doctoral degree in health
administration; and
``(ii) a student who is in a course of
study to become a nurse who will have the same
scope of practice as a doctor or degree program
described in clause (i).''.
(b) Report.--
(1) In general.--By not later than 3 years after the date
of enactment of this Act, the Secretary of Education shall
submit a report to Congress offering recommendations on other
critical STEM-based professions with a high return on
investment for which graduate and professional students should
be allowed to access Federal Direct PLUS Loans under part D of
title IV of the Higher Education Act of 1965 (20 U.S.C.1087a et
seq.) for their graduate and professional studies.
(2) Considerations.--In carrying out paragraph (1), the
Secretary shall consider--
(A) how expanding Federal Direct PLUS Loans to
graduate and professional students as described in
paragraph (1) would benefit low-income students; and
(B) how Congress could index the maximum amount of
Federal Direct PLUS Loans for each graduate or
professional student borrower to the median earnings
for graduates of the borrower's program of study at the
borrower's institution of higher education, or the
borrower's program of study at a peer institution of
higher education.
(3) Definition of stem-based.--In this subsection, the term
``STEM-based'' means based in science, technology, engineering,
or mathematics.
SEC. 3. LOAN DEFAULT PENALTY.
Section 454 of the Higher Education Act of 1965 (20 U.S.C.
1087d(a)) is amended--
(1) in subsection (a)--
(A) in paragraph (5), by striking ``and'' after the
semicolon;
(B) by redesignating paragraph (6) as paragraph
(8); and
(C) by inserting after paragraph (5) the following:
``(6) provide that the institution accepts the loan default
penalty requirements under subsection (d);''; and
(2) by adding at the end the following:
``(d) Loan Default Penalty Requirements.--
``(1) In general.--Beginning with the second fiscal year
that begins after the date of enactment of the Student Loan
Reform Act of 2022, and each succeeding fiscal year, each
institution of higher education participating in the direct
student loan program under this part shall remit to the
Secretary, at such times as the Secretary may specify, a
student loan default penalty, as determined under paragraph
(2).
``(2) Student loan default penalty.--For each fiscal year,
the student loan default penalty shall be an amount equal to 25
percent of the total amount of loans under this part received
for attendance at the institution--
``(A) that entered into default loan status in the
previous fiscal year;
``(B) for which a borrower entered default loan
status for the first time; and
``(C) for which the borrower did not exit default
loan status within the first 60 days after entering
such status.''.
SEC. 4. INSTITUTIONAL RESPONSIBILITY FOR LOAN REPAYMENT.
Section 454 of the Higher Education Act of 1965 (20 U.S.C.
1087d(a)), as amended by section 3, is further amended--
(1) in subsection (a), by inserting after paragraph (6) the
following:--
``(7) provide that the institution accepts the
institutional responsibility guarantee requirements under
subsection (e); and'';
(2) by adding at the end the following:
``(e) Institutional Responsibility Guarantee.--
``(1) In general.--Beginning with respect to loans under
this part that are disbursed during the first award year that
begins after the date of enactment of the Student Loan Reform
Act of 2022, and each succeeding fiscal year, each institution
of higher education participating in the Direct student loan
program under this part shall provide a written agreement to
the Secretary asserting that the institution will remit to the
Secretary, at such times as the Secretary may specify, an
institutional responsibility payment, as determined under
paragraph (2).
``(2) Institutional responsibility payment.--The
institutional responsibility payment shall be, for each
borrower who was enrolled in the institution, an amount equal
to the lesser of--
``(A) a percentage of the total outstanding balance
of that borrower that was received for attendance at
the institution by that borrower that is equal to 1
percent for each $1000 of the total amount under this
part received for attendance at the institution by that
borrower; or
``(B) 50 percent of the total outstanding balance
of that borrower that was received under this part for
attendance at the institution by that borrower.
``(3) Use of institutional responsibility payment.--The
Secretary shall apply all of an institutional responsibility
payment received under this subsection for a borrower to the
outstanding Direct student loan obligation of such student, and
shall notify the student of the reduction in the balance of the
student's Direct student loan obligations.
``(4) Total outstanding balance.--In this subsection, the
term `total outstanding balance' means the total amount of
loans under this part--
``(A) that have gone into default status and remain
unpaid after a period of 10 years or more; and
``(B) that remain unpaid after the period described
in subparagraph (A) and after the Secretary has
exhausted attempts to recover repayment from the
borrower, including through wage garnishment under
section 488A, an administrative offset under section
3716 of title 31, United States Code, a Federal salary
offset, or any other legal means through which the
Secretary may recover repayment of Federal student
loans.''.
SEC. 5. LIMIT ON ADMINISTRATIVE STAFF.
(a) Program Participation Agreement.--Section 487(a) of the Higher
Education Act of 1965 (20 U.S.C. 1094(a)) is amended by adding at the
end the following:
``(30) The institution will agree to the limit on
administrative staff requirements described in section 487C.''.
(b) Limit on Administrative Staff.--Part G of title IV of the
Higher Education Act of 1965 (20 U.S.C. 1088 et seq.) is amended by
inserting after section 487B the following:
``SEC. 487C. LIMIT ON ADMINISTRATIVE STAFF.
``(a) Definitions.--In this section:
``(1) Administrative staff.--The term `administrative
staff'--
``(A) means staff whose duties are primarily non-
academic, non-instructional, and non-research;
``(B) includes any institutional support staff,
such as human resources, marketing, public relations,
government relations, executive, administrative, or
managerial staff;
``(C) includes student services staff, such as
diversity, equity, and inclusion staff;
``(D) includes members of the academic
administration, such as deans or provosts; and
``(E) excludes grounds and maintenance staff,
cafeteria staff, healthcare practitioners, campus
security, religious clergy supported by the
institution, and information technology support staff.
``(2) Covered institution.--
``(A) In general.--The term `covered institution'--
``(i) means an institution that--
``(I) charged an amount for
undergraduate tuition and fees equal to
or greater than $20,000 for an academic
year after the date of enactment of the
Student Loan Reform Act of 2022, as
determined by the Secretary on an
annual basis; and
``(II) for the first covered year,
had 200 or more individuals serving as
administrative staff; and
``(ii) excludes--
``(I) an institution that is
controlled by or that is closely
identified with the tenets of a
particular religious organization, as
described in section 106.12(c) of title
34, Code of Federal Regulations (as in
effect on the date of enactment of the
Student Loan Reform Act of 2022); and
``(II) an institution that is a
medical school, as determined by the
Secretary.
``(B) Special rule.--If an institution charges
separate amounts of undergraduate tuition and fees and
for in-State and out-of-State students, the amount of
tuition and fees for the purposes of this paragraph
shall be determined based on the amount that is an
average of in-State and out-of-State undergraduate
tuition and fees.
``(3) First covered year.--The term `first covered year',
when used with respect to a covered institution, means the
first academic year after the date of enactment of the Student
Loan Reform Act of 2022 for which the institution's
undergraduate tuition and fees exceeded $20,000, as determined
in accordance with paragraph (2).
``(b) In General.--Beginning for the second academic year after the
date of enactment of the Student Loan Reform Act of 2022, a covered
institution that participates in a program under this title shall be
required--
``(1) each year of a school's participation in a program
under this title, to reduce 10 percent of administrative staff
at the institution, as compared to the total amount of such
administrative staff at the institution in the first covered
year, until the completion of the 5th year of such reductions,
at which time the institution shall be required to demonstrate
to the Secretary that the institution has reduced 50 percent of
the administrative staff at the institution, as compared to the
administrative staff at the institution in the first covered
year;
``(2) to ensure that after the completion of the 5-year
period described in paragraph (1), the institution shall not
increase the number of administrative staff at the institution
by more than 1 percent annually for the remainder of the
institution's participation in a program under this title;
``(3) to eliminate administrative staff in the order
specified under subsection (c); and
``(4) to submit an annual certification to the Secretary
asserting that the institution meets the requirements of
paragraphs (1), (2), and (3).
``(c) Priority for Administrative Staff Reductions.--An institution
shall reduce administrative staff in the following order:
``(1) First, reducing diversity, equity, and inclusion
staff by not less than 95 percent.
``(2) Second, reducing executive or management staff.
``(3) Third, reducing human resources staff.''.
SEC. 6. AFFIRMATIVE ACTION.
(a) Institution of Higher Education.--The term ``institution of
higher education'' has the meaning given that term in section 102 of
the Higher Education Act of 1965 (20 U.S.C. 1002).
(b) Prohibition on Preferential Treatment or Discrimination.--An
institution of higher education receiving Federal funds shall not grant
preferential treatment to, or discriminate against, any individual or
group on the basis of race, color, ethnicity, or national origin,
including treatment or discrimination related to employment and student
admissions.
SEC. 7. CRITICAL RACE THEORY.
(a) Definitions.--
(1) Institution of higher education.--The term
``institution of higher education'' has the meaning given that
term in section 102 of the Higher Education Act of 1965 (20
U.S.C. 1002).
(2) Race-based theory.--The term ``race-based theory''
means a theory that--
(A) any race is inherently superior or inferior to
any other race;
(B) the United States is a fundamentally racist
country;
(C) the Declaration of Independence or the
Constitution of the United States is a fundamentally
racist document;
(D) an individual's moral worth is determined by
the race of the individual;
(E) an individual, by virtue of the race of the
individual, is inherently racist or oppressive, whether
consciously or unconsciously; or
(F) an individual, because of the race of the
individual, bears responsibility for the actions
committed by members of the race of the individual.
(b) Prohibition on Award of Funds to Certain Institutions of Higher
Education.--No Federal funds may be awarded to an institution of higher
education if such institution compels teachers or students to affirm,
adhere to, adopt, or profess race-based theories or beliefs contrary to
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).
(c) Rules of Construction.--
(1) Protected speech not restricted.--Nothing in this
section shall be construed to restrict the speech of a student,
a teacher, or any other individual outside of an instructional
setting of an institution of higher education.
(2) Access to materials for the purpose of research or
independent study.--Nothing in this section shall be construed
to prevent an individual from accessing materials that advocate
race-based theories for the purpose of research or independent
study.
SEC. 8. EXCISE TAXES ON CERTAIN COLLEGES AND UNIVERSITIES.
(a) Excise Tax on Certain Large Private College and University
Endowments.--
(1) In general.--Subchapter H of chapter 42 of the Internal
Revenue Code of 1986 is amended by adding at the end the
following new section:
``SEC. 4969. EXCISE TAX ON CERTAIN LARGE PRIVATE COLLEGE AND UNIVERSITY
ENDOWMENTS.
``(a) Tax Imposed.--There is hereby imposed on each specified
applicable educational institution for the taxable year a tax equal to
1 percent of the aggregate fair market value of the assets of the
institution at the end of the preceding taxable year.
``(b) Specified Applicable Educational Institution.--For purposes
of this subchapter, the term `specified applicable educational
institution' means any applicable educational institution, other than
an institution which is religious in nature, the aggregate fair market
value of the assets of which at the end of the preceding taxable year
(other than those assets which are used directly in carrying out the
institution's exempt purpose) is at least $2,500,000,000.
``(c) Other Terms.--For purposes of this section--
``(1) Assets.--The rules of section 4968(d) shall apply.
``(2) Student.--The rules of section 4968(b)(2) shall
apply.''.
(2) Clerical amendment.--The table of sections for
subchapter H of chapter 42 of the Internal Revenue Code of 1986
is amended by adding at the end the following new item:
``Sec. 4969. Excise tax on certain large private college and university
endowments.''.
(b) Failure To Distribute Endowment Assets.--
(1) In general.--Subchapter H of chapter 42 of the Internal
Revenue Code of 1986, as amended by subsection (a), is amended
by adding at the end the following new section:
``SEC. 4970. FAILURE TO DISTRIBUTE ENDOWMENT ASSETS.
``(a) Tax Imposed.--There is hereby imposed on the undistributed
excess endowment amount of each specified applicable educational
institution for the taxable year, which has not been distributed before
the first day of the second (or any succeeding) taxable year following
such taxable year (if such first day falls within the taxable period),
a tax equal to 30 percent of such undistributed excess endowment amount
remaining undistributed at the beginning of such second (or succeeding)
taxable year. The tax imposed by this section shall not apply to the
undistributed excess endowment amount of a specified applicable
educational institution to the extent that the foundation failed to
distribute any amount solely because of an incorrect valuation of
assets, if--
``(1) the failure to value the assets properly was not
willful and was due to reasonable cause,
``(2) such amount is distributed as qualifying
distributions by the institution during the allowable
distribution period,
``(3) the institution notifies the Secretary that such
amount has been distributed as qualifying distributions to
correct such failure, and
``(4) such distribution is treated, by reason of subsection
(e)(2), as made out of the undistributed income for the taxable
year for which a tax would (except for this paragraph) have
been imposed under this subsection.
``(b) Additional Tax.--In any case in which an initial tax is
imposed under subsection (a) on the undistributed excess endowment
amount of any specified applicable educational institution for any
taxable year, if any portion of such amount remains undistributed at
the close of the taxable period, there is hereby imposed a tax equal to
100 percent of the amount remaining undistributed at such time.
``(c) Undistributed Excess Endowment Amount.--For purposes of this
section, the term `undistributed excess endowment amount' means, with
respect to any specified applicable educational institution for any
taxable year as of any time, the amount by which--
``(1) the distributable amount for such taxable year,
exceeds
``(2) the qualifying distributions made before such time
out of such distributable amount.
``(d) Distributable Amount.--For purposes of this section, the term
`distributable amount' means, with respect to any specified applicable
educational institution for any taxable year, an amount equal to 5
percent of the aggregate fair market value of the assets of the
institution at the end of the preceding taxable year. The rules of
section 4968(d) shall apply for purposes of this section.
``(e) Qualifying Distributions.--For purposes of this section--
``(1) In general.--The term `qualifying distribution' has
the meaning given such term in section 4942(g).
``(2) Other rules.--The rules of subsections (h) and (i) of
section 4942 shall apply.
``(f) Taxable Period; Allowable Distribution Period.--The rules of
paragraphs (1) and (2) of section 4942(j) shall apply for purposes of
this section.''.
(2) Clerical amendment.--The table of sections for
subchapter H of chapter 42 of the Internal Revenue Code of
1986, as amended by subsection (a), is further amended by
adding at the end the following new item:
``Sec. 4970. Failure to distribute endowment assets.''.
(c) Establishment of Excise Tax on Excessive Tuition.--
(1) In general.--Subchapter H of chapter 42 of the Internal
Revenue Code of 1986, as amended by subsections (a) and (b), is
amended by adding at the end the following new section:
``SEC. 4970A. EXCISE TAX ON EXCESSIVE TUITION.
``(a) Tax Imposed.--There is hereby imposed on each applicable
institution of higher education for the taxable year a tax equal to 20
percent of the total amount of excessive tuition received by such
applicable institution of higher education during such taxable year.
``(b) Excessive Tuition.--
``(1) In general.--In this section, the term `excessive
tuition' means, with respect to any individual enrolled at the
undergraduate level in the applicable institution of higher
education during any taxable year, the amount (if any) equal to
the excess of--
``(A) the amount of undergraduate tuition and fees
paid by such individual to such applicable institution
of higher education during such taxable year, over
``(B) $40,000.
``(2) Tuition and fees.--For purposes of paragraph (1)(A),
the term `tuition and fees' has the same meaning given the term
`qualified tuition and related expenses' under section
25A(f)(1).
``(c) Applicable Institution of Higher Education.--In this section,
the term `applicable institution of higher education' means an
institution of higher education as defined in section 102 of the Higher
Education Act of 1965 (20 U.S.C. 1002) that is not--
``(1) an institution which is controlled by or which is
closely identified with the tenets of a particular religious
organization; or
``(2) a medical school, as described in section
487C(a)(2)(A)(ii)(II) of the Higher Education Act of 1965.''.
(2) Clerical amendment.--The table of sections for
subchapter H of chapter 42 of such Code, as amended by
subsections (a) and (b), is amended by adding at the end the
following new item:
``Sec. 4970A. Excise tax on excessive tuition.''.
(d) Transfer of Funds.--The Secretary of the Treasury (or such
Secretary's delegate) shall from time to time transfer from the general
fund of the Treasury to the Secretary of Commerce amounts equal to the
increase in revenues by reason of the enactment of subsections (a),
(b), and (c), for the purpose of expanding opportunities relating to
employer-led apprenticeship programs and on-the-job workforce training.
Such funds shall be available until expended to carry out such
activities through grants, cooperative agreements, contracts and other
arrangements, with States and other appropriate entities.
(e) Effective Date.--The amendments made by this section shall
apply to taxable years beginning after the date of enactment of this
Act.
SEC. 9. BAN ON REQUIRING FAFSA FOR FAMILIES WHO ARE NOT USING FEDERAL
STUDENT AID.
Section 487(a) of the Higher Education Act of 1965 (20 U.S.C.
1094(a)), as amended by section 5, is further amended by adding at the
end the following:
``(31) The institution will not require or pressure any
prospective, accepted, or enrolled student at the institution
to submit a Free Application for Federal Student Aid under
section 483 if such student does not wish to apply for or
accept Federal student aid.''.
SEC. 10. CAMPUS FREE SPEECH RESTORATION.
(a) Protection of Student Speech and Association Rights.--Section
112(a) of the Higher Education Act of 1965 (20 U.S.C. 1011a(a)) is
amended--
(1) by redesignating paragraph (2) as paragraph (4); and
(2) by inserting after paragraph (1) the following:
``(2) It is the sense of Congress that--
``(A) every individual should be free to profess, and to
maintain, the opinion of such individual in matters of religion
or philosophy, and that professing or maintaining such opinion
should in no way diminish, enlarge, or affect the civil
liberties or rights of such individual on the campus of an
institution of higher education; and
``(B) no public institution of higher education directly or
indirectly receiving financial assistance under this Act should
limit religious expression, free expression, or any other
rights provided under the First Amendment to the Constitution
of the United States.
``(3) It is the sense of Congress that--
``(A) free speech zones and restrictive speech codes are
inherently at odds with the freedom of speech guaranteed by the
First Amendment to the Constitution of the United States;
``(B) bias reporting systems are susceptible to abuses that
may put them at odds with the freedom of speech guaranteed by
the First Amendment to the Constitution of the United States;
and
``(C) no public institution of higher education directly or
indirectly receiving financial assistance under this Act should
restrict the speech of such institution's students through
improperly restrictive zones, codes, or bias reporting
systems.''.
(b) Campus Speech Policies at Institutions of Higher Education.--
Title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et. seq.)
is amended--
(1) in section 487(a), as amended by sections 5 and 9, by
adding at the end the following:
``(32) In the case of an institution that is--
``(A) a public institution, the institution will
comply with the expressive activity protections
described in section 493E; and
``(B) not a public institution, the institution
will comply with the policies in section 493F.''; and
(2) in part G, by inserting after section 493D the
following:
``SEC. 493E. CAMPUS SPEECH POLICIES AT PUBLIC UNIVERSITIES.
``(a) Definition of Expressive Activities.--
``(1) In general.--In this section, the term `expressive
activity' includes--
``(A) peacefully assembling, protesting, speaking,
or listening;
``(B) distributing literature;
``(C) carrying a sign;
``(D) circulating a petition; or
``(E) other expressive rights guaranteed under the
First Amendment to the Constitution of the United
States.
``(2) Exclusions.--In this section, the term `expressive
activity' does not include unprotected speech (as defined by
the precedents of the Supreme Court of the United States).
``(b) Expressive Activities at an Institution.--
``(1) In general.--Each public institution of higher
education participating in a program under this title may not
prohibit, subject to paragraph (2), a person from freely
engaging in noncommercial expressive activity in a generally
accessible outdoor area on the institution's campus if the
person's conduct is lawful.
``(2) Restrictions.--An institution of higher education
described in paragraph (1) may not maintain or enforce time,
place, or manner restrictions on an expressive activity in a
generally accessible outdoor area of the institution's campus
unless the restriction--
``(A) is necessary to achieve a compelling
governmental interest;
``(B) is the least restrictive means of furthering
that compelling governmental interest;
``(C) is based on published, content-neutral, and
viewpoint-neutral criteria;
``(D) leaves open ample alternative channels for
communication; and
``(E) provides for spontaneous assembly and
distribution of literature.
``(3) Application.--The protections provided under
paragraph (1) do not apply to expressive activity in an area on
an institution's campus that is not a generally accessible
outdoor area.
``(4) Nonapplication to service academies.--This section
shall not apply to an institution of higher education whose
primary purpose is the training of individuals for the military
services of the United States, or the merchant marine.
``(c) Causes of Action.--
``(1) Authorization.--The following persons may bring an
action in a Federal court of competent jurisdiction to enjoin a
violation of subsection (b) or to recover compensatory damages,
reasonable court costs, or reasonable attorney fees:
``(A) The Attorney General.
``(B) A person claiming that the person's
expressive activity rights, as described in subsection
(b)(1), were violated.
``(2) Actions.--Notwithstanding any other provision of law,
in an action brought under this section, the Federal court
shall decide de novo all relevant questions of fact and law,
including the interpretation of constitutional, statutory, and
regulatory provisions, unless the parties stipulate otherwise.
In an action brought under this subsection, if the court finds
a violation of subsection (b), the court--
``(A) shall--
``(i) enjoin the violation; and
``(ii) if a person whose expressive
activity rights were violated brought the
action, award the person--
``(I) not less than $500 for an
initial violation; and
``(II) if the person notifies the
institution of the violation, $50 for
each day the violation continues after
the notification if the institution did
not act to discontinue the cause of the
violation; and
``(B) may award a prevailing plaintiff--
``(i) compensatory damages;
``(ii) reasonable court costs; or
``(iii) reasonable attorney fees.
``(d) Statute of Limitations.--
``(1) In general.--Except as provided in paragraph (3), an
action under subsection (c) may not be brought later than 1
year after the date of the violation.
``(2) Continuing violation.--Each day that a violation of
subsection (b) continues after an initial violation of
subsection (b), and each day that an institution's policy in
violation of subsection (b) remains in effect, shall constitute
a continuing violation of subsection (b).
``(3) Extension.--For a continuing violation described in
paragraph (2), the limitation described in paragraph (1) shall
extend to 1 year after the date on which the most recent
violation occurs.
``(e) Federal Review of Speech Policies.--
``(1) No eligibility for funds.--
``(A) In general.--No public institution of higher
education shall be eligible to receive funds under this
Act, including participation in any program under this
title, if the Secretary determines that the
institution--
``(i) maintains a policy that infringes
upon the expressive rights of students under
the First Amendment to the Constitution of the
United States; or
``(ii) maintains or enforces time, place,
or manner restrictions on an expressive
activity in a generally accessible outdoor area
of the institution's campus that do not comply
with subparagraphs (A) through (E) of
subsection (b)(2).
``(B) Court review.--Notwithstanding any other
provision of law, the Secretary's determinations under
this subsection shall be reviewed de novo with respect
to all relevant questions of fact and law, including
the interpretation of constitutional, statutory, and
regulatory provisions, unless the parties stipulate
otherwise.
``(2) Designation of an employee to receive complaints.--
The Secretary shall designate an employee in the Office of
Postsecondary Education of the Department to receive complaints
from students or student organizations at a given public
institution of higher education, or from any other person or
organization, regarding policies at the institution--
``(A) that infringe upon the expressive rights of
students under the First Amendment to the Constitution
of the United States; or
``(B) that maintain or enforce time, place, or
manner restrictions on an expressive activity in a
generally accessible outdoor area of the institution's
campus that do not comply with subparagraphs (A)
through (E) of subsection (b)(2).
``(3) Complaint.--A complaint submitted under subparagraph
(2)--
``(A) shall include the provision of the
institution's policy the complainant believes either
infringes upon the expressive rights of students under
the First Amendment to the Constitution of the United
States or maintains or enforces time, place, or manner
restrictions on an expressive activity in a generally
accessible outdoor area of the institution's campus
that does not comply with subparagraphs (A) through (E)
of subsection (b)(2), along with any evidence regarding
the operation and enforcement of such policy the
complainant deems relevant; and
``(B) may include an argument as to why the policy
in question either infringes upon the expressive rights
of students under the First Amendment to the
Constitution of the United States or maintains or
enforces time, place, or manner restrictions on an
expressive activity in a generally accessible outdoor
area of the institution's campus that does not comply
with subparagraphs (A) through (E) of subsection
(b)(2).
``(4) System of review.--
``(A) First stage review.--
``(i) Request for response.--Not later than
7 days after the date of receipt of a complaint
under paragraph (2), the Secretary shall review
the complaint and request a response to the
complaint from the institution.
``(ii) Institution response.--Not later
than 30 days after the date the Secretary
requests a response under clause (i), the
institution shall--
``(I) certify to the Secretary that
the institution has entirely withdrawn
the policy that occasioned the
complaint;
``(II) submit a revised policy for
review by the Secretary; or
``(III) submit a defense of the
policy that occasioned the complaint.
``(iii) Availability to complainant.--
``(I) In general.--Not later than 7
days after the date of receipt of a
revised policy or defense of the
original policy as submitted by the
institution pursuant to clause (ii),
the Secretary shall make available to
the complainant a copy of such revised
policy or defense.
``(II) Response by complainant.--
Not later than 60 days after the date
of receipt of a revised policy or
defense of the original policy under
subclause (I), the complainant may
submit to the Secretary a response to
the revised policy or defense of the
original policy.
``(III) Submission to the
institution of response.--Not later
than 7 days after the date of receipt
of a response under subclause (II), the
Secretary shall submit to the
institution a copy of such response.
``(iv) Determinations.--If the institution
declines to entirely withdraw the policy that
occasioned the complaint and either submits a
revised policy for review or submits a defense
of the policy that occasioned the complaint,
the Secretary shall, not later than 60 days
after the date of the deadline for a response
by the complaint as described in clause
(iii)(II), make one of the following
determinations:
``(I) Determine that the complaint
in question has insufficient merit to
proceed to Second Stage Review
described in subparagraph (B).
``(II) Determine that the complaint
in question has sufficient merit to
proceed to Second Stage Review
described in subparagraph (B).
``(v) Notification.--Not later than 7 days
after the date the Secretary makes a
determination under clause (iv), the Secretary
shall notify the institution and the
complainant of such determination.
``(vi) End.--The determination under clause
(iv) shall constitute the end of First Stage
Review.
``(B) Second stage review.--
``(i) In general.--In a Second Stage
Review, the Secretary shall notify the
institution and the complainant of the
commencement of the Second Stage Review, and
shall give the institution the option of
entirely withdrawing the policy that occasioned
the complaint or submitting a revised policy
for review within 30 days of the commencement
of the Second Stage Review. In such
notification submitted to the institution and
complainant, the Secretary shall indicate the
relevant sections of the institution's policy
in question and explain why these sections may
be out of compliance.
``(ii) Determination.--Not later than 90
days from the commencement of the Second Stage
Review, the Secretary shall determine whether
the policy that occasioned the complaint, or
the revised policy submitted during the First
Stage Review, or the revised policy submitted
within the first 30 days of the Second Stage
Review, is in violation of student rights under
the First Amendment to the Constitution of the
United States or of the restrictions on the
regulation of speech by time, place, and manner
set forth in this section, thereby ending
Second Stage Review.
``(iii) Investigation.--During Second Stage
Review, the Secretary may conduct an
investigation in which further information may
be sought or requested from the complainant,
the institution, or any other source the
Secretary determines pertinent.
``(iv) Certification of withdrawal.--At any
point during the Second Stage Review, the
institution in question may certify to the
Secretary that it has entirely withdrawn the
policy that occasioned the complaint, thereby
ending the Second Stage Review.
``(v) Notification and justification.--If
the Secretary determines by the conclusion of
Second Stage Review that the policy that
occasioned the complaint or the revised policy
submitted for review during First Stage Review
or Second Stage Review is consistent with the
expressive rights of students under the First
Amendment to the Constitution of the United
States and the restrictions on the regulation
of speech by time, place, and manner set forth
in this Act--
``(I) the Secretary shall notify
the complainant and the institution of
such determination not more than 7 days
after the date of the determination;
and
``(II) the Secretary shall explain
and justify such determination in a
written decision citing relevant legal
precedent, copies of which shall be
sent to the complainant, the
institution, and made available for
public inspection, including for online
reading by the public.
``(C) Determination that institution is out of
compliance.--
``(i) In general.--If, upon completion of
the Second Stage Review, the Secretary
determines that the policy that occasioned the
complaint, or the revised policy submitted for
review during the First Stage Review or Second
Stage Review, violates the First Amendment to
the Constitution of the United States or the
restrictions on the regulation of speech set
forth in this section, the Secretary shall
notify the complainant and the institution not
more than 7 days after the date of completion
of Second Stage Review that the institution is
out of compliance with the requirements for
receiving funds under this Act, including
participation in any program under this title,
but will be granted a grace period of 120 days
to return to compliance before being formally
stripped of eligibility.
``(ii) Posting; explanation; final
review.--As part of the notification under
clause (i), the Secretary shall--
``(I) require the institution to
post the determination of the Secretary
on the website of the institution
within 2 clicks of the homepage,
without a paywall, email login, or
other restriction to access;
``(II) explain and justify the
determination of the Secretary in a
written decision citing relevant legal
precedent, copies of which shall be
sent to the complainant, the
institution, and made available for
public inspection, including for online
reading by the public; and
``(III) inform the institution that
Final Review has begun and that the
institution must either certify to the
Secretary that it has entirely
withdrawn the policy that occasioned
the complaint, or submit a revised
policy for review to the Secretary not
later than 60 days after the date of
receipt of notice of the conclusion of
Second Stage Review.
``(D) Final review.--
``(i) In general.--If an institution
submits a revised policy for review as
described in subparagraph (C)(ii)(III), the
Secretary shall review such revised policy and
determine not later than 120 days after the
date of commencement of Final Review whether
the revised policy is consistent with the
expressive rights of students under the First
Amendment to the Constitution of the United
States and with the restrictions on the
regulation of speech by time, place, and manner
set forth in this Act.
``(ii) Determination of compliance.--If the
Secretary determines, as described in clause
(i), that the revised policy is consistent with
the expressive rights of students under the
First Amendment to the Constitution of the
United States and with the restrictions on the
regulation of speech by time, place, and manner
set forth in this Act, the Secretary shall
notify the complainant and the institution of
such determination not more than 7 days after
the date the determination is made, thereby
ending the final Stage Review.
``(iii) Determination of violation.--If the
Secretary determines, as described in clause
(i), that the revised policy violates the
expressive rights of students under the First
Amendment to the Constitution of the United
States or the restrictions on the regulation of
speech by time, place, and manner set forth in
this Act, the Secretary shall--
``(I) notify the complainant and
the institution of such determination
not more than 7 days after the date the
determination is made, thereby ending
the final Stage Review; and
``(II) explain and justify the
determination in a written decision
citing relevant legal precedent, copies
of which shall be sent to the
complainant, the institution, and made
available for public inspection,
including for online reading by the
public.
``(E) Loss of eligibility.--
``(i) In general.--If the Secretary
determines, during the Final Stage Review, that
the institution's policy in question violates
the expressive rights of students under the
First Amendment to the Constitution of the
United States or the restrictions on the
regulation of speech by time, place, and manner
set forth in this Act, the Secretary shall--
``(I) notify the complainant and
the institution not more than 7 days
after the date of the determination
that the institution will lose
eligibility to receive funds under this
Act, including participation in any
program under this title, in accordance
with this subparagraph;
``(II) notify the institution that
the loss of eligibility shall go into
effect beginning with any student
notified of acceptance for admission to
the institution during the academic
year subsequent to the academic year
during which the determination is made,
and that no restoration of eligibility
for ineligible students in subsequent
academic years will occur prior to the
beginning of the third academic year
subsequent to the academic year during
which the determination is made;
``(III) explain and justify the
determination in a written decision
citing relevant legal precedent, copies
of which shall be sent to the
complainant, the institution, and made
available for public inspection,
including for online reading by the
public; and
``(IV) require the institution to
post the determination of the Secretary
on the website of the institution,
within two clicks of the homepage,
without a paywall, email login, or
other restriction to access.
``(ii) Continued eligibility.--Each student
enrolled at the institution during the academic
year in which eligibility is lost as described
in this subparagraph, and each student notified
of acceptance for admission to the institution
during the academic year in which eligibility
is lost as described in this subparagraph,
shall continue to be eligible to participate,
through the institution, in programs funded
under this Act during the 5-year period after
the date of the loss of eligibility.
``(F) Restoration of eligibility.--
``(i) In general.--Not later than 7 days
after the loss of eligibility under
subparagraph (E), the Secretary shall inform
the institution that it may restore
eligibility, either by certifying to the
Secretary that it has entirely withdrawn the
policy that precipitated loss of eligibility,
or by submitting a revised policy for review at
any time following the failure of the Final
Review.
``(ii) Review of revised policy.--The
Secretary shall review a revised policy
submitted for review after the loss of
eligibility and determine not later than 120
days after the date the revised policy is
submitted whether it is consistent with the
expressive rights of students under the First
Amendment to the Constitution of the United
States and with the restrictions on the
regulation of speech by time, place, and manner
set forth in this Act.
``(iii) Investigation.--While conducting a
review to restore eligibility under this
subparagraph, the Secretary may conduct an
investigation in which further information may
be sought or requested from the institution, or
any other source the Secretary determines
pertinent.
``(iv) Written decision.--In making a
determination of whether a revised policy
submitted for review after the loss of
eligibility is either consistent or
inconsistent with the expressive rights of
students under the First Amendment to the
Constitution of the United States and with the
restrictions on the regulation of speech by
time, place, and manner set forth in this Act,
the Secretary shall explain and justify the
determination in a written decision citing
relevant legal precedent, copies of which shall
be sent to the complainant, the institution,
and made available for public inspection,
including for online reading by the public.
``(v) Limit on review.--The Secretary may
conduct not more than 1 review to restore
eligibility for a single institution in any
given academic year.
``(vi) Restoration.--If an institution
certifies to the Secretary that the policy that
precipitated the loss of eligibility has been
entirely withdrawn, or if Secretary determines
that the revised policy submitted for review is
consistent with the expressive rights of
students under the First Amendment to the
Constitution of the United States and with the
restrictions on the regulation of speech by
time, place, and manner set forth in this Act,
the institution's eligibility to receive funds
under this Act, including participation in any
program under this title, shall be restored not
earlier than the beginning of the third
academic year following the year in which
notification of loss of eligibility was
received.
``(G) Good faith representation.--
``(i) In general.--The Secretary shall
inform any institution undergoing review of its
campus speech policies that it expects the
institution to represent its policies, along
with any proposed revisions in such policies,
in good faith.
``(ii) Misrepresentation.--
``(I) Complaints.--A student,
student organization, or any other
person or organization may file, with
the employee in the Office of
Postsecondary Education of the
Department designated by the Secretary
under paragraph (2) to receive
complaints, a complaint that an
institution has substantially
misrepresented its speech policies, or
withheld information requested by the
Secretary during an investigation, or
attempted to circumvent the review
process by reinstituting a policy under
review in a substantially similar form
without informing the Secretary.
``(II) Loss of eligibility.--If the
Secretary determines upon
investigation, or after receiving a
complaint under subclause (I), that an
institution has substantially
misrepresented its speech policies, or
withheld information requested by the
Secretary during an investigation, or
attempted to circumvent the review
process by reinstituting a policy under
review in a substantially similar form
without informing the Secretary, the
institution shall lose eligibility to
receive funds under this Act, including
participation in any program under this
title.
``(iii) Loss of eligibility.--If an
institution loses eligibility under clause
(ii), the Secretary shall notify the
institution, not later than 7 days after the
determination, that the loss of eligibility
shall go into effect beginning with any student
notified of acceptance for admission to the
institution during the academic year subsequent
to the academic year during which the
determination is made, and that no restoration
of eligibility for students admitted in
subsequent academic years will occur prior to
the beginning of the third academic year
subsequent to the academic year during which
the determination is made.
``(f) Retaliation Prohibited.--
``(1) In general.--No person may intimidate, threaten,
coerce, or discriminate against any individual because the
individual has made a report or complaint, testified, assisted,
or participated or refused to participate in any manner in an
investigation, proceeding, or hearing under this section.
``(2) Specific circumstances.--
``(A) Exercise of first amendment rights.--The
exercise of rights protected under the First Amendment
to the Constitution of the United States does not
constitute retaliation prohibited under paragraph (1).
``(B) Code of conduct violation for materially
false statement.--Charging an individual with a code of
conduct violation for making a materially false
statement in bad faith in the course of a grievance
proceeding under this section does not constitute
retaliation prohibited under paragraph (1). A
determination regarding responsibility, alone, is not
sufficient to conclude that any party made a materially
false statement in bad faith.
``SEC. 493F. CAMPUS SPEECH POLICIES AT PRIVATE UNIVERSITIES.
``(a) In General.--Each private institution of higher education
eligible to receive funds under this Act, including any program under
this title, shall--
``(1) post in one place on the website of the institution
all policies that pertain to the protection and regulation of
the expressive rights of students, including the right to
submit a complaint under this section, within 2 clicks of the
homepage, without a paywall, email login, or other restriction
to access;
``(2) include a copy of such policies in a handbook
distributed to new students; and
``(3) send a copy of--
``(A) such policies to the employee of the
Department designated by the Secretary to receive such
policies; and
``(B) any updates to such policies to such employee
not later than 60 days after the date of a change to
such policies.
``(b) Responsibility for Full Policy Disclosure.--Each private
institution of higher education described in subsection (a) shall
include with the copy of the policies described in subsection (a)--
``(1) a statement affirming that all policies pertinent to
the protection and regulation of the expressive rights of
students have been disclosed in the manner required by this
section, along with an acceptance of contractual obligation to
publicly disclose all such policies; and
``(2) a statement affirming that publication of such
policies as required by this section establishes a contractual
obligation on the part of the institution to its students to
maintain and enforce the disclosed policies, and only those
policies, in matters pertaining to the protection and
regulation of the expressive rights of students.
``(c) Cause of Action.--
``(1) Authorization.--A student claiming that a private
institution of higher education in which the student is
enrolled has violated any requirement or contractual obligation
imposed by this section may bring an action in a Federal court
of competent jurisdiction to enjoin such violation or to
recover compensatory damages, reasonable court costs, or
reasonable attorney fees.
``(2) Actions.--Notwithstanding any other provision of law,
in an action brought under this subsection, the Federal court
shall decide de novo all relevant questions of fact and law,
including the interpretation of constitutional, statutory, and
regulatory provisions, unless the parties stipulate otherwise.
In an action brought under this subsection, if the court finds
a violation of subsection (b), the court--
``(A) shall--
``(i) enjoin the violation; and
``(ii) award the student--
``(I) not less than $500 for an
initial violation; and
``(II) if the student notifies the
institution of the violation, $50 for
each day the violation continues after
the notification if the institution did
not act to discontinue the cause of the
violation; and
``(B) may award a prevailing plaintiff--
``(i) compensatory damages;
``(ii) reasonable court costs; or
``(iii) reasonable attorney fees.
``(d) Secretarial Requirements.--
``(1) Designation of an employee.--The Secretary shall
designate an employee in the Office of Postsecondary Education
in the Department who shall--
``(A) receive and compile updated copies of all
policies pertaining to the protection and regulation of
the expressive rights of students at private
institutions of higher education that receive funds
under this section, including any programs under this
title;
``(B) preserve all records of such policies for a
period of not less than 10 years and make such
policies, and the dates they were disclosed, modified,
or withdrawn, available for public inspection,
including for online reading by the public;
``(C) receive complaints from students, student
organizations, or from any other person or
organization, that believes a private institution of
higher education has not disclosed a policy pertaining
to the protection and regulation of the expressive
rights of students as required by this section, is
enforcing a policy pertaining to the expressive rights
of students that has not been disclosed as required by
this section, or has failed to make and publish a
statement affirming contractual responsibility for full
policy disclosure, or affirming contractual
responsibility for the enforcement of speech policies,
as required by this section;
``(D) not more than 7 days after the date of
receipt of a complaint under subparagraph (C), review
the complaint and request a response from the
institution;
``(E) undertake an investigation, in response to a
complaint under subparagraph (C) or at the Secretary's
independent initiative, to determine whether a private
institution of higher education has failed to disclose
a policy pertaining to the protection and regulation of
the expressive rights of students as required by this
section, is enforcing a policy pertaining to the
expressive rights of students that has not been
disclosed as required by this section, or has failed to
make and publish a statement affirming contractual
responsibility for full policy disclosure, or affirming
contractual responsibility for the enforcement of
speech policies, as required by this section; and
``(F) determine, not later than 120 days after the
date of receipt of a complaint or 120 days after the
date of the start of an investigation opened at the
Secretary's independent initiative, whether the private
institution of higher education in question has failed
to disclose a policy pertaining to the protection and
regulation of the expressive rights of students as
required by this section, is enforcing a policy
pertaining to the expressive rights of students that
has not been disclosed as required by this section, or
has failed to make and publish a statement affirming
contractual responsibility for full speech policy
disclosure, or affirming contractual responsibility for
the enforcement of speech policies, as required by this
section.
``(2) Loss of eligibility.--
``(A) In general.--If the Secretary determines that
a private institution of higher education has failed to
disclose a policy pertaining to the protection and
regulation of the expressive rights of students as
required by this section, is enforcing a policy
pertaining to the expressive rights of students that
has not been disclosed as required by this section, or
has failed to make and publish a statement affirming
contractual responsibility for full speech policy
disclosure, or affirming contractual responsibility for
the enforcement of speech policies, as required by this
section, the Secretary shall notify the institution
and, if applicable, the complainant, not more than 7
days after the date of such determination, that the
institution is out of compliance with the requirements
for receiving funds under this Act, including
participation in any program under this title, but will
be granted a grace period of 60 days to return to
compliance before formally losing eligibility for
receiving funds under this Act, including participation
in any program under this title.
``(B) Specifications in notification.--As part of
the notification under subparagraph (A), the Secretary
shall specify which policies need to be disclosed and
which statements affirming contractual responsibility
for speech policy disclosure and contractual
responsibility for speech policy enforcement need to be
made and published in order for eligibility to be
restored.
``(C) Notification of loss of eligibility.--
``(i) In general.--If the Secretary
determines that, 60 days after being notified
that it is out of compliance as described in
subparagraph (A), the institution has failed to
return to compliance by making the appropriate
speech policy disclosures, or statement
affirming contractual responsibility for full
speech policy disclosure, or statement
affirming contractual responsibility for speech
policy enforcement, the Secretary shall notify
the institution and, if applicable, the
complainant, not more than 7 days after the
date of such determination--
``(I) that the institution will
lose eligibility to receive funds under
this Act, including participation in
any program under this title;
``(II) that the loss of eligibility
shall go into effect beginning with any
student notified of acceptance for
admission to the institution during the
academic year subsequent to the
academic year during which the
determination is made, and that no
restoration of eligibility for
ineligible students in subsequent years
will occur prior to the beginning of
the third academic year subsequent to
the academic year during which the
determination is made; and
``(III) that the institution shall
post the determination of the Secretary
on the website of the institution,
within two clicks of the homepage,
without a paywall, email login, or
other restriction to access.
``(ii) Continued eligibility.--Each student
enrolled at the institution during the academic
year in which eligibility is lost as described
in this subparagraph, and each student notified
of acceptance for admission to the institution
during the academic year in which eligibility
is lost as described in this subparagraph,
shall continue to be eligible to participate,
through the institution, in programs funded
under this Act during the 5-year period after
the date of the loss of eligibility.
``(3) Restoration of eligibility.--
``(A) In general.--Not later than 7 days after the
loss of eligibility under paragraph (2), the Secretary
shall inform the institution that it may restore
eligibility by making the appropriate speech policy
disclosures, or statement affirming contractual
responsibility for full speech policy disclosure, or
statement affirming contractual responsibility for
speech policy enforcement, as directed by the Secretary
in conformity with this section.
``(B) Review.--The Secretary shall review any
policy disclosures, or statement affirming contractual
responsibility for full speech policy disclosure, or
statement affirming contractual responsibility for
speech policy enforcement, and determine whether they
are sufficient to restore eligibility for receiving
funds under this Act, including participation in any
program under this title, not later than 120 days after
the date of receipt of such disclosures or statement.
``(C) Investigation.--While conducting a review to
restore eligibility under this paragraph, the Secretary
may conduct an investigation in which further
information may be sought or requested from the
institution, or any other source the Secretary
determines pertinent.
``(D) Restoration.--If the Secretary determines
that the institution under review to restore
eligibility under this paragraph has made the policy
disclosures, and issued the statement affirming
contractual responsibility for full speech policy
disclosure, and the statement affirming contractual
responsibility for speech policy enforcement, as
required by this section, the institution's eligibility
to receive funds under this Act, including
participation in any program under this title, shall be
restored not earlier than the beginning of the third
academic year following the year in which notification
of loss of eligibility was received.
``(E) Limit on review.--The Secretary may conduct
not more than 1 review to restore eligibility for a
single institution in any given academic year.
``(e) Nonapplication to Certain Institutions.--This section shall
not apply to an institution of higher education that is controlled by a
religious organization.''.
SEC. 11. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance, is held to be unconstitutional, the
remainder of this Act, and the application of the remaining provisions
of this Act to any person or circumstance shall not be affected.
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