Louisiana Enhances Student Due Process, Free Speech Protections, While Dept of Ed Threatens Both


Last month, Louisiana Gov. John Bel Edwards signed two bills into law that will significantly strengthen key civil liberties in higher education. HB 185, introduced by Rep. Charles Owen, codifies important free speech protections for students at Louisiana’s public colleges, while HB 364, introduced by Rep. Scott McKnight, provides critical due process protections. My employer, the Foundation for Individual Rights and Expression (FIRE), advised Louisiana legislators as they drafted and revised each bill.

HB 185 makes important revisions to Louisiana’s existing campus free speech law. Among its provisions, the law adopts the speech-protective definition of student-on-student harassment established by the Supreme Court in Davis v. Monroe County Board of Education, which defines student-on-student harassment as conduct “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” HB 185 also 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.

Meanwhile, HB 364 sets forth an array of procedural protections for public college students and student organizations facing a suspension of 10 or more days. These include:

  • the express presumption of innocence;
  • the right to the active assistance of an attorney or advisor during all stages of the campus disciplinary process;
  • the right to cross-examination;
  • advanced notice of charges and specific details about the facts giving rise to them;
  • reasonable, continuous access to the administrative file and all of the evidence in the institution’s possession; and
  • impartiality from the hearing panel, including a prohibition against one person filling multiple roles during the adjudication process.

Readers of FIRE’s Newsdesk will know that these victories for student rights come as the U.S. Department of Education threatens campus due process with its proposed Title IX regulations which, if implemented, would gut essential protections for students facing sexual misconduct allegations on campus. Specifically, these regulations would eliminate the right of students to a live hearing and weaken the right to cross-examination, actually eliminating it at those schools that eliminate live hearings, weaken the right to active legal representation, allow a single campus bureaucrat to serve as judge and jury, and reject the Davis definition of sexual harassment provided above in favor of a definition that threatens free speech rights, among other provisions. This not only turns back the clock on due process, it sets the government on a collision course with the courts, as my colleague Joe Cohn writes in The Wall Street Journal.

FIRE will provide a more extensive comment on the regulations to the Department of Education in the coming weeks. Additionally, we encourage anyone who is concerned about free speech and due process protections in higher education to submit a formal comment before the deadline on September 12, 2022.  FIRE will host a webinar providing information about how to draft a helpful and effective comment. Stay tuned to our website for an announcement of the webinar date.

In the meantime, Louisiana students should be glad their state leaders were willing to do what the federal government wouldn’t.

Published in Education
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