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House Bill 364 — Critical thinking, higher ed

House Bill 364 — Critical thinking, higher ed

Parrish Miller
April 12, 2021

Bill Description: House Bill 364 would forbid public colleges and universities from creating “free speech zones,” among other measures intended to protect the free speech rights of students.

Rating: +2

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

House Bill 364 creates Chapter 64, Title 33, titled the "Protecting Critical Thinking in Higher Education Act."

Due to ongoing cases of public colleges and universities adopting and enforcing policies that discriminate against free expression by some groups and of some viewpoints, this legislation attempts to spell out some minimum standards to protect the free speech rights of students.

Among the specifics contained in the bill, it says, "Public institutions of higher education must not create free speech zones or other designated areas of campus outside of which expressive activities are prohibited." It does allow for "reasonable time, place, and manner restrictions narrowly tailored in service of a significant institutional interest only when such restrictions employ clear, published, content and viewpoint-neutral criteria and provide for ample alternative means of expression."

Another provision says, "No public institution of higher education shall charge security fees to a student or a student organization based on the content of the student's or organization's expression, the content of the expression of the student's or organization's invited guest, or the anticipated reaction to an invited guest's expression."

This chapter also allows that "any person or student association aggrieved by a violation of this chapter may bring an action against the public institution of higher education and any of its employees, acting in their official capacities, responsible for the violation."

In addition to allowing for remedies such as injunctive relief, monetary damages, reasonable attorney's fees, and court costs, it adds that "if a court finds a violation of this chapter, the court will issue an award of at least five thousand dollars ($5,000)."


Does it in any way restrict public access to information related to government activity or otherwise compromise government transparency or accountability? Conversely, does it increase public access to information related to government activity or increase government transparency or accountability?

In addition to establishing the protections above, House Bill 364 requires each public institution of higher education to "publicly post on its website, as well as submit to the governor and state legislature by December 1, 2021, a report detailing the course of action implemented to be in compliance with the requirements of this chapter." A report is also required "in the instance of any changes or updates to the chosen course of action."

These reports must be "accessible from the institution's website home page by use of no more than three (3) links," be "searchable by keywords and phrases," and "accessible to the public without requiring registration or use of a user name, a password, or another user identification."

These reports must also include "a description of any barriers to free expression occurring on campus, including but not limited to attempts to block or prohibit speakers and investigations into students or student organizations for their speech."


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