I will have more to say about this bill at some point, but it looks like the drafters have done a good job not only lining up broad support but anticipating (in the "Rules of Construction") needed carve-outs of importance to religious institutions, for example.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3128 Introduced in House (IH)]
116th CONGRESS
1st Session
H. R. 3128
To amend the Higher Education Act of 1965 to uphold freedom of
association protections, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 5, 2019
Mr. Gallego (for himself, Ms. Stefanik, Mr. Stivers, Mrs. Murphy, Mrs.
Brooks of Indiana, Mr. Gottheimer, Mr. Shimkus, Mr. Cleaver, Mrs.
Kirkpatrick, Ms. Kendra S. Horn of Oklahoma, Mrs. Lawrence, Ms. Fudge,
Mr. Byrne, and Mr. Hudson) introduced the following bill; which was
referred to the Committee on Education and Labor
_______________________________________________________________________
A BILL
To amend the Higher Education Act of 1965 to uphold freedom of
association protections, and for other purposes.
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 ``Collegiate Freedom of Association
Act''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds the following:
(1) Single-sex social organizations, including sororities,
fraternities, and private social clubs, have existed at
institutions of higher education for over 200 years, where they
have played, and should continue to play, unique roles in the
development of young women and men by creating sisterhoods and
brotherhoods that foster leadership, promote academic
achievement, and encourage civic and campus involvement through
philanthropic activities.
(2) The freedom of association--that is, the freedom of
joining, assembling, and residing with others--is protected
under the First and Fourteenth Amendments to the Constitution,
and allows individuals to create spaces that are safe,
welcoming, empowering, enabling, uninhibited, and free.
(3) Single-sex social sororities, fraternities, and private
social clubs meet the requirements for intimate and expressive
associations protected by the freedom of association because
they are small and selective, are bound together by friendship,
common interests, and common purpose, and create safe and
empowering spaces for their members.
(4) Some institutions of higher education, which stand in
positions of power and authority over their students, have
increasingly sought to eliminate or restrict access to single-
sex social organizations, which are designed to nurture, lift,
and empower students.
(5) While the history of equal access in higher education
includes discriminatory actions taken on the basis of race,
religion, national origin, and sex by students, faculty, staff,
and social organizations, many members of these same groups
have taken, and continue to take actions to make the higher
education community more open and inclusive to all.
(6) While sex discrimination remains a serious problem in
our society, allowing institutions of higher education to
sanction members of sororities, fraternities, and private
social clubs based solely on the single-sex status of the
organization that the student belongs to will not solve these
problems, is counterproductive, and violates an individual's
constitutional right to freedom of association.
(b) Purposes.--The purposes of this Act are as follows:
(1) Protect any student in a single-sex social organization
or any single-sex social organization from any adverse action
by an institution of higher education based solely on the
membership practice of such organization of limiting membership
to only individuals of one sex.
(2) Ensure any student in a single-sex social organization
or any single-sex social organization is treated equitably in
comparison to students at an institution of higher education
who do not participate in single-sex social organizations, or
other social organizations at an institution of higher
education that are not single-sex.
(3) Protect the rights of students to freely associate with
and participate in social organizations, including single-sex
social organizations.
SEC. 3. FREEDOM OF ASSOCIATION PROTECTIONS FOR STUDENTS IN SOCIAL
ORGANIZATIONS.
Part B of title I of the Higher Education Act of 1965 (20 U.S.C.
1011 et seq.) is amended by adding at the end the following:
``SEC. 124. FREEDOM OF ASSOCIATION PROTECTIONS FOR STUDENTS IN SOCIAL
ORGANIZATIONS.
``(a) Upholding Freedom of Association Protections.--Any student
(or group of students) enrolled in an institution of higher education
shall--
``(1) have a right to form or apply to join any social
organization, including any single-sex social organization; and
``(2) if selected for membership by any social
organization, have a right to join such social organization and
participate in such social organization.
``(b) Non-Retaliation Against Members of Single-Sex Social
Organizations.--An institution of higher education that receives funds
under this Act shall not--
``(1) take any action to require or coerce a student or
social organization to waive the rights of the student or
organization, respectively, under this section;
``(2) take any adverse action against a student who is a
member of a single-sex social organization, or a single-sex
social organization, based solely on the membership practice of
such organization of limiting membership to only individuals of
one sex; or
``(3) impose a recruitment restriction (including a
recruitment restriction relating to the schedule for membership
recruitment) on a single-sex social organization recognized by
the institution, which is not imposed upon other student
organizations by the institution, unless the organization and
the institution have entered into a mutually agreed-upon
written agreement that allows the institution to impose such
restriction.
``(c) Rules of Construction.--Nothing in this section shall--
``(1) require an institution of higher education to
officially recognize, or enter into a mutually agreed-upon
written agreement with, a social organization (such as a social
organization whose purpose is incompatible with the religious
or cultural mission of the institution of higher education);
``(2) prohibit an institution of higher education from
taking an adverse action, which is not based solely on the
membership practice of a social organization of limiting
membership to only individuals of one sex, against a student
who joins such social organization or such social
organization--
``(A) whose purpose is incompatible with the
religious or cultural mission of the institution of
higher education; or
``(B) for another reason (such as academic or
nonacademic misconduct);
``(3) subject to subsection (b)(3), prevent a social
organization from regulating its own membership;
``(4) inhibit the ability of the faculty of an institution
of higher education to express an opinion (either individually
or collectively) on a single-sex social organization, or
otherwise inhibit the academic freedom of such faculty to
research, write, or publish material on such an organization;
or
``(5) create enforceable rights against a social
organization or against an institution of higher education due
to the decision of such social organization to deny membership
to an individual student.
``(d) Definitions.--In this section:
``(1) Adverse action.--The term `adverse action' includes
the following with respect to a single-sex social organization
or a member of such organization:
``(A) Expulsion, suspension, probation, censure,
condemnation, reprimand, or any other disciplinary,
coercive, or sanction taken by an institution of higher
education or administrative unit of such institution.
``(B) An oral or written warning with respect to an
action described in subparagraph (A) made by an
official of an institution of higher education acting
in the official capacity of the official.
``(C) An action to deny participation in any
education program or activity, including the
withholding of any rights, privileges, or
opportunities.
``(D) An action to withhold, in whole or in part,
any financial assistance (including scholarships and on
campus employment), or denying the opportunity to apply
for financial assistance, a scholarship, a graduate
fellowship, or on-campus employment.
``(E) An action to deny or restrict access to on-
campus housing.
``(F) An action to deny any certification,
endorsement, or letter of recommendation that may be
required by a student's current or future employer, a
government agency, a licensing board, an institution of
higher education, a scholarship program, or a graduate
fellowship to which the student seeks to apply.
``(G) An action to deny participation in any sports
team, club, or other student organization, including a
denial of any leadership position in any sports team,
club, or other student organization.
``(H) An action to withdraw official recognition by
an institution of higher education.
``(I) An action to require any student to certify
that such student is not a member of a single-sex
social organization or to disclose the student's
membership in a single-sex social organization.
``(J) An action by an institution of higher
education to interject its own criteria into the
membership practices of the organization in any manner
that conflicts with the rights of such organization
under title IX of the Education Amendments of 1972 (20
U.S.C. 1681 et seq.) or this section.
``(K) An action to impose any operational policy or
restriction that is in violation of this section.
``(2) Single-sex social organization.--The term `single-sex
social organization' means--
``(A) a social fraternity or sorority that is an
organization described in section 501(c) of the
Internal Revenue Code of 1986 which is exempt from
taxation under section 501(a) of such Code, the active
membership of which consists primarily of students in
attendance at an institution of higher education;
``(B) the Young Men's Christian Association, Young
Women's Christian Association, Girl Scouts, Boy Scouts,
Camp Fire Girls, and voluntary youth service
organizations which are so exempt, the membership of
which has traditionally been limited to persons of one
sex and principally to persons of less than nineteen
years of age; or
``(C) a single-sex private social club (including
an independent organization located off-campus) that
consists primarily of students or alumni of an
institution of higher education.''.
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