Senate Bill 2770

AN ACT TO CREATE A CAUSE OF ACTION FOR DISCRIMINATORY HARASSMENT AT PUBLIC INSTITUTIONS OF HIGHER LEARNING; TO DEFINE DISCRIMINATORY HARASSMENT; TO CLARIFY THAT STUDENT-ON-STUDENT SPEECH THAT DOES NOT RISE TO THE DEFINITION OF DISCRIMINATORY HARASSMENT SHALL BE PROTECTED SPEECH; TO PROVIDE FOR WHO MAY BRING A CAUSE OF ACTION FOR DISCRIMINATORY HARASSMENT; TO PROVIDE THAT THE STATE WAIVES IMMUNITY UNDER THE ELEVENTH AMENDMENT TO SUITS UNDER THIS ACT; TO PROVIDE FOR THE REMEDIES AND STATUTE OF LIMITATIONS UNDER THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. For purposes of this act and unless otherwise required by the context:

(a) "Institution" means a public institution of higher education.

(b) "Discriminatory harassment" means student-on-student speech that is:

(i) Unwelcome;

(ii) Discriminatory on the basis of race, color, national origin, disability, religion, age, sex or sexual orientation; and

(iii) So severe, pervasive, and objectively offensive, and that so undermines and detracts from a student's educational experience, that the student is effectively denied equal access to an institution's resource or opportunity.

(b) "Student" means an individual enrolled at an institution.

1. Communicated by a student; and

2. Directed at a student.

(ii) "Student-on-student speech" does not include acts of physical contact between a student and another student.

SECTION 2. (1) (a) If an institution gains actual knowledge of an act of discriminatory harassment in the institution's program or activity, the institution shall:

(i) Take immediate action to eliminate the known act of discriminatory harassment; and

(ii) Address the effects of the known act of discriminatory harassment.

(b) An institution that is deliberately indifferent to a known act of discriminatory harassment shall be in violation of this act.

(2) (a) An institution may not punish, as discriminatory harassment, student-on-student speech that does not constitute discriminatory harassment.

(b) An institution is not liable under this part for failing to punish a student who communicates student-on-student speech that is not discriminatory harassment.

(3) Nothing in this act shall prevent an institution from punishing student-on-student speech that is otherwise not protected under the First Amendment to the United States Constitution.

SECTION 3. (1) A person claiming to be aggrieved by a violation of this act may bring an action in any state court of competent jurisdiction to enjoin a violation of this act.

(2) In an action brought under this act, if the court finds a violation of this act, the court:

(a) Shall enjoin the violation;

(b) Shall, if a person claiming to be aggrieved brought the suit, award the aggrieved person at least Five Thousand Dollars ($5,000.00); and

(i) Compensatory damages;

(ii) Reasonable court costs;

(iii) Reasonable attorney fees and expert fees; or

(iv) Any other relief that the court considers appropriate.

(3) In an action brought under this act, the court may award a prevailing defendant reasonable attorney fees if the action was vexatious, frivolous, or brought to harass or embarrass the defendant.

(4) The state waives immunity under the Eleventh Amendment of the United States Constitution and consents to suit in a federal court for lawsuits arising out of this part.

(5) An institution that violates this section is not immune from suit or liability for the violation.

SECTION 4. (1) Except as provided in subsection (3)(b) of this section, an action under this act may not be brought later than one (1) year after the day on which the cause of action accrues.

(2) For an action alleging a violation of Section 2(2)(a) of this act, the cause of action accrues on the day on which the student receives final notice, from the institution, of punishment that violates Section 2(2)(a) of this act.

(3) (a) For an action alleging a violation of Section 2(1)(b) of this act, the cause of action accrues on the day on which the institution receives knowledge of the act of discriminatory harassment.

(b) For an action described in paragraph (3)(a) of this act, the limitation described in subsection (1) of this section shall extend to one (1) year after the day on which the most recent known act of discriminatory harassment, involving the same parties as a prior known act of discriminatory harassment, occurs.

SECTION 5. This act shall take effect and be in force from and after July 1, 2021.