(1) A public postsecondary institution shall adopt a policy prohibiting student-on-student discriminatory harassment. A public postsecondary institution may not enforce the policy by disciplining a student for a behavioral violation of harassment or a similar charge stemming from an alleged violation of the policy for speech or expression unless:
(a) the speech or expression is unwelcome and is so severe, pervasive, and subjectively and objectively offensive that a student is effectively denied equal access to educational opportunities or benefits provided by the public postsecondary institution; or
(b) the speech or expression explicitly or implicitly conditions a student's participation in an education program or activity or bases an educational decision on the student's submission to unwelcome sexual advances or requests for sexual favors.
(2) This section may not be construed to prevent a public postsecondary institution from prohibiting, limiting, or restricting speech or expression that is not protected by the first amendment of the United States constitution or Article II, section 7, of the Montana constitution.