When the Texas Legislature wrapped up its session in May, lawmakers sent a series of bills to Gov. Greg Abbott's desk designed to put pressure on the state's colleges and universities to do something about sexual misconduct on their campuses.
The new requirements outlined in those bills come at a time when the U.S. Department of Education is moving in the opposite direction. Last year, the department released proposed Title IX guidance that would ease the department's rules regarding campus sexual assault. Critics say those new rules could lead to fewer sexual assaults being reported on college campuses.
College officials nationwide, including in Texas, have struggled for years with how to deal with sexual misconduct on their campuses. A study conducted between 2015 and 2017 by the University of Texas at Austin's Institute on Domestic Violence and Sexual Assault found that 10% of female undergraduates and 4% of male undergraduates across the University of Texas system reported being raped. Those totals include 4% of students at the University of Texas at Dallas and 6% of students at the University of Texas at Arlington who reported having been raped since their enrollment.
Title IX is a federal law that states that no one may be denied educational opportunities on the basis of sex. The Title IX guidance proposed last year by Education Secretary Betsy DeVos would ease restrictions on how universities are expected to handle reported sexual assaults on their campuses. If approved, the new guidance would replace Obama era rules that DeVos said didn't do enough to protect the due process rights of those accused of sexual misconduct.
When Abbott signed several campus safety bills into law at the close of the legislative session, Texas' regulations for how colleges and universities must handle cases of sexual misconduct became some of the tightest in the nation.
Under Senate Bill 212, college and university employees who don't report sexual misconduct to their schools' Title IX coordinators could be charged with a misdemeanor. That reporting requirement extends to all university employees except enrolled students who have campus jobs. The bill also requires colleges and universities to fire employees who fail to report sexual misconduct.
Although the bill's reporting requirements are broad, it allows colleges to designate certain employees with whom students may speak confidentially about sexual misconduct. Those employees will have to report the type of incident that occurred, but won't be required to reveal any information that would violate the student's expectation of privacy.
House Bill 449 requires colleges and universities to make a note on the transcript of any student who is kicked off campus for a non-academic reason.
House Bill 1735 requires all colleges and universities in the state to adopt policies that define the behaviors that are prohibited, lay out the punishments for those behaviors and explain the protocol for reporting and responding to sexual assault, sexual harassment, dating violence and stalking.
The bill defines sexual harassment as "unwelcome, sex-based verbal or physical conduct." For university employees, the conduct must be so severe that it interferes with work or "creates an intimidating, hostile, or offensive work environment." For students, the conduct must be "sufficiently severe, persistent, or pervasive" that it interferes with a student's ability to take part in classes or participate in campus programs or activities.
That definition sets up a potential conflict with the proposed federal guidelines, which state that, for an action to constitute sexual harassment, it must effectively deny a student equal access to educational programs and activities — a higher threshold than the new Texas law sets.
That's an important distinction, because it affects what behaviors students are protected from, said Wesley Johnson, a San Antonio attorney. For example, if someone were making inappropriate comments to a student in class, that student would naturally be upset. But if she were still able to attend class, the behavior might not constitute sexual harassment under the proposed Title IX rules, because she hasn't been completely denied access to education. But it likely would under the new Texas law, which requires only that the conduct interferes with her education.
Johnson, who is the former legal counsel for the nine-campus University of Louisiana system, said the law also creates a different standard for sexual harassment at the higher education level than it does for K-12. Texas' new law only applies to colleges and universities, meaning the higher Title IX threshold still applies in elementary, middle and high schools. That creates a situation where a certain behavior might not be considered sexual harassment in high school, but if it took place on a college campus, it would.
"The Texas Legislature’s definition of sexual harassment could make management of sexual harassment in various educational settings that much more confusing," Johnson said.
Another area of potential conflict is the state's new reporting requirements. Under the proposed Title IX guidance, schools are only required to investigate when they have "actual knowledge" of sexual misconduct. That would only include reports made to certain campus officials like Title IX coordinators, but not to others like faculty members or dorm resident assistants. But Senate Bill 212 law makes nearly every campus employee a mandatory reporter.
That requirement has drawn concern not only from civil libertarians, but also from advocates working to end campus sexual assault. When nearly every campus employee is a mandatory reporter, it could place a sexual assault victim in the position of having information about her assault reported to campus authorities without her consent, said B. Ever Hanna, campus policy manager for the survivor advocacy organization End Rape on Campus.
If schools decide to designate certain employees who aren't mandatory reporters, officials need to make sure students understand who on campus is a mandatory reporter and who isn't, Hanna said. That way, sexual assault victims will know who they can and can't confide in if they don't want their assaults reported immediately.
But Hanna said most of this year's legislation in Texas will go a long way toward making college campuses safer. Senate Bill 1735, in particular, is a positive step because it clearly defines what constitutes sexual harassment, sexual assault, dating violence and other sexual misconduct, Hanna said.
"There's a lot happening in Texas," Hanna said.
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