It’s the kind of news you expect to see out of a state like California, New York or Connecticut – not Texas.
But there are now a pair of Texas bills about campus sexual harassment sitting on Republican Governor Greg Abbott’s desk that some argue are laden with constitutional problems.
According to David French of National Review, eight states have passed campus free-speech bills in less than six months, with these Texas bills being the most recent.
The major problem comes down to a failure in the Texas legislation to define a phrase that dictates when students can be punished for disruptions.
French used to lead The Foundation for Individual Rights in Education, which added another concern: failure to specify an enforcement mechanism, whether for individuals or the state attorney general.
The bills create a definition of sexual harassment that mirrors the Obama administration’s view of Title IX. It incentivizes college employees to report anything that the most delicate person on campus might consider sexual harassment.
Last week, FIRE sent a letter to Governor Abbott that warned that “faculty and staff at Texas’s universities could be sent to prison for failing to report speech and conduct that does not even constitute sexual harassment”. This could be the case under the Department of Education’s proposed Title IX regulatory changes.
The bills’ biggest support structure is the Texas Association Against Sexual Assault.
On Wednesday, FIRE responded to criticism from them, pointing out that the definition bill (SB 212) literally says “unwelcome, sex based” words constitute harassment if they are “sufficiently severe, persistent, or pervasive” to interfere with a student’s studies.
But who defines what is “unwelcome”? Presumably the standard would be set by the most easily offended person on campus.
There’s a three-option test in the definition. But it runs counter to the Supreme Court’s 20-year-old definition of sexual harassment in an educational context, known as Davis.
That decision says it must be “severe, pervasive, and objectively offensive” – all three elements – for a school to be on notice.
FIRE points out to the sexual-assault activists that they don’t even have to agree with its interpretation of the Davis standard to understand the bill’s fundamental problem.
“This definition is missing any kind of objective, reasonable person standard, instead conditioning the permissibility of speech (and the requirement to report) entirely on subjective listener reaction. Any definition of sexual harassment that lacks an objective component is unconstitutional.”
Historically, there’s a long list of rulings where courts have found policies unconstitutional because they lacked an objective offensiveness component.
FIRE points out that subjects such as sexuality and gender are likely to cause offense no matter what students say about them – will that result in the police having to jail people?
“Without an objective requirement, students and faculty are held hostage to the personal feelings and opinions of their accusers, no matter how unusual or even unreasonable.”
But SB 212 is even worse. That’s because it includes the threat of firing and criminal penalties when employees fail to report “any and all expression that could conceivably satisfy” the bill’s uselessly broad definition of sexual harassment.
FIRE wrote last week:
This in turn will flood institutional Title IX offices with unmeritorious complaints, including instances of speech plainly protected by the First Amendment or institutional promises of freedom of expression. Sifting through this avalanche will squander institutional resources that could be far better devoted to pursuing serious complaints intentionally brought to the attention of Title IX officers.
FIRE goes on to point out that the bill literally makes failure to report a Class B misdemeanor, which can earn up to six months in jail.
The second bill is HB 1735.
It has the same unconstitutional definition of sexual harassment. But here’s the difference – it treats accused students in sexual misconduct proceedings as if they are guilty from the start, denying them fundamental due process.
A number of courts, including in Texas, have told colleges they have to allow cross-examination and live hearings.
FIRE’s letter to Governor Abbott also points out that the bill incentivizes false reporting by requiring colleges to let accusers drop the courses they share with accused students “without academic penalty.”
They argue that if you’re struggling in class after the traditional “drop period,” you may be tempted to claim that a classmate sexually victimized you in order to get out unscathed academically.
No word yet on whether Governor Abbott plans on signing the bills.