The first bill, SB 212, defines sexual harassment on campus in an unconstitutionally overbroad manner, and provides that university employees who fail to report sexual harassment and other sexual misconduct will face termination and criminal prosecution, including possible jail time.
As FIRE explained in our letter:
Taking the bill’s provisions together, the bill requires employees — under threat of termination and criminal prosecution — to report any and all expression that could conceivably satisfy an unconstitutionally broad definition of sexual harassment. Enacting these provisions into law will force employees — including university faculty — to over-report, lest they risk a jail sentence, fine, and/or termination. 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.
The second bill, HB 1735, includes the same unconstitutionally overbroad definition of sexual harassment, and, in addressing sexual misconduct, fails to take the rights of accused students into account. FIRE’s letter to Gov. Abbott explained that despite the fact that Texas courts have rebuked Texas institutions for their failure to provide accused students with meaningful due process, the bill “does not require institutions to allow students to be represented by legal counsel during the proceedings. It does not require schools to offer meaningful opportunities to cross-examine witnesses. It does not require that schools provide accused students with the presumption of innocence by requiring the institution to prove each element of an alleged offense before it can hold the accused accountable. It does not even entitle an accused student to a live hearing.”
The two bills’ definitions of sexual harassment would also put Texas on a collision course with the U.S. Department of Education, which has issued proposed Title IX regulations that employ the speech-protective definition of sexual harassment in the educational setting set forth by the U.S. Supreme Court in Davis v. Monroe County Board of Education.
The absurd result of this legislation would be that, if the proposed regulations become final, 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 according to the federal agency responsible for enforcing Title IX on campus.
FIRE urges Gov. Abbott to veto these well-intentioned, but ill-considered and deeply flawed, pieces of legislation.