Last week, FIRE urged Texas Gov. Greg Abbott to veto two bills that pose serious threats to free speech and due process on campus. This weekend, in a letter to the governor, the Texas Association Against Sexual Assault called our analysis “a stretch.” They argue that the definition of sexual harassment in the legislation is appropriate and that signing the bills will not expose college employees to potential criminal liability.
There are many reasons why their analysis and conclusion are misplaced, but for brevity’s sake, here are the two most important ones.
TAASA takes issue with FIRE’s assertion that the standard set forth in Davis v. Monroe County Board of Education defines the contours of a school’s legal obligation to respond to known instances of discriminatory harassment. But Gov. Abbott need not even agree with FIRE on that issue in order to conclude that the definition of sexual harassment used in SB 212 and HB 1735 is plainly unconstitutional. The bills define sexual harassment as:
Unwelcome, sex based verbal or physical conduct that: in the education context, is sufficiently severe, persistent, or pervasive that the conduct interferes with a student ’s ability to participate in or benefit from educational programs or activities at a postsecondary educational institution.
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.
Don’t take FIRE’s word for it. There is a long list of decisions where courts have found policies unconstitutional because they lacked an objective offensiveness component. For just a few examples in the education context, see McCauley v. Univ. of the V.I., 618 F.3d 232, 252 (3d Cir. 2010) (finding a policy unconstitutionally overbroad because it could be used to punish protected speech “based on the subjective reaction of the listener”); DeJohn v. Temple Univ., 537 F.3d 301, 319 (3d Cir. 2008) (holding that because university policy failed to require that speech in question “objectively” create a hostile environment, it provided “no shelter for core protected speech”); Booher v. Bd. of Regents, 1998 U.S. Dist. LEXIS 11404, *26 (E.D. Ky. Jul. 21, 1998) (finding that a harassment policy without an objective component depends upon a “single individual’s subjective feelings” and does not meet First Amendment standards).
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. Given the offense taken by people on both sides of arguments about sexuality and gender generally, the list of victims of “sexual harassment” under this broad definition is functionally endless.
The bottom line is that if the definition of sexual harassment in the bills becomes law and public colleges and universities adjust their policies accordingly, every public institution in the state will have an unconstitutional speech code.
TAASA also alleges that FIRE is “reaching” by expressing our concern that faculty and staff could face jail time for failing to report instances of possible sexual harassment and misconduct. But as TAASA acknowledges, SB 212 makes failure to report a Class B misdemeanor. Under the Texas penal code, Class B misdemeanors carry a potential penalty of “(1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement.” It is flatly undeniable that SB 212 subjects professors and other employees who don’t report speech that arguably meets the bills’ overbroad—and entirely subjective—definition of sexual harassment to criminal prosecution. FIRE is not “reaching.” This criminalization is the intended result of the legislation.
This dynamic doesn’t just encourage over-reporting; it requires it. Both bills are unconstitutional, but SB 212 is doubly dangerous by incorporating criminal penalties.
Gov. Abbott should veto both of these bills so that legislation can be pursued in the future that combats sexual misconduct without threatening the free speech and due process rights of students and faculty.