On June 16, 2019, the Texas Regular Legislative Session ended with Governor Greg Abbott signing over 1,300 bills into law. Over the next couple of weeks, Husch Blackwell’s education team will provide a series of alerts summarizing the laws which directly impact education institutions.

This alert focuses on three laws impacting institutional response to sexual misconduct: HB 1735, SB 212, and HB 449. These laws apply to all higher education institutions and represent perhaps the most significant and comprehensive state legislation in the country relating to institutional response to sexual misconduct.

HB 1735: Institutional Prevention and Response to Sexual Misconduct

House Bill 1735 creates new requirements for institutional policies on sexual misconduct and authorizes a civil penalty for non-compliance. The substantive changes necessitated by the law go into effect on August 1, 2020. The most notable requirements are summarized below.

1. Policy on Sexual Misconduct. HB 1735 builds on existing requirements for institutions to adopt a “policy on sexual harassment, sexual assault, dating violence, and stalking” which applies “to each student enrolled at and each employee of the institution.” TEX. EDUC. CODE § 51.282. This required policy must include:

• definitions of prohibited behavior;
• proposed sanctions for violations;
• the institutional protocol for reporting and responding to reports of sexual harassment, sexual assault, dating violence, and stalking;
• the provision of “interim measures to protect victims . . . during the pendency of the institution’s disciplinary process;” and
• a statement regarding (i) “the importance of a victim . . . going to a hospital for treatment and preservation of evidence . . . as soon as practicable after the incident;” (ii) “the right of a victim . . . to report the incident to the institution and to receive a prompt and equitable resolution of the report;” and (iii) “the right of a victim of a crime to choose whether to report the crime to law enforcement, to be assisted by the institution in reporting the crime to law enforcement, or to decline to report the crime to law enforcement.”

HB 1735 notes that the definitions for “Dating violence,” “sexual assault,” and “stalking” “have the meanings assigned by the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (20 U.S.C. Section 1092(f)(6)(A))” and its enabling regulations. TEX. EDUC. CODE § 51. 251(2).

Importantly, “sexual harassment” is defined as: “unwelcome, sex-based verbal or physical conduct” that:

• “in the employment context, unreasonably interferes with a person’s work performance or creates an intimidating, hostile, or offensive work environment”; and
• “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.”

It bears noting that this proposed definition of student sexual harassment potentially conflicts with the language outlined in the Department of Education’s proposed Title IX regulations, which defined sexual harassment as:

     (1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;

     (2) Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or

     (3) Sexual assault, as defined in 34 CFR 668.46(a).

Further, the institution’s policy must be approved by “the institution’s governing board before final adoption” and reviewed every two years by the institution with revisions also requiring governing board approval before being finalized. TEX. EDUC. CODE § 51.282.

2. Confidentiality. Section 51.291 of the law creates confidentiality protections for (1) employees and students who are alleged victims of sex harassment, sex assault, dating violence, and stalking; (2) students and employees who report an incident of sex harassment, sex assault, dating violence, and stalking or participate in an investigation or disciplinary process; and (3) alleged perpetrators but only when “the institution determines the report to be unsubstantiated or without merit.”

The identity of these individuals may only be disclosed to:

• to institution employees to the extent “necessary to conduct an investigation” of a report of misconduct;
• a law enforcement officer for criminal investigation; or
• a health care provider “in an emergency situation, as determined necessary by the institution.”

Additionally, the new law provides that “[i]nformation regarding an incident of sexual harassment, sexual assault, dating violence, or stalking disclosed to a health care provider or other medical provider employed by a postsecondary educational institution is confidential and may be shared by the provider only with the victim’s consent.” It further provides that the “provider must provide aggregate data or other nonidentifying information regarding those incidents to the institution’s Title IX coordinator.”

3. Training. HB 1735 requires all “peace officers” employed by an institution to complete training on “trauma-informed investigation” into allegations of sex harassment, sexual assault, dating violence, and stalking. Id. § 51.288.

4. Collaboration with Third Parties. Institutions must “enter into a "memorandum of understanding” with one or more of the following:

• local law enforcement agencies;
• sexual harassment, sexual assault, dating violence, or stalking advocacy groups; and
• hospitals or other medical resource providers.

Id. § 51.289.

5. Disciplinary Process. HB 1735 requires institutions to incorporate the following elements into its disciplinary proceedings for incidents of sexual harassment, sexual assault, dating violence, or stalking involving students:

• provide alleged perpetrator and alleged victim “a prompt and equitable opportunity to present witnesses and other evidence relevant to the alleged violation during the disciplinary process”;
• ensure that both alleged perpetrator and alleged victim have “reasonable and equitable access to all evidence relevant to the alleged violation in the institution’s possession, including any statements made by the alleged victim or by other persons, information stored electronically, written or electronic communications, social media posts, or physical evidence”; and
• “take reasonable steps to protect” the alleged perpetrator and alleged victim from “retaliation and harassment” during the pendency of the disciplinary process.

Id. § 51.286.

Notably, HB 1735 requires an institution to continue with its disciplinary process even if a student withdraws or graduates during the pendency of the process. In such instances, the law directs institutions to “expedite” the process to accommodate “the student’s and the alleged victim’s interest in a speedy resolution.” Id. § 51.287(a).

Finally, institutions are required to provide information relating to a sexual harassment, sexual assault, dating violence, or stalking violation in response to a request from another institution. Id. § 51.287(b).

6. Enforcement. Perhaps most significantly, HB 1735 permits the Texas Higher Education Coordinating Board (“THECB”) to asses an administrative penalty up to $2 million against an institution if it determines that an institution is not in “substantial compliance” with the law. This penalty may not be paid with state or federal dollars. Id. § 51.292. The bill requires THECB to provide institutions subject to sanctions with notice and an appeal. Id.

HB 1735 directs the commissioner of higher education to create an advisory committee to (1) make recommendations to THECB regarding rules implementing the new law and (2) develop recommended training for responsible and confidential employees. Id. § 51.294. The bill also provides for negotiated rulemaking in which THECB “shall consult with relevant stakeholders.” 51.295(b).

SB 212: Mandatory Reporting for University Employees

Senate Bill 212 requires employees of public and private higher education institutions to report sexual harassment, sexual assault, dating violence, or stalking against a student or employee to the institution’s Title IX coordinator. Significantly, the bill creates a criminal offense for failure to report an incident or making a false report.

1. Mandatory Report. Under SB 212, employees of public, private and independent institutions of higher education who, “in the course and scope of employment,” witness or receive information about an incident that the employee “reasonably believes to constitute sexual harassment, sexual assault, dating violence, or stalking” against a student or employee must “promptly report” the incident to the institution’s Title IX coordinator or deputy Title IX coordinator. TEX. EDUC. CODE § 51.252. Notably, the bill specifically exempts an enrolled student from the definition of “employee.” Id. § 51.251(3).

Like HB 1735, SB 212 defines “dating violence,” “sexual assault,” and “stalking” consistent with the Clery Act. Id. § 51.251(2).

A report under section 51.252 must include “all information concerning the incident known to the reporting person that was relevant to the investigation and, if applicable, redress of the incident, including whether the alleged victim expressed a desire for confidentiality.” Id. § 51.252.

2. Exceptions. Although SB 212 is broad in scope, it provides the following exceptions to the mandatory reporting requirement:

• employees designated as a “confidential employee” by the institution;
• an incident in which the employee him-or-herself was a victim of sexual harassment, sexual assault, dating violence, or stalking; or
• an incident in which the person received information due to a disclosure made at a public awareness event sponsored by a postsecondary educational institution or by a student organization affiliated with the institution.

Id. § 51.252(c).

3. Failure to Report or False Report. SB 212 makes it a Class B misdemeanor (punishable by a maximum of 180 days in jail and/or a maximum fine of $2,000) for a person who “is required to make a report under Section 51.252 and knowingly fails to make the report” or “with the intent to harm or deceive, knowingly makes a report under Section 51.252 that is false.” Id. § 51.255(a). The offense is escalated to a Class A misdemeanor (punishable by up to one year in jail and/or a maximum fine of $4,000) “if it is shown on the trial of the offense that the actor intended to conceal the incident that the actor was required to report under Section 51.252.” Id. In addition, an institution must terminate any employee who it “determines in accordance with the institution’s disciplinary procedure to have” not made a required report.

Interestingly, the bill also contains a civil immunity provision for any person who “in good faith” makes a report, assists in the investigation of a report, or otherwise participates in the institution’s disciplinary process. Id. § 51.254. This category of individuals also “may not be subjected to any disciplinary action by the postsecondary educational institution at which the person is enrolled or employed for any violation by the person of the institution’s code of conduct reasonably related to the incident for which suspension or expulsion from the institution is not a possible punishment.” The immunity protection in Section 51.254 does not extend to individuals who perpetrated or assisted in the perpetration of a reported offense. Id.

4. Confidentiality. SB 212 specifically exempts information gathered as a result of a mandatory report from disclosure under the Texas Public Information Act. Id. § 51.256(a)(1). SB 212 only permits disclosure of the “identity of the alleged victim” to:

• institutional employees conducting investigation or hearing;
• law enforcement;
• “the person or persons alleged to have perpetrated the incident, to the extent required by other law”; and
• potential witnesses as necessary to conduct an investigation.

5. Administrative Reporting Requirements. In addition to internal reports to the Title IX coordinator(s), SB 212 requires Title IX coordinators to submit a “written report” on incident reports received to the institution’s chief executive officer at least once every three months. The report must include:

• the investigation of those reports;
• the disposition, if any, of any disciplinary processes arising from those reports; and
• any reports for which the institutions decided not to initiate a disciplinary process.

Id. § 51.253. In addition, a Title IX coordinator has an affirmative obligation to “immediately report” incidents to the chief executive officer “if the coordinator has cause to believe that the safety of any person is in imminent danger as a result of the incident.” Id.

Finally, SB 212 requires the chief executive officer to submit a report to the institution’s governing body at least once per semester summarizing the incidents reported under this provision. Id. § 51.253(c). The report must also be posted on the institution’s website. The report must not identify any person, but it must include:

• “the number of reports received under Section 51.252;”
• the number of investigations conducted as a result of those reports;
• the disposition, if any, of any disciplinary processes arising from those reports;
• the number of those reports for which the institution determined not to initiate a disciplinary process, if any; and
• any disciplinary actions taken.

6. Administrative Enforcement. In addition to the criminal sanctions, SB 212 requires the chief executive officers of institutions to “annually certify in writing” to THECB that the institution is in “substantial compliance” with the law. SB 212 permits THECB to assess an administrative penalty up to $2 million dollars against institutions it determines are not in substantial compliance with the law. THECB must also report institutions not in substantial compliance to the Governor, Lt. Governor, Speaker of the House, and “standing legislative committees with primary jurisdiction over legislation concerning sexual assault.” 51.258(g).

In promulgating rules under this section, THECB must “consult with relevant stakeholders.” Id. § 51.259.

7. Effective Date. SB 212 generally goes into effect on September 1, 2019, but Section 51.255(a), creating a criminal offense, is not effective until January 1, 2020. In addition, THECB is directed to submit an initial report of institutions not in compliance with the law by January 1, 2021.

HB 449: Transcript Notation

House Bill 449 adds Section 51.9364 to Chapter 51 of the Texas Education Code, requiring public and private institutions of higher education to include a “notation” on a student’s transcript when “the student is ineligible to reenroll in the institution for a reason other than an academic or financial reason.” TEX. EDUC. CODE § 51.9364. This encompasses all disciplinary action and not just discipline connected to sexual misconduct.

For any disciplinary process which “may result in the student becoming ineligible to reenroll for a reason other than an academic or financial reason,” HB 449 further requires institutions to continue the disciplinary process even if a student withdraws, “until the institution makes a final determination of responsibility.” Id.

This requirement goes into effect “beginning with the 2019 fall semester.”

What this means for my institution

As noted initially, these laws represent perhaps the most significant and comprehensive state legislation in the country relating to institutional obligations regarding sexual misconduct. The authority for THECB to eventually fine institutions for non-compliance is certainly unprecedented, as are potential criminal sanctions for employees who fail to make mandatory reports.

The involvement of college and university presidents as well as governing boards required by these laws is designed to ensure that leadership has a more hands-on role in these difficult cases. Ensuring that leadership is educated about their new responsibilities and the inherent complexities of these cases is critical.

Institutions should obviously review current disciplinary practices and processes to assess compliance with these laws. New training is both required by these laws and prudent in any event.

Of course, complicating matters is the fact that institutional compliance efforts will need to be informed by the final Title IX regulations which we expect to be issued in September 2019.