States Wade Into Title IX Debate

In departure from Trump administration's approach, Texas Legislature votes to require college officials to report campus sexual misconduct or face criminal penalties. But civil libertarians and some survivor advocates criticize the legislation.

June 19, 2019
 
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Last fall, Education Secretary Betsy DeVos released a proposed Title IX rule that many observers said would lead to fewer reports of sexual misconduct on college campuses.

The state Legislature in Texas, however, has taken a starkly different approach. In the legislative session that wrapped up last month, lawmakers passed a flurry of bills that will put new pressure on colleges to address campus-based sexual harassment and assault.

One demands that colleges provide more resources to students and survivors of sexual assault. Another requires institutions to annotate a student’s transcript if they are asked to leave campus for a nonacademic reason.

The third, and perhaps most consequential, would add new criminal penalties for campus officials who fail to report sexual harassment or misconduct to their institution’s Title IX coordinator -- to the consternation of civil libertarians and some survivor advocate groups. They would face a misdemeanor and termination by their institution. Colleges would also have to compile and publicly disclose those reports. Institutions that fail to do so could also face fines of up to $2 million from the state’s higher ed coordinating board.

Texas governor Greg Abbott, a Republican, signed all three bills into law over the past week after each of them passed both statehouse chambers by wide margins. The mandatory reporting legislation passed without a single no vote.

The approach of that law in particular is being criticized by civil libertarians, who said it defines harassment in an overly broad manner and threatens due process. Advocates for sexual assault survivors, however, said the punitive approach to accountability is misguided and doesn't address the substance of the problem on campuses.

No state has gone so far as to demand reporting of sexual misconduct on campuses. And lawmakers in other Republican-dominated states have advanced bills over the past year to restrict colleges' response to sexual assaults or to reflect the proposed Trump administration rule.

The new campus reporting law also tees up a potential conflict with requirements outlined in regulations crafted by DeVos, who is expected to issue a final rule later this year.

“There isn’t any question that this is a distinct path from the approach taken under Obama and DeVos,” said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University.

Under guidance issued by the Obama administration, colleges were expected to investigate complaints where they “reasonably should” have known about misconduct. In practice, that meant instructors were expected to report incidents they became aware of. But the proposed Trump administration rule says colleges only are liable for looking into incidents when they have an “actual knowledge” of misconduct. Students would have to report to an official like a Title IX coordinator with clear formal responsibilities. But a disclosure to a professor wouldn’t put a college on the hook for an investigation.

The new law in Texas goes the other direction.

The Baylor Effect

Campus sexual assault became a hot-button issue under the Obama administration, which pushed colleges to seriously address misconduct for the first time. And DeVos’s decision to roll back federal guidance issued in 2011 and 2014 and to craft new federal regulations on campus-based sexual misconduct has helped elevate the issue for many state legislators.

In Texas, however, the Baylor University sexual assault scandal that eventually led to the ouster of Baylor’s head football coach and president provided a special impetus for lawmakers to take tough action on campus sexual misconduct.

A 2016 report produced by the law firm Pepper Hamilton assigned much of the blame for mishandling of sexual assaults by Baylor football players to former president Ken Starr. Starr, the report said, failed “to provide consistent and meaningful engagement with Title IX.” A series of stories by ESPN found that the university had sought to keep quiet a number of physical and sexual assaults committed primarily by football players.

The transcript notation law was crafted in response to another Baylor case, in which a former fraternity president withdrew from the university after he was accused of sexually assaulting another student at a party in 2016 and later transferred to the University of Texas at Dallas. The student, Jacob Anderson, faced sexual assault charges but pleaded to a lesser charge of unlawful restraint.

After a public uproar over Anderson's case last year, UT Dallas president Richard Benson complained that the university had no knowledge of the accusations against Anderson at Baylor.

A version of the campus reporting legislation introduced in the previous legislative session would have added criminal penalties not only for campus officials, but also for student employees who fail to report sexual misconduct. College groups did not actively oppose the legislation and higher education leaders are examining their institutions’ policies to ensure they comply.

“It is critical that the public, including students and parents, are aware of any potential safety threats occurring on campuses,” State Senator Joan Huffman, the law’s author and a Republican from southeast Texas, told her colleagues during the session.

But advocates on campus misconduct issues fault the legislation for potential negative consequences and failures in its broad approach.

Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, called the Texas campus reporting law “egregiously problematic.”

“This is a perfect recipe to create an environment that is devastating to both campus free speech and due process,” he said.

FIRE had urged Abbott to veto the legislation. 

Cohn said the law uses an overly broad definition of sexual harassment that's at odds with the more narrow definition adopted in the Trump administration's proposed Title IX rule. And he warned that attaching criminal penalties would lead campus officials to report minor incidents to protect themselves from individual liability.

The law directs colleges to designate officials with whom students could speak confidentially about sexual misconduct. But Cohn and other critics said that doesn’t mitigate broader concerns about the language.

Laura Dunn, who founded the nonprofit SurvJustice and was instrumental in the crafting of federal guidance under the Obama administration, said she wasn’t opposed to accountability measures for campus officials who fail to report misconduct.

“It’s really going to come down to how schools implement it,” said Dunn of the mandatory reporting requirements. “It definitely provides an incentive for schools to have very significant training.”

But other survivor advocates rejected the approach of the legislation.

Jess Davidson, executive director of End Rape on Campus, said the campus reporting and transcript notation laws are solutions produced by well-meaning individuals who don’t understand potential unintended consequences of the policy changes. Adding more accountability for individual officials and institutions won't seriously address sexual misconduct without broader changes to policies and resources for survivors. Those policies could include more training for first-year students, due process for alleged victims and accused students, and accommodations on campus for survivors.

“We can’t just assume that if we add more accountability things will change,” she said. "We know reporting rates are extremely low. That's because so many pieces of the system are broken.”

Ashka Dighe, a University of Texas sophomore and vice president of the campus chapter of It’s On Us, a national organization that seeks to end sexual assault, said she was impressed with the bipartisan focus on tackling campus sexual assault during the legislative session.

“The overall goal of the bill was to protect survivors and prevent instances of sexual assault from happening,” she said. “I just think the way they approached this should have been different.”

Rather than adding criminal penalties to hold employees responsible for reporting misconduct, Dighe said the Legislature should push colleges to provide more resources to students who experience assault or harassment.

The American Association of University Professors has opposed mandatory reporting requirements, including in comments submitted to the Education Department on the proposed Title IX rule last year.

“These kinds of policies have a strong negative impact on faculty members in particular because of the negative effects on the teaching and advising relationship they have with students,” said Risa Lieberwitz, general counsel at AAUP.

Adding a criminal penalty for campus officials only exacerbates existing problems with the policy, Lieberwitz said.

Survivor advocates found more to like in the approach of another new law authored by State Senator Donna Howard, a Democrat from Austin, would mandate that colleges craft policies dealing with sexual harassment and assault, as well as dating violence and stalking. They would also have to lay out a process for reporting allegations and accommodations for victims. Davidson said by making small tweaks to various parts of the college system, the law could increase reporting without including tough penalties for individual campus officials.

Cohn of FIRE said that legislation also used overly broad definitions of harassment and said the procedural protections in the legislation were too sparse.

But Davidson said the law would have a positive impact by focusing on student experiences on campus rather than just an institution’s response to misconduct.

“Criminalizing school employees is not the kind of accountability we’re seeking when everything else in the system is set up to make it harder for survivors to report,” she said.

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