86R5126 KJE-D
By: Howard H.B. No. 1735
A BILL TO BE ENTITLED
AN ACT
relating to sexual harassment, sexual assault, dating violence, and
stalking at public and private postsecondary educational
institutions; providing an administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 51, Education Code, is amended by adding
Subchapter E-3 to read as follows:
SUBCHAPTER E-3. SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING
VIOLENCE, AND STALKING
Sec. 51.281. DEFINITIONS. In this subchapter:
(1) "Coordinating board" means the Texas Higher
Education Coordinating Board.
(2) "Dating violence" means abuse or violence, or a
threat of abuse or violence, against a person with whom the actor
has or has had a social relationship of a romantic or intimate
nature.
(3) "Institution of higher education" and "private or
independent institution of higher education" have the meanings
assigned by Section 61.003.
(4) "Postsecondary educational institution" means an
institution of higher education or a private or independent
institution of higher education, as those terms are defined by
Section 61.003.
(5) "Sexual assault" means sexual contact or
intercourse with a person without the person's consent, including
sexual contact or intercourse against the person's will or in a
circumstance in which the person is incapable of consenting to the
contact or intercourse.
(6) "Sexual harassment" means unwelcome, sex-based
verbal or physical conduct that:
(A) in the employment context, unreasonably
interferes with a person's work performance or creates an
intimidating, hostile, or offensive work environment; or
(B) 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.
(7) "Stalking" means a course of conduct directed at a
person that would cause a reasonable person to fear for the person's
safety or to suffer substantial emotional distress.
Sec. 51.282. POLICY ON SEXUAL HARASSMENT, SEXUAL ASSAULT,
DATING VIOLENCE, AND STALKING. (a) Each postsecondary educational
institution shall adopt a policy on sexual harassment, sexual
assault, dating violence, and stalking applicable to each student
enrolled at and each employee of the institution. The policy must:
(1) include:
(A) definitions of prohibited behavior;
(B) sanctions for violations;
(C) the protocol for reporting and responding to
reports of sexual harassment, sexual assault, dating violence, and
stalking;
(D) interim measures to protect victims of sexual
harassment, sexual assault, dating violence, or stalking during the
pendency of the institution's disciplinary process, including
protection from retaliation, and any other accommodations
available to those victims at the institution; and
(E) a statement regarding:
(i) the importance of a victim of sexual
harassment, sexual assault, dating violence, or stalking going to a
hospital for treatment and preservation of evidence, if applicable,
as soon as practicable after the incident;
(ii) the right of a victim of sexual
harassment, sexual assault, dating violence, or stalking 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;
and
(2) be approved by the institution's governing board
before final adoption by the institution.
(b) Each postsecondary educational institution shall make
the institution's sexual harassment, sexual assault, dating
violence, and stalking policy available to students, faculty, and
staff members by:
(1) including the policy in the institution's student
handbook and personnel handbook; and
(2) creating and maintaining a web page dedicated
solely to the policy that is easily accessible through a clearly
identifiable link on the institution's Internet website home page.
(c) Each postsecondary educational institution shall
require each entering freshman or undergraduate transfer student to
attend an orientation on the institution's sexual harassment,
sexual assault, dating violence, and stalking policy before or
during the first semester or term in which the student is enrolled
at the institution. The institution shall establish the format and
content of the orientation. The orientation:
(1) may be provided online; and
(2) must include the statements described by
Subsection (a)(1)(E).
(d) Each postsecondary educational institution shall
develop and implement a comprehensive prevention and outreach
program on sexual harassment, sexual assault, dating violence, and
stalking. The program must:
(1) address a range of strategies to prevent sexual
harassment, sexual assault, dating violence, and stalking,
including a victim empowerment program, a public awareness
campaign, primary prevention, bystander intervention, and risk
reduction; and
(2) include providing to students information
regarding the protocol for reporting incidents of sexual
harassment, sexual assault, dating violence, and stalking adopted
under Subsection (a), including the name, office location, and
contact information of the institution's Title IX coordinator, by:
(A) e-mailing the information to each student at
the beginning of each semester or other academic term; and
(B) including the information in the orientation
required under Subsection (c).
(e) As part of the protocol for responding to reports of
sexual harassment, sexual assault, dating violence, and stalking
adopted under Subsection (a), each postsecondary educational
institution shall:
(1) to the greatest extent practicable based on the
number of counselors employed by the institution, ensure that each
alleged victim or alleged perpetrator of an incident of sexual
harassment, sexual assault, dating violence, or stalking and any
other person who reports such an incident are offered counseling
provided by a counselor who does not provide counseling to any other
person involved in the incident; and
(2) notwithstanding any other law, allow an alleged
victim or alleged perpetrator of an incident of sexual harassment,
sexual assault, dating violence, or stalking to drop a course in
which both parties are enrolled without any academic penalty.
(f) Each biennium, each postsecondary educational
institution shall review the institution's sexual harassment,
sexual assault, dating violence, and stalking policy and, with
approval of the institution's governing board, revise the policy as
necessary.
Sec. 51.285. VICTIM REQUEST NOT TO INVESTIGATE. (a) If an
alleged victim of an incident of sexual harassment, sexual assault,
dating violence, or stalking reported to a postsecondary
educational institution requests the institution not to
investigate the alleged incident, the institution may investigate
the alleged incident in a manner that complies with the
confidentiality requirements under Section 51.291. In determining
whether to investigate the alleged incident, the institution shall
consider:
(1) the seriousness of the alleged incident;
(2) whether the institution has received other reports
of sexual harassment, sexual assault, dating violence, or stalking
committed by the alleged perpetrator or perpetrators;
(3) whether the alleged incident poses a risk of harm
to others; and
(4) any other factors the institution determines
relevant.
(b) If a postsecondary educational institution decides not
to investigate an alleged incident of sexual harassment, sexual
assault, dating violence, or stalking based on the alleged victim's
request not to investigate, the institution shall take any steps
the institution determines necessary to protect the health and
safety of the institution's community in relation to the alleged
incident.
(c) A postsecondary educational institution shall inform an
alleged victim of an incident of sexual harassment, sexual assault,
dating violence, or stalking who requests the institution not to
investigate the alleged incident of the institution's decision
whether to investigate the alleged incident.
Sec. 51.286. DISCIPLINARY PROCESS FOR CERTAIN VIOLATIONS.
A postsecondary educational institution that initiates a
disciplinary process concerning an allegation that a student
enrolled at the institution violated the institution's code of
conduct by committing sexual harassment, sexual assault, dating
violence, or stalking shall:
(1) provide to the student and the alleged victim a
prompt and equitable opportunity to present witnesses and other
evidence relevant to the alleged violation during the disciplinary
process;
(2) ensure that both the student and the 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, redacted
as necessary to comply with any applicable federal or state law
regarding confidentiality; and
(3) take reasonable steps to protect the student and
the alleged victim from retaliation and harassment during the
pendency of the disciplinary process.
Sec. 51.287. STUDENT WITHDRAWAL OR GRADUATION PENDING
DISCIPLINARY CHARGES. (a) If a student withdraws or graduates from
a postsecondary educational institution pending a disciplinary
charge alleging that the student violated the institution's code of
conduct by committing sexual harassment, sexual assault, dating
violence, or stalking, the institution:
(1) may not end the disciplinary process or issue a
transcript to the student until the institution makes a final
determination of responsibility; and
(2) shall expedite the institution's disciplinary
process as necessary to accommodate both the student's and the
alleged victim's interest in a speedy resolution.
(b) On request by another postsecondary educational
institution, a postsecondary educational institution shall provide
to the requesting institution information relating to a
determination by the institution that a student enrolled at the
institution violated the institution's code of conduct by
committing sexual harassment, sexual assault, dating violence, or
stalking.
Sec. 51.288. TRAUMA-INFORMED INVESTIGATION TRAINING. Each
peace officer employed by a postsecondary educational institution
shall complete training on trauma-informed investigation into
allegations of sexual harassment, sexual assault, dating violence,
and stalking.
Sec. 51.289. MEMORANDA OF UNDERSTANDING REQUIRED. To
facilitate effective communication and coordination regarding
allegations of sexual harassment, sexual assault, dating violence,
and stalking at the institution, a postsecondary educational
institution shall enter into a memorandum of understanding with one
or more:
(1) local law enforcement agencies;
(2) sexual harassment, sexual assault, dating
violence, or stalking advocacy groups; and
(3) hospitals or other medical resource providers.
Sec. 51.290. RESPONSIBLE OR CONFIDENTIAL EMPLOYEE. (a)
Each postsecondary educational institution shall:
(1) designate:
(A) one or more employees to act as responsible
employees for purposes of Title IX of the Education Amendments of
1972 (20 U.S.C. Section 1681 et seq.); and
(B) one or more employees as persons to whom
students enrolled at the institution may speak confidentially
concerning sexual harassment, sexual assault, dating violence, and
stalking; and
(2) inform each student enrolled at the institution of
the responsible and confidential employees designated under
Subdivision (1).
(b) A confidential employee designated under Subsection
(a)(1)(B) may not disclose any communication made by a student to
the employee unless the student consents to the disclosure or the
employee is required to make the disclosure under state or federal
law.
Sec. 51.291. CONFIDENTIALITY. (a) The protections
provided by this section apply to:
(1) an alleged victim of an incident of sexual
harassment, sexual assault, dating violence, or stalking reported
to a postsecondary educational institution;
(2) a person who reports to a postsecondary
educational institution an incident of sexual harassment, sexual
assault, dating violence, or stalking, who sought guidance from the
institution concerning such an incident, or who participated in the
institution's investigation of such an incident; and
(3) a person who is alleged in a report made to a
postsecondary educational institution to have committed or
assisted in the commission of sexual harassment, sexual assault,
dating violence, or stalking if, after completing an investigation,
the institution determines the report to be unsubstantiated or
without merit.
(b) Unless waived in writing by the person, the identity of
a person described by Subsection (a):
(1) is confidential and not subject to disclosure
under Chapter 552, Government Code; and
(2) may be disclosed only to:
(A) the postsecondary educational institution to
which the report described by Subsection (a) is made as necessary to
conduct an investigation of the report;
(B) a law enforcement officer as necessary to
conduct a criminal investigation of the report described by
Subsection (a); or
(C) a health care provider in an emergency
situation, as determined necessary by the institution.
(c) A disclosure under Subsection (b) is not a voluntary
disclosure for purposes of Section 552.007, Government Code.
(d) Information 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. The provider must provide
aggregate data or other nonidentifying information regarding those
incidents to the institution's Title IX coordinator.
Sec. 51.292. COMPLIANCE. (a) If the coordinating board
determines that an institution of higher education is not in
substantial compliance with this subchapter, the coordinating
board shall report that determination to the legislature for
consideration of whether to reduce the allocation of state funding
to the institution for the following academic year.
(b) If the coordinating board determines that a private or
independent institution of higher education is not in substantial
compliance with this subchapter, the coordinating board may assess
an administrative penalty against the institution in an amount not
to exceed the amount of funding received by students enrolled at the
institution from tuition equalization grants under Subchapter F,
Chapter 61, for the preceding academic year or $2 million,
whichever is greater. In determining the amount of the penalty, the
coordinating board shall consider the nature of the violation and
the number of students enrolled at the institution.
(c) If the coordinating board takes an action under
Subsection (a) or (b) against a postsecondary educational
institution, the coordinating board shall provide to the
institution written notice of the coordinating board's reasons for
taking the action.
(d) A postsecondary educational institution against which
the coordinating board takes an action under Subsection (a) or (b),
as applicable, may appeal the action taken in the manner provided by
Chapter 2001, Government Code.
(e) A private or independent institution of higher
education may not pay an administrative penalty assessed under
Subsection (b) using state or federal money.
(f) An administrative penalty collected under this section
shall be deposited to the credit of the sexual assault program fund
established under Section 420.008, Government Code.
Sec. 51.293. ADVISORY COMMITTEE. (a) The commissioner of
higher education shall establish an advisory committee to:
(1) make recommendations to the coordinating board
regarding rules for adoption under Section 51.294; and
(2) develop recommended training for responsible and
confidential employees designated under Section 51.290 and for
Title IX coordinators at postsecondary educational institutions.
(b) The advisory committee consists of nine members
appointed by the commissioner of higher education. Each member
must be a chief executive officer of a postsecondary educational
institution or a representative designated by that officer.
(c) The advisory committee shall annually review and, if
necessary, update the training recommended under Subsection
(a)(2).
Sec. 51.294. RULES. (a) The coordinating board shall adopt
rules as necessary to implement and enforce this subchapter,
including rules that:
(1) define relevant terms; and
(2) ensure implementation of this subchapter in a
manner that complies with federal law regarding confidentiality of
student educational information, including the Family Educational
Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).
(b) In adopting rules under this section, the coordinating
board shall consult with relevant stakeholders.
SECTION 2. Sections 51.9365(b), (c), and (d), Education
Code, are transferred to Subchapter E-3, Chapter 51, Education
Code, as added by this Act, redesignated as Section 51.283,
Education Code, and amended to read as follows:
Sec. 51.283. ELECTRONIC REPORTING OPTION. (a) [(b)] Each
postsecondary educational institution shall provide an option for a
student enrolled at or an employee of the institution to
electronically report to the institution an allegation of sexual
harassment, sexual assault, dating violence, or stalking committed
against or witnessed by the student or employee, regardless of the
location at which the alleged offense occurred.
(b) [(c)] The electronic reporting option provided under
Subsection (a) [(b)] must:
(1) enable a student or employee to report the alleged
offense anonymously; and
(2) be easily accessible through a clearly
identifiable link on the postsecondary educational institution's
Internet website home page.
(c) [(d)] A protocol for reporting sexual assault adopted
under Section 51.282 [51.9363] must comply with this section.
SECTION 3. Sections 51.9366(b), (c), (d), (e), and (f),
Education Code, are transferred to Subchapter E-3, Chapter 51,
Education Code, as added by this Act, redesignated as Section
51.284, Education Code, and amended to read as follows:
Sec. 51.284. AMNESTY FOR STUDENTS REPORTING CERTAIN
INCIDENTS. (a) [(b)] A postsecondary educational institution may
not take any disciplinary action against a student enrolled at the
institution who in good faith reports to the institution being the
victim of, or a witness to, an incident of sexual harassment, sexual
assault, dating violence, or stalking for a violation by the
student of the institution's code of conduct occurring at or near
the time of the incident, regardless of the location at which the
incident occurred or the outcome of the institution's disciplinary
process regarding the incident, if any.
(b) [(c)] A postsecondary educational institution may
investigate to determine whether a report of an incident of sexual
harassment, sexual assault, dating violence, or stalking was made
in good faith.
(c) [(d)] A determination that a student is entitled to
amnesty under Subsection (a) [(b)] is final and may not be revoked.
(d) [(e)] Subsection (a) [(b)] does not apply to a student
who reports the student's own commission or assistance in the
commission of sexual harassment, sexual assault, dating violence,
or stalking.
(e) [(f)] This section may not be construed to limit a
postsecondary educational institution's ability to provide amnesty
from application of the institution's policies in circumstances not
described by Subsection (a) [(b)].
SECTION 4. The following provisions of the Education Code
are repealed:
(1) Section 51.9363;
(2) the heading to Sections 51.9365 and 51.9366;
(3) Sections 51.9365(a) and (e); and
(4) Sections 51.9366(a) and (g).
SECTION 5. The changes in law made by this Act apply
beginning January 1, 2020.
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2019.