TX
Texas Senate Bill SB585

Texas 2019 - 86th Regular

Texas Senate Bill SB585 Compare Versions

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1+86R5126 KJE-D
12 By: Watson S.B. No. 585
2- (In the Senate - Filed February 1, 2019; February 21, 2019,
3- read first time and referred to Committee on Higher Education;
4- April 16, 2019, reported adversely, with favorable Committee
5- Substitute by the following vote: Yeas 9, Nays 0; April 16, 2019,
6- sent to printer.)
7-Click here to see the committee vote
8- COMMITTEE SUBSTITUTE FOR S.B. No. 585 By: Taylor
93
104
115 A BILL TO BE ENTITLED
126 AN ACT
137 relating to sexual harassment, sexual assault, dating violence, and
148 stalking at public and private postsecondary educational
159 institutions; providing an administrative penalty.
1610 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1711 SECTION 1. Chapter 51, Education Code, is amended by adding
1812 Subchapter E-3 to read as follows:
1913 SUBCHAPTER E-3. SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING
2014 VIOLENCE, AND STALKING
2115 Sec. 51.281. DEFINITIONS. In this subchapter:
2216 (1) "Coordinating board" means the Texas Higher
2317 Education Coordinating Board.
24- (2) "Dating violence," "sexual assault," and
25- "stalking" have the meanings assigned by the Jeanne Clery
26- Disclosure of Campus Security Policy and Campus Crime Statistics
27- Act (20 U.S.C. Section 1092(f)(6)(A)).
18+ (2) "Dating violence" means abuse or violence, or a
19+ threat of abuse or violence, against a person with whom the actor
20+ has or has had a social relationship of a romantic or intimate
21+ nature.
2822 (3) "Institution of higher education" and "private or
2923 independent institution of higher education" have the meanings
3024 assigned by Section 61.003.
3125 (4) "Postsecondary educational institution" means an
3226 institution of higher education or a private or independent
3327 institution of higher education, as those terms are defined by
3428 Section 61.003.
35- (5) "Sexual harassment" means unwelcome, sex-based
29+ (5) "Sexual assault" means sexual contact or
30+ intercourse with a person without the person's consent, including
31+ sexual contact or intercourse against the person's will or in a
32+ circumstance in which the person is incapable of consenting to the
33+ contact or intercourse.
34+ (6) "Sexual harassment" means unwelcome, sex-based
3635 verbal or physical conduct that:
3736 (A) in the employment context, unreasonably
3837 interferes with a person's work performance or creates an
3938 intimidating, hostile, or offensive work environment; or
4039 (B) in the education context, is sufficiently
4140 severe, persistent, or pervasive that the conduct interferes with a
4241 student's ability to participate in or benefit from educational
4342 programs or activities at a postsecondary educational institution.
43+ (7) "Stalking" means a course of conduct directed at a
44+ person that would cause a reasonable person to fear for the person's
45+ safety or to suffer substantial emotional distress.
4446 Sec. 51.282. POLICY ON SEXUAL HARASSMENT, SEXUAL ASSAULT,
45- DATING VIOLENCE, AND STALKING. (a) Each postsecondary
46- educational institution shall adopt a policy on sexual harassment,
47- sexual assault, dating violence, and stalking applicable to each
48- student enrolled at and each employee of the institution. The
49- policy must:
47+ DATING VIOLENCE, AND STALKING. (a) Each postsecondary educational
48+ institution shall adopt a policy on sexual harassment, sexual
49+ assault, dating violence, and stalking applicable to each student
50+ enrolled at and each employee of the institution. The policy must:
5051 (1) include:
5152 (A) definitions of prohibited behavior;
5253 (B) sanctions for violations;
5354 (C) the protocol for reporting and responding to
5455 reports of sexual harassment, sexual assault, dating violence, and
5556 stalking;
5657 (D) interim measures to protect victims of sexual
5758 harassment, sexual assault, dating violence, or stalking during the
5859 pendency of the institution's disciplinary process, including
5960 protection from retaliation, and any other accommodations
6061 available to those victims at the institution; and
6162 (E) a statement regarding:
6263 (i) the importance of a victim of sexual
6364 harassment, sexual assault, dating violence, or stalking going to a
6465 hospital for treatment and preservation of evidence, if applicable,
6566 as soon as practicable after the incident;
6667 (ii) the right of a victim of sexual
6768 harassment, sexual assault, dating violence, or stalking to report
6869 the incident to the institution and to receive a prompt and
6970 equitable resolution of the report; and
7071 (iii) the right of a victim of a crime to
7172 choose whether to report the crime to law enforcement, to be
7273 assisted by the institution in reporting the crime to law
7374 enforcement, or to decline to report the crime to law enforcement;
7475 and
7576 (2) be approved by the institution's governing board
7677 before final adoption by the institution.
7778 (b) Each postsecondary educational institution shall make
7879 the institution's sexual harassment, sexual assault, dating
7980 violence, and stalking policy available to students, faculty, and
8081 staff members by:
8182 (1) including the policy in the institution's student
8283 handbook and personnel handbook; and
8384 (2) creating and maintaining a web page dedicated
8485 solely to the policy that is easily accessible through a clearly
8586 identifiable link on the institution's Internet website home page.
8687 (c) Each postsecondary educational institution shall
8788 require each entering freshman or undergraduate transfer student to
8889 attend an orientation on the institution's sexual harassment,
8990 sexual assault, dating violence, and stalking policy before or
9091 during the first semester or term in which the student is enrolled
9192 at the institution. The institution shall establish the format and
9293 content of the orientation. The orientation:
9394 (1) may be provided online; and
9495 (2) must include the statements described by
9596 Subsection (a)(1)(E).
9697 (d) Each postsecondary educational institution shall
9798 develop and implement a comprehensive prevention and outreach
9899 program on sexual harassment, sexual assault, dating violence, and
99100 stalking. The program must:
100101 (1) address a range of strategies to prevent sexual
101102 harassment, sexual assault, dating violence, and stalking,
102103 including a victim empowerment program, a public awareness
103104 campaign, primary prevention, bystander intervention, and risk
104105 reduction; and
105106 (2) include providing to students information
106107 regarding the protocol for reporting incidents of sexual
107108 harassment, sexual assault, dating violence, and stalking adopted
108109 under Subsection (a), including the name, office location, and
109110 contact information of the institution's Title IX coordinator, by:
110111 (A) e-mailing the information to each student at
111112 the beginning of each semester or other academic term; and
112113 (B) including the information in the orientation
113114 required under Subsection (c).
114115 (e) As part of the protocol for responding to reports of
115116 sexual harassment, sexual assault, dating violence, and stalking
116117 adopted under Subsection (a), each postsecondary educational
117118 institution shall:
118119 (1) to the greatest extent practicable based on the
119120 number of counselors employed by the institution, ensure that each
120121 alleged victim or alleged perpetrator of an incident of sexual
121122 harassment, sexual assault, dating violence, or stalking and any
122123 other person who reports such an incident are offered counseling
123124 provided by a counselor who does not provide counseling to any other
124125 person involved in the incident; and
125126 (2) notwithstanding any other law, allow an alleged
126127 victim or alleged perpetrator of an incident of sexual harassment,
127128 sexual assault, dating violence, or stalking to drop a course in
128129 which both parties are enrolled without any academic penalty.
129130 (f) Each biennium, each postsecondary educational
130131 institution shall review the institution's sexual harassment,
131132 sexual assault, dating violence, and stalking policy and, with
132133 approval of the institution's governing board, revise the policy as
133134 necessary.
134135 Sec. 51.285. VICTIM REQUEST NOT TO INVESTIGATE. (a) If an
135136 alleged victim of an incident of sexual harassment, sexual assault,
136137 dating violence, or stalking reported to a postsecondary
137138 educational institution requests the institution not to
138139 investigate the alleged incident, the institution may investigate
139140 the alleged incident in a manner that complies with the
140141 confidentiality requirements under Section 51.291. In determining
141142 whether to investigate the alleged incident, the institution shall
142143 consider:
143144 (1) the seriousness of the alleged incident;
144145 (2) whether the institution has received other reports
145146 of sexual harassment, sexual assault, dating violence, or stalking
146147 committed by the alleged perpetrator or perpetrators;
147148 (3) whether the alleged incident poses a risk of harm
148149 to others; and
149150 (4) any other factors the institution determines
150151 relevant.
151152 (b) If a postsecondary educational institution decides not
152153 to investigate an alleged incident of sexual harassment, sexual
153154 assault, dating violence, or stalking based on the alleged victim's
154155 request not to investigate, the institution shall take any steps
155156 the institution determines necessary to protect the health and
156157 safety of the institution's community in relation to the alleged
157158 incident.
158159 (c) A postsecondary educational institution shall inform an
159160 alleged victim of an incident of sexual harassment, sexual assault,
160161 dating violence, or stalking who requests the institution not to
161162 investigate the alleged incident of the institution's decision
162163 whether to investigate the alleged incident.
163164 Sec. 51.286. DISCIPLINARY PROCESS FOR CERTAIN VIOLATIONS.
164165 A postsecondary educational institution that initiates a
165166 disciplinary process concerning an allegation that a student
166167 enrolled at the institution violated the institution's code of
167168 conduct by committing sexual harassment, sexual assault, dating
168169 violence, or stalking shall:
169170 (1) provide to the student and the alleged victim a
170171 prompt and equitable opportunity to present witnesses and other
171172 evidence relevant to the alleged violation during the disciplinary
172173 process;
173174 (2) ensure that both the student and the alleged
174175 victim have reasonable and equitable access to all evidence
175176 relevant to the alleged violation in the institution's possession,
176177 including any statements made by the alleged victim or by other
177178 persons, information stored electronically, written or electronic
178179 communications, social media posts, or physical evidence, redacted
179180 as necessary to comply with any applicable federal or state law
180181 regarding confidentiality; and
181182 (3) take reasonable steps to protect the student and
182183 the alleged victim from retaliation and harassment during the
183184 pendency of the disciplinary process.
184185 Sec. 51.287. STUDENT WITHDRAWAL OR GRADUATION PENDING
185- DISCIPLINARY CHARGES. (a) If a student withdraws or graduates
186- from a postsecondary educational institution pending a
187- disciplinary charge alleging that the student violated the
188- institution's code of conduct by committing sexual harassment,
189- sexual assault, dating violence, or stalking, the institution:
186+ DISCIPLINARY CHARGES. (a) If a student withdraws or graduates from
187+ a postsecondary educational institution pending a disciplinary
188+ charge alleging that the student violated the institution's code of
189+ conduct by committing sexual harassment, sexual assault, dating
190+ violence, or stalking, the institution:
190191 (1) may not end the disciplinary process or issue a
191192 transcript to the student until the institution makes a final
192193 determination of responsibility; and
193194 (2) shall expedite the institution's disciplinary
194195 process as necessary to accommodate both the student's and the
195196 alleged victim's interest in a speedy resolution.
196197 (b) On request by another postsecondary educational
197198 institution, a postsecondary educational institution shall provide
198199 to the requesting institution information relating to a
199200 determination by the institution that a student enrolled at the
200201 institution violated the institution's code of conduct by
201202 committing sexual harassment, sexual assault, dating violence, or
202203 stalking.
203204 Sec. 51.288. TRAUMA-INFORMED INVESTIGATION TRAINING. Each
204205 peace officer employed by a postsecondary educational institution
205206 shall complete training on trauma-informed investigation into
206207 allegations of sexual harassment, sexual assault, dating violence,
207208 and stalking.
208209 Sec. 51.289. MEMORANDA OF UNDERSTANDING REQUIRED. To
209210 facilitate effective communication and coordination regarding
210211 allegations of sexual harassment, sexual assault, dating violence,
211212 and stalking at the institution, a postsecondary educational
212213 institution shall enter into a memorandum of understanding with one
213214 or more:
214215 (1) local law enforcement agencies;
215216 (2) sexual harassment, sexual assault, dating
216217 violence, or stalking advocacy groups; and
217218 (3) hospitals or other medical resource providers.
218- Sec. 51.290. RESPONSIBLE AND CONFIDENTIAL EMPLOYEE;
219- STUDENT ADVOCATE. (a) Each postsecondary educational institution
220- shall:
219+ Sec. 51.290. RESPONSIBLE OR CONFIDENTIAL EMPLOYEE. (a)
220+ Each postsecondary educational institution shall:
221221 (1) designate:
222222 (A) one or more employees to act as responsible
223223 employees for purposes of Title IX of the Education Amendments of
224224 1972 (20 U.S.C. Section 1681 et seq.); and
225225 (B) one or more employees as persons to whom
226226 students enrolled at the institution may speak confidentially
227227 concerning sexual harassment, sexual assault, dating violence, and
228228 stalking; and
229229 (2) inform each student enrolled at the institution of
230230 the responsible and confidential employees designated under
231231 Subdivision (1).
232- (b) A postsecondary educational institution may designate
233- one or more students enrolled at the institution as student
234- advocates to whom other students enrolled at the institution may
235- speak confidentially concerning sexual harassment, sexual assault,
236- dating violence, and stalking. The institution shall notify each
237- student enrolled at the institution of the student advocates
238- designated under this subsection.
239- (c) A confidential employee designated under Subsection
240- (a)(1)(B) or a student advocate designated under Subsection (b) may
241- not disclose any communication made by a student to the employee or
242- advocate unless the student consents to the disclosure or the
243- employee or advocate is required to make the disclosure under state
244- or federal law.
232+ (b) A confidential employee designated under Subsection
233+ (a)(1)(B) may not disclose any communication made by a student to
234+ the employee unless the student consents to the disclosure or the
235+ employee is required to make the disclosure under state or federal
236+ law.
245237 Sec. 51.291. CONFIDENTIALITY. (a) The protections
246238 provided by this section apply to:
247239 (1) an alleged victim of an incident of sexual
248240 harassment, sexual assault, dating violence, or stalking reported
249241 to a postsecondary educational institution;
250242 (2) a person who reports to a postsecondary
251243 educational institution an incident of sexual harassment, sexual
252244 assault, dating violence, or stalking, who sought guidance from the
253245 institution concerning such an incident, or who participated in the
254246 institution's investigation of such an incident; and
255247 (3) a person who is alleged in a report made to a
256248 postsecondary educational institution to have committed or
257249 assisted in the commission of sexual harassment, sexual assault,
258250 dating violence, or stalking if, after completing an investigation,
259251 the institution determines the report to be unsubstantiated or
260252 without merit.
261253 (b) Unless waived in writing by the person, the identity of
262254 a person described by Subsection (a):
263255 (1) is confidential and not subject to disclosure
264256 under Chapter 552, Government Code; and
265257 (2) may be disclosed only to:
266258 (A) the postsecondary educational institution to
267259 which the report described by Subsection (a) is made as necessary to
268260 conduct an investigation of the report;
269261 (B) a law enforcement officer as necessary to
270262 conduct a criminal investigation of the report described by
271263 Subsection (a); or
272264 (C) a health care provider in an emergency
273265 situation, as determined necessary by the institution.
274266 (c) A disclosure under Subsection (b) is not a voluntary
275267 disclosure for purposes of Section 552.007, Government Code.
276268 (d) Information regarding an incident of sexual harassment,
277269 sexual assault, dating violence, or stalking disclosed to a health
278270 care provider or other medical provider employed by a postsecondary
279271 educational institution is confidential and may be shared by the
280272 provider only with the victim's consent. The provider must provide
281273 aggregate data or other nonidentifying information regarding those
282274 incidents to the institution's Title IX coordinator.
283275 Sec. 51.292. COMPLIANCE. (a) If the coordinating board
284276 determines that an institution of higher education is not in
285277 substantial compliance with this subchapter, the coordinating
286278 board shall report that determination to the legislature for
287279 consideration of whether to reduce the allocation of state funding
288280 to the institution for the following academic year.
289281 (b) If the coordinating board determines that a private or
290282 independent institution of higher education is not in substantial
291283 compliance with this subchapter, the coordinating board may assess
292284 an administrative penalty against the institution in an amount not
293285 to exceed the amount of funding received by students enrolled at the
294286 institution from tuition equalization grants under Subchapter F,
295287 Chapter 61, for the preceding academic year or $2 million,
296288 whichever is greater. In determining the amount of the penalty, the
297289 coordinating board shall consider the nature of the violation and
298290 the number of students enrolled at the institution.
299291 (c) If the coordinating board takes an action under
300292 Subsection (a) or (b) against a postsecondary educational
301293 institution, the coordinating board shall provide to the
302294 institution written notice of the coordinating board's reasons for
303295 taking the action.
304296 (d) A postsecondary educational institution against which
305297 the coordinating board takes an action under Subsection (a) or (b),
306298 as applicable, may appeal the action taken in the manner provided by
307299 Chapter 2001, Government Code.
308300 (e) A private or independent institution of higher
309301 education may not pay an administrative penalty assessed under
310302 Subsection (b) using state or federal money.
311303 (f) An administrative penalty collected under this section
312304 shall be deposited to the credit of the sexual assault program fund
313305 established under Section 420.008, Government Code.
314- Sec. 51.293. EQUAL ACCESS. In implementing the
315- requirements under this subchapter, a postsecondary educational
316- institution shall, to the greatest extent practicable, ensure equal
317- access for students enrolled at or employees of the institution who
318- are persons with disabilities. The institution shall make
319- reasonable efforts to consult with a disability services office of
320- the institution, advocacy groups for people with disabilities, and
321- other relevant stakeholders to assist the institution with
322- complying with the institution's duties under this section.
323- Sec. 51.294. ADVISORY COMMITTEE. (a) The commissioner of
306+ Sec. 51.293. ADVISORY COMMITTEE. (a) The commissioner of
324307 higher education shall establish an advisory committee to:
325308 (1) make recommendations to the coordinating board
326- regarding rules for adoption under Section 51.295; and
309+ regarding rules for adoption under Section 51.294; and
327310 (2) develop recommended training for responsible and
328311 confidential employees designated under Section 51.290 and for
329312 Title IX coordinators at postsecondary educational institutions.
330313 (b) The advisory committee consists of nine members
331314 appointed by the commissioner of higher education. Each member
332315 must be a chief executive officer of a postsecondary educational
333316 institution or a representative designated by that officer.
334317 (c) The advisory committee shall annually review and, if
335318 necessary, update the training recommended under Subsection
336319 (a)(2).
337- Sec. 51.295. RULES. (a) The coordinating board shall
338- adopt rules as necessary to implement and enforce this subchapter,
320+ Sec. 51.294. RULES. (a) The coordinating board shall adopt
321+ rules as necessary to implement and enforce this subchapter,
339322 including rules that:
340323 (1) define relevant terms; and
341324 (2) ensure implementation of this subchapter in a
342325 manner that complies with federal law regarding confidentiality of
343326 student educational information, including the Family Educational
344327 Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).
345328 (b) In adopting rules under this section, the coordinating
346329 board shall consult with relevant stakeholders.
347330 SECTION 2. Sections 51.9365(b), (c), and (d), Education
348331 Code, are transferred to Subchapter E-3, Chapter 51, Education
349332 Code, as added by this Act, redesignated as Section 51.283,
350333 Education Code, and amended to read as follows:
351334 Sec. 51.283. ELECTRONIC REPORTING OPTION. (a) [(b)] Each
352335 postsecondary educational institution shall provide an option for a
353336 student enrolled at or an employee of the institution to
354337 electronically report to the institution an allegation of sexual
355338 harassment, sexual assault, dating violence, or stalking committed
356339 against or witnessed by the student or employee, regardless of the
357340 location at which the alleged offense occurred.
358341 (b) [(c)] The electronic reporting option provided under
359342 Subsection (a) [(b)] must:
360343 (1) enable a student or employee to report the alleged
361344 offense anonymously; and
362345 (2) be easily accessible through a clearly
363346 identifiable link on the postsecondary educational institution's
364347 Internet website home page.
365348 (c) [(d)] A protocol for reporting sexual assault adopted
366349 under Section 51.282 [51.9363] must comply with this section.
367350 SECTION 3. Sections 51.9366(b), (c), (d), (e), and (f),
368351 Education Code, are transferred to Subchapter E-3, Chapter 51,
369352 Education Code, as added by this Act, redesignated as Section
370353 51.284, Education Code, and amended to read as follows:
371354 Sec. 51.284. AMNESTY FOR STUDENTS REPORTING CERTAIN
372355 INCIDENTS. (a) [(b)] A postsecondary educational institution may
373356 not take any disciplinary action against a student enrolled at the
374357 institution who in good faith reports to the institution being the
375358 victim of, or a witness to, an incident of sexual harassment, sexual
376359 assault, dating violence, or stalking for a violation by the
377360 student of the institution's code of conduct occurring at or near
378361 the time of the incident, regardless of the location at which the
379362 incident occurred or the outcome of the institution's disciplinary
380363 process regarding the incident, if any.
381364 (b) [(c)] A postsecondary educational institution may
382365 investigate to determine whether a report of an incident of sexual
383366 harassment, sexual assault, dating violence, or stalking was made
384367 in good faith.
385368 (c) [(d)] A determination that a student is entitled to
386369 amnesty under Subsection (a) [(b)] is final and may not be revoked.
387370 (d) [(e)] Subsection (a) [(b)] does not apply to a student
388371 who reports the student's own commission or assistance in the
389372 commission of sexual harassment, sexual assault, dating violence,
390373 or stalking.
391374 (e) [(f)] This section may not be construed to limit a
392375 postsecondary educational institution's ability to provide amnesty
393376 from application of the institution's policies in circumstances not
394377 described by Subsection (a) [(b)].
395378 SECTION 4. The following provisions of the Education Code
396379 are repealed:
397380 (1) Section 51.9363;
398381 (2) the heading to Sections 51.9365 and 51.9366;
399382 (3) Sections 51.9365(a) and (e); and
400383 (4) Sections 51.9366(a) and (g).
401384 SECTION 5. The changes in law made by this Act apply
402- beginning August 1, 2020.
385+ beginning January 1, 2020.
403386 SECTION 6. This Act takes effect immediately if it receives
404387 a vote of two-thirds of all the members elected to each house, as
405388 provided by Section 39, Article III, Texas Constitution. If this
406389 Act does not receive the vote necessary for immediate effect, this
407390 Act takes effect September 1, 2019.
408- * * * * *