85R22205 KJE-D

By: Lozano, Canales, Zerwas, Howard, H.B. No. 16

Davis of Harris

Substitute the following for H.B. No. 16:

By: Lozano C.S.H.B. No. 16

A BILL TO BE ENTITLED

AN ACT

relating to sexual harassment, sexual assault, dating violence, and stalking at public and private postsecondary educational institutions.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 51, Education Code, is amended by adding Subchapter E-2 to read as follows:

SUBCHAPTER E-2. SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING

VIOLENCE, AND STALKING

Sec. 51.251. 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) "Postsecondary educational institution" means:

(A) an institution of higher education, as defined by Section 61.003; and

(B) a private or independent college or university approved for purposes of the tuition equalization grant program under Subchapter F, Chapter 61.

(4) "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.

(5) "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.

(6) "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. 51.252. POLICY ON SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING VIOLENCE, AND STALKING. (a) Each postsecondary educational institution shall adopt a policy on campus sexual harassment, sexual assault, dating violence, and stalking. The policy must:

(1) include:

(A) definitions of prohibited behavior;

(B) sanctions for violations;

(C) the protocol for reporting and responding to reports of campus 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 emphasizing the importance of:

(i) 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; and

(ii) a victim of a crime reporting the crime to law enforcement as soon as practicable after the commission of the crime; 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 campus 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 on the institution's Internet website dedicated solely to the policy.

(c) Each postsecondary educational institution shall require each entering freshman or undergraduate transfer student to attend an orientation on the institution's campus 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 emphasize the importance of:

(A) 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; and

(B) criminal matters being handled primarily by law enforcement.

(d) Each postsecondary educational institution shall develop and implement a comprehensive prevention and outreach program on campus sexual harassment, sexual assault, dating violence, and stalking. The program must address a range of strategies to prevent campus sexual harassment, sexual assault, dating violence, and stalking, including a victim empowerment program, a public awareness campaign, primary prevention, bystander intervention, and risk reduction.

(e) Each biennium, each postsecondary educational institution shall review the institution's campus sexual harassment, sexual assault, dating violence, and stalking policy and, with approval of the institution's governing board, revise the policy as necessary.

Sec. 51.253. ONLINE REPORTING SYSTEM. (a) Each postsecondary educational institution shall develop and establish or contract with a third party to develop and establish an online reporting system through which a student enrolled at or an employee of the institution may 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 incident occurred.

(b) The online reporting system must enable a student or employee to report the alleged incident anonymously.

(c) A protocol for reporting sexual harassment, sexual assault, dating violence, or stalking adopted under Section 51.252 must comply with this section.

Sec. 51.254. AMNESTY FOR STUDENTS REPORTING CERTAIN INCIDENTS. (a) 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 minor violation by the student of the institution's code of conduct occurring at or near the time of the incident. For purposes of this subsection, a minor violation of an institution's code of conduct is any violation for which the permissible punishments do not include suspension or expulsion from the institution.

(b) 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) Subsection (a) 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.

(d) 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).

Sec. 51.255. 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 51.261. 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. 51.256. DISCIPLINARY PROCESS FOR CERTAIN VIOLATIONS. A postsecondary educational institution that initiates a disciplinary process against a student enrolled at the institution for violating the institution's code of conduct by committing sexual harassment, sexual assault, dating violence, or stalking shall:

(1) provide to the student a meaningful opportunity to admit or contest the alleged violation at a disciplinary proceeding, whether formal or informal;

(2) ensure that both the student and the alleged victim have reasonable and complete access to all evidence related to the alleged violation not later than five days before the date on which the disciplinary process begins, 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

(3) permit both the student and the alleged victim to safely question witnesses of the alleged violation in an appropriate manner, as determined by the institution.

Sec. 51.257. 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 the student'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. 51.258. 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. 51.259. 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. 51.260. RESPONSIBLE OR CONFIDENTIAL EMPLOYEE. 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).

Sec. 51.261. 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. 51.262. REPORT. (a) Each postsecondary educational institution shall annually submit to the institution's governing body a report concerning any reports of sexual harassment, sexual assault, dating violence, or stalking received by the institution during the preceding academic year. The report may not identify any person.

(b) A report submitted under Subsection (a) is public information subject to disclosure under Chapter 552, Government Code, and a private or independent college or university approved for purposes of the tuition equalization grant program under Subchapter F, Chapter 61, is a governmental body with respect to such a report for purposes of Chapter 552, Government Code.

Sec. 51.263. COMPLIANCE. (a) If the coordinating board determines that an institution of higher education is not in substantial compliance with this subchapter, the coordinating board may reduce the allocation of state funding to the institution for the following academic year in an amount determined by the coordinating board.

(b) If the coordinating board determines that a private or independent college or university is not in substantial compliance with this subchapter, the coordinating board may:

(1) assess an administrative penalty against the college or university in an amount not to exceed $2 million; or

(2) declare students enrolled at the college or university ineligible for tuition equalization grants under Subchapter F, Chapter 61.

(c) In determining the amount of a penalty under Subsection (a) or (b)(1), the coordinating board shall consider the seriousness of the violation.

(d) If the coordinating board takes an action under Subsection (a) or (b) against an institution of higher education or a private or independent college or university, as applicable, the coordinating board shall provide to the institution or college or university written notice of the coordinating board's reasons for taking the action.

(e) An institution of higher education or a private or independent college or university 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.

(f) A private or independent college or university may not pay an administrative penalty assessed under Subsection (b)(1) using state or federal money.

Sec. 51.264. ADDITIONAL TYPES OF INCIDENTS. A postsecondary educational institution may adopt a policy to include incidents other than sexual harassment, sexual assault, dating violence, or stalking for purposes of any provision of this subchapter.

Sec. 51.265. TRAINING ADVISORY COMMITTEE. (a) The commissioner of higher education shall establish an advisory committee to develop recommended training for responsible and confidential employees designated under Section 51.260 and for Title IX coordinators at postsecondary educational institutions.

(b) Each member of the advisory committee is appointed by the commissioner of higher education and 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 recommended training.

Sec. 51.266. RULES. 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).

SECTION 2. Section 51.9363, Education Code, is repealed.

SECTION 3. The changes in law made by this Act apply beginning with the 2017-2018 academic year.

SECTION 4. Not later than January 1, 2018, each public or private postsecondary educational institution shall develop and establish the online reporting system required under Section 51.253, Education Code, as added by this Act.

SECTION 5. 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, 2017.