Texas Passes Sexual Assault Legislation Impacting Postsecondary Institutions

On June 15, 2019, Texas Governor Gregg Abbott signed House Bill 1735, an Act relating to the prevention of and response to sexual misconduct at public and private postsecondary institutions, effective September 1, 2019. Joining other states that have passed sexual harassment laws for schools—such as California, Illinois, and New York—the Texas law sets new state requirements for policies and procedures at postsecondary institutions. Notably, the Act imposes an administrative penalty of up to $2 million for substantial non-compliance,  and includes a requirement that institutions disclose to other institutions, upon request, information on whether a student violated the code of conduct when attending the responding institution by committing sexual harassment, sexual assault, dating violence, or stalking. Many of the other provisions codify current and proposed Title IX and VAWA requirements.

 Below, we provide a recap of some key provisions of the Act:

• Policy on Sexual Misconduct: Each institution must adopt a policy approved by its governing board incorporating definitions of harassment, sexual assault, dating violence, and stalking as provided in the Act, as well as including protocols for reporting and responding to these incidents, and sanctions for violations. The policy must also identify interim measures available to protect alleged victims, along with a statement on (1) the importance of seeking hospital treatment for preservation of evidence, (2) the right to report and receive prompt and equitable resolution, and (3) the right to choose or decline to report to law enforcement. Each institution must include the policy in its student and personnel handbooks and must display the policy on a designated webpage on the institution’s website home page. Institutions must review their sexual misconduct policy every two years.
• Standard of Evidence: The legislation is silent on the standard of evidence that must be used in investigating and adjudicating sexual misconduct allegations.
• Prevention: Institutions must require freshman and undergraduate transfer students to attend or complete online an orientation on sexual misconduct within their first semester or term. The orientation must include the three enumerated points above regarding protections available to alleged victims. Each institution must also develop and implement a prevention and outreach program subject to certain requirements.
• Interim Measures: Institutions must allow alleged victims and alleged perpetrators to drop any courses in which both parties are enrolled without academic penalty. And to the greatest extent practicable, institutions should offer to all parties (including witnesses) counseling by a trained professional who does not provide counseling to anyone else involved in the incident.
• Request Not to Investigate: Where an alleged victim asks the institution not to investigate, an institution may continue to investigate so long as certain confidentiality measures are followed. Factors to consider when deciding to proceed with investigating the incident without the alleged victim’s support are the seriousness of the alleged incident, multiple reports about the same perpetrator, the risk of harm to others, and other relevant factors. If an institution proceeds to investigate, the victim must be informed of this decision. Institutions must continue to take necessary steps to protect the health of safety of their community even when deciding not to investigate.
• Responsible and Confidential Employees and Student Advocates: Institutions must designate responsible and confidential employees and must identify these individuals for students. Confidential employees may not disclose information unless required by state or federal law. Institutions may also designate student advocates as confidential resources.
• Confidentiality: The identity of a person who reported an incident, participated in an investigation, or is accused of having committed sexual misconduct is not subject to disclosure unless waived in writing by that person. However, that person’s information may be disclosed pursuant to an investigation, a criminal investigation, or in an emergency situation as determined by the institution.
• Disciplinary Process: Students alleging sexual misconduct and students accused of such misconduct are guaranteed a “prompt and equitable opportunity” to present witnesses and other evidence relevant to the allegation during a disciplinary proceeding. Institutions must ensure that both parties have “reasonable and equitable access to all evidence… in the institution’s possession” and must take reasonable steps to protect both parties from retaliation and harassment.
• Interim Measures Pending Disciplinary Charges: Institutions may not end a disciplinary proceeding or issue a transcript when a student withdraws or graduates when disciplinary charges are pending. Institutions must make a final determination of responsibility and must expedite the proceedings when necessary.
• Reference Checks: When a request for information is made by another institution, an institution must respond with information on whether a student violated the code of conduct when attending the responding institution by committing sexual harassment, sexual assault, dating violence, or stalking.
• Training and MOUs: Officers employed by institutions must complete training in “trauma-informed” investigations. Institutions must enter into a memorandum of understanding with at least one of the following—local law enforcement agencies, sexual misconduct advocacy groups, and/or hospitals or other medical resource providers.
• Electronic Reporting Options: Institutions must have an option for students and employees to electronically report allegations of sexual misconduct through the institution’s website homepage and that option must allow for anonymous reporting.
• Amnesty for Students Reporting Certain Incidents: Institutions are prohibited from retaliating against students for reports of sexual misconduct, though they can investigate whether the report was made in good faith. Students who report in good faith receive irrevocable amnesty by the institution, unless the student acted or assisted in the commission of the sexual misconduct.
• Penalty: Institutions may be fined up to $2 million following a determination of substantial non-compliance. The assessment of the fine will depend on the nature of the institution’s violation and the number of students enrolled. Note, the institution cannot use state or federal money to pay this fine.

These new, comprehensive requirements take effect on September 1, 2019. HMBR is available to provide specific advice on how this new legislation may affect your campus policies and procedures. Should you like assistance, please contact HMBR’s Higher Education Group at 312-946-1800.