Why is this Republican state acting like the Obama administration?
Republican lawmakers seem to have a better grip than their Democratic colleagues on the inherent censorship of so-called free speech zones and viewpoint-based security fees.
David French of National Review counted eight states that have passed campus free-speech bills in less than six months, most recently Texas. He has one major quibble with the new Texas law: its failure to define a phrase that dictates when students can be punished for disruptions.
The Foundation for Individual Rights in Education, which French used to lead, added another concern: failure to specify an enforcement mechanism, whether for individuals or the state attorney general.
But those quibbles are nothing compared to the constitutional problems with a pair of Texas bills on campus sexual harassment that are on Republican Gov. Greg Abbott’s desk.
Federal agents deploy tear gas, rubber bullets on protesters outside Minneapolis federal building
House GOP leader blasts trans athletes in girls’ sports as ‘biggest form of bullying’
Florida sheriff Grady Judd fires off warning to gangsters after ‘Sex, Money, Murder’ kingpin taken down
Ex-state education official launches bid for Wyoming’s lone US House seat
Musk to Seek Full Custody After His Child’s Mother, a Former Conservative Influencer, Backs Gender Transition
Trump Announces His First Move After ‘Locked and Loaded’ Warning Against Iran
Elizabeth Warren says Trump called her after speech criticizing his record on costs
Riley Gaines to interview alleged victim in West Virginia v. B.P.J.
Trump dealt GOP blows over Powell inquiry amid rising tensions with Congress
Bill Clinton scheduled to appear before Oversight Committee as contempt of Congress threat looms
New York City unions have history of supporting Maduro regime
Mississippi man accused of killing six in shooting spree pleads not guilty
Rep Ro Khanna demands prosecution of ICE agent in Minneapolis fatal shooting
Jack Smith to testify next week at a public House Judiciary Committee hearing
Nonprofit revenue totals surge amid growing scrutiny after major fraud cases
The two bills set a definition of sexual harassment that mirrors the Obama administration’sview of Title IX, and incentivize college employees to report anything that the most delicate person on campus might consider sexual harassment.
Judging the legality of speech ‘entirely on subjective listener reaction’
FIRE warned Abbott in a letter last week that “faculty and staff at Texas’s universities could be sent to prison for failing to report speech and conduct that does not even constitute sexual harassment” under the Department of Education’s proposed Title IX regulatory changes.
On Wednesday, FIRE responded to criticism from the bills’ biggest booster, the Texas Association Against Sexual Assault.
The definition bill (SB 212) literally says that “unwelcome, sex based” words constitute harassment if they are “sufficiently severe, persistent, or pervasive” to interfere with a student’s studies. What is “unwelcome”? Ask the most easily offended person on campus. (Remember the University of Oregon tried to kick out a female student for a sex joke to another female. Only FIRE’s intervention saved her.)
That three-option test in the definition also botches the Supreme Court’s 20-year-old definition of sexual harassment in an educational context, known as Davis. It must be “severe, pervasive, and objectively offensive” – all three elements – for a school to be on notice.
Federal agents deploy tear gas, rubber bullets on protesters outside Minneapolis federal building
House GOP leader blasts trans athletes in girls’ sports as ‘biggest form of bullying’
Florida sheriff Grady Judd fires off warning to gangsters after ‘Sex, Money, Murder’ kingpin taken down
Ex-state education official launches bid for Wyoming’s lone US House seat
Musk to Seek Full Custody After His Child’s Mother, a Former Conservative Influencer, Backs Gender Transition
Trump Announces His First Move After ‘Locked and Loaded’ Warning Against Iran
Elizabeth Warren says Trump called her after speech criticizing his record on costs
Riley Gaines to interview alleged victim in West Virginia v. B.P.J.
Trump dealt GOP blows over Powell inquiry amid rising tensions with Congress
Bill Clinton scheduled to appear before Oversight Committee as contempt of Congress threat looms
New York City unions have history of supporting Maduro regime
Mississippi man accused of killing six in shooting spree pleads not guilty
Rep Ro Khanna demands prosecution of ICE agent in Minneapolis fatal shooting
Jack Smith to testify next week at a public House Judiciary Committee hearing
Nonprofit revenue totals surge amid growing scrutiny after major fraud cases
As FIRE tells the sexual-assault activists, they don’t even have to agree with its interpretation of the Davis standard to recognize the bill’s fundamental problem:
This definition is missing any kind of objective, reasonable person standard, instead conditioning the permissibility of speech (and the requirement to report) entirely on subjective listener reaction. Any definition of sexual harassment that lacks an objective component is unconstitutional.
Don’t take FIRE’s word for it. There is a long list of decisions where courts have found policies unconstitutional because they lacked an objective offensiveness component.
Can you imagine a subject more likely to cause offense than sexuality and gender? That’s FIRE’s question for the activists. “Without an objective requirement, students and faculty are held hostage to the personal feelings and opinions of their accusers, no matter how unusual or even unreasonable.”
Get ready for a flood of ‘unmeritorious’ complaints to the Title IX office
SB 212 is even worse because it includes the threat of firing and criminal penalties when employees fail to report “any and all expression that could conceivably satisfy” the bill’s uselessly broad definition of sexual harassment, FIRE wrote last week:
This in turn will flood institutional Title IX offices with unmeritorious complaints, including instances of speech plainly protected by the First Amendment or institutional promises of freedom of expression. Sifting through this avalanche will squander institutional resources that could be far better devoted to pursuing serious complaints intentionally brought to the attention of Title IX officers.
Federal agents deploy tear gas, rubber bullets on protesters outside Minneapolis federal building
House GOP leader blasts trans athletes in girls’ sports as ‘biggest form of bullying’
Florida sheriff Grady Judd fires off warning to gangsters after ‘Sex, Money, Murder’ kingpin taken down
Ex-state education official launches bid for Wyoming’s lone US House seat
Musk to Seek Full Custody After His Child’s Mother, a Former Conservative Influencer, Backs Gender Transition
Trump Announces His First Move After ‘Locked and Loaded’ Warning Against Iran
Elizabeth Warren says Trump called her after speech criticizing his record on costs
Riley Gaines to interview alleged victim in West Virginia v. B.P.J.
Trump dealt GOP blows over Powell inquiry amid rising tensions with Congress
Bill Clinton scheduled to appear before Oversight Committee as contempt of Congress threat looms
New York City unions have history of supporting Maduro regime
Mississippi man accused of killing six in shooting spree pleads not guilty
Rep Ro Khanna demands prosecution of ICE agent in Minneapolis fatal shooting
Jack Smith to testify next week at a public House Judiciary Committee hearing
Nonprofit revenue totals surge amid growing scrutiny after major fraud cases
And the sexual-assault activists are wrong: The bill literally makes failure to report a Class B misdemeanor, which can earn up to six months in jail.
The second bill (HB 1735) also puts Texas in the awkward position of mirroring a Democratic White House whose actions it frequently went to court to block.
It has the same unconstitutional definition of sexual harassment, but it treats accused students in sexual misconduct proceedings as if they are guilty from the start, denying them fundamental due process. Several courts, including in Texas, have told colleges they must allow cross-examination and live hearings.
FIRE’s letter to Abbott even notes that the bill incentivizes false reporting: It requires colleges to let accusers drop the courses they share with accused students “without academic penalty.” If you’re struggling in class after the traditional “drop period,” you may be tempted to claim that a classmate sexually victimized you in order to get out unscathed academically.
It would be a shame if Gov. Abbott ruined the goodwill he received from protecting free speech on campus by, well, outlawing free speech on campus. Because that’s what these two bills would do.
Story cited here.
