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.
Linda McMahon vows crackdown on teachers sexually harassing students: ‘Must end’
Enes Kanter Freedom ejected from WNBA game after courtside confrontation with WNBA player
Suspect in deaths of 5 found dead after cops uncover grim scene at rural property outside Portland
Lindsay Clancy’s three child victims forgotten amid crowds of support: mother of six
College grad reportedly dies in Six Flags roller coaster incident as family sues theme park
California dad paralyzed from neck down after diving into ocean to rescue child
City in Anti-2A State Has 7 Times the Murders of Cities in State That Respects Gun Rights
House Ethics Committee Opens Investigation Into Democrat Rep Jimmy Gomez For Sexual Misconduct
Harvard Still Employs Professor Whose Emails with Epstein Mentioned Spies And Torture
WATCH: Young bear takes rough tumble from Denver tree after wildlife officers tranquilize it
The Green New Deal Is Back: Its Next Target – AI
American Airlines flight lands safely after laptop battery catches fire on board; passenger injured
Jury Slaps Down Burglar’s $10M Suit Against Urine-Tossing Business Owner Who Shot Him
El-Sayed under fire online after taking aim at Usha Vance, female Trump aide in weekend social media posts
Karoline Leavitt reveals next role after leaving White House press secretary post
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.
Linda McMahon vows crackdown on teachers sexually harassing students: ‘Must end’
Enes Kanter Freedom ejected from WNBA game after courtside confrontation with WNBA player
Suspect in deaths of 5 found dead after cops uncover grim scene at rural property outside Portland
Lindsay Clancy’s three child victims forgotten amid crowds of support: mother of six
College grad reportedly dies in Six Flags roller coaster incident as family sues theme park
California dad paralyzed from neck down after diving into ocean to rescue child
City in Anti-2A State Has 7 Times the Murders of Cities in State That Respects Gun Rights
House Ethics Committee Opens Investigation Into Democrat Rep Jimmy Gomez For Sexual Misconduct
Harvard Still Employs Professor Whose Emails with Epstein Mentioned Spies And Torture
WATCH: Young bear takes rough tumble from Denver tree after wildlife officers tranquilize it
The Green New Deal Is Back: Its Next Target – AI
American Airlines flight lands safely after laptop battery catches fire on board; passenger injured
Jury Slaps Down Burglar’s $10M Suit Against Urine-Tossing Business Owner Who Shot Him
El-Sayed under fire online after taking aim at Usha Vance, female Trump aide in weekend social media posts
Karoline Leavitt reveals next role after leaving White House press secretary post
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.
Linda McMahon vows crackdown on teachers sexually harassing students: ‘Must end’
Enes Kanter Freedom ejected from WNBA game after courtside confrontation with WNBA player
Suspect in deaths of 5 found dead after cops uncover grim scene at rural property outside Portland
Lindsay Clancy’s three child victims forgotten amid crowds of support: mother of six
College grad reportedly dies in Six Flags roller coaster incident as family sues theme park
California dad paralyzed from neck down after diving into ocean to rescue child
City in Anti-2A State Has 7 Times the Murders of Cities in State That Respects Gun Rights
House Ethics Committee Opens Investigation Into Democrat Rep Jimmy Gomez For Sexual Misconduct
Harvard Still Employs Professor Whose Emails with Epstein Mentioned Spies And Torture
WATCH: Young bear takes rough tumble from Denver tree after wildlife officers tranquilize it
The Green New Deal Is Back: Its Next Target – AI
American Airlines flight lands safely after laptop battery catches fire on board; passenger injured
Jury Slaps Down Burglar’s $10M Suit Against Urine-Tossing Business Owner Who Shot Him
El-Sayed under fire online after taking aim at Usha Vance, female Trump aide in weekend social media posts
Karoline Leavitt reveals next role after leaving White House press secretary post
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.
