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.
Breaking Report: Hollywood Legend Rob Reiner, Wife Michele Have Been Killed by Their Son Nick
Breaking: Two Dead Bodies Found at Hollywood Legend, Liberal Activist Rob Reiner’s LA Home
DoorDash driver charged with felony food tampering after alleged pepper spray incident goes viral
MTG Attacks Again, Blames Trump for Death Threats Against Her Son
Small Business Administration unveils new initiative to roll back federal regulations
Gavin Newsom Says Charlie Kirk Helped Him Better ‘Understand’ Christianity
China’s missile surge puts every US base in the Pacific at risk — and the window to respond is closing
In-N-Out Retires the Number 67 from Its Ordering System Over Viral ‘6-7’ Trend
Victim’s family breaks silence as Oklahoma teen in violent sex assault case avoids prison time: report
Trump addresses trio of attacks in Syria, Brown University, and Australia at White House Christmas event
‘You’re Not Answering’: Maher Goes Off After Leftist Guest Blames ‘Whitey’ for Islamic Oppression
Trump encourages Jewish Americans to ‘celebrate proudly’ during Hanukkah after deadly Bondi Beach shooting
Troy Aikman Blasts College Football NIL Chaos After Player He Paid Bolts Without Thanking Him
Ohio Doctor Indicted for Allegedly Drugging Pregnant Girlfriend with Abortion Pills
Oversight says DC police chief ‘undermined’ accuracy of crime data
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.
Breaking Report: Hollywood Legend Rob Reiner, Wife Michele Have Been Killed by Their Son Nick
Breaking: Two Dead Bodies Found at Hollywood Legend, Liberal Activist Rob Reiner’s LA Home
DoorDash driver charged with felony food tampering after alleged pepper spray incident goes viral
MTG Attacks Again, Blames Trump for Death Threats Against Her Son
Small Business Administration unveils new initiative to roll back federal regulations
Gavin Newsom Says Charlie Kirk Helped Him Better ‘Understand’ Christianity
China’s missile surge puts every US base in the Pacific at risk — and the window to respond is closing
In-N-Out Retires the Number 67 from Its Ordering System Over Viral ‘6-7’ Trend
Victim’s family breaks silence as Oklahoma teen in violent sex assault case avoids prison time: report
Trump addresses trio of attacks in Syria, Brown University, and Australia at White House Christmas event
‘You’re Not Answering’: Maher Goes Off After Leftist Guest Blames ‘Whitey’ for Islamic Oppression
Trump encourages Jewish Americans to ‘celebrate proudly’ during Hanukkah after deadly Bondi Beach shooting
Troy Aikman Blasts College Football NIL Chaos After Player He Paid Bolts Without Thanking Him
Ohio Doctor Indicted for Allegedly Drugging Pregnant Girlfriend with Abortion Pills
Oversight says DC police chief ‘undermined’ accuracy of crime data
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.
Breaking Report: Hollywood Legend Rob Reiner, Wife Michele Have Been Killed by Their Son Nick
Breaking: Two Dead Bodies Found at Hollywood Legend, Liberal Activist Rob Reiner’s LA Home
DoorDash driver charged with felony food tampering after alleged pepper spray incident goes viral
MTG Attacks Again, Blames Trump for Death Threats Against Her Son
Small Business Administration unveils new initiative to roll back federal regulations
Gavin Newsom Says Charlie Kirk Helped Him Better ‘Understand’ Christianity
China’s missile surge puts every US base in the Pacific at risk — and the window to respond is closing
In-N-Out Retires the Number 67 from Its Ordering System Over Viral ‘6-7’ Trend
Victim’s family breaks silence as Oklahoma teen in violent sex assault case avoids prison time: report
Trump addresses trio of attacks in Syria, Brown University, and Australia at White House Christmas event
‘You’re Not Answering’: Maher Goes Off After Leftist Guest Blames ‘Whitey’ for Islamic Oppression
Trump encourages Jewish Americans to ‘celebrate proudly’ during Hanukkah after deadly Bondi Beach shooting
Troy Aikman Blasts College Football NIL Chaos After Player He Paid Bolts Without Thanking Him
Ohio Doctor Indicted for Allegedly Drugging Pregnant Girlfriend with Abortion Pills
Oversight says DC police chief ‘undermined’ accuracy of crime data
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.
