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 ofĀ National ReviewĀ counted eight states that have passed campus free-speech bills in less than six months,Ā 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,Ā 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 Abbottās desk.
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The two bills set a definition of sexual harassment that mirrors theĀ Obama administrationāsview of Title IX, and incentivize college employees to reportĀ anythingĀ that theĀ most delicate person on campusĀ might consider sexual harassment.
Judging the legality of speech āentirely on subjective listener reactionā
FIRE warned Abbott in aĀ letter last weekĀ that āfaculty and staff at Texasās universities could be sent to prison for failing to report speech and conduct that does not even constitute sexual harassmentā under the Department of Educationās proposed Title IX regulatory changes.
On Wednesday,Ā FIRE responded to criticismĀ from the billsā biggest booster, the Texas Association Against Sexual Assault.
The definition bill (SB 212) literally says that āunwelcome, sex basedāĀ wordsĀ constitute harassment if they are āsufficiently severe, persistent, or pervasiveā to interfere with a studentās studies. What is āunwelcomeā? Ask the most easily offended person on campus. (Remember the University of OregonĀ tried to kick outĀ aĀ female studentĀ for a sex joke to another female.Ā Only FIREās intervention saved her.)
That three-option test in the definition also botches the Supreme Courtās 20-year-old definition of sexual harassment in an educational context, known asĀ Davis. It must be āsevere, pervasive,Ā andĀ objectively offensiveā ā all three elements ā for a school to be on notice.
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As FIRE tells the sexual-assault activists,Ā they donāt even have to agree with its interpretation of theĀ DavisĀ standard to recognize the billās 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.
Donāt take FIREās 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? Thatās FIREās question for the activists. āWithout 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.ā
Get ready for a flood of āunmeritoriousā 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 āany and all expression that could conceivably satisfyā the billās 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.
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And the sexual-assault activists are wrong: The bill literally makes failure to report a Class B misdemeanor, which can earnĀ 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.
FIREās letter to AbbottĀ even notes that the bill incentivizesĀ false reporting: It requires colleges to let accusers drop the courses they share with accused students āwithout academic penalty.ā If youāre struggling in class after the traditional ādrop period,ā 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 thatās what these two bills would do.
Story cited here.
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