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.
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.