Less than a week after Gov. Greg Abbott (R-TX) signed a law protecting free speech on college campuses, he signed one that threatens that very protection.
As The Daily Wire previously reported, Abbott has signed numerous bills and posted videos about the news laws on Twitter. But on Friday, he signed two laws that ostensibly deal with campus sexual assault that hurt not only free speech rights but also due process rights.
The Foundation for Individual Rights in Education (FIRE) had written to the governor twice to let him know their concerns with the bill and also sent a letter asking him to veto the bills. While Abbott vetoed many bills on Friday, he did not veto SB 212 and HB 1735. From FIRE:
As a brief recap, both pieces of legislation — SB 212 and HB 1735 — use an unconstitutionally overbroad definition of sexual harassment that lacks the fundamental requirement that the conduct in question be objectively offensive to a reasonable person. SB 212 compounds the problem further by requiring all college and university employees to report any conduct they reasonably believe satisfies that definition to the institution’s Title IX apparatus. Failure to do so subjects the employee to termination and criminal misdemeanor charges, which carry potential penalties of up to $2,000, 180 days in jail, or both.
HB 1735 will take effect Sept. 1. Most of SB 212’s provisions also take effect on Sept. 1, while the bill’s criminal penalties take effect Jan. 1, 2020. This means Texas’s students and faculty will be forced to navigate new, unconstitutional speech codes this academic year that will inevitably lead to an explosion of frivolous investigations into protected speech, self-censorship, and possibly even jail time for faculty members who run afoul of the new law.
The biggest problem with these bills is that the definition allows for too much subjectivity, meaning school officials, fearing they could lose their jobs or go to jail, will likely start reporting any and all instances involving sex or sexually charged speech.
We’ve seen what happens in a case like this. Grant Neal was a football player and pre-med student at Colorado State University-Pueblo. He became close to a woman who part of the school’s Athletic Training Program. They engaged in some sexual activity, which left hickeys on the woman’s neck. One of her peers saw these marks, learned they were from Neal, and reported him for sexual assault.
Even though the woman said she was not raped or assaulted (Neal has recordings of her saying so), Neal was suspended. Neal sued and was able to settle with CSUP out of court.
FIRE, in its veto request letter, also noted that HB 1735 demands schools not inform the police when they decide to investigate an allegation they deem to be severe enough that they would go against the accuser’s wishes and investigate. The bill essentially tells schools not to alert the police about potentially violent perpetrators.
The bill also requires as a default the ability for accusers to drop courses they share with the accused without academic penalty. As FIRE noted, this creates an incentive for accusers to get out of classes in which they are struggling by falsely accusing classmates. We’ve seen it before. A woman at Ohio State University brought a false sexual assault claim against a male student – months after the encounter – just days after she was told she was about to fail her first-year medical school program (for the second time). By making her dubious accusation (which texts messages and multiple witnesses disputed), she was spared from expulsion.
Finally, neither of the bills signed provide meaningful due process protections for accused students.
Education Secretary Betsy DeVos is set to release new Title IX guidance for schools that would require them to provide basic due process protections for accused students. These new Texas bills will end up running afoul of those new rules.