Frankly, I can't wrap my mind around this recent decision by Texas state lawmakers to regulate free speech on campus.
Regulating speech on campus to appease the offense industry sounds like something the Obama administration would have done, not Republicans in the Lone Star State.
If conservatives helped create this law, what the hell are they conserving?!
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’s view of Title IX, and incentivize college employees to report anything that the most delicate person on campus might consider sexual harassment.
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.
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.