Cam­pus re­port­ing law puts Texas at fore­front

Un­der Se­nate Bill 212, em­ploy­ees re­quired to make note of in­ci­dents

The Dallas Morning News - - FRONT PAGE - By MARÍA MÉNDEZ Austin Bureau [email protected]­las­

AUSTIN — Since the rev­e­la­tion that high­rank­ing univer­sity of­fi­cials mis­han­dled as­saults by foot­ball play­ers at Bay­lor Univer­sity, Texas law­mak­ers have passed sev­eral bills to con­front sex­ual vi­o­lence on col­lege cam­puses.

Ex­perts say a new law puts Texas at the fore­front of states that are in­creas­ing re­port­ing re­quire­ments of sex­ual as­sault or haz­ing at uni­ver­si­ties.

Un­der Se­nate Bill 212, which took ef­fect Jan. 1, em­ploy­ees at Texas uni­ver­si­ties could face crim­i­nal charges and lose their jobs if they fail to re­port in­ci­dents of sex­ual ha­rass­ment, as­sault, stalk­ing or

dat­ing vi­o­lence.

Sen. Joan Huff­man, R­hous­ton, said she wrote the bill to ad­dress gaps in the re­port­ing process at some uni­ver­si­ties. Many des­ig­nate “manda­tory re­porters” to re­port in­ci­dents to Ti­tle IX co­or­di­na­tors, who over­see the in­ves­ti­ga­tion of com­plaints un­der the fed­eral law that pro­hibits dis­crim­i­na­tion on the ba­sis of sex.

But the man­dated re­porters vary by in­sti­tu­tion, Huff­man said.

“Th­ese dif­fer­ent re­porters leave holes in the cur­rent re­port­ing process at cer­tain in­sti­tu­tions and po­ten­tially en­able cer­tain in­ci­dents to fall through the cracks or not be treated eq­ui­tably,” she said in an email.

Em­ployee re­port­ing re­quire­ments

Manda­tory re­port­ing can raise aware­ness of sex­ual mis­con­duct and of re­sources avail­able to in­di­vid­u­als af­fected by it, said Jen­nifer Smith, the Ti­tle IX co­or­di­na­tor at Texas A&M Univer­sity.

But it may also put in­di­vid­u­als who don’t want to pur­sue a Ti­tle IX in­ves­ti­ga­tion in an un­com­fort­able sit­u­a­tion, she said.

“You risk re­vic­tim­iz­ing a vic­tim who dis­closes some­thing in con­fi­dence to an­other per­son,” she said. “A lot of our fac­ulty and staff have ex­pressed con­cern about vi­o­lat­ing that trust re­la­tion­ship with their stu­dents and with other co­work­ers.”

The law ex­empts stu­dent em­ploy­ees and em­ploy­ees who have ex­pe­ri­enced sex­ual mis­con­duct. Em­ploy­ees with des­ig­nated con­fi­den­tial­ity, such as coun­selors and health work­ers, only have to re­port the type of in­ci­dent that oc­curred.

Eve Shat­teen Bell, di­rec­tor of Ti­tle IX com­pli­ance at the Univer­sity of North Texas, said the law could lead to sit­u­a­tions in which the penalty for fail­ing to re­port sex­ual mis­con­duct is higher than the penalty for those who vi­o­late poli­cies against it but may not be charged with a crime.

“There’s nothing man­dat­ing that if you’re found re­spon­si­ble for sex­u­ally ha­rass­ing some­one that you get fired or that you go to jail,” she said.

The penal­ties for vi­o­lat­ing SB 212 are ei­ther a Class A mis­de­meanor, pun­ish­able by up to one year in jail and a fine of up to $4,000, or a Class B mis­de­meanor, pun­ish­able by up to 180 days in jail and a fine of up to $2,000.

Huff­man said she trusts district and county at­tor­neys to “ex­er­cise their best judg­ment” on penal­ties when han­dling crim­i­nal cases.

Shat­teen Bell also raised a con­cern about the in­creased re­port­ing un­der the law forc­ing some uni­ver­si­ties to hire more Ti­tle IX staff. She said UNT has seen an in­crease in re­ports this fall af­ter ed­u­cat­ing peo­ple about the law.

“My big­gest worry would be about the im­pact of this on smaller uni­ver­si­ties that have less fi­nan­cial re­sources,” she said. “It might cre­ate some in­equity between richer uni­ver­si­ties and ones that don’t have as much fi­nan­cial ac­cess.”

Other in­sti­tu­tions, such as the Univer­sity of Texas at Dal­las, have seen only a “mar­ginal” in­crease in re­ports so far, said Marco Men­doza, se­nior di­rec­tor of institutio­nal equity and Ti­tle IX ini­tia­tives.

Huff­man said she did not hear any con­cerns dur­ing the leg­isla­tive ses­sion about uni­ver­si­ties not be­ing able to han­dle in­creased caseloads.

“It is im­pos­si­ble to know whether or not there will ac­tu­ally be an in­creased num­ber of re­ports given that we do not have much data on the re­port­ing of th­ese in­ci­dents,” she said. “This is some­thing that the Leg­is­la­ture will be mon­i­tor­ing over the next year as we con­tinue to work with in­sti­tu­tions on im­ple­men­ta­tion of the pro­vi­sions of SB 212.”

Institutio­nal re­port­ing re­quire­ments

The law re­quires Ti­tle IX co­or­di­na­tors to rou­tinely sum­ma­rize the re­ports for univer­sity pres­i­dents, a re­sponse to scan­dals in which high­rank­ing ad­min­is­tra­tors claimed that they didn’t know what had or had not been re­ported.

“It is only ap­pro­pri­ate for the in­sti­tu­tion’s high­est­rank­ing of­fi­cials to be kept in­formed on mat­ters of pub­lic safety that are oc­cur­ring on cam­pus or in­volved their stu­dents or em­ploy­ees,” Huff­man said.

In­sti­tu­tions must also pub­lish non­iden­ti­fy­ing in­for­ma­tion about the re­ports on their web­sites once each fall and spring se­mes­ter.

This will be new for most Texas uni­ver­si­ties, which are re­quired un­der the fed­eral Jeanne Clery Act to pub­lish in­for­ma­tion of sex­ual vi­o­lence only if the crime took place on prop­erty as­so­ci­ated with the col­lege.

The Univer­sity of Texas at Austin be­gan pub­lish­ing an­nual sta­tis­ti­cal re­ports about its Ti­tle IX cases in May, but stu­dents there have been de­mand­ing a list of em­ploy­ees who have vi­o­lated sex­ual mis­con­duct poli­cies to also be pub­lished by the univer­sity.

Re­port by next year

The Texas Higher Ed­u­ca­tion Co­or­di­nat­ing Board will have to sub­mit a re­port to law­mak­ers by Jan­uary 2021 of uni­ver­si­ties that aren’t com­ply­ing with the law. The board could fine those uni­ver­si­ties up to $2 mil­lion.

Th­ese re­quire­ments and fines make Texas a “guinea pig” for the rest of the coun­try, said Scott Sch­nei­der, a higher­ed­u­ca­tion law ex­pert and part­ner for the firm Husch Black­well.

“No other state has gone as far as Texas has, both in terms of manda­tory re­port­ing and the pos­si­bil­ity for th­ese sorts of fines,” he said.

Sev­eral states, in­clud­ing Cal­i­for­nia, Vir­ginia and Florida, have en­acted re­port­ing re­quire­ments for uni­ver­si­ties, but SB 212 is no­table for shift­ing be­yond “institutio­nal ac­count­abil­ity for fail­ure to re­port to in­di­vid­ual crim­i­nal re­spon­si­bil­ity,” said Peter Lake, a law pro­fes­sor at Stet­son Univer­sity in Florida who spe­cial­izes in Ti­tle IX is­sues.

“There re­ally isn’t any­thing like the new Texas law,” he said. “Ev­ery­one’s go­ing to be watching.”

Deb­o­rah Can­non/austin Amer­i­can­states­man

State Sen. Joan Huff­man spoke dur­ing a Se­nate Fi­nance Com­mit­tee meet­ing in 2017. Un­der her Se­nate Bill 212, em­ploy­ees at Texas uni­ver­si­ties could face crim­i­nal charges and lose their jobs if they fail to re­port sex­ual ha­rass­ment, as­sault, stalk­ing or dat­ing vi­o­lence.

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