85R22205 KJE-D
 
  By: Lozano, Canales, Zerwas, Howard, H.B. No. 16
      Davis of Harris
 
  Substitute the following for H.B. No. 16:
 
  By:  Lozano C.S.H.B. No. 16
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to sexual harassment, sexual assault, dating violence, and
  stalking at public and private postsecondary educational
  institutions.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 51, Education Code, is amended by adding
  Subchapter E-2 to read as follows:
  SUBCHAPTER E-2. SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING
  VIOLENCE, AND STALKING
         Sec. 51.251.  DEFINITIONS.  In this subchapter:
               (1)  "Coordinating board" means the Texas Higher
  Education Coordinating Board.
               (2)  "Dating violence" means abuse or violence, or a
  threat of abuse or violence, against a person with whom the actor
  has or has had a social relationship of a romantic or intimate
  nature.
               (3)  "Postsecondary educational institution" means:
                     (A)  an institution of higher education, as
  defined by Section 61.003; and
                     (B)  a private or independent college or
  university approved for purposes of the tuition equalization grant
  program under Subchapter F, Chapter 61.
               (4)  "Sexual assault" means sexual contact or
  intercourse with a person without the person's consent, including
  sexual contact or intercourse against the person's will or in a
  circumstance in which the person is incapable of consenting to the
  contact or intercourse.
               (5)  "Sexual harassment" means unwelcome, sex-based
  verbal or physical conduct that:
                     (A)  in the employment context, unreasonably
  interferes with a person's work performance or creates an
  intimidating, hostile, or offensive work environment; or
                     (B)  in the education context, is sufficiently
  severe, persistent, or pervasive that the conduct interferes with a
  student's ability to participate in or benefit from educational
  programs or activities at a postsecondary educational institution.
               (6)  "Stalking" means a course of conduct directed at a
  person that would cause a reasonable person to fear for the person's
  safety or to suffer substantial emotional distress.
         Sec. 51.252.  POLICY ON SEXUAL HARASSMENT, SEXUAL ASSAULT,
  DATING VIOLENCE, AND STALKING. (a) Each postsecondary educational
  institution shall adopt a policy on campus sexual harassment,
  sexual assault, dating violence, and stalking. The policy must:
               (1)  include:
                     (A)  definitions of prohibited behavior;
                     (B)  sanctions for violations;
                     (C)  the protocol for reporting and responding to
  reports of campus sexual harassment, sexual assault, dating
  violence, and stalking;
                     (D)  interim measures to protect victims of sexual
  harassment, sexual assault, dating violence, or stalking during the
  pendency of the institution's disciplinary process, including
  protection from retaliation, and any other accommodations
  available to those victims at the institution; and
                     (E)  a statement emphasizing the importance of:
                           (i)  a victim of sexual harassment, sexual
  assault, dating violence, or stalking going to a hospital for
  treatment and preservation of evidence, if applicable, as soon as
  practicable after the incident; and
                           (ii)  a victim of a crime reporting the crime
  to law enforcement as soon as practicable after the commission of
  the crime; and
               (2)  be approved by the institution's governing board
  before final adoption by the institution.
         (b)  Each postsecondary educational institution shall make
  the institution's campus sexual harassment, sexual assault, dating
  violence, and stalking policy available to students, faculty, and
  staff members by:
               (1)  including the policy in the institution's student
  handbook and personnel handbook; and
               (2)  creating and maintaining a web page on the
  institution's Internet website dedicated solely to the policy.
         (c)  Each postsecondary educational institution shall
  require each entering freshman or undergraduate transfer student to
  attend an orientation on the institution's campus sexual
  harassment, sexual assault, dating violence, and stalking policy
  before or during the first semester or term in which the student is
  enrolled at the institution. The institution shall establish the
  format and content of the orientation.  The orientation:
               (1)  may be provided online; and
               (2)  must emphasize the importance of:
                     (A)  a victim of sexual harassment, sexual
  assault, dating violence, or stalking going to a hospital for
  treatment and preservation of evidence, if applicable, as soon as
  practicable after the incident; and
                     (B)  criminal matters being handled primarily by
  law enforcement.
         (d)  Each postsecondary educational institution shall
  develop and implement a comprehensive prevention and outreach
  program on campus sexual harassment, sexual assault, dating
  violence, and stalking. The program must address a range of
  strategies to prevent campus sexual harassment, sexual assault,
  dating violence, and stalking, including a victim empowerment
  program, a public awareness campaign, primary prevention,
  bystander intervention, and risk reduction.
         (e)  Each biennium, each postsecondary educational
  institution shall review the institution's campus sexual
  harassment, sexual assault, dating violence, and stalking policy
  and, with approval of the institution's governing board, revise the
  policy as necessary.
         Sec. 51.253.  ONLINE REPORTING SYSTEM. (a) Each
  postsecondary educational institution shall develop and establish
  or contract with a third party to develop and establish an online
  reporting system through which a student enrolled at or an employee
  of the institution may report to the institution an allegation of
  sexual harassment, sexual assault, dating violence, or stalking
  committed against or witnessed by the student or employee,
  regardless of the location at which the alleged incident occurred.
         (b)  The online reporting system must enable a student or
  employee to report the alleged incident anonymously.
         (c)  A protocol for reporting sexual harassment, sexual
  assault, dating violence, or stalking adopted under Section 51.252
  must comply with this section.
         Sec. 51.254.  AMNESTY FOR STUDENTS REPORTING CERTAIN
  INCIDENTS. (a) A postsecondary educational institution may not
  take any disciplinary action against a student enrolled at the
  institution who in good faith reports to the institution being the
  victim of, or a witness to, an incident of sexual harassment, sexual
  assault, dating violence, or stalking for a minor violation by the
  student of the institution's code of conduct occurring at or near
  the time of the incident.  For purposes of this subsection, a minor
  violation of an institution's code of conduct is any violation for
  which the permissible punishments do not include suspension or
  expulsion from the institution.
         (b)  A postsecondary educational institution may investigate
  to determine whether a report of an incident of sexual harassment,
  sexual assault, dating violence, or stalking was made in good
  faith.
         (c)  Subsection (a) does not apply to a student who reports
  the student's own commission or assistance in the commission of
  sexual harassment, sexual assault, dating violence, or stalking.
         (d)  This section may not be construed to limit a
  postsecondary educational institution's ability to provide amnesty
  from application of the institution's policies in circumstances not
  described by Subsection (a).
         Sec. 51.255.  VICTIM REQUEST NOT TO INVESTIGATE. (a)  If an
  alleged victim of an incident of sexual harassment, sexual assault,
  dating violence, or stalking reported to a postsecondary
  educational institution requests the institution not to
  investigate the alleged incident, the institution may investigate
  the alleged incident in a manner that complies with the
  confidentiality requirements under Section 51.261.  In determining
  whether to investigate the alleged incident, the institution shall
  consider:
               (1)  the seriousness of the alleged incident;
               (2)  whether the institution has received other reports
  of sexual harassment, sexual assault, dating violence, or stalking
  committed by the alleged perpetrator or perpetrators;
               (3)  whether the alleged incident poses a risk of harm
  to others; and
               (4)  any other factors the institution determines
  relevant.
         (b)  If a postsecondary educational institution decides not
  to investigate an alleged incident of sexual harassment, sexual
  assault, dating violence, or stalking based on the alleged victim's
  request not to investigate, the institution shall take any steps
  the institution determines necessary to protect the health and
  safety of the institution's community in relation to the alleged
  incident.
         (c)  A postsecondary educational institution shall inform an
  alleged victim of an incident of sexual harassment, sexual assault,
  dating violence, or stalking who requests the institution not to
  investigate the alleged incident of the institution's decision
  whether to investigate the alleged incident.
         Sec. 51.256.  DISCIPLINARY PROCESS FOR CERTAIN VIOLATIONS.
  A postsecondary educational institution that initiates a
  disciplinary process against a student enrolled at the institution
  for violating the institution's code of conduct by committing
  sexual harassment, sexual assault, dating violence, or stalking
  shall:
               (1)  provide to the student a meaningful opportunity to
  admit or contest the alleged violation at a disciplinary
  proceeding, whether formal or informal;
               (2)  ensure that both the student and the alleged
  victim have reasonable and complete access to all evidence related
  to the alleged violation not later than five days before the date on
  which the disciplinary process begins, including any statements
  made by the alleged victim or by other persons, information stored
  electronically, written or electronic communications, social media
  posts, or physical evidence; and
               (3)  permit both the student and the alleged victim to
  safely question witnesses of the alleged violation in an
  appropriate manner, as determined by the institution.
         Sec. 51.257.  STUDENT WITHDRAWAL OR GRADUATION PENDING
  DISCIPLINARY CHARGES. (a) If a student withdraws or graduates from
  a postsecondary educational institution pending a disciplinary
  charge alleging that the student violated the institution's code of
  conduct by committing sexual harassment, sexual assault, dating
  violence, or stalking, the institution:
               (1)  may not end the disciplinary process or issue a
  transcript to the student until the institution makes a final
  determination of responsibility; and
               (2)  shall expedite the institution's disciplinary
  process as necessary to accommodate the student's interest in a
  speedy resolution.
         (b)  On request by another postsecondary educational
  institution, a postsecondary educational institution shall provide
  to the requesting institution information relating to a
  determination by the institution that a student enrolled at the
  institution violated the institution's code of conduct by
  committing sexual harassment, sexual assault, dating violence, or
  stalking.
         Sec. 51.258.  TRAUMA-INFORMED INVESTIGATION TRAINING. Each
  peace officer employed by a postsecondary educational institution
  shall complete training on trauma-informed investigation into
  allegations of sexual harassment, sexual assault, dating violence,
  and stalking.
         Sec. 51.259.  MEMORANDA OF UNDERSTANDING REQUIRED. To
  facilitate effective communication and coordination regarding
  allegations of sexual harassment, sexual assault, dating violence,
  and stalking at the institution, a postsecondary educational
  institution shall enter into a memorandum of understanding with one
  or more:
               (1)  local law enforcement agencies;
               (2)  sexual harassment, sexual assault, dating
  violence, or stalking advocacy groups; and
               (3)  hospitals or other medical resource providers.
         Sec. 51.260.  RESPONSIBLE OR CONFIDENTIAL EMPLOYEE. Each
  postsecondary educational institution shall:
               (1)  designate:
                     (A)  one or more employees to act as responsible
  employees for purposes of Title IX of the Education Amendments of
  1972 (20 U.S.C. Section 1681 et seq.); and
                     (B)  one or more employees as persons to whom
  students enrolled at the institution may speak confidentially
  concerning sexual harassment, sexual assault, dating violence, and
  stalking; and
               (2)  inform each student enrolled at the institution of
  the responsible and confidential employees designated under
  Subdivision (1).
         Sec. 51.261.  CONFIDENTIALITY. (a)  The protections
  provided by this section apply to:
               (1)  an alleged victim of an incident of sexual
  harassment, sexual assault, dating violence, or stalking reported
  to a postsecondary educational institution;
               (2)  a person who reports to a postsecondary
  educational institution an incident of sexual harassment, sexual
  assault, dating violence, or stalking, who sought guidance from the
  institution concerning such an incident, or who participated in the
  institution's investigation of such an incident; and
               (3)  a person who is alleged in a report made to a
  postsecondary educational institution to have committed or
  assisted in the commission of sexual harassment, sexual assault,
  dating violence, or stalking if, after completing an investigation,
  the institution determines the report to be unsubstantiated or
  without merit.
         (b)  Unless waived in writing by the person, the identity of
  a person described by Subsection (a):
               (1)  is confidential and not subject to disclosure
  under Chapter 552, Government Code; and
               (2)  may be disclosed only to:
                     (A)  the postsecondary educational institution to
  which the report described by Subsection (a) is made as necessary to
  conduct an investigation of the report;
                     (B)  a law enforcement officer as necessary to
  conduct a criminal investigation of the report described by
  Subsection (a); or
                     (C)  a health care provider in an emergency
  situation, as determined necessary by the institution.
         (c)  A disclosure under Subsection (b) is not a voluntary
  disclosure for purposes of Section 552.007, Government Code.
         (d)  Information regarding an incident of sexual harassment,
  sexual assault, dating violence, or stalking disclosed to a health
  care provider or other medical provider employed by a postsecondary
  educational institution is confidential and may be shared by the
  provider only with the victim's consent. The provider must provide
  aggregate data or other nonidentifying information regarding those
  incidents to the institution's Title IX coordinator.
         Sec. 51.262.  REPORT. (a)  Each postsecondary educational
  institution shall annually submit to the institution's governing
  body a report concerning any reports of sexual harassment, sexual
  assault, dating violence, or stalking received by the institution
  during the preceding academic year.  The report may not identify any
  person.
         (b)  A report submitted under Subsection (a) is public
  information subject to disclosure under Chapter 552, Government
  Code, and a private or independent college or university approved
  for purposes of the tuition equalization grant program under
  Subchapter F, Chapter 61, is a governmental body with respect to
  such a report for purposes of Chapter 552, Government Code.
         Sec. 51.263.  COMPLIANCE. (a)  If the coordinating board
  determines that an institution of higher education is not in
  substantial compliance with this subchapter, the coordinating
  board may reduce the allocation of state funding to the institution
  for the following academic year in an amount determined by the
  coordinating board.
         (b)  If the coordinating board determines that a private or
  independent college or university is not in substantial compliance
  with this subchapter, the coordinating board may:
               (1)  assess an administrative penalty against the
  college or university in an amount not to exceed $2 million; or
               (2)  declare students enrolled at the college or
  university ineligible for tuition equalization grants under
  Subchapter F, Chapter 61.
         (c)  In determining the amount of a penalty under Subsection
  (a) or (b)(1), the coordinating board shall consider the
  seriousness of the violation.
         (d)  If the coordinating board takes an action under
  Subsection (a) or (b) against an institution of higher education or
  a private or independent college or university, as applicable, the
  coordinating board shall provide to the institution or college or
  university written notice of the coordinating board's reasons for
  taking the action.
         (e)  An institution of higher education or a private or
  independent college or university against which the coordinating
  board takes an action under Subsection (a) or (b), as applicable,
  may appeal the action taken in the manner provided by Chapter 2001,
  Government Code.
         (f)  A private or independent college or university may not
  pay an administrative penalty assessed under Subsection (b)(1)
  using state or federal money.
         Sec. 51.264.  ADDITIONAL TYPES OF INCIDENTS. A
  postsecondary educational institution may adopt a policy to include
  incidents other than sexual harassment, sexual assault, dating
  violence, or stalking for purposes of any provision of this
  subchapter.
         Sec. 51.265.  TRAINING ADVISORY COMMITTEE. (a)  The
  commissioner of higher education shall establish an advisory
  committee to develop recommended training for responsible and
  confidential employees designated under Section 51.260 and for
  Title IX coordinators at postsecondary educational institutions.
         (b)  Each member of the advisory committee is appointed by
  the commissioner of higher education and must be a chief executive
  officer of a postsecondary educational institution or a
  representative designated by that officer.
         (c)  The advisory committee shall annually review and, if
  necessary, update the recommended training.
         Sec. 51.266.  RULES. The coordinating board shall adopt
  rules as necessary to implement and enforce this subchapter,
  including rules that:
               (1)  define relevant terms; and
               (2)  ensure implementation of this subchapter in a
  manner that complies with federal law regarding confidentiality of
  student educational information, including the Family Educational
  Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).
         SECTION 2.  Section 51.9363, Education Code, is repealed.
         SECTION 3.  The changes in law made by this Act apply
  beginning with the 2017-2018 academic year.
         SECTION 4.  Not later than January 1, 2018, each public or
  private postsecondary educational institution shall develop and
  establish the online reporting system required under Section
  51.253, Education Code, as added by this Act.
         SECTION 5.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution. If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2017.