PART 1. TEXAS HIGHER EDUCATION COORDINATING BOARD
SUBCHAPTER A. REQUIREMENTS FOR CERTAIN INCIDENTS OF SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING VIOLENCE, OR STALKING AT CERTAIN PUBLIC AND PRIVATE INSTITUTIONS OF HIGHER EDUCATION; AUTHORIZING ADMINISTRATIVE PENALTIES.
The Texas Higher Education Coordinating Board (THECB) adopts the repeal of Chapter 3, Subchapter A, §§3.11 - 3.15 and new rules for Chapter 3, Subchapter A, §§3.1 - 3.20, concerning required reporting rules and policies regarding certain incidents of sexual harassment, sexual assault, dating violence, and stalking at postsecondary educational institutions. New §§3.1 - 3.10 and 3.16 - 3.20 were proposed in the November 1, 2019, issue of the Texas Register (44 TexReg 6487). The repeal and replacement of §§3.11 - 3.15 were proposed in the November 8, 2019, issue of the Texas Register (44 TexReg 6660). New §3.4 and §3.11 are adopted with changes to the proposed text as published in the November 8, 2019 issue of the Texas Register (44 TexReg 6660), and will be republished. New §§3.1 - 3.3, 3.5 - 3.10, and 3.12 - 3.20, as well as the repeal of §§3.11 - 3.15, are adopted without changes and will not be republished.
The agency also adopts the new rules under a new subchapter name. Subchapter A is renamed "Requirements for Certain Incidents of Sexual Harassment, Sexual Assault, Dating Violence, or Stalking at Certain Public and Private Institutions of Higher Education; Authorizing Administrative Penalties."
Specifically, these new and replaced sections provide: a requirement in accordance with statute that all institutions of higher education adopt policies on sexual harassment, sexual assault, dating violence, and stalking. The rules provide guidance for institutions on reporting requirements, disciplinary processes, and confidentiality.
The following comments were received regarding the amendments:
A public comment was received from Doctors Hospital at Renaissance, Ltd, (DHR Health) on November 25, 2019.
Comment: DHR Health recommends that §3.5(a) be altered by inserting language in the proposed rule that would require the reporting of incidents only when the employee receiving the information has reason to believe the information is reliable.
Staff response: The Negotiated Rulemaking Committee discussed at length when an employee would need to report incidents, given the potential of erroneous reporting. After much discussion, including discussion of the "reasonable person standard" expected of a hypothetical reasonable person, the committee determined that an employee should promptly report the incident to the institution's Title IX coordinator or deputy Title IX coordinator, if the employee "reasonably believes" that the incident constitutes sexual harassment, sexual assault, dating violence, or stalking. In this regard, §3.5(a) states the following (focus highlighted):
"An employee of a postsecondary educational institution who, in the course and scope of employment, witnesses or receives information regarding the occurrence of an incident that the employee reasonably believes constitutes sexual harassment, sexual assault, dating violence, or stalking and is alleged to have been committed by or against a person who was a student enrolled at or an employee of the institution at the time of the incident shall promptly report the incident to the institution's Title IX coordinator or deputy Title IX coordinator."
Veracity of reports are to be determined by the Title IX Coordinator. The Title IX Coordinator is charged with determining whether, as illustrated, "innuendo, rumors, gossip, second-hand or third-hand information," with or without substantiation, would necessitate consideration when identified as constituting sexual harassment, sexual assault, dating violence, or stalking pursuant to this new Texas mandate or constitute a matter required to be reported pursuant to other federal law or applicable institutional policy.
Thus, no change is recommended.
A public comment with five substantive comments was received from The University of Texas at Austin (UT Austin) on December 6, 2019.
Comment: UT Austin recommends that §3.3 be altered by inserting a definition of "employee" that excludes volunteers.
Staff response: The enabling statutes do not indicate that volunteers should be excluded from consideration as employees, and the Negotiated Rulemaking committee followed the statutes closely when drafting the rules.
Thus, no change is recommended.
Comment: UT Austin recommends that §3.3(c) be altered by adding a definition of "domestic violence" and indicating if that is included in the required reporting.
Staff response: The enabling statutes do not include "domestic violence" in the list of incidents that must be reported, and the Negotiated Rulemaking committee followed the statutes closely when drafting the rules.
Thus, no change is recommended.
Comment: UT Austin recommends that §3.5(c)(1)(A) be altered to clarify that staff and faculty may also speak to "confidential employees" with the same expectation of privacy as students of the institution.
Staff response: In the statute, Texas Education Code, Section 51.252 provides an exception for employee required reporting in Subsection (c) for employees who are designated as confidential resources "with whom students may speak confidentially". Therefore, the exception in the statute only covers student communications with confidential resources and does not extend the exception to faculty and staff. The Negotiated Rulemaking committee followed the statute closely when drafting the rules.
Thus, no change is recommended.
Comment: UT Austin recommends that §3.11(b) be altered by adding the word "final" to clarify that the obligation to provide information to another institution is in relation to a final determination, which ensures that the integrity of disciplinary process determinations is better protected.
Staff response: Staff concurs with this recommendation. Staff suggests modifying §3.11(b) by inserting the word "final" as shown below:
(b) On request by another postsecondary educational institution, a postsecondary educational institution shall, as permitted by state or federal law, including the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, provide to the requesting institution information relating to a final determination by the institution that a student enrolled at the institution violated the institution's policy or code of conduct by committing sexual harassment, sexual assault, dating violence, or stalking.
Comment: UT Austin recommends that §3.14(b) be revised by providing clarification that some employees may be designated by institutions as "confidential employees" when they are serving in some capacities but not so designated while serving in other capacities.
Staff response: The enabling statutes do not provide a basis for designating certain employees as confidential at some times but not at others. This recommendation would also be complex and difficult to implement.
Thus, no change is recommended.
Consistent with the rules of negotiated rulemaking, the comments from Doctors Hospital at Renaissance, Ltd, (DHR Health) and The University of Texas at Austin were forwarded to the Negotiated Rulemaking Committee on December 3, 2019, and December 9, 2019, respectively, along with explanations that as committee members, they could accept, reject, or modify the staff recommendations. Committee members voted via email through December 10, 2019 at 12:00 p.m. and subsequently engaged in a pre-arranged audio conference call on December 10, 2019, from 1:00 p.m. - 2:30 p.m. for final discussions and votes. After discussions on the conference call, consensus was reached to accept staff's proposed responses to the comments, with some suggested modifications to staff's response language on two responses for clarity. The above responses reflect the committee's consensus decisions.
The new sections are adopted under the Texas Education Code, Sections 51.259 and 51.295, which provide the Coordinating Board with the authority to develop rules addressing sexual misconduct at institutions of higher education with the assistance of negotiated rulemaking and advisory committees.
§3.4.Policy on Sexual Harassment, Sexual Assault, Dating Violence, and Stalking.
(a) Each postsecondary educational institution shall adopt a policy on sexual harassment, sexual assault, dating violence, and stalking applicable to each enrolled student and employee of the institution and have the policy approved by the institution's governing body. The policy must include:
(1) Definitions of prohibited behavior;
(2) Sanctions for violations;
(3) Protocol for reporting and responding to reports of sexual harassment, sexual assault, dating violence, and stalking that complies with the electronic reporting requirement in §3.7 of this subchapter (relating to Electronic Reporting Requirement);
(4) Interim measures to protect victims of sexual harassment, sexual assault, dating violence, or stalking pending the institution's disciplinary process, including protection from retaliation, and any other accommodations or supportive measures available to those victims at the institution. This section is not intended to limit an institution's ability to implement accommodations to others as needed; and
(5) A statement regarding:
(A) the importance of 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;
(B) the right of a victim of sexual harassment, sexual assault, dating violence, or stalking to report the incident to the institution and to receive a prompt and equitable resolution of the report; and
(C) the right of a victim of a crime to choose whether to report the crime to law enforcement, to be assisted by the institution in reporting the crime to law enforcement, or to decline to report the crime to law enforcement.
(b) Each postsecondary educational institution shall make its policy on sexual harassment, sexual assault, dating violence, and stalking available to students, faculty, and staff members by:
(1) including the policy in the student handbook and personnel handbook or the institution's equivalent(s); and
(2) creating and maintaining a web page dedicated solely to the policy that is easily accessible through a clearly identifiable link on the institution's homepage.
(c) Each postsecondary educational institution shall require each entering freshman or undergraduate transfer student to attend an orientation on the institution's sexual harassment, sexual assault, dating violence, and stalking policy before or during the first semester or term of enrollment at the institution. The orientation:
(1) may be provided online; and
(2) must include the statements described by subsection (a)(5) of this section.
(d) Each postsecondary educational institution shall develop and implement a comprehensive prevention and outreach program on sexual harassment, sexual assault, dating violence, and stalking for enrolled students and employees of the institution. The program must:
(1) address a range of strategies to prevent sexual harassment, sexual assault, dating violence, and stalking, including a public awareness campaign; a victim empowerment program; primary prevention; bystander intervention; and risk reduction; and
(2) provide students with information regarding the protocol for reporting incidents of sexual harassment, sexual assault, dating violence, and stalking, including the name, office location, and contact information of the institution's Title IX coordinator, by:
(A) e-mailing the information to each student at the beginning of each semester or other academic term;
(B) including the information in the institution's orientation (which may be provided online); and
(C) as part of the protocol for responding to reports of sexual harassment, sexual assault, dating violence, and stalking adopted under subsection (a) of this section, each postsecondary educational institution shall:
(i) to the greatest extent practicable based on the number of counselors employed by the institution, ensure each alleged victim or alleged perpetrator of a sexual harassment, sexual assault, dating violence, and stalking incident and any other person who reports such incidents are offered counseling provided by a counselor who does not provide counseling to any other person involved in the incident; and
(ii) notwithstanding any other law, allow an alleged victim or alleged perpetrator of a sexual harassment, sexual assault, dating violence, and stalking incident to drop a course in which both parties are enrolled without any academic penalty.
(e) Each postsecondary educational institution shall review its sexual harassment, sexual assault, dating violence, and stalking policy at least each biennium and revise the policy as necessary and obtain approval from the institution's governing board.
§3.11.Student Withdrawal or Graduation Pending Disciplinary Charges; Request for Information from Another Postsecondary Educational Institution.
(a) If a student withdraws or graduates from a postsecondary educational institution pending a disciplinary charge alleging that the student violated the institution's policy or 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 both the student's and the alleged victim's interest in a speedy resolution.
(b) On request by another postsecondary educational institution, a postsecondary educational institution shall, as permitted by state or federal law, including the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, provide to the requesting institution information relating to a final determination by the institution that a student enrolled at the institution violated the institution's policy or code of conduct by committing sexual harassment, sexual assault, dating violence, or stalking.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 13, 2019.
TRD-201904831
William Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: January 1, 2020
Proposal publication dates: November 1, 2019/November 8, 2019
For further information, please call: (512) 427-6206
The repeals are adopted under the Texas Education Code, Sections 51.259 and 51.295, which provide the Coordinating Board with the authority to develop rules addressing sexual misconduct at institutions of higher education with the assistance of negotiated rulemaking and advisory committees.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 13, 2019.
TRD-201904942
William Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: January 1, 2020
Proposal publication date: November 8, 2019
For further information, please call: (512) 427-6206