TITLE 19. EDUCATION

PART 1. TEXAS HIGHER EDUCATION COORDINATING BOARD

CHAPTER 3. RULES APPLYING TO ALL PUBLIC AND PRIVATE OR INDEPENDENT INSTITUTIONS OF HIGHER EDUCATION IN TEXAS REGARDING ELECTRONIC REPORTING OPTION FOR CERTAIN OFFENSES; AMNESTY

SUBCHAPTER A. GENERAL PROVISIONS

19 TAC §§3.1 - 3.10, 3.16 - 3.20

The Texas Higher Education Coordinating Board proposes new Chapter 3, Subchapter A, §§3.1 - 3.10, and 3.16 - 3.20 concerning sexual misconduct policies and procedures at institutions of higher education. The proposed new rules mandate 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 proposed new rules were reviewed and approved by consensus by the Negotiated Rulemaking Committee on Sexual Harassment/Assault on October 17, 2019. The newly added rules will affect students when the recommendations are adopted by the Board.

Dr. Stacey Silverman, Interim Assistant Commissioner for Academic Quality and Workforce, has determined that for the first five years there will be no fiscal implications for state or local governments as a result of adding the new sections. There could be significant costs to public institutions of higher education to develop new policies, procedures, reporting mechanisms, and training for administrators, faculty, and staff.

Dr. Silverman as also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the new rules will be improvements in policies and procedures at public institutions of higher education for addressing incidents of sexual misconduct. There could be significant costs to public institutions of higher education to develop new policies, procedures, reporting mechanisms, and training for administrators, faculty, and staff. There is no impact on local employment. There is no impact on small businesses, micro businesses, and rural communities.

Comments on the proposal may be submitted to Stacey Silverman, Interim Assistant Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas, 78711 or via email at AQWComments@THECB.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

Government Growth Impact Statement

(1) the rules will not create or eliminate a government program;

(2) implementation of the rules will not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will create a new rule;

(6) the rules will not limit an existing rule; and

(7) the rules will not change the number of individuals subject to the rule

(8) the rules will positively affect the state's economy.

The new sections are proposed under the Texas Education Code, Sections 51.290 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 new sections affect the implementation of Texas Education Code, Chapter 51.

§3.1.Purpose.

The purpose of this subchapter is to establish rules to require public, private, and independent institutions of higher education to report incidents of sexual harassment, sexual assault, dating violence, and stalking; to adopt a policy on sexual harassment, sexual assault, dating violence, and stalking; implement electronic reporting protocols for such incidents; develop a comprehensive prevention and outreach program; and establish penalties for noncompliance; and provide amnesty or immunities to students and employees who report incidents of sexual harassment, sexual assault, dating violence, and stalking.

§3.2.Authority.

Texas Education Code Subchapters E-2, Chapter 51, §51.259 and Subchapter E-3, Chapter 51, §51.295 authorize the Texas Higher Education Coordinating Board to adopt rules necessary to administer these Subchapters.

§3.3.Definitions.

(a) Coordinating Board or Board--The Texas Higher Education Coordinating Board.

(b) Course and Scope of Employment--means an employee performing duties in the furtherance of the institution's interests.

(c) "Dating violence," "sexual assault," and "stalking" have the same meanings assigned by the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (20 U.S.C. Section 1092 (f)(6)(A)).

(d) Postsecondary educational institution--an institution of higher education or a private or independent institution of higher education, as those terms are defined by Texas Education Code, §61.003.

(e) Sexual harassment--unwelcome, sex-based verbal or physical conduct that:

(1) in the employment context, unreasonably interferes with a person's work performance or creates an intimidating, hostile, or offensive work environment; or

(2) 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.

(f) Substantial Compliance--a postsecondary educational institution has made a good faith effort to comply with the requirements under these rules provided that the deficiencies identified by the Coordinating Board can be readily corrected.

§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 Subsection 3.7 of this section;

(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), 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.

§3.5.Reporting Required for Certain Incidents.

(a) 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.

(1) The employee's duty to report an incident begins on the effective date of these regulations or January 1, 2020, whichever is later;

(2) The employee is required to report an incident regardless of when or where the incident occurred; and

(3) Institutions may establish additional reporting avenues to comply with this section provided that the reports are promptly routed to the Title IX coordinator or deputy Title IX coordinator.

(b) Except as provided by Subsection (c), the report must include all information concerning the incident known to the reporting person that is relevant to the investigation and, if applicable, redress of the incident, including whether an alleged victim has expressed a desire for confidentiality in reporting the incident.

(c) In making a report under this section,

(1) the employees of a postsecondary educational institution identified below shall only report as follows:

(A) absent consent from the reporting student, an employee designated by the institution as a person with whom students may speak confidentially concerning sexual harassment, sexual assault, dating violence, or stalking shall only state the type of incident reported and may not include any information that would violate a student's expectation of privacy;

(B) absent consent from the reporting individual, an employee who receives information regarding an incident of sexual harassment, sexual assault, dating violence, or stalking under circumstances that render the employee's communications confidential or privileged under other law shall only state the type of incident reported and may not include any information that would violate an expectation of privacy; or

(C) absent consent from the victim(s), an employee who receives information regarding an incident of sexual harassment, sexual assault, dating violence, or stalking in the course and scope of employment as a healthcare provider, mental health care provider, or other medical provider shall only state the type of incident reported and may not include any information that would violate an expectation of privacy.

(2) This subsection does not affect the employee's duty to report an incident under any other law, including but not limited to, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (20 U.S.C. Section 1092 (f)), Texas Family Code Section 261.101, or Health and Safety Code Section 611.004. When multiple confidential employees receive information about the same incident (e.g. student health center or counseling center), only a single report stating the type of incident is required.

(d) Notwithstanding Subsection (a), a person is not required to make a report under this section concerning:

(1) an incident in which the person was a victim of sexual harassment, sexual assault, dating violence, or stalking;

(2) an incident of which the person received information due to a disclosure made at a sexual harassment, sexual assault, dating violence, or stalking public awareness event sponsored by a postsecondary educational institution or by a student organization affiliated with the institution; or

(3) a sexual harassment, sexual assault, dating violence, or stalking incident in which the person has either learned of the incident during the course of their institution's review or process or has confirmed with the person or office overseeing the review or process, that the incident has been previously reported.

(e) A person acting in good faith who reports or assists in the investigation of a report of an incident described by this section or who testifies or otherwise participates in a disciplinary process or judicial proceeding arising from a report of such an incident may not be subjected to any disciplinary action by the postsecondary educational institution at which the person is enrolled or employed for any violation by the person of the institution's policy or code of conduct reasonably related to the incident for which suspension or expulsion from the institution is not a possible punishment.

(f) Subsection (e) does not apply to a person who perpetrates or assists in the perpetration of the incident reported under this section.

§3.6.Administrative Reporting Requirements.

(a) Not less than once every three months, the Title IX coordinator of a postsecondary educational institution shall submit to the institution's chief executive officer a written report ("Title IX Coordinator Report") on the reports received for the institution's reporting period under §3.5, including information regarding:

(1) the investigation of those reports;

(2) the disposition, if any, of any disciplinary processes arising from those reports; and

(3) the reports for which the institution determined not to initiate a disciplinary process, if any.

(b) The Title IX coordinator or deputy Title IX coordinator of a postsecondary educational institution shall immediately report to the institution's chief executive officer an incident reported to the coordinator under §3.5 if the coordinator has cause to believe that the safety of any person is in imminent danger as a result of the incident.

(c) Subject to Subsection (d), at least once annually, during either the fall or spring semester, the chief executive officer of a postsecondary educational institution shall submit to the institution's governing body and post on the institution's Internet website a report ("CEO Report") concerning the reports received under §3.5. The CEO report:

(1) may not identify any person; and

(2) must include:

(A) the number of reports received under §3.5;

(B) the number of investigations conducted as a result of those reports;

(C) the disposition, if any, of any disciplinary processes arising from those reports;

(D) the number of those reports for which the institution determined not to initiate a disciplinary process, if any; and

(E) any disciplinary actions taken under §3.8.

(d) If for any semester a postsecondary educational institution has fewer than 1,500 enrolled students, the chief executive officer of the institution shall submit and post a report required under Subsection (c) for that semester only if more than five reports were received under §3.5 during that semester.

(e) For purposes of this section, disposition means the final result under the institution's disciplinary process.

(f) For all reports under this section:

(1) When identifiable, reports may exclude duplicate reports of a single alleged incident;

(2) Reports may separately specify the number of confidential reports received by employees designated under section 3.5(c); and

(3) The Coordinating Board shall make available to institutions a recommended template for the Title IX Coordinator Report and the CEO Report, which satisfies the reporting requirements of this section.

§3.7.Electronic Reporting.

Each postsecondary educational institution shall provide an option for a student enrolled at or an employee of the institution to electronically 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 offense occurred. The electronic reporting option must:

(1) Allow for anonymous reporting; and

(2) Be easily accessible via a clearly identifiable link on the institution's website home page.

§3.8.Failure to Report or False Report.

A postsecondary educational institution shall terminate the employment of an employee whom the institution determines, in accordance with the institution's disciplinary procedure, to have committed an offense under Texas Education Code Sec. 51.255.

§3.9.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 Texas Education Code Section 51.291 and Section 3.17 of this Subchapter. 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 reasonable steps the institution determines necessary and consistent with the institution's policy and applicable law 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.

§3.10.Disciplinary Process for Certain Violations.

A postsecondary educational institution that initiates a disciplinary process concerning an allegation 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 shall:

(1) provide to the student and the alleged victim a prompt and equitable opportunity to present witnesses and other evidence relevant to the alleged violation during the disciplinary process;

(2) ensure that both the student and the alleged victim have reasonable and equitable access to all evidence relevant to the alleged violation in the institution's possession, 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, redacted as necessary to comply with any applicable federal or state law regarding confidentiality; and

(3) take reasonable steps to protect the student and the alleged victim from retaliation and harassment during the pendency of the disciplinary process.

§3.16.Equal Access.

In implementing the requirements under this subchapter, a postsecondary educational institution shall, to the greatest extent practicable, ensure equal access for students enrolled at or employees of the institution who are persons with disabilities. The institution shall make reasonable efforts to consult with a disability services office of the institution, advocacy groups for people with disabilities, and other relevant stakeholders to assist the institution with complying with the institution's duties under this section.

§3.17.Confidentiality.

(a) The protections provided by this section apply to:

(1) an alleged victim;

(2) a person who reports an incident to an institution;

(3) a person who sought guidance from the institution concerning an incident;

(4) a person who participated in the institution's investigation of an incident; or

(5) a person who is alleged in a report made to an 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) persons employed by or under contract with the postsecondary educational institution to which the report is made who are necessary for an investigation of the report or other related hearings;

(B) a law enforcement officer as necessary to conduct a criminal investigation of the report by persons described by Subsection (a);

(C) a health care provider in an emergency, as determined necessary by the institution;

(D) the person or persons alleged to have perpetrated the incident, to the extent required by other law; and

(E) potential witnesses to the incident as necessary to conduct an investigation of the report and to the extent required by other law.

(c) For the purposes of this section, investigation includes the coordination of the incident response, implementation of interim measures, adjudication of the report, and disclosure by the institution as required under state or federal law.

§3.18.Retaliation Prohibited.

(a) A postsecondary educational institution may not discipline or otherwise discriminate against an employee who in good faith:

(1) makes a report as required by §3.5; or

(2) cooperates with an investigation, a disciplinary process, or a judicial proceeding relating to a report made by the employee as required by §3.5.

(b) Subsection (a) does not apply to an employee who:

(1) reports an incident of sexual harassment, sexual assault, dating violence, and stalking perpetrated by the employee; or

(2) cooperates with an investigation, a disciplinary process, or a judicial proceeding relating to an allegation that the employee perpetrated an incident of sexual harassment, sexual assault, dating violence, and stalking.

§3.19.Compliance.

(a) The chief executive officer of each postsecondary educational institution shall annually certify in writing to the Coordinating Board, in October of each year, that the institution is in substantial compliance with Texas Education Code Subchapter E-2 (Sections 51.251-51.260). The Coordinating Board shall make available to institutions a required template for the certification which satisfies the requirements of this section.

(b) If the Coordinating Board determines that a postsecondary educational institution is not in substantial compliance with Texas Education Code Subchapters E-2 on or after January 1, 2020, and E-3 on or after August 1, 2020, the Coordinating Board may assess an administrative penalty against the institution in an amount not to exceed $2 million. In determining the amount of the penalty, the Coordinating Board shall consider the nature of the violation and the number of students enrolled at the institution.

(c) If the Coordinating Board assesses an administrative penalty against a postsecondary educational institution under Subsection (b), the Coordinating Board shall provide to the institution written notice of the Coordinating Board's reasons for assessing the penalty.

(d) A postsecondary educational institution assessed an administrative penalty under Subsection (b) may appeal the penalty in the manner provided by Chapter 2001, Government Code.

(e) A postsecondary educational institution may not pay an administrative penalty assessed under Subsection (b) using state or federal money.

(f) The Coordinating Board shall deposit an administrative penalty collected under this section to the credit of the sexual assault program fund established under Section 420.008, Texas Government Code.

(g) The Coordinating Board shall annually submit to the governor, the lieutenant governor, the speaker of the house of representatives, and the standing legislative committees with primary jurisdiction over legislation concerning sexual assault at postsecondary educational institutions a report regarding compliance with this subchapter, including a summary of the postsecondary educational institutions found not to be in substantial compliance as provided by this section and any penalties assessed under this section during the calendar year preceding the date of the report.

§3.20.Applicability.

Sections 3.1-3.3, 3.5-3.6, 3.8, 3.14, and 3.17-3.20 of this subchapter are effective on January 1, 2020 or 30 days after the publication of these rules in the Texas Register, whichever is later. The remainder of this subchapter is effective on August 1, 2020.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 21, 2019.

TRD-201903832

William Franz

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: December 1, 2019

For further information, please call: (512) 427-6206