HB 16, session 85(R) - 2017

Vote Recommendation	Economic Freedom	Property Rights	Personal Responsibility	Limited Government	Individual Liberty
Vote No; Amend	Neutral	Neutral	Neutral	Negative	Neutral

Bill Analysis

This bill would require public and private postsecondary educational institutions to institute a policy regarding sexual harassment, sexual assault, dating violence, and stalking. The policy would need to include definitions of prohibited behavior, sanctions for violations, and protocol for reporting and responding to reports of violations. In addition, it would have to emphasize the importance of going to a hospital for treatment and the preservation of evidence for victims of these crimes.

This bill would also require institutions to establish a sexual assault online reporting system. The online system would allow individuals to anonymously report an alleged sexual assault, regardless of where the alleged incident occurred. In addition, a student who reports in good faith would be exempt from disciplinary actions resulting from a minor violation of the institution's code if it occurred at or near the time of the incident. An alleged victim would be required to receive prompt and equitable resolution of a report.

An alleged victim would be allowed to request the institution to not investigate an allegation of one of these crimes, and the institution would consider some factors to determine if an investigation is necessary. They would be authorized to take any steps necessary to protect the health and safety of the institution’s community.

This bill would also create a certain disciplinary process for these violations including a meaningful opportunity for the accused to admit or contest the allegations, and ensuring that both parties have reasonable and complete access to all the evidence related to the allegation, and allowing both parties to safely question witness of the alleged violation. Additionally, peace officers employed by postsecondary institutions would be required to complete a training for trauma-informed investigations.

This bill would require postsecondary educational institutions to submit additional reports concerning the reports of these crimes. If it is determined that an institution of higher education is not in substantial compliance with this law, they may be subject to a reduction of state funding for the following academic year, they may also be assessed an administrative penalty in an amount not to exceed the greater of $2 million or the amount of funding received by students enrolled at the institution from tuition equalization grants, or the students of the institution may be declared to be ineligible for tuition equalization grants.

Vote Recommendation Notes

As we have seen in Texas and other states, universities have a very poor track record of upholding the due process rights of students, and often sanction them for mere allegations of these types of crimes or violations of university policy without any real evidence. Recently a student at University of Texas at Arlington who was a victim of a merit-less Title IX investigation committed suicide because of the weight of being unfairly disciplined after being falsely accused.

This bill has a number of liberty-infringing deficiencies which will perpetuate these problems:

The online portal to anonymously report allegations does not specify how the university will investigate those allegations.
To its credit, this bill does offer some minimal due process and privacy rights for the alleged victim and the alleged perpetrator, however it still requires these serious alleged crimes and violations of institutional policy to be handled in-house through an extra-judicial process.
This bill does not guarantee a student the right to bring legal representation to a disciplinary proceeding.
This bill does not specify an evidentiary threshold required for a guilty finding.
This bill does not specify that the burden of proof remains on the accuser rather than on the accused.
This bill does not specify that any accusation that is a violation of criminal law must be referred to law enforcement.
This bill does not stipulate that only noncriminal violations of university policy may be adjudicated through the university.
This bill allows an anonymous report which is a certain recipe for false accusations.
This bill guarantees amnesty for a person who makes a report of specified violations "in good faith" without defining what "in good faith" means.
This bill allows but does not require an institution to investigate whether a report was filed in good faith.
This bill does not require disciplinary proceedings be held against a person found to have filed a false report or a report not in good faith.
This bill adds new state mandates on private institutions

It is the proper role of law enforcement to investigate and prosecute crimes; if, after a guilty verdict in a court of law, the university wants to sanction the individual they should be free to do so, but they must be found guilty through the court system. Universities should be allowed to adjudicate noncriminal violations of institutional policy but only with adequate due process rights.

We would support amendments to make the following changes to HB 16:

Rescind the anonymous reporting provision and replace it with privacy protection if the person making the report is the actual victim.
Define the term "in good faith" as it relates to qualifying for amnesty when filing a report of the specified violations.
Require institutions to investigate whether a report was made in good faith.
Require the university to take disciplinary action if a report is determined to have been made falsely or not in good faith.
Require that any report which constitutes an actual violation of criminal law be referred to law enforcement for investigation and adjudication.
Require that institutional disciplinary proceedings may only be used for noncriminal violations of institutional policy.
Require that in any disciplinary proceeding both the alleged victim and the accused may have an attorney present to advise them.
Prohibit the burden of proof from being vested on the accused.
Require that a student be expressly considered innocent until proven guilty.
Require a minimum "clear and convincing" standard of evidence to make a guilty determination.

Absent the adoption of these amendments we remain opposed to HB 16.

Bill: HB 16, 85(R) - 2017

Committee

2nd Chamber Committee

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