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.