AUSTIN — Since the revelation that high-ranking university officials mishandled assaults by football players at Baylor University, Texas lawmakers have passed several bills to confront sexual violence on college campuses.

Experts say a new law puts Texas at the forefront of states that are increasing reporting requirements of sexual assault or hazing at universities.

Under Senate Bill 212 starting Jan. 1, employees at Texas universities could face criminal charges and lose their jobs if they fail to report incidents of sexual harassment, assault, stalking or dating violence.

Sen. Joan Huffman, R-Houston, said she wrote the bill to address gaps in the reporting process at some universities. Many designate “mandatory reporters” to report incidents to Title IX coordinators, who oversee the investigation of complaints under the federal law that prohibits discrimination on the basis of sex.

Sen. Joan Huffman, R-Houston (Ashley Landis / Staff Photographer)

But the mandatory reporters vary by institution, Huffman said.

“These different reporters leave holes in the current reporting process at certain institutions and potentially enable certain incidents to fall through the cracks or not be treated equitably,” she said in an email.

Employee reporting requirements

Mandatory reporting can raise awareness of sexual misconduct and of resources available to individuals affected by it, said Jennifer Smith, the Title IX coordinator at Texas A&M University.

But it may also put individuals who don’t want to pursue a Title IX investigation in an uncomfortable situation, she said.

“You risk re-victimizing a victim, who discloses something in confidence to another person,” she said. “A lot of our faculty and staff have expressed concern about violating that trust relationship with their students and with other co-workers.”

The law exempts student employees and employees who have experienced sexual misconduct. Employees with designated confidentiality, such as counselors and health workers, only have to report the type of incident that occurred.

Eve Shatteen Bell, director of Title IX compliance at the University of North Texas, said the law could lead to situations in which the penalty for failing to report sexual misconduct is higher than the penalty for those who violate policies against it but may not be charged with a crime.

“There's nothing mandating that if you're found responsible for sexually harassing someone that you get fired or that you go to jail,” she said.

The penalties for violating SB 212 are either a Class A misdemeanor, punishable by up to one year in jail and a fine of up to $4,000, or a Class B misdemeanor, punishable by up to 180 days in jail and a fine of up to $2,000.

Huffman said she trusts district and county attorneys to “exercise their best judgment” on penalties when handling criminal cases.

Shatteen Bell also raised a concern about the increased reporting under the law forcing some universities to hire more Title IX staff. She said UNT has seen an increase in reports this fall after educating people about the law.

“My biggest worry would be about the impact of this on smaller universities that have less financial resources,” she said. “It might create some inequity between richer universities and ones that don't have as much financial access.”

Other institutions, such as the University of Texas at Dallas, have seen only a “marginal” increase in reports so far, said Marco Mendoza, senior director of institutional equity and Title IX initiatives.

Huffman said she did not hear any concerns during the legislative session about universities not being able to handle increased caseloads.

“It is impossible to know whether or not there will actually be an increased number of reports given that we do not have much data on the reporting of these incidents,” she said. “This is something that the Legislature will be monitoring over the next year as we continue to work with institutions on implementation of the provisions of SB 212.”

Institutional reporting requirements

The law requires Title IX coordinators to routinely summarize the reports for university presidents, a response to scandals in which high-ranking administrators claimed they didn’t know what had or had not been reported.

“It is only appropriate for the institution’s highest-ranking officials to be kept informed on matters of public safety that are occurring on campus or involved their students or employees,” Huffman said.

Institutions must also publish non-identifying information about the reports on their websites once each fall and spring semester.

This will be new for most Texas universities, which are required under the federal Jeanne Clery Act to publish information of sexual violence only if the crime took place on property associated with the college.

The University of Texas at Austin began publishing annual statistical reports about its Title IX cases in May, but students there have been demanding a list of employees who have violated sexual misconduct policies to also be published by the university.

The Texas Higher Education Coordinating Board will have to submit a report to lawmakers by January 2021 of universities that aren’t complying with the law. The board could fine those universities up to $2 million.

These requirements and fines make Texas a “guinea pig” for the rest of the country, said Scott Schneider, a higher-education law expert and partner for the firm Husch Blackwell.

“No other state has gone as far as Texas has, both in terms of mandatory reporting and the possibility for these sorts of fines,” he said.

Several states, including California, Virginia and Florida, have enacted reporting requirements for universities, but SB 212 is notable for shifting beyond “institutional accountability for failure to report to individual criminal responsibility,” said Peter Lake, a law professor at Stetson University in Florida who specializes in Title IX issues.

“There really isn’t anything like the new Texas law,” he said. “Everyone’s going to be watching.”