Texas Governor Greg Abbott has signed a bill that allows law enforcement to jail any campus employee who hears — or even hears about — a joke about sex on a college campus and doesn’t report it as a Title IX violation.
The bill, SB 212, gives law enforcement the power to enforce the Obama administration’s subjective definition of campus sexual harassment, defining it as follows:
Unwelcome, sex based verbal or physical conduct that: 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.
As The College Fix notes, this vague standard could effectively include overheard sexual jokes.
The bill states that the government can punish any campus worker with up to six months in jail if he or she “witnesses or receives information” (which, as The Fix notes, includes hearsay) that could possibly count as sexual harassment under the Obama administration’s broad definition and fails to report it to Title IX officials.
This certainly has me concerned — but I’m not the only one. The pro-free-speech organization Foundation for Individual Rights in Education is worried, too. FIRE notes that the current definition of sexual harassment “is missing any kind of objective, reasonable-person standard, instead conditioning the permissibility of speech (and the requirement to report) entirely on subjective listener reaction,” adding that “any definition of sexual harassment that lacks an objective component is unconstitutional.”
“Without an objective requirement, students and faculty are held hostage to the personal feelings and opinions of their accusers, no matter how unusual or even unreasonable,” the organization states in a post on the bill. “Given the offense taken by people on both sides of arguments about sexuality and gender generally, the list of victims of ‘sexual harassment’ under this broad definition is functionally endless.”
“The bottom line is that if the definition of sexual harassment in the bills becomes law and public colleges and universities adjust their policies accordingly, every public institution in the state will have an unconstitutional speech code,” the post continues.
Now, I obviously would agree with any non-sociopath that sexual harassment is an awful, harrowing thing that absolutely no one should have to go through — and that people who perpetuate it should be punished. The problem, though, is that the current definition places the standard for what does and does not count as “sexual harassment” solely on the interpretation of the person who claims to be experiencing it. If someone happens to make a sexual joke — even if that joke was not directed at a specific other person, and even if that joke was innocuous and tame — and that other person claims to have experienced difficulty participating in activities because of it, then the person who made that joke is automatically guilty of sexual harassment based on the other person’s feelings . . . regardless of whether or not he or she had actually done anything actually wrong.
What’s more, this essentially demands that campus employees report every single mention of sex or sexuality that they hear or even hear about, because they have no way of knowing whether or not someone who heard it is going to claim that they experienced significant emotional distress because of it — and, if someone does, they could go to jail. This is a completely unreasonable and stupid waste of time, and it will also likely result in campus officials being too bogged down with gratuitous claims to have the time and resources to focus on the actually serious ones.