Ambiguities in the Texas Education Code are leading to confusion and varying interpretations of “harassment” and “free speech” across university systems, according to new research from the Texas Public Policy Foundation.
Cameron Abrams, a policy analyst for TPPF’s Next Generation Texas, argued that differences between Texas law and federal standards can lead universities to scrutinize protected speech.
“‘Trigger warnings,’ ‘safe spaces,’ and ‘micro-aggressions’ became not just eggshells to be tip-toed but landmines to avoid a symbolic death of public persona for anyone of a conservative political persuasion,” wrote Abrams.
Harassment reports contribute to these free speech violations under the current ambiguous wording in Texas law, which is broader than the U.S. Supreme Court’s definition.
Texas Education Code §51.251 defines sexual harassment as “sufficiently severe, persistent, or pervasive.”
The Supreme Court’s ruling in Davis v. Monroe County Board of Education (1999) led the Office for Civil Rights to define harassment as severe, pervasive, and objectively offensive in relation to Title IX.
While “or” in Texas Education Code §51.251 requires only one of the three descriptors to be true for actionable harassment, “and” in the Title IX definition requires all three descriptors to be true before a harassment report is actionable.
“The divergence between Texas law (i.e., “or”) and the constitutional standard (i.e., “and”) creates institutional consequences for universities and can produce administrative over-reporting, resource diversion within Title IX offices, and potential chilling effects on academic discourse,” noted Abrams.
Abrams suggested narrowing Texas’ definition of harassment to the Davis definition to avoid unnecessary reporting, preserve campus safety, and preserve freedom of expression.
Title VI also upholds the Davis definition of harassment in matters of discrimination based on race, color, or national origin.
However, Texas leaves Title VI compliance to universities, which have regulatory guidelines in student handbooks.
The Texas Education Code lacks a clear definition of race, ethnicity, color, and national origin harassment.
“As a result, to comply with federal regulations, universities in Texas have developed a wide range of standards,” Abrams continued.
According to Abrams, “University oversight divisions that supervise harassment claims have been criticized by FIRE for overbroadly enforcing ‘bias’ speech that routinely targets ‘political affiliation or speech as a potential bias, inviting reports of and investigations into political speech by law enforcement and student conduct administrators.’”
“Foundation for Individual Rights in Education (FIRE) has received an increasing number of reports that colleges and universities are inviting students to anonymously report offensive, yet constitutionally protected, speech to administrators and law enforcement through so-called ‘Bias Response Teams,'” according to a recent FIRE report.
In Speech First Inc. v. Khator (2022), Speech First filed a complaint against the University of Houston’s anti-discrimination policy, which included the violations “[m]inor verbal and nonverbal slights, snubs, annoyances, insults, or isolated incidents including, but not limited to microaggressions.”
Abrams said that the case highlighted “the differences created by the missing definition in state code and universities’ ability to create their own standards to comply with federal regulations.”
The university-created speech standards affect conservatives extensively, Abrams argued. “FIRE found that just 17% of ‘liberal’ faculty hide their political beliefs, as compared to the whopping 55% of ‘conservative’ faculty (Honeycutt, 2024).”
“Campus free speech remains hostile on the grounds of potential harassment claims,” added Abrams. “Fixing the misalignment between the Title IX Davis standard and the missing Title VI definition in the Education Code would resolve many of the free-speech chilling effects of current college campus culture.”
Abrams suggested that the Texas Legislature bridge the gaps in the Texas Education Code by using the Davis definition of harassment applied to Title VI.
“Issues of speech harassment broadly can be solved by the Texas Legislature adopting an education-context-specific definition; a definition that protects free speech and expression while also providing the necessary guardrails for what is, and is not, permissible,” he continued.
“The place where the real future will be molded remains the battleground that [Charlie] Kirk composed his discourse of defense: the college campus,” wrote Abrams.
