TITLE 19. EDUCATION

PART 1. TEXAS HIGHER EDUCATION COORDINATING BOARD

CHAPTER 3. RULES APPLYING TO ALL PUBLIC AND PRIVATE OR INDEPENDENT INSTITUTIONS OF HIGHER EDUCATION IN TEXAS REGARDING ELECTRONIC REPORTING OPTION FOR CERTAIN OFFENSES; AMNESTY

SUBCHAPTER A. ELECTRONIC REPORTING AND AMNESTY FOR STUDENTS REPORTING CERTAIN INCIDENTS

19 TAC §§3.11 - 3.15

The Texas Higher Education Coordinating Board (Coordinating Board) proposes new Chapter 3, Rules Applying to All Public and Private or Independent Institutions of Higher Education in Texas Regarding Electronic Reporting Option for Certain Offenses; Amnesty, Subchapter A, Electronic Reporting and Amnesty for Students Reporting Certain Incidents, §§3.11 - 3.15 concerning electronic reporting of certain incidents and amnesty for students who report such incidents. The intent of the subchapter is to create rules to align with Senate Bill 968 and Senate Bill 969, 85th Texas Legislature, Regular Session, regarding the reporting of sexual harassment, sexual assault, dating violence, or stalking. The new Chapter 3, Subchapter A establishes rules for postsecondary educational institutions to provide an option for enrolled students and employees of the institution to electronically report sexual harassment, sexual assault, dating violence, or stalking to the institution; and to provide amnesty to enrolled students who report incidents of sexual harassment, sexual assault, dating violence, or stalking. The new rules will affect students enrolling in higher education during the 2018 spring semester.

Dr. Rex Peebles, Assistant Commissioner for Academic Quality and Workforce, has determined that for the first five years there will be no fiscal implications for state or local governments as a result of creating the rules listed above.

Dr. Peebles has also determined that for the first five years the new rules are in effect, the public benefits anticipated as a result of administering the sections will be the improvement of institutional procedures for reporting incidents of sexual violence and related issues. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

Comments on the new rules may be submitted by mail to Rex C. Peebles, Assistant Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas 78711 or via email at AQWComments@THECB.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The new rules are proposed under the Texas Education Code, Chapter 51, §51.9365 and §51.9366, which authorize the Texas Higher Education Coordinating Board to adopt rules necessary to administer the section.

The new rules affect the implementation of Texas Education Code, Chapter 51.

§3.11.Purpose.

The purpose of this subchapter is to establish rules for postsecondary educational institutions to provide an option for enrolled students and employees of the institution to electronically report sexual harassment, sexual assault, dating violence, or stalking to the institution; and to provide amnesty to enrolled students who report incidents of sexual harassment, sexual assault, dating violence, or stalking. The rules established in this subchapter do not supersede or replace state or federal employment law.

§3.12.Authority.

Texas Education Code; Subchapter Z, Chapter 51, §51.9365 and §51.9366 authorize the Texas Higher Education Coordinating Board to adopt rules necessary to administer Subchapter Z, Chapter 51.

§3.13.Definitions.

(a) Dating violence--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.

(b) Postsecondary educational institution--an institution of higher education or a private or independent institution of higher education, as those terms are defined by Texas Education Code, §61.003.

(c) Sexual assault--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.

(d) Sexual harassment--unwelcome, sex-based verbal or physical conduct that:

(1) in the employment context, unreasonably interferes with a person's work performance or creates an intimidating, hostile, or offensive work environment; or

(2) 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.

(e) Stalking--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.

§3.14.Electronic Reporting for Certain Incidents.

(a) Each postsecondary educational institution shall provide an option for electronic reporting to the institution by an enrolled student or an employee of the institution of 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 offense occurred. The electronic reporting option must:

(1) Allow for anonymous reporting; and

(2) Be easily accessible via a clearly identifiable link on the institution's website home page.

(b) A protocol adopted pursuant to Texas Education Code §51.9363 for reporting sexual assault shall comply with subsection (a) of this section.

(c) Institutions may contract with a third-party vendor to provide the electronic reporting option.

(d) Each public or private postsecondary educational institution shall provide the electronic reporting option by January 1, 2018.

§3.15.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 violation by the student of the institution's code of conduct occurring at or near the time of the incident, regardless of the location at which the incident occurred or the outcome of the institution's disciplinary process regarding the incident, if any.

(b) Subsection (a) of this section 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.

(c) 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. For the purposes of subsection (a), the institution has discretion to determine good faith, but in no event will good faith exist if the student is found responsible for sexual harassment, sexual assault, dating violence, or stalking at or near the time of the incident.

(d) A determination that a student is entitled to amnesty under subsection (a) is final and may not be revoked.

(e) 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) of this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 7, 2017.

TRD-201703550

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: October 22, 2017

For further information, please call: (512) 427-6104


CHAPTER 13. FINANCIAL PLANNING

SUBCHAPTER F. FORMULA FUNDING AND TUITION CHARGES FOR REPEATED AND EXCESS HOURS OF UNDERGRADUATE STUDENTS

19 TAC §13.102, §13.107

The Texas Higher Education Coordinating Board (Coordinating Board) proposes amendments to the Texas Administrative Code, Title 19, Part 1, Chapter 13, Subchapter F, §13.102 and §13.107, concerning definitions and formula funding for excess hours of developmental coursework (developmental courses and/or developmental interventions). Specifically, the proposed amendment to §13.102 replaces the term English as a Second Language (ESL) with English for speakers of other languages (ESOL) in order to make all references to these courses consistent throughout the Chapter. This change reflects the language used in House Bill 2223, 85th Texas Legislature, Regular Session, which refers to this type of coursework as English for speakers of other languages. Specifically, the proposed amendment to §13.107 reflects changes per House Bill 2223, 85th Texas Legislature, Regular Session, which incorporates Texas Education Code §51.340 and modifies the number of hours allowed to be conserved in formula funding. The updated language in §13.107 clarifies that an institution may only submit for formula funding a maximum of 9 semester credit hours (SCH) at general academic teaching institutions (GAIs) or 18 SCH at public community colleges, public technical institutes, or public state colleges (CTCs) of developmental education coursework if none of those hours are in ESOL. Institutions may report for funding up to 18 SCH of developmental education at GAIs or 27 SCH of developmental education at CTCs if 9 or more of those hours are in ESOL courses and/or interventions. The amendment also allows GAIs to report for funding students in an ESOL course or intervention if they meet certain conditions outlined in the rule.

Dr. Julie Eklund, Assistant Commissioner for Strategic Planning and Funding, Coordinating Board, has determined that for each year of the first five years the section is in effect, there will not be any fiscal implications to state or local government as a result of enforcing or administering this change to the rules.

Dr. Eklund has determined the public benefit anticipated in administering this section to be alignment of the Texas Education and Administrative Codes. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Dr. Julie Eklund, Assistant Commissioner, Strategic Planning and Funding, 1200 East Anderson Lane, Austin, TX 78752, julie.eklund@thecb.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The amendments are proposed under the Texas Education Code, §51.340.

The amendments affect the following Texas Education Code, §51.340.

§13.102.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (5) (No change.)

(6) Remedial and Developmental Courses--Courses designed to correct academic deficiencies and bring students' skills to an appropriate level for entry into college. The term includes English for speakers of other languages (ESOL) [English as a Second Language (ESL)] courses in which a student is placed as a result of failing the reading or writing portion of a test required by §4.56 of this title (relating to Assessment Instruments).

(7) - (10) (No change.)

§13.107.Limitation on Formula Funding for Remedial and Developmental Courses and Interventions

(a) General academic teaching institutions [Institutions] shall not submit for formula funding any hours for remedial and development courses and/or interventions for which a student has exceeded 9 [18] semester credit hours of remedial and developmental courses and/or interventions. Up to 9 additional semester credit hours of English for speakers of other languages (ESOL) courses and/or interventions is allowed, bringing the maximum allowable to 18 semester credit hours. [in a general academic teaching institution, or 27 semester credit hours of remedial and developmental courses and/or interventions in a public community college, public technical college, or public state college.]

(b) Public community colleges, public technical institutes, or public state colleges shall not submit for formula funding any hours for remedial and development courses and/or interventions for which a student has exceeded 18 semester credit hours of remedial and developmental courses and/or interventions. Up to 9 additional semester credit hours of ESOL courses and/or interventions is allowed, bringing the maximum allowable to 27 semester credit hours.

(c) [(b)] General academic teaching institutions may not report students in developmental student success courses [or developmental ESL courses] as defined in §13.102(6) of this title (relating to Definitions) for formula funding. General academic teaching institutions may report a student enrolled in a developmental student success intervention or in an ESOL course or [developmental ESL] intervention as defined in §13.102(5) of this title for formula funding only if the following conditions are met:

(1) the student has not met state college readiness standards under Texas Education Code Chapter 51, Subchapter F-1, Texas Success Initiative; [§51.3062;]

(2) the student is not currently an international study abroad student as defined in §13.102 of this title;

(3) the student has not exceeded the number of [18] semester credit hours of remedial and developmental courses and/or interventions specified in [related to] subsection (a) of this section; and

(4) the student success intervention or the ESOL course or intervention meets the [course] description for a developmental student success intervention or developmental ESOL course or [(English for Speakers of Other Languages)] intervention in the Lower Division Academic Course Guide Manual (ACGM).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 11, 2017.

TRD-201703586

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: October 22, 2017

For further information, please call: (512) 427-6143