Author Archives: Matthew Watkins

At some Texas universities, students accused of rape can transfer without a record

The Pat Neff Hall at Baylor University on Feb. 15, 2017.

When Sierra Smith told Baylor University she’d been sexually assaulted by a classmate during a 2016 spring break trip to South Padre Island, she hoped administrators would move to protect her and other students.

It took several months of investigation, but the university eventually did, suspending the male student for three semesters for violating Baylor’s sexual violence and harassment policies.

But by then, the punishment had little effect. The student Smith reported had already transferred to a new school — without a blemish on his record.

“It bothers me that there could be another girl out there who could go through this, too,” she said.

Baylor isn’t the only school that doesn’t list disciplinary violations on its students’ transcripts. Many other universities in Texas and across the nation, including the University of North Texas, have similar policies.

Schools say they are following a practice that has been standard in higher education for years. They argue that disciplinary proceedings aren’t criminal cases — and that a transcript should be viewed as an academic file, not a disciplinary record.

Several other Texas schools, including the University of Houston, Texas State University and Texas A&M University, include notations when the investigation is final, but don’t note when a case is pending. They say they are are trying not to punish students before they have even been found responsible for wrongdoing.

But some college administrators and victims’ rights advocates worry that failing to provide notice on a transcript — either of a final or pending investigation — creates an escape hatch for students transferring to avoid punishment. A student could end up at a new school, they say, without that university ever knowing the student’s past.

“That happens routinely,” said Wanda Mercer, associate vice chancellor of student affairs at the University of Texas System and an expert on the issue.

Lately, more universities are beginning to address those concerns. Baylor, for example, is currently reviewing whether it should change its policy.

But supporters of including disciplinary records on transcripts say change is coming too slowly. Case in point: An attempt to impose a statewide rule requiring the notations failed during the 2017 Texas legislative session.

Three-semester suspension

Stories of female students upset about the handling of their sexual assault cases have plagued Baylor for years. But in Smith’s instance, the university took action — even if it took longer than she had hoped.

She was a sophomore during the trip to South Padre, visiting for the night with a friend. Once there, she met up with a male student with whom she had been previously romantically involved.

“Whenever I woke up later that night, it was to him deciding that me saying no wasn’t enough deterrence,” Smith said.

Smith didn’t report the incident to the university at first. She didn’t even tell most of her friends. But soon, it began to affect her schoolwork and her personal life. She had trouble concentrating in class. And she turned to partying to take her mind off of the incident.

“I was just replaying in my head everything that happened over and over again,” she said. “Maybe I remembered it wrong. Maybe I’m going crazy.”

One day, Smith broke down crying in the office of one of her professors. She told her teacher everything, prompting a Baylor investigation. Within a couple of days, the university had sent the male student an order to avoid all contact with Smith. It also sent official notice that it was opening a disciplinary case, which is required by federal law when one student accuses another of assault.

The university ultimately found the male student responsible in the case and placed him on probation. Smith appealed that decision, and the punishment was increased to a three-semester suspension.

That final decision was little comfort for Smith, who learned that the male student had already transferred. While she was happy he was out of her life, she wondered, “What happens when he goes [to his new school]?”

Sierra Smith in Baylor's Armstrong Browning Library.
Sierra Smith in Baylor University’s Armstrong Browning Library. Laura Skelding for The Texas Tribune

Slowly, changing attitudes

For the UT System’s Mercer, it comes as no surprise that a student would try to transfer amid a disciplinary case.

“If you are someone who is charged and you don’t feel like you have violated the rules, the processes can take some time,” she said. “You might say, ‘The semester is not over yet, but I am out of here.’”

Mercer, who wrote her Ph.D dissertation on the subject, has spent years warning universities about that possibility. The solution is simple, she says: Include a notation of a disciplinary case on the student’s transcript, so any future school will know to ask questions before admitting the student. She helped the UT System devise such a policy in recent years. Texas Tech University takes a similar approach.

Many other schools have been reluctant. A 2015 national survey of university registrars found that about 40 percent didn’t support including disciplinary notations on transcripts.

That opposition appears to be shrinking. For two decades, the influential American Association of Collegiate Registrars and Admissions Officers actively discouraged schools from making note of disciplinary issues on transcripts. In December 2015, the group switched to being neutral on the subject. Last month, it shifted again and began encouraging such notations when disciplinary cases are final. The group doesn’t specifically recommend a policy on pending disciplinary cases.

“It’s a touchy issue,” said Kristi Wold-McCormick, the registrar at the University of Colorado who chaired the task force that recommended the most recent change. “When a conduct case is pending and an investigation is underway, we don’t know the outcome yet.”

Wold-McCormick said some registrars still believe transcripts should solely be academic documents — not records of disciplinary matters. She said others are worried about legal liability; students might sue if they feel they were blocked from transferring because of a note on their transcript.

There is also concern about how transcript notations could affect the futures of punished students. Disciplinary notations don’t usually say what students were punished for — only that they were suspended or expelled. A student kicked out for drinking at a conservative school might have a hard time getting into a new school that isn’t overly concerned with that offense.

While Baylor officials wouldn’t comment publicly on their policy, background information they provided to The Texas Tribune suggests its administrators share some of those concerns.

Advocates for the notations say those worries are easily addressed: Limit the use of notations to major offenses — those serious enough to warrant expulsion or suspension. A notation for a suspension could be removed from a transcript once the term of the suspension is complete, they say.

The advocates also add that when there’s no criminal record, a student’s transcript may be a future university’s only source of warning. Sexual assault cases involving two students who know each other rarely make it to criminal court, because victims are often reluctant to go through a public trial and prosecutors hesitate to take on cases that pit one student’s word against another’s.

But many universities worry about punishing a student too much too soon. Just because someone is under investigation doesn’t mean they are guilty, school officials say. Many universities — including A&M, which adds transcript notations only when the final results are in — say they will provide information on pending investigations verbally to transfer universities conducting background checks on potential students.

House bill fails

In recent years, two states, New York and Virginia, have adopted laws that establish statewide disciplinary notation policies. This year, Rep. Chris Turner, D-Grand Prairie, tried to make Texas the third. His proposal, House Bill 3142, would have required notations for all university cases that resulted in a major punishment.

Smith traveled from Waco to Austin to testify in favor of the proposal. At a late-night committee hearing in April, she told the Texas House Higher Education Committee her story.

“I was not the first girl he came into contact with,” she told legislators, “and I will not be the last.”

“So the next time a girl decides to be brave enough to report him — because it will happen again — there will be no record,” she added. “The school will not know what has happened in the past and he will run away again or get off with nothing.”

A week later, the committee unanimously advanced the bill. But Turner’s legislation suffered a common fate in the Texas Capitol — the clock ran out on the legislative session before the Texas House could vote on it.

Turner and Smith both said they hope universities will consider changing their policies on their own. If not, Turner said he expects to file the bill again in 2019. And Smith, an aspiring lawyer, said she’ll be there again to tell her story.

“I hope to continue to advocate for these things for the rest of my life,” she said.

Disclosure: Baylor University, the University of Texas System, Texas A&M University, the University of Houston, Texas State University, Texas Tech University and the University of North Texas have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

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Federal judge throws out effort by UT professors to overturn campus carry

Stephanie Odam of Austin marches in a campus carry protest in Austin, Jan 8, 2015.

A federal judge has dismissed a longshot lawsuit filed by three University of Texas at Austin professors seeking to overturn the state’s 2015 campus carry law, which allows people to carry concealed handguns inside most public university buildings.

District Judge Lee Yeakel wrote in his decision that the professors — Jennifer Lynn Glass, Lisa Moore and Mia Carter — couldn’t present any “concrete evidence to substantiate their fears” that campus carry would have a chilling effect on free speech.

The professors claimed, among other arguments, that the law violated their First Amendment rights, since the possibility of a gun being in their classrooms might make them hesitant to discuss controversial issues. In dismissing the suit, Yeakel said the professors didn’t have standing to sue.

But Renea Hicks, the attorney representing the three UT professors, said the specifics of the ruling leave the case’s future uncertain. While Yeakel threw out the case entirely, he only only addressed one of the legal arguments, the question of a First Amendment violation.

“We had other claims in the lawsuit beyond that — a Second Amendment claim, an equal protection claim. The order accompanying his dismissal doesn’t seem to address those issues,” Hicks said in an interview Friday. “So there’s a bit of confusion on our part.”

Hicks, who had not yet conferred with his clients when reached Friday, said he is not sure what course of action he and the plaintiffs will take. They have 28 days from July 6 to ask Yeakel for clarification, and 30 days to file an appeal to the U.S. 5th Circuit Court of Appeals.

The ruling was issued late Thursday, exactly one year after the original lawsuit was filed. On Friday, Texas Attorney General Ken Paxton, whose office defended the state in the case, praised the decision.

“The court’s ruling today is the correct outcome,” Paxton said. “The fact that a small group of professors dislike a law and speculate about a ‘chilling effect’ is hardly a valid basis to set the law aside.”

Campus carry became law in 2015, but didn’t go into effect until Aug. 1, 2016. It stirred up widespread opposition among faculty and many students — especially on the UT-Austin campus. But so far, there have been no major incidents and protests on campus have all but disappeared.

Emma Platoff contributed to this report.

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

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Man behind Fisher affirmative action case files new lawsuit against UT-Austin

The man who helped Abigail Fisher sue the University of Texas at Austin for discrimination in a case that reached the U.S. Supreme Court twice is suing UT-Austin once again.

This time, he claims the university’s use of affirmative action violates the Texas Constitution, not the U.S. Constitution. 

Edward Blum’s group Students for Fair Admissions filed the suit in Travis County court Tuesday. The group cites the Texas Equal Rights Amendment, which bans discrimination based on “sex, race, color, creed or national origin” in arguing that UT-Austin shouldn’t be allowed to give slight preference to minorities in admissions. 

Blum’s previous suit spent years in federal courts. It eventually failed, following a 4-3 vote by the U.S. Supreme Court that UT-Austin could consider the race of its applicants as a minor factor. That ruling should have no bearing on how state courts analyze the Texas Constitution, Blum said. 

“We believe that most Texas judges and justices will agree with our interpretation of the Texas Constitution,” he said in a press release. 

UT-Austin officials didn’t immediately respond to a request for comment. 

The university has been using affirmative action in a limited way since a 2003 U.S. Supreme Court decision made it allowable in Texas. About three-fourths of its Texas students are admitted through an admissions policy known as the Top 10 Percent Rule, which grants automatic admission to students who graduate near the top of their high school’s class. UT-Austin considers the race of its applicants as a minor factor when considering the rest of its applicants. 


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Citing religious refusal of adoption rule, California bans state travel to Texas

Saying that a new Texas law allowing child welfare providers to deny adoptions to parents based on “sincerely held religious beliefs” is discriminatory, California’s attorney general on Thursday banned state-funded travel to Texas. 

The attorney general’s office said in a news release that Texas’ House Bill 3859 “allows foster care agencies to discriminate against children in foster care and potentially disqualify LGBT families from the state’s foster and adoption system.” Therefore, California agencies, public universities and boards won’t be able to pay for their employees or board members to travel to Texas for work-related trips, the state’s attorney general declared. 

“While the California DOJ works to protect the rights of all our people, discriminatory laws in any part of our country send all of us several steps back,” said Xavier Becerra, the California attorney general. “That’s why when California said we would not tolerate discrimination against LGBTQ members of our community, we meant it.”

The decision drew a mocking response from the office of Texas Gov. Greg Abbott, a Republican who signed the bill into law this month. 

“California may be able to stop their state employees,” said Abbott spokesman John Wittman, “but they can’t stop all the businesses that are fleeing over taxation and regulation, and relocating to Texas.”

Becerra has the authority to issue such a ban, thanks to a law that went into effect Jan. 1 prohibiting state-funded travel to states that have discriminatory laws on the books. The new law requires the attorney general to keep a list of such discriminatory laws. 

Many people speculated during the 2017 regular legislative session that Texas would be added to the list if it passed a bill setting rules for which bathrooms transgender people can use. That legislation failed during the regular session. Meanwhile, the adoption bill wasn’t really on the radar of people concerned about California state travel. 

HB 3859, authored by Rep. James Frank, R-Wichita Falls, says that faith-based organizations can also place a child in a religious school; deny referrals for certain contraceptives, drugs or devices; and refuse to contract with other organizations that don’t share their religious beliefs. Under the law, if an organization refuses services to children or prospective parents on religious grounds, they will be required to refer the child or parent to a different organization.

It was a controversial bill. LGBT groups said it “used religion as a weapon.” Religious groups said it allowed them to serve children without violating their core beliefs. 

Alabama, Kentucky and South Dakota were also added to the list of states with California travel bans. It’s not immediately clear what the economic impact of the decision will have on Texas.

One of the key consequences could involve higher education — and college sports in particular. Researchers and staff members from universities often travel to Texas for conferences. And California college sports teams play in Texas fairly regularly. Several major sports bowl games and tournaments are played here — including the men’s college basketball Final Four in San Antonio in 2018. The University of California, Los Angeles played a road football game at Texas A&M University last season. The University of California, Berkeley played at the University of Texas at Austin a year earlier. 

The California law allows for exceptions for contracts that are already in place, and it’s unclear whether the state’s teams would be banned from playing in the Final Four. But the Los Angeles Times reported in February that UCLA has stopped scheduling games against teams in banned states. 

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In a year of cuts, the Texas Legislature boosted financial aid for college students

Attempts to freeze tuition may have stalled out at the Texas Legislature this year, but lawmakers did take one quiet step toward addressing college affordability: They gave the state’s biggest financial aid program a boost. 

The austere state budget currently awaiting Republican Gov. Greg Abbott‘s signature includes a 10 percent funding hike for Texas’ main method of helping needy students attend four-year colleges. That money will address the aid program’s biggest shortfall — that there’s not enough money to give grants to everyone who qualifies. Advocates say that’s a much-needed boost as cost of college continues to rise. 

This year, about 15 percent of students who were eligible for a Toward Excellence, Access and Success Grant, or TEXAS Grant, didn’t get one. Next year, state officials say, that share should be cut in half.  

“We will be able to fund about 92 percent of eligible students,” said Raymund Paredes, the state’s higher education commissioner. “We would love to be at 100 percent, but we’ll settle for 92.”

The program was created in 1999 to cover full tuition and fees for the state’s neediest full-time university students. In its first year, it did so for all 6,108. But this decade, the state has had to pull back on its ambitions as tuition has gone up and the number of poor students has increased. 

The Tribune reported this March that more than 66,000 students were receiving the grants in 2015, but the average reward had dwindled to 58 percent of tuition and fees and many students who should have qualified were being left out.

For much of the session, things looked like they might get worse. Powerful lawmakers introduced legislation that would have capped the amount of each grant in order to spread lesser amounts of money around farther. And the original versions of the budget produced by the House and Senate didn’t include any additional funding for the program.

If those plans had gone through, the average award amount would have likely shrunk, and the share of qualified students who would have lost out on the grant was expected to rise from 15 percent to 43 percent by 2019, according to the Texas Higher Education Coordinating Board.

The decision to increase funding came near the end of the session. Prior to that point, the Senate had upped its proposed amount by only $45 million, while the House hadn’t called for any significant increase. But during negotiations to iron out differences between the two chambers’ spending plans, lawmakers chose to go above and beyond what either side had proposed. In the end, they added $71 million, bringing the total proposed spending on the program over the next two years to $786 million.  

“With the cost of college skyrocketing for families across the state, there was a strong sentiment in both the House and Senate to provide additional financial aid resources to help individuals seeking to further their education,” said Rep. Trent Ashby, R-Lufkin, who chairs the House subcommittee focused on education spending. “The decision to increase funding by over $70 million shows the Legislature’s determination not to allow Texas’ most critical resource — our students — to fall behind simply for financial reasons.”

The increase was welcome news for universities and higher education advocates. But some warned that the state needs to go further if it can be expected to meet its goal of 60 percent of its young people earning a postsecondary degree by 2030. Nearly two-thirds of school-aged children in Texas come from low-income families. And the grant doesn’t cover part-time students or other nontraditional students.

“The job is not done when we get to 100 percent of eligible students served,” said Garrett Groves, director of the Educational Opportunity Program at the Center for Public Policy Priorities. 

Disclosure: The Center for Public Policy Priorities has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.

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