Excerpt from Letter to Texas Governor, May 31, 2023 from NAACP Legal Defense and Education Fund, Inc. (LDF: pp. 2-4)
As an initial matter, DEI is a non-partisan system of practices that are designed to foster integration and uplift communities that have experienced marginalization in the past and continue to face barriers today. DEI, in general, and as contemplated by SB 17, is separate from raceconscious admissions and should not be quantitatively measured solely by the number of students of color on campus. As scholars have explained, “institutions of higher education have to go beyond simply increasing enrollment of students of different racial and ethnic backgrounds. These institutions must also attend to both the quality of the campus racial climate and the actual interactions among diverse students.”3 DEI initiatives and offices are essential because “just increasing the racial/ethnic diversity on campus while neglecting to attend to the racial climate can result in difficulties for students of color as well as for white students.”4
Senate Bill 17, if it becomes law, will codify guidance from your office, dated February 4, 2023, mischaracterizing DEI initiatives as “policies that expressly favor some demographic groups to the detriment of others” and “proactively encourage discrimination in the workplace.”5 Following your guidance, multiple universities across Texas, including Texas’ flagship university, the University of Texas at Austin, announced their suspension of DEI initiatives.6 However, in actuality—and in stark contrast to the letter’s mischaracterization—DEI initiatives function to make the workplace a more inclusive environment for all. Senate Bill 17 would enshrine these deeply flawed prohibitions into Texas law and will hinder ongoing efforts by Texas public institutions of higher education to undo the longstanding vestiges of state-sanctioned discrimination against Black and Latinx students and faculty. These efforts are key to cultivating positive school climates that foster inclusive institutions, and Texans will undoubtedly suffer the impacts of Senate Bill 17 in their classrooms.7
Moreover, Senate Bill 17 seeks to prohibit “discriminatory initiatives” that federal guidance has already explained are not discriminatory. Recent guidance on DEI issued by the United States Department of Education Office for Civil Rights (OCR) reinforces that “Title VI [of the Civil Rights Act of 1964] prohibits discrimination based on race, color, or national origin in the programs or activities of all recipients of Federal financial assistance.”8 “A [] college violates Title VI if it intentionally treats a person differently or causes them harm because of their race, or if a [] college creates or is responsible for a racially hostile environment.”9 “Activities intended to further objectives such as diversity, equity, accessibility, and inclusion are not generally or categorically prohibited under Title VI.”10 For example, Title VI does not prohibit diversity, equity, and inclusion training, instruction in or training on the impact of racism or systemic racism, cultural competency training or other nondiscriminatory trainings, or efforts to assess or improve school climate, including the use of community focus groups or climate surveys.11 Indeed, DEI training may be necessary in some instances to combat the discrimination that Title VI prohibits. Moreover, to date, no Texas state court or federal court has found any Texas public college or university’s DEI office or policies to violate Title VI, the Texas State Constitution, or the U.S. Constitution as racially discriminatory.
Indeed, as OCR notes, DEI initiatives are often agreed upon to be implemented where there is a finding that a college has violated Title VI.12 DEI initiatives can remedy differential “treatment of students, provide remedial measures to address harassing conduct, assist in remedying other forms of discrimination on the basis of race, and foster a more positive and inclusive school climate.”13 Therefore, contrary to unfounded claims that DEI promotes discrimination, the opposite is true: DEI efforts help to combat discrimination and to address unintended gaps in services and opportunities for underserved communities, including Black and Latinx people, veterans, and differently-abled people. Senate Bill 17 is not in the best interest of faculty and students of color in Texas and will restrict public colleges and universities from using an important tool to create more belonging for all of their students and faculty. 14
[Editor’s Note: footnotes 1 and 2 below, referencing landmark desegregation cases, are cited in support of a previous section of the letter applauding the Texas Governor for signing The C.R.O.W.N. Act, prohibiting discrimination on the basis of hair style.]
1 Sweatt v. Painter, 339 U.S. 629 (1950).
2 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
3 Gurin, P., Nagda, B. (R.) A., & Lopez, G. E. (2004). The Benefits of Diversity in Education for Democratic Citizenship. Journal of Social Issues, 60(1), 17–34. https://doi.org/10.1111/j.0022-4537.2004.00097.x
4 Hurtado, S., Griffin, K. A., Arellano, L., & Cuellar, M. (2008). Assessing the value of climate assessments: Progress and future directions. Journal of Diversity in Higher Education, 1(4), 204–221.
5 Brian Lopez, Texas higher education leaders say equitable access is key for graduation goals, TEXAS TRIBUNE (Feb. 9, 2023)https://www.texastribune.org/2023/02/09/texas-higher-education-budget/.
6 Id.
7 Tomás Monarrez and Kelia Washington, Racial and Ethnic Segregation within Colleges, URBAN INSTITUTE (Dec. 1, 2020), https://www.urban.org/research/publication/racial-and-ethnic-segregation-within-colleges.
8 U.S. Dep’t of Education, Office for Civil Rights, Fact Sheet: Diversity & Inclusion Activities Under Title VI
9 Id.
10 Id.
11 Id.
12 Id.
13 Id.
14 Gregory L. Fenves, Why diversity in higher education is worth fighting for, The Hill, (Oct. 20, 2022), https://thehill.com/opinion/education/3696926-why-diversity-in-higher-education-is-worth-fighting-for/
Texas Civil Rights Review 
Leave a comment