Texas Civil Rights Review

Author: mopress

  • Tall Order, Short Timeline: Taking Down DEI and Tenure, too

    Last Updated July 30, 2023

    Jan. 18, 2023: “Abolish DEI Bureaucracies and Restore Colorblind Equality in Public Universities,” Issue Brief by Rufo, Shapiro, and Beienburg, Manhattan Institute and Goldwater Institute, https://manhattan.institute/article/abolish-dei-bureaucracies-and-restore-colorblind-equality-in-public-universities

    Feb. 7, 2023: “Gov. Greg Abbott tells state agencies to stop considering diversity in hiring” by Kate McGee, Texas Tribune, https://www.texastribune.org/2023/02/07/greg-abbott-diversity-equity-inclusion-illegal/ (see text of letter below)

    Feb. 8, 2023: “Texas Tech reviews its hiring practices as efforts to promote diversity come under fire,” by Kate McGee, Texas Tribune, https://www.texastribune.org/2023/02/08/texas-tech-hiring-diversity/

    Feb. 11, 2023: “Strong Reactions to Gov. Abbott’s Memo on Diversity,” by Charlotte Scott, Spectrum News 1, https://spectrumlocalnews.com/tx/south-texas-el-paso/politics/2023/02/10/strong-reaction-to-gov–abbott-s-memo-on-diversity

    Feb. 13, 2023: “Lt. Gov. Dan Patrick Announces Top 30 Priorities for the 2023 Legislative Session,” Office of Lt. Gov., https://www.ltgov.texas.gov/2023/02/13/lt-gov-dan-patrick-announces-top-30-priorities-for-the-2023-legislative-session/

    Top 30 Includes: Senate Bill 17 – Banning Discriminatory “Diversity, Equity and Inclusion” (DEI) Policies in Higher Education and Senate Bill 18 – Eliminating Tenure at General Academic Institutions

    Feb 14, 2023: “Black and Latino lawmakers slam Gov. Greg Abbott for order limiting diversity considerations in hiring,” by Kate McGee, Texas Tribune, https://www.texastribune.org/2023/02/14/texas-diversity-hiring/

    “the governor’s assertion that DEI policies are illegal is incorrect, a ‘lie’ and a ‘diversion’ from addressing the issues facing Texans.”

    Feb. 22, 2023: “University of Texas System pauses new diversity, equity and inclusion policies,” by Kate McGee, Texas Tribune, https://www.texastribune.org/2023/02/22/university-texas-system-dei-pause/

    Mar. 2, 2023: “Texas A&M System Removes DEI Statements,” News Release, TAMUS, https://news.tamus.edu/texas-am-system-removes-dei-statements/

    Mar. 14, 2023: “Lamar University, state colleges remove diversity statements in hiring process,” [re: Texas State University System] by Olivia Malick, Beaumont Enterprise, https://www.beaumontenterprise.com/news/article/texas-state-university-system-removes-dei-17825760.php

    Jun. 14, 2023: “Abbott Signs Creighton’s Sweeping Higher Education Reform Bills S.B. 17 Banning DEI & S.B. 18 Tenure Reform,” Sen. Brandon Creighton (R-Conroe), https://senate.texas.gov/press.php?id=4-20230614a

    “Senate Bill 17 is the most significant ban on Diversity, Equity and Inclusion (DEI) in higher education in the nation.” (Jun. 14)

    “Guaranteed, lifetime employment is now a thing of the past at Texas public colleges and universities. This legislation [SB 18] will be a model for the rest of the nation . . .” (Jun. 14)

    Jun. 28, 2023: “Divided Supreme Court outlaws affirmative action in college admissions, says race can’t be used,” by Mark Sherman, AP, https://apnews.com/article/supreme-court-affirmative-action-college-race-f83d6318017ec9b9029b12ee2256e744

    Text of letter to Texas agency directors from the Office of Gov. Greg Abbott:

    Letterhead: Governor Greg Abbott

    February 4, 2023

    Mr. Porter Wilson
    Executive Director
    Employees Retirement System of Texas

    Dear Mr. Wilson,

    Federal and state law forbid discrimination against a current or prospective employee because of that person’s race, color, religion, sex, national origin, age, disability, or military service. This legal protection covers the hundreds of thousands of individuals who are employed by the State of Texas, including everyone who works at your agency.

    As Texans, we celebrate the diversity of our State and the presence of a workforce that represents our rich culture. In recent years, however, the innocuous-sounding notion of Diversity, Equity, and Inclusion (DEI) has been manipulated to push policies that expressly favor some demographic groups to the detriment of others. Indeed, rather than increasing diversity in the workplace, these DEI initiatives are having the opposite effect and are being advanced in ways that proactively encourage discrimination in the workplace. Illegally adding DEI requirements as a screening tool in hiring practices or using DEI as a condition of employment leads to the exclusion and alienation of individuals from the workplace.

    As the head of your agency, you have a duty to follow the law. When a state agency adjusts its employment practices based on factors other than merit, it is not following the law. Rebranding this employment discrimination as “DEI” does not make the practice any less illegal. Further, when a state agency spends taxpayer dollars to fund offices, departments, or employee positions dedicated to promoting forbidden DEI initiatives, such actions are also inconsistent with the law.

    Thank you for your attention to this important issue. If you have any questions, please contact the policy advisor assigned to your agency.

    Sincerely,
    Gardner Pate
    Chief of Staff

    Source: “Gov. Greg Abbott DEI Memo to ERS,” Contributed by Lauren McGaughy (The Dallas Morning News) Document Cloud, https://www.documentcloud.org/documents/23601962-file_4253

  • Texas House Journal: DEI Employees “Will be Accommodated”

    Copied from official Journal of the Texas House of Representatives, May 28, 2023

    SB 17 – REMARKS

    REPRESENTATIVE KUEMPEL: To walk through some of the changes—first the conference committee report moves the higher education statement of purpose because of there being concerns with germaneness. Second, it removes several references to sex and the definition of a DEI office and DEI training. This change was made because there may be certain circumstances where policies and programs should be crafted and referenced to sex such as ensuring fairness in intercollegiate athletics and policies surrounding pregnancy. However, the bill continues to prohibit employment discrimination based on sex as required by state and federal law. Third, the conference committee report adopted the senate language on the exception to ensure the programs that enhance student academic achievement may continue. The language is more comprehensive and better matches the intent of the bill. Fourth, the conference committee report further clarifies the definition of DEI training to better ensure the prohibition on required DEI training is effective. Fifth, the report retains the study to be conducted by the coordinating board, as added by amendment on the house floor. The study is now a biennial study rather than an annual study to reduce the burden on the coordinating board and to allow data to amass. The report also replaces recruitment rate with application rate to align with the coordinating board’s terms. The final change to the study is removing disaggregation of sexual orientation and gender identity. The Higher Education Coordinating Board in our institutions of higher education do not collect that data so it wouldn’t be appropriate. And lastly, the conference committee report makes changes to the provision which required institutions of higher education to make a reasonable effort to place all employees in positions at an institution with similar pay. This provision now authorizes institutions of higher education to provide a letter of recommendation to affected employees as long as they are in good standing with the institution.

    REPRESENTATIVE COLLIER: I just want to go back over the last two parts that you mentioned. The study that was added in the house included the same characteristics that were mentioned in the bill—one being sexual orientation—but that’s been removed in the senate amendment or in the conference committee, I guess?

    KUEMPEL: Yes.

    COLLIER: So they’re not going to study how this impacts the same characteristics that were originally part of the bill, that are prohibited?

    KUEMPEL: Correct, and that was sexual orientation and gender identity. That was just something that the Higher Education Coordinating Board doesn’t collect anyway, so—

    COLLIER: They don’t collect that data?

    KUEMPEL: No, ma’am.

    COLLIER: Okay, then the next part deals with staff reassignments?

    KUEMPEL: Yes, ma’am.

    COLLIER: There was a provision added in the house version that said that the existing staff, if their position is eliminated or their department is eliminated, they would be reassigned. And now that has been pretty much gutted. Because what the bill does now is that it says that they may provide a letter. It doesn’t even say that they have to keep them. So right now, these 62 individuals at UT—

    KUEMPEL: That’s correct, Ms. Collier. I’ve been visiting with some of these institutions. I do have confidence that these employees will be accommodated, but for the sake of working with the senate that’s the language we came to—to provide a letter of recommendation.

    COLLIER: That’s what I wanted to clarify with you then. Even after this was removed and gutted, the safety net or just some provisions in there that would ensure that they could maintain their jobs—I understand it was like 62 at UT here in Austin—even after that provision was removed, it’s still your understanding that those individuals would be reassigned or other employment would be found for them?

    KUEMPEL: When in discussions, I have confidence that those employees will be accommodated, if they wish to be.

    REMARKS ORDERED PRINTED

  • Bill Analysis: Texas SB-17 Anti-DEI

    Official Bill Analysis of Enrolled Bill, June 12, 2023

    copied from Texas Legislature Online

    SECTION BY SECTION ANALYSIS

    SECTION 1. Amends Subchapter G, Chapter 51, Education Code, by adding Section 51.3525, as follows:

    Sec. 51.3525. RESPONSIBILITY OF GOVERNING BOARDS REGARDING DIVERSITY, EQUITY, AND INCLUSION INITIATIVES. (a) Defines “diversity, equity, and inclusion office.”

    (b) Requires the governing board of an institution of higher education to ensure that each unit of the institution:

    (1) does not, except as required by federal law:

    (A) establish or maintain a diversity, equity, and inclusion office;

    (B) hire or assign an employee of the institution or contract with a third party to perform the duties of a diversity, equity, and inclusion office;

    (C) compel, require, induce, or solicit any person to provide a diversity, equity, and inclusion statement or give preferential consideration to any person based on the provision of a diversity, equity, and inclusion statement;

    (D) give preference on the basis of race, sex, color, ethnicity, or national origin to an applicant for employment, an employee, or a participant in any function of the institution; or

    (E) require as a condition of enrolling at the institution or performing any institution function any person to participate in diversity, equity, and inclusion training, which:

    (i) includes a training, program, or activity designed or implemented in reference to race, color, ethnicity, gender identity, or sexual orientation; and

    (ii) does not include a training, program, or activity developed by an attorney and approved in writing by the institution’s general counsel and the Texas Higher Education Coordinating Board (THECB) for the sole purpose of ensuring compliance with any applicable court order or state or federal law; and

    (2) adopts policies and procedures for appropriately disciplining, including by termination, an employee or contractor of the institution who engages in conduct in violation of Subdivision (1).

    (c) Prohibits anything in this section from being construed to limit or prohibit an institution of higher education or an employee of an institution of higher education from, for purposes of applying for a grant or complying with the terms of accreditation by an accrediting agency, submitting to the grantor or accrediting agency a statement that:

    (1) highlights the institution’s work in supporting:

    (A) first-generation college students;

    (B) low-income students; or

    (C) underserved student populations; or

    (2) certifies compliance with state and federal antidiscrimination laws.

    (d) Prohibits Subsection (b)(1) from being construed to apply to:

    (1) academic course instruction;

    (2) scholarly research or a creative work by an institution of higher education’s students, faculty, or other research personnel or the dissemination of that research or work;

    (3) an activity of a student organization registered with or recognized by an institution of higher education;

    (4) guest speakers or performers on short-term engagements;

    (5) a policy, practice, procedure, program, or activity to enhance student academic achievement or postgraduate outcomes that is designed and implemented without regard to race, sex, color, or ethnicity;

    (6) data collection; or

    (7) student recruitment or admissions.

    (e) Prohibits an institution of higher education from spending money appropriated to the institution for a state fiscal year until the governing board of the institution submits to the legislature and THECB a report certifying THECB’s compliance with this section during the preceding state fiscal year.

    (f) Requires the governing board of each institution of higher education, or the board’s designee, in the interim between each regular session of the legislature, to testify before the standing legislative committees with primary jurisdiction over higher education at a public hearing of the committee regarding the board’s compliance with this section.

    (g) Requires the state auditor to periodically conduct a compliance audit of each institution of higher education to determine whether the institution has spent state money in violation of this section. Requires the state auditor to adopt a schedule by which the state auditor will conduct compliance audits under this subsection. Requires that the schedule ensure that each institution of higher education is audited at least once every four years.

    (h) Provides that an institution of higher education, if the state auditor determines pursuant to a compliance audit conducted under Subsection (g) that the institution has spent state money in violation of this section:

    (1) is required to cure the violation not later than the 180th day after the date on which the determination is made; and

    (2) if the institution fails to cure the violation during the period described by Subdivision (1), is ineligible to receive formula funding increases, institutional enhancements, or exceptional items during the state fiscal biennium immediately following the state fiscal biennium in which the determination is made.

    (i) Authorizes a student or employee of an institution of higher education who is required to participate in training in violation of Subsection (b)(1)(E) to bring an action against the institution for injunctive or declaratory relief.

    (j) Requires THECB, in coordination with institutions of higher education, to conduct a biennial study to identify the impact of the implementation of this section on the application rate, acceptance rate, matriculation rate, retention rate, grade point average, and graduation rate of students at institutions of higher education, disaggregated by race, sex, and ethnicity. Requires THECB, not later than December 1 of each even-numbered year, to submit to the legislature a report on the results of the study and any recommendations for legislative or other action. Provides that this subsection expires September 1, 2029.

    SECTION 2. Authorizes a public institution of higher education to provide to each employee in good standing at the institution whose position is eliminated as a result of the implementation of Section 51.3525, Education Code, as added by this Act, a letter of recommendation for employment for a position at the institution or elsewhere.

    SECTION 3. (a) Provides that this Act, except as provided by Subsection (b) of this section, applies beginning with the spring semester of the 2023–2024 academic year.

    (b) Provides that Section 51.3525(e), Education Code, as added by this Act, applies beginning with money appropriated to a public institution of higher education for the state fiscal year beginning September 1, 2024.

    SECTION 4. Effective date: upon passage or January 1, 2024.

  • Diversity Officer Org: Anti-Diversity Law Will Not End the Need

    Statement from NADOHE President on Texas Senate Bill 17

    June 14, 2023 (the day the bill was signed by the Governor)

    This is a sad occasion for all students at Texas’ public universities. By dismantling diversity, equity, and inclusion programs and offices at these institutions, Texas lawmakers have chosen to prioritize a political agenda instead of the success of these students.

    Public universities have a responsibility to extend educational opportunities for all, to promote critical thinking, and to advance intellectual excellence. This law abandons that responsibility. It grossly diminishes the broad impact that diversity, equity, and inclusion programs have for all individuals, as well as how our work fosters not only equality of opportunity, but equitable outcomes based on gender and gender identity, race, national origin, ethnicity, veteran status, differing abilities and other ways in which students identify. The law blatantly ignores a critical fact: The work of diversity officers and programs is core to academic excellence, and to providing leadership for a diverse society and workforce. Contrary to the misrepresentations of supporters of this legislation, quality is not diminished by such efforts and programs. The quality of the experience for all students is actually enhanced by such efforts. 

    Even if diversity, equity, and inclusion programs and offices are dismantled, our nation is diverse and diversifying, and diversity on Texas campuses will not disappear. The need to support the success of all students impacted by their experiences in and outside the classroom will not disappear. While Texas’ lawmakers prefer to turn their backs on these necessary initiatives, NADOHE will not. Our work builds on generations of efforts to make higher education more accessible and inclusive, and we will steadfastly support our members as they champion progress, even in the most challenging of times. 

    ###

    The National Association of Diversity Officers in Higher Education (NADOHE) is the preeminent voice for chief diversity officers. As the leader of the national conversation on diversity, equity, and inclusion, it investigates, influences, and innovates to transform higher education so that inclusive excellence lives at its core.

  • Legal Defense Fund of the NAACP Argues Against Signing Texas Anti-DEI Bill

    Excerpt from Letter to Texas Governor, May 31, 2023 from NAACP Legal Defense and Education Fund, Inc. (LDF: pp. 2-4)

    Click to access LDF-Letter-to-Governor-Abbott-Re-Senate-Bill_Ralikh-Hayes.pdf

    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/