DEI Under Scrutiny, Part IX: Alabama Bans Diversity, Equity, and Inclusion Programs and Departments for Public Institutions

Quick Hits

• Alabama’s act banning DEI programs in public institutions will become effective on October 1, 2024.
• The act forbids public entities, including state agencies, local boards of education, and public institutions of higher education, from maintaining a DEI office or sponsoring any DEI program that advocates for a “divisive concept.”
• The act requires public institutions of higher education to ensure that multiple occupancy restrooms “be designated for use by individuals based on their biological sex.”
• The act does not impede the required collection or reporting of demographic data by public institutions of higher education.
• The act does not apply to private employers.
• Employees knowingly violating the act could face discipline or the loss of their jobs.

State DEI Laws

At least nine states—Florida, Idaho, Kansas, North Carolina, North Dakota, South Dakota, Tennessee, Texas, and Utah—have passed laws restricting DEI programs. Except for a proposed law in Utah and the “Stop WOKE Act” in Florida, these laws, including Alabama’s SB129—now Act No. 2024-34—mainly restrict DEI initiatives for public institutions, but not private employers. Approximately fifteen other states have proposed legislation purporting to ban and/or limit DEI offices, initiatives, and programming at public institutions.

Alabama’s SB129

SB129 bans the public funding of DEI initiatives and prohibits state agencies, local boards of education, and public institutions of higher education from maintaining DEI offices. The act also bars college students from using a restroom that does not align with the sex listed on their birth certificates. The act applies only to public schools—kindergarten through higher education colleges and universities. Private institutions are not implicated by SB129.

The act prohibits applicable public institutions from promoting “divisive concepts,” defined as:

1. “That any race, color, religion, sex, ethnicity, or national origin is inherently superior or inferior.”
2. “That individuals should be discriminated against or adversely treated because of their race, color, religion, sex, ethnicity, or national origin.”
3. “That the moral character of an individual is determined by his or her race, color, religion, sex, ethnicity, or national origin.”
4. “That, by virtue of an individual’s race, color, religion, sex, ethnicity, or national origin, the individual is inherently racist, sexist, or oppressive, whether consciously or subconsciously.”
5. “That individuals, by virtue of race, color, religion, sex, ethnicity, or national origin, are inherently responsible for actions committed in the past by other members of the same race, color, religion, sex, ethnicity, or national origin.”
6. “That fault, blame, or bias should be assigned to members of a race, color, religion, sex, ethnicity, or national origin, on the basis of race, color, religion, sex, ethnicity, or national origin.”
7. “That any individual should accept, acknowledge, affirm, or assent to a sense of guilt, complicity, or a need to apologize on the basis of his or her race, color, religion, sex, ethnicity, or national origin.”
8. “That meritocracy or traits such as a hard work ethic are racist or sexist.”

The act prohibits requiring a student, employee, or contractor to:

• “personally affirm, adopt, or adhere to a divisive concept”;
• attend or participate in a DEI program, training, orientation, or course work “that advocates for or requires assent to a divisive concept”;
• share a “personal point of view on any divisive concept outside of an academic setting”; or
• participate in “lobbying … for legislation related to a divisive concept.”

The act also precludes penalizing or discriminating against a student, employee, or contractor for refusing to “support, believe, endorse, embrace, confess, or otherwise assent to a divisive concept or diversity statement.” While the act also says public institutions cannot “[c]ondition enrollment or attendance in a class, training, or orientation solely on the basis of race or color,” the Supreme Court of the United States struck down the use of affirmative action in college admissions last year.

The act does not prevent students or faculty members from hosting events that discuss “divisive concepts,” or “the teaching of topics or historical events in a historically accurate context,” provided that no state funds are used to “sponsor” the programs. The act also includes protections for women’s sports, the Alabama Office of Minority Affairs, and the First Amendment rights of students and employees.

Key Takeaways

While Alabama’s act does not apply to private employers, given the proliferation of laws and proposed legislation impacting DEI initiatives and programming, employers may wish to carefully track legislative developments that could impact their programs and lawful approaches to training and related activities.

Employers may want to review their workplace policies and training programs with respect to existing obligations under federal, state, and local laws, such as the antidiscrimination requirements of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and other civil rights statutes.

For more information on DEI policies, initiatives, and strategies, including increased demands for inclusivity and belonging in the United States and globally, as well as challenges and litigation threats following the Supreme Court’s decision that race-conscious affirmative action admission policies violate the Equal Protection Clause of the Fourteenth Amendment, please see Ogletree Deakins’ “DEI Under Scrutiny” series, which examines the evolving DEI legal landscape since the Supreme Court’s decision and offers assistance in balancing these concerns while moving forward with legally defensible DEI programming and initiatives.

To assist employers with navigating these new challenges, Ogletree Deakins’ DEI Task Force—a multidisciplinary team of lawyers from our Diversity and Inclusion, Environmental, Social, and Governance (ESG), Litigation, OFCCP Compliance, Government Contracting, and Reporting, and Pay Equity practice groups—has developed a toolkit to assist with evaluating DEI initiatives, assessing legal risk, and providing recommendations and best practices. For more information, please contact the Ogletree attorney with whom you work or email clientservices@ogletree.com.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity and Inclusion, Employment Law, Higher Education, and Alabama blogs.

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