New Texas Law Prohibiting Institutions of Higher Education From Establishing or Maintaining DEI Offices Is Now Effective

Quick Hits

• Effective January 1, 2024, Texas law prohibits public institutions of higher education in the state from establishing or maintaining DEI offices.
• The law allows institutions to highlight work in supporting first-generation college students, low-income students, or underserved student populations for purposes of applying for grants or complying with the terms of accreditation by an accrediting agency.
• Beginning on September 1, 2024, an institution may not spend state-appropriated money until it submits to the legislature and the Texas Higher Education Coordinating Board a report certifying the institution’s compliance.

Background

The push to eliminate DEI offices and initiatives began in Florida and Texas but rapidly spread to other states, with numerous bills being introduced in the most recent legislative sessions of state legislatures nationwide. In recent months, a few states enacted laws eliminating DEI offices and/or limiting public institutions’ DEI initiatives.

On June 17, 2023, Texas Governor Greg Abbott signed into law Senate Bill (SB) 17. SB 17 added Section 51.3525 to the Texas Education Code and amended Texas law relating to DEI initiatives at public institutions of higher education.

Except as required by federal law, and starting in the spring semester of the 2023–2024 academic year, a public institution of higher education in Texas may not: (a) “establish or maintain a [DEI] office”; (b) “hire or assign” an employee or contractor to “perform the duties of a [DEI] office”; (c) “compel, require, induce, or solicit any person to provide a [DEI] statement or give preferential consideration to any person based on the provision of a [DEI] 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 participation in DEI training as a condition of enrollment or performance of any institution function.

Further, the law requires public institutions of higher education to “adopt[] policies and procedures for appropriately disciplining, including by termination, an employee or contractor” who violates the law.

The law contains a few specific carve-outs. An institution of higher education and its employees are not limited or prohibited from highlighting the institution’s work in supporting first-generation college students, low-income students, or underserved student populations “for purposes of applying for a grant or complying with the terms of an accreditation by an accrediting agency.”

Similarly, the law does not 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”; (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.”

Time is of the essence to comply fully with the new law, make necessary changes to institution offices, policies, and programs, and adopt new policies. Not only is the law effective now, beginning on September 1, 2024, an institution may not spend state-appropriated money until the institution submits to the Texas Legislature and the Texas Higher Education Coordinating Board a report certifying the institution’s compliance.

Key Takeaways

Public higher education institutions in Texas may want to consider taking the following steps:

• Updating and adopting institution policies, procedures, and programs to comply with the new law
• Reviewing and making changes to offices, units, departments, job titles and duties, to confirm compliance
• Ensuring that hiring is conducted in accordance with updated policies aligned with the law’s requirement that faculty members and employees be hired based solely on merit and that each institution not “compel, require, induce, or solicit any person to provide a diversity, equity, and inclusion statement”
• Ensuring continued compliance with existing obligations under federal and state laws, such as the antidiscrimination requirements of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and Executive Order 11246

Ogletree Deakins’ Texas offices and Higher Education Practice Group will continue to monitor developments and will provide updates on the Diversity and Inclusion, Higher Education, and Texas blogs as additional information becomes available.

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