June 29, 2023

State Legislatures Targeting DEI in Higher Education

At a Glance

  • In the last year, many states have introduced legislation to restrict DEI initiatives in higher education.
  • Specific provisions vary, but can pertain to DEI training and in some instances may impact curricular content.
  • Institutions need to monitor these developments and assess their impact on institutional operations.

Recently, state legislatures across the country have considered legislation affecting diversity, equity and inclusion (DEI) initiatives in various settings, including at public and private colleges and universities. While their specific impacts vary by state, most provisions are designed to limit, prohibit or constrain the funding of institutional projects such as DEI offices, racial bias trainings or workshops, or the use of diversity statements.

With new anti-DEI legislation introduced both at the federal level and in over 20 states during the past year, postsecondary institutions must stay apprised of how these proposals could impact their operations and access to public funds. Below, we provide a high-level overview of such legislation in four states, broadly illustrating the approaches that state governments have taken and highlighting areas of potential institutional risk. This legislation demonstrates the trend in some state legislatures to involve themselves more directly in the operation of educational institutions, including, in some cases, on curricular matters pertaining to DEI.

Texas: Enacted Limitation on DEI Offices at Public Universities

On May 28, 2023, the Texas legislature approved SB 17 , which bans the establishment and maintenance of DEI offices at public universities across the state. The law also prohibits such universities from soliciting diversity statements during the hiring process or requiring student or employee participation in DEI training programs.

With limited exceptions, SB 17 defines a DEI office broadly as any unit or division established for the purpose of “influencing hiring or employment practices . . . with respect to race, sex, color, or ethnicity,” other than through the use of colorblind or sex-neutral hiring processes. The definition also includes any office that promotes “differential treatment” based on race, any office that promotes policies designed or implemented in reference to race, and any office that conducts trainings or programs designed or implemented in reference to race, gender identity or sexual orientation. In addition to banning DEI offices themselves, SB 17 prohibits universities from contracting with or assigning third parties to “perform the duties” of a DEI office.

SB 17 creates limited carve-outs for certain programs. Specifically, none of its prohibitions may be construed to apply to data collection, recruitment, admission or academic activities (e.g., course instruction, academic research, student organization activities, guest speakers). It does not limit an institution’s compliance with the terms of its accreditation, nor with state or federal antidiscrimination laws. Institutions may, for example, highlight their support of first-generation, low-income or underserved students when applying for grants or providing information to accrediting agencies. SB 17 also permits trainings or programs “in reference to race, color, or ethnicity,” but only if they are approved in writing by the institution’s general counsel and the state’s Higher Education Coordinating Board “for the sole purpose of ensuring compliance with any applicable court order or state or federal law.”

SB 17 places compliance and enforcement responsibilities on an institution’s governing board and the state auditor, respectively, by prohibiting an institution from spending state funds until the governing board certifies its compliance with the law during the preceding fiscal year. The state auditor must conduct compliance audits at least once every four years. Violators would be ineligible to receive state funding increases or institutional enhancements unless they cure the violation within 180 days of the auditor’s determination that a violation has occurred. Students or employees may also bring an action against a university for injunctive or declaratory relief if they were required to participate in a diversity training.

Florida: Enacted Limitation on DEI Programming and Hiring Practices

In May of 2023, Florida legislators approved SB 266 and SB 931. These bills substantially curtail the use of DEI practices, or critical race or gender theory, in public university hiring, teaching or academic programming.

Restrictions on curricular development for DEI programming

SB 266 prohibits public universities from using state funding to support DEI programs and initiatives, to institute diversity statements in their admissions or hiring processes (as further expanded in SB 931), or to fund any other programs that include “critical race theory rhetoric.” The bill grants both Florida’s State Board of Education and the Florida public university system’s Board of Governors the authority to define programs or activities that “promote or engage in political or social activism.” Public universities will be barred from spending state funds to support or engage with any programs or activities designated as such.

SB 266 is enforced by requiring the state Board of Education, as well as the Board of Governors, to appoint joint faculty committees tasked with ensuring that general education courses at state postsecondary institutions comply with the new requirements. The Board of Governors is now required to conduct a “post-tenure review” of state university faculty every five years, and to report certain research expenditures annually. If a university determined to be out of compliance, it may be ineligible to receive performance-based funding that would otherwise be allocated to it.1

Limitations on diversity statements

SB 931 prohibits public universities from using “political loyalty tests” as a condition of employment, admission, or promotion, and defines such a test to include diversity statements. The bill also requires public universities to establish an “Office of Public Policy Events” which must host speakers and create events “from multiple, divergent, and opposing perspectives,” reflecting “an extensive range of public policy issues widely discussed and debated in society at large.”

The legislation defines “political loyalty tests” as requiring, compelling, or soliciting a person “to identify commitment to or to make a statement of personal belief” supporting ideologies or movements that promote differential treatment of a person or group based on race or ethnicity. It specifically prohibits DEI initiatives that go “beyond upholding equal protection laws,” and includes critical race and gender theory within this prohibition.

In practice, this bill may preclude public universities from requiring or using diversity statements in their hiring and admissions processes, even on a voluntary basis. If a university decides not to require diversity statements but still accepts them, SB 931 prohibits the university from considering those statements in the application evaluation process. Florida public universities will have to balance policies directed at recruiting and retaining diverse students and faculty with their institutional compliance obligations under these laws.

Ohio: Considered Requirements Applying to Private Institutions

As originally introduced, Ohio’s SB 83 differed from other state legislation by specifically including private higher education institutions, including by requiring the submission of affirmation statements demonstrating the private institution’s compliance before receiving state funding. SB 83 would have required private institutions to specifically affirm their commitment to “intellectual diversity” and their compliance with elements of the law that apply to both public and private institutions (e.g., eliminating DEI training requirements, publishing all undergraduate course syllabi, prohibiting “political and ideological litmus tests” in hiring or promotion policies). To enforce the law, the original bill directed the Chancellor of the Ohio Department of Higher Education to submit an official notice to private institutions if the chancellor received “credible information” indicating that an institution had made false affirmations to the state. Upon receipt of notice from the chancellor, private institutions would have been required to immediately return any state funds received.

However, the version passed by the Ohio Senate on May 17, 2023, eliminated any reference to private colleges and universities, instead applying its restrictions only to state institutions. Nonetheless, the bill would be far-reaching in its scope, using broad language to prohibit any state institution from influencing the ideologies and social policy views of students or faculty, and further prohibiting university endorsement of or opposition to “any controversial belief or policy.” As of this writing, the bill remains under consideration in the Ohio House of Representatives and was referred to its Higher Education committee on May 23.

Tennessee: Considered Restricting DEI Initiatives in Public Medical Education and Health Care

In Tennessee, HB 571 proposed eliminating diversity statements in student applications to public medical schools and health care programs, with language closely resembling Florida SB 931’s “political loyalty tests.” HB 571 was assigned to the general subcommittee of the Senate Education Committee, where it remains.

The bill would require public health care facilities (including, e.g., public hospitals) and publicly funded healthcare programs to annually certify that they do not require applicants to claim loyalty to or promote “DEI ideologies” during the application process, nor to study or follow them upon matriculation. The term “DEI ideologies” is defined to incorporate critical theories or efforts to promote racial, gender, gender identity, national origin, religion or sexual orientation diversity in health care-related academic programming.

To comply, the subject health care programs would have to “publish all titles and syllabi of mandatory courses seminars, classes, workshops, and training sessions on the institution’s website in an online database readily searchable by the public.” Such programs would also be prohibited from conducting “DEI audits or otherwise engaging with DEI consultants.” The bill would also provide a private right of action, authorizing aggrieved parties (namely, those required to engage in prohibited coursework) to seek declaratory or injunctive relief of no less than $100,000, plus costs and attorney’s fees.

Accreditation and Other Considerations

It is not clear how accrediting agency requirements pertaining to DEI will be impacted by state law restrictions like these. As noted, there appears to be an exception in the Texas law for compliance with accrediting agency requirements. However, on June 1, 2023, Sen. Marco Rubio (R-FL) introduced S. 1795, the “Fairness in Higher Education Accreditation Act.” Its provisions include a prohibition on considering a school’s DEI initiatives, or lack thereof, in any accreditation determinations. As many accrediting agencies have standards or policies relating to DEI, postsecondary institutions will need to specifically assess the impact of these provisions on such requirements. We also note that, depending on the particulars of any given state legislation, matters of academic freedom and even First Amendment considerations may be implicated. Postsecondary institutions should stay apprised of these developments, as such matters can affect various aspects of institutional operations, including student life and curricular matters.  

For More Information

Faegre Drinker’s Education Team actively monitors legislative and regulatory developments affecting institutions of higher education at the federal and state levels and advises clients on compliance strategies. Please do not hesitate to contact John Przypyszny, Jonathan Tarnow, Cindy Irani or Sarah Pheasant if you have any questions regarding this summary or other education regulatory matters.

Faegre Drinker Summer Associates Asher Young and Max Siegel assisted in the drafting of this summary.

  1. Fla. Stat. §§ 1001.66 and 1001.92 establish performance-based incentive systems for institutions in the Florida State University System or the Florida College System, such that meeting benchmarks in various areas (e.g. retention rates; program completion and graduation rates; postgraduation employment, salaries, and continuing education for workforce education and baccalaureate programs, with wage thresholds that reflect the added value of the certificate or degree; and “outcome measures appropriate for” associate of arts degree recipients) can result in additional funding.

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