Texas Law Prohibiting IED Offices at Public Colleges Takes Effect

Effective Jan. 1, a new Texas law prohibits public institutions of higher education from establishing or maintaining inclusion, equity and diversity (IE&D) offices or hiring or assigning officers, employees, or contractors to perform the duties of an IE&D office.

Institutions are required to adopt new policies to ensure compliance by their employees. This law does not apply to private schools in Texas.

The push to eliminate IE&D 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 IE&D offices and/or limiting public institutions’ IE&D initiatives.

On June 17, 2023, Texas Gov. Greg Abbott signed into law Senate Bill 17.

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:

• Establish or maintain an IE&D office.
• Hire or assign an employee or contractor to perform the duties of an IE&D office.
• Compel, require, induce, or solicit any person to provide an IE&D statement or give preferential consideration to any person based on the provision of an IE&D statement.
• 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.
• Require participation in IE&D 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:

• Academic course instruction.
• Scholarly research or creative work by an institution of higher education’s students, faculty, or research personnel.
• An activity of a student organization registered with or recognized by an institution of higher education.
• Guest speakers or performers on short-term engagements.
• 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.
• Data collection.
• Student recruitment or admissions.

Time is of the essence to comply fully with the new law, make necessary changes to offices, policies, and programs, and adopt new policies. The law effective now, and beginning on Sept. 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 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 an IE&D 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.

Tiffany Cox Stacy and Beth Darby Adamek are attorneys with Ogletree Deakins in San Antonio and Austin, Texas. © 2024. All rights reserved. Reprinted with permission.