Texas is the latest state to attack DEI, targeting hiring

Gov. Greg Abbott is cracking down on public institutions that employ diversity, equity and inclusion practices in hiring, according to a governor’s office memo obtained by The Texas Tribune.

The memo, written by Abbott’s chief of staff Gardner Pate, warns that using DEI policies in hiring violates both federal and state labor laws by illegally discriminating against “certain demographic groups,” though it doesn’t specify which.

“The innocuous-sounding notion of diversity, equity and inclusion (DEI) has been manipulated to promote policies that explicitly favor certain demographic groups to the detriment of others,” Pate wrote in the memo, which was sent to state institutions — including colleges and universities was -Mondays.

Texas’ move to cap DEI on hiring comes less than a week after Florida Gov. Ron DeSantis announced proposed higher education reforms that include defunding DEI initiatives at state universities.

Most colleges are silent

It’s hard to tell how most Texas colleges will interpret the news or adjust hiring practices; of the more than a dozen universities in the state that Within the Higher Ed contacted, only two responded to a request for comment.

“The University of Houston System has received the letter from the Governor’s Chief of Staff reminding us of the discrimination laws,” the system’s statement said Within the Higher Ed. “We recognize and support compliance with all state and federal laws and continue to train our employees in this regard. Discrimination is contrary to our core values. Our employment policies and practices comply with these laws, and we have no offices, departments or programs that promote discrimination under the guise of diversity, equity and inclusion.”

Texas A&M also responded, writing, “As a public university, we will continue to comply with all state and federal laws.”

And while Texas Tech didn’t respond to a direct request, the university released a statement addressing the matter.

“Texas Tech University faculty hiring practices will always emphasize disciplinary excellence and the ability of candidates to support our priorities in student success, impactful scholarship and community engagement,” the statement read Monday published on the university website. “We recently heard from a department that, in addition to the usual application documents, also required a diversity, equity and inclusion statement as part of a faculty search. We immediately rescinded this practice and initiated a review of hiring practices across colleges and departments. We will withdraw use of these statements and review rubrics when identified.”

It’s unclear whether Texas Tech responded to the Abbott memo or to an opinion piece published Monday The Wall Street Journal, which argued that the university punishes potential faculty members by emphasizing DEI policies on hiring, e.g. B. by asking candidates about their contributions to DEI initiatives. But since Wednesday evening, the statement has no longer been available on the university’s website.

An Abbott spokesman issued a statement but did not answer specific questions.

“The letter from the governor’s chief of staff is a reminder that state agencies and public universities must follow federal and state laws in their hiring practices. Both federal and state laws make stock quotas illegal. Justice is not equality. Here in Texas, we give people the opportunity to advance themselves based on talent and merit. If we fulfill the dream of Dr. Martin Luther King Jr., we should not be judged by the color of our skin but by the content of our character,” Renae Eze, a spokeswoman for the Abbott administration, said in an emailed statement to Within the Higher Ed.

Mixed reactions

Supporters of the DEI effort, who believe such initiatives are necessary to counter prejudice against underrepresented students and employees, have expressed dismay at the Abbott memo.

Paulette Granberry Russell, president of the National Association of Diversity Officers in Higher Education, said Within the Higher Ed in a statement that the Abbott administration “grossly misconstrued the federal anti-discrimination law, twisting it to suit its own political agenda and silencing all efforts to promote justice in a country long committed to its founding promise of justice.” and fought for freedom for all”.

She stressed that “inclusive and just institutions” would benefit everyone.

“The memo and its claims are ridiculous and beyond an attempt to overstate the state government,” she wrote. “They are just another step in a broader attack on the fundamental foundations of diversity, equity and inclusion, terms that some have tried to turn into dog whistles for not bothering to understand America’s foundational history and principles who can be determined to understand it on a brighter path forward.”

Academic freedom advocates also expressed concern about the memo.

Jeremy C. Young, senior manager for free speech and education at free speech advocacy group PEN America, said in a statement that while the organization was “concerned about the impact of mandatory diversity statements on free speech in university hiring processes,” it Also Fest believes that “decisions about DEI initiatives on campus should be made by university stakeholders through a process of shared leadership and not by politicians. Governor Abbott’s memo is an intimidation tactic that represents government encroachment on the affairs of higher education institutions. All free speech advocates should oppose whatever they think of diversity statements or DEI work.”

The Foundation for Individual Rights and Expression struck a similar note.

“Pledges of allegiance and political litmus tests have no place in our nation’s public universities. For years, FIRE has criticized colleges for requiring students and faculty to declare personal acceptance of a politicized understanding of “diversity” as a condition of consideration for admission, hiring or promotion,” Joe Cohn, legislative and policy director for FIRE said in a statement that it would Within the Higher Ed.

While Cohn called “the chilling, coercive effect of mandatory diversity statements” “a significant problem,” he also said the Abbott administration’s move poses a threat to academic freedom, noting that “legislation and executive action to solve this problem must be carefully worked out to avoid trading one set of constitutional problems for another.”

Opponents of DEI initiatives, meanwhile, are on a victory lap.

Political activist Chris Rufo, who has close ties to DeSantis and was instrumental in drafting model laws to help states refute DEI initiatives, celebrated the news on Twitter.

“Three weeks ago we released the Manhattan Institute’s playbook on ‘Breaking DEI Bureaucracies and Restoring Colorblind Equality in Public Universities’. Since then, Governor DeSantis and Governor Abbott have stepped into the ring and become champions of this fight. let’s do it,” Rufo tweeted on Wednesday.

DeSantis recently named Rufo a trustee at New College of Florida, where he and other board members were tasked with converting NCF into a replica of the private Christian Hillsdale College.

Legal Questions

Whether the memo has teeth or is just an intimidation tactic aimed at undermining DEI initiatives, as some have claimed, remains to be seen. The Abbott administration did not respond to questions about Texas employment law, which currently allows DEI considerations on hiring.

Stephanie Hamm, a Houston-based attorney who practices labor law as a partner at Thompson & Horton LLP, said via email that she believes two provisions of the Texas Labor Code “provide legal grounds for withdrawing the statements in Abbott’s memo.” .

One provision of the Code states that “an employer will not engage in an illegal employment practice by developing and implementing human resources policies that include workforce diversity programs.” Another section, which Hamm says is narrower, states that “an officer of a public school will not commit an unlawful employment practice by adopting or implementing a plan reasonably designed to end discriminatory school practices.”

Hamm noted that “it is not per se illegal under current Texas law to consider diversity in connection with employment practices,” as the Abbott administration has asserted.

“If his playbook for mask disputes [during the COVID-19 pandemic] he will start with these types of memos and letters, and the next step will be specific threats of legal action (by the AG’s office). I don’t know if that’s going to happen here. But overall, any college that has received a letter (or seen the memo) should consult with their attorneys to discuss any DEI programs they have in place,” Hamm said.

Josh Blackman, a law professor at South Texas College of Law, said Abbott’s memo related to state civil rights laws, namely Title VI — which prohibits discrimination and exclusion from state-sponsored programs based on race, color or national origin — and Title VII, which prohibits discrimination on Prohibits employment based on race, color, religion, gender and national origin.

He said he suspects Abbott is playing the long game and is looking ahead to the Supreme Court case brought by Students for Fair Admissions alleging that Harvard University discriminated against Asian-American students in admissions. Many observers expect that the outcome of the case will lead to an affirmative action case.

“If Title VI prohibits certain DEI actions, then this federal statute would trump or preempt state labor laws,” Blackman said via email. “In other words, the state labor code should be read as consistent with federal law. Abbott is trying to stay ahead of the pending Supreme Court case, Students for Fair Admission [sic]. This case will likely state that Harvard’s policies violate Title VI. If this is the case, Texas schools that accept federal funds (all) will need to reconsider their DEI policies.”