Gov. Greg Abbott is cracking down on state agencies that use diversity, equity and inclusion practices in hiring, according to a memo from the governor’s office obtained by The Texas Tribune.
The memo, written by Abbott’s human resources chief Gardner Pate, warned that using the DEI policy in hiring violates both federal and state employment laws by unlawfully discriminating against “certain demographic groups,” though it did not specify which ones.
“The innocuous notion of diversity, equity and inclusion (DEI) has been manipulated to advance policies that clearly favor some demographic groups at the expense of others,” Pate wrote in the memo, which was sent to public institutions, including colleges and universities. – on Monday.
Texas moved to limit DEI in hiring less than a week after Florida Gov. Ron DeSantis announced proposed higher education reforms that include defunding DEI initiatives in public universities.
Most colleges are silent
It’s hard to see how most post-secondary institutions in Texas are interpreting the news or adjusting their hiring practices; from more than a dozen universities in the state Inside the higher ed contacted, only two responded to a request for comment.
“The University of Houston system has received a letter from the governor’s chief of staff reminding us of discrimination laws,” the system said in a statement. Inside the higher ed. “We recognize and maintain compliance with all state and federal laws and continue to train our employees in this regard. Discrimination goes against 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 did not respond to a direct request, the university released a statement on the matter.
“Texas Tech University’s faculty hiring practices will always emphasize disciplinary excellence and candidates’ ability to support our priorities of student success, effective scholarship and community engagement,” according to a statement posted on the university’s website Monday. “We recently became aware of a department that required a diversity, equity and inclusion statement in addition to the normal application materials as part of its faculty search. We immediately ended this practice and initiated a review of hiring procedures across all colleges and departments. We will abandon the use of these statements and assessment rubrics if they are identified.”
It was unclear whether the Texas Institute of Technology was responding to Abbott’s memo or the article published Monday in The Wall Street Journal, which argued that the university penalizes potential faculty by emphasizing DEI policies in hiring, such as asking candidates about their contributions to DEI initiatives. But as of Wednesday evening, the statement was no longer available on the university’s website.
An Abbott spokesman issued a statement but did not respond to 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 when hiring. Both federal and state law make equity quotas illegal. Fairness is not equality. Here in Texas, we empower people to advance based on talent and merit. As we pursue the dream of Dr. Martin Luther King Jr., we must be judged not by the color of our skin, but by the content of our character,” Rene Eze, a spokesman for the Abbott administration, said in an emailed statement. to Inside the higher ed.
Mixed reactions
Supporters of DEI’s efforts, who believe such initiatives are necessary to combat bias against underrepresented students and staff, expressed concern about Abbott’s memo.
Paulette Granberry Russell, president of the National Association of Diversity Professionals in Higher Education, said Inside the higher ed in a statement that the Abbott administration is “grossly misinterpreting federal anti-discrimination law, twisting it to suit its political agenda and silencing any efforts to advance equality in a country that has long struggled with its original promise of justice and freedom for everyone.”
She emphasized that “inclusive and just institutions” benefit everyone.
“The memo and the allegations in it are ridiculous and go beyond an attempt to overreach government authorities,” she wrote. “They are just another step in a broader attack on the core foundations of diversity, equity and inclusion, terms that some have tried to turn into dog whistles because they haven’t bothered to understand America’s underlying history and the principles that can establish it on more bright way forward”.
Academic freedom advocates also expressed concern about the memo.
Jeremy C. Young, senior manager of free speech and education at the free speech advocacy group PEN America, said in a statement that while the organization is “concerned about the implications of mandatory diversity statements in the university hiring process” on free speech, it also strongly believes , that “decisions about DEI initiatives on campus should be made by university stakeholders in a shared governance process, not by politicians. Governor Abbott’s memo is a scare tactic that represents excessive government interference in the affairs of higher education institutions. This should be opposed by all supporters of free speech, whatever they think of the diversity statements or the work of the DEI.”
The Foundation for Individual Rights and Expression expressed a similar tone.
“Oaths of loyalty and political litmus tests have no place in the state universities of our country. For yearsI have FIRE criticized institutions of higher learning when they require students and faculty to declare their personal agreement with a politicized understanding of ‘diversity’ as a condition for admission, hiring or promotion,” said Joe Cohn, director of legislative and policy affairs for FIRE. statement to Inside the higher ed.
While Cohn described the “staggering, coercive effect of mandatory diversity statements” as a “significant problem,” he also said the Abbott administration’s move poses a threat to academic freedom, noting that “legislative and executive action to address this issue must be carefully designed so as not to trade one set of constitutional problems for another.”
Opponents of DEI’s initiatives, meanwhile, are on a victory lap.
Political activist Chris Rufo, who has close ties to DeSantis, was contributes to the writing of model legislation to help states defund DEI initiatives, noted the news on Twitter.
“Three weeks ago, we published the Manhattan Institute’s playbook for ‘Abolishing the DEI Bureaucracy and Restoring Color-blind Equality at Public Universities.’ Since then, Governor DeSantis and Governor Abbott have stepped into the ring and become champions of the fight. Let’s do it” Rufa tweeted Wednesday.
DeSantis recently appointed Ruff as a trustee of the New College of Floridawhere he and other board members were tasked with transforming NCF into a replica of the private Hillsdale Christian College.
Legal issues
It remains to be seen whether the memo has teeth or is simply a scare tactic aimed at undermining DEI initiatives, as some have claimed. The Abbott administration did not respond to questions about Texas labor laws that currently allow DEI discretion in hiring.
Stephanie Humm, a Houston-based attorney who practices employment law as a partner at Thompson & Horton LLP, said by email that she believes the two provisions Texas Labor Code to provide “a legal basis for rejecting the allegations in the Abbott memo.”
One provision of the code states that “an employer shall not commit an unlawful employment practice by developing and implementing an HR policy that includes workforce diversity programs.” Another section, which Ham said is narrower, states that “a public school official shall not commit an unlawful employment practice by adopting or implementing a plan reasonably designed to end a discriminatory school practice.”
Hamm noted that “under current Texas law, it is not illegal per se to consider diversity in connection with employment practices,” as the Abbott administration has argued.
“If his textbook on judicial cases masks [during the COVID-19 pandemic] in any lead, it will start with these types of memos and letters, and the next step will be specific threats of legal action (via the AG’s office). I don’t know if it will be like that here. But in general, any college that received the letter (or that saw the memo) should consult with their lawyers to discuss any DEI programs they have in place,” Hamm said.
Josh Blackman, a professor at South Texas College of Law, said Abbott’s memo cited federal civil rights laws, namely Title VI, which prohibits discrimination and exclusion from federal programs based on race, color or national origin, and Naz. VII, which prohibits discrimination in employment based on race, color, religion, sex, or national origin.
He said he suspects Abbott is playing a long game and is awaiting a Supreme Court hearing on a case brought by Students for Fair Admissions, which claims Harvard University discriminated against Asian-American students in admissions. Many observers are waiting for the outcome of the case will lead to a drop in positive action.
“If Title VI prohibits certain DEI measures, then that federal law trumps or preempts state labor laws,” Blackman said via email. “In other words, the state labor code must be read in accordance with the federal law. Abbott is trying to pre-empt the Students for Fair Admissions Supreme Court case. [sic]. The case is likely to say that Harvard’s affirmative action policy violates Title VI. If that is the case, schools in Texas that receive federal money (all of them) will need to reconsider their DEI policies.”
