General counsels at Texas public colleges have outsize power this year to determine which services for historically marginalized students will end when the state’s new law restricting diversity, equity, and inclusion efforts in higher education takes effect on January 1.
That’s because the law, Senate Bill 17, leaves too much to interpretation, critics say. As a result, general counsels’ offices will be expected to figure out such details as what to do if job applicants submit unsolicited diversity statements, whether public-college employees may serve as faculty advisers for identity-based student organizations, and what kinds of diversity trainings are prohibited.
Uneven application of the law could result in disparate experiences for members of historically marginalized groups, depending on which college they attend. A review of guidance documents released by three university systems so far raises questions about whether universities may hold programs to celebrate Pride Month, for example, or whether student health care, such as therapy organized around gender identity or sexual orientation, could be restricted at some campuses.
Ishan K. Bhabha, who co-chairs the education practice at the law firm Jenner & Block and has represented colleges on free speech, Title IX, and antitrust cases, said that while one role of a college lawyer is to protect the institution from liability, another is to help it achieve its goals, academic and otherwise.
That means not only looking at case law and challenges to similar laws, for example, but also figuring out a college’s risk tolerance, its priorities, and the perspectives of various stakeholders, including the board of trustees, president, faculty, staff, students, and the broader community to plan a path forward.
In most cases, Bhabha said, the law is not black or white but somewhere in between, which means some degree of interpretation is required. “You just have to do interpretation sensitive to … what your clients’ ultimate academic priorities are.”
But differing interpretations of the law could also lead to legal challenges for colleges, experts said.
Antonio L. Ingram II is investigating the potential impact of Senate Bill 17 on communities of color and the LGBTQIA+ community in Texas as an assistant counsel for the Legal Defense Fund, a racial-justice-advocacy organization. He said that in general, “a law may be considered unconstitutionally vague by courts if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.”
Ingram said university systems’ differing guidance regarding multicultural events, for example, shows that general counsels are unsure of the contours of Senate Bill 17 and how it should be interpreted, which “may demonstrate the impermissible vagueness” of the law.
He pointed out that the Texas A&M system’s general counsel’s office said a university may host multicultural events or programs as long as they are open to everyone who wants to participate and the emphasis is on history and culture, while Texas Tech’s allows universities to recognize heritage months only if they are federally designated as such. Meanwhile, the University of Texas system’s guidance allows for programs for federally and state-recognized heritage and history days and months, advising that an institution should focus on history; it is also the only one of the three to specifically mention Pride Month as being allowed.
Another factor contributing to the confusion around the application of the law is the lack of precedent, Ingram said. “There have not been any statewide bans on diversity, equity, inclusion in the past,” Ingram said, “and so there’s not like there’s a hundred years of precedent to draw upon when you’re trying to interpret what constitutes DEI or what constitutes impermissible preference.”
The Texas measure, which was signed into law in June, prohibits public colleges from having diversity, equity, and inclusion offices; bans the use of diversity statements; forbids preferences to job applicants based on such characteristics as race and national origin; and ends mandatory diversity training.
Proponents of the legislation argue that diversity, equity, and inclusion efforts are divisive, ineffective, and a waste of taxpayer dollars. There are exceptions in the law for teaching, research, and creative work, along with student organizations, guest speakers, data collection, and student recruitment or admissions.
In Florida, rules and regulations crafted by the state’s Board of Governors and Board of Education will guide the execution of a new law limiting diversity, equity, and inclusion work at public colleges.
In Texas, while the Legislature has tasked the governing boards of higher education institutions with ensuring that the law is followed, experts say it is general counsels who are parsing its precise meaning.
Dona Cornell, general counsel for the University of Houston system, said via email that the general counsels of the Texas systems of higher education “consulted among themselves but each institution has relied on their legal counsel.”
The University of Texas and Texas A&M University systems did not respond to requests for comment about how the law will be carried out.
Senate Bill 17 offers many opportunities for interpretation. For example, the law prohibits public-college employees from performing the duties of a diversity, equity, and inclusion office, which it defines as an office established to promote purposes including “differential treatment of or providing special benefits to individuals on the basis of race, color, or ethnicity,” but it does not define differential treatment or special benefits. The law also prohibits colleges from “promoting policies or procedures designed or implemented in reference to race, color, or ethnicity” but does not clarify what it means for something to be designed or implemented in reference to race, color, or ethnicity.
The law also specifically allows colleges that are applying for a grant or satisfying accreditation requirements to highlight their work supporting underserved students, but it does not define “underserved.”
An analysis of the guidance memos issued by three Texas public university systems, all of which include a brief introduction and questions and answers, shows potential disparities in interpretation of the law.
The University of Texas system’s working guidance asks to what extent patient health-care and health and wellness initiatives are affected by the law. The guidance answers: “S.B. 17 does not impact the provision of health care to patients or student and employee health and wellness initiatives. Health care is individualized and is primarily designed and implemented in regard to health care needs. … Examples include … therapy organized around gender identity or sexual orientation, employee and student wellness programs, and education regarding health risks and issues.”
But guidance memos from the general counsels’ offices of the University of Houston system and the Texas A&M University system, which share many of the same categories of questions and similar answers with each other, don’t consider the question of patient health care.
The University of Texas system document also points out some of the places where Senate Bill 17 lacks definitions for key terms. For example, the guidance notes that the law’s restrictions do not apply to the activities of registered or recognized student organizations, but that the law does not define “activity.” The University of Texas document goes on to interpret that word “broadly to encompass all functions of a student organization.”
In a section about statements that institutions may make when applying for grants or to comply with accreditation requirements, the UT guidance notes that under the law, institutions may highlight work supporting “underserved student populations” but that the law does not define “underserved.” The document then explains that “generally, the term can be understood to refer to groups that have limited or no access to resources, such as educational opportunities and health-care services.”
The University of Houston and the Texas A&M University systems’ responses to a question about resources for LGBTQ students suggest subtly different approaches. The Houston response begins, “Programs to support the LGBTQ community may be part of student success and access and are possible if voluntary and open to everyone in the community.” The Texas A&M response states: “A university should not operate or maintain an office that provides programs and activities for a specific group of students based on race, religion, color, ethnicity, sex, gender identity, or sexual orientation. As examples, offices that are focused on African American, Hispanic or LGBTQ students likely violate SB17,” although it adds, “programs supporting the LGBTQ community may be incorporated into a broader student success and multicultural framework.”
The colleges are even taking different approaches to the start date of the new restrictions, with many institutions giving themselves until January 1, 2024, the effective date of the law, to fully comply. The University of Houston, however, citing the state’s appropriations bill, which stipulates that no state funds can be used for diversity, equity, and inclusion-related activities as of September 1, 2023, closed the doors to its Center for Diversity and Inclusion and LGBTQA Resource Center as of August 31. As a result of the change, five employees have been moved into new roles, Cornell, the general counsel, said.
Ingram, of the Legal Defense Fund, said guidance memorandums that have been issued by Texas public university systems so far “still fail to define important phrases such as what type of policies or activities are defined as ‘promoting differential treatment of or providing special benefits to individuals on the basis of race, sex, color, or ethnicity.’” Such ambiguities, he said, lead advocates of diversity, equity, and inclusion to fear that the universities — following the direction of their general counsels — will over-apply the law.
“At the end of day, these general counsels are going to be risk-averse and they’re going to really want to advise their various institutions, in their opinion, what is the best way to comply with the law,” Ingram said. “But to us, the concern is that may result in overly conservative interpretations.”
On the other hand, Adam Ellwanger, a professor of English at the University of Houston-Downtown, worries that relying on general counsels to interpret the law will result in colleges’ doing “the bare minimum to ensure compliance and seeking ways that they can still advance the initiatives of DEI under other names and the auspices of other offices within the university.”
He said that at his university, for example, the Center for Diversity and Inclusion was simply renamed the Center for Student Advocacy and Community.
A spokeswoman for the university said that all DEI services had been eliminated, including a designated staff adviser for an LGBTQ+ student organization, a program that hosted workshops on topics such as inclusive language, microaggressions, and “Trans 101.” Heritage-month programs are now organized by student organizations rather than staff. Eliminated positions were reallocated to the new center, which coordinates programs including services for pregnant and working parents, student clubs and organizations, and peer mentoring for all students.
Senate Bill 17 was one of 40 bills introduced in 22 states this year to restrict diversity, equity, and inclusion initiatives in higher education, according to The Chronicle’s DEI Legislation Tracker; of those bills, seven have been enacted in five states.
