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Texas Senate Bill 17 Remains Unconstitutional

Sonali Muthukrishnan

Edited by Hiba Soban, Jia Lin, and Vedanth Ramabhadran


Texas Governor Greg Abbott signed Senate Bill 17 into law in 2023 [1]. The law, which went into effect on January 1, 2024, restricts public education institutions from implementing diversity, equity, and inclusion (DEI) initiatives on their campuses. As a state with an intricate and growing public college system, Texas schools have been deeply impacted by the bill. While the bill cannot affect academic activities at schools like UT Austin, it has changed the day-to-day institutional operations. SB17 has affected the hiring and employment practices as well as student spaces like the Multicultural Engagement Center. 

SB17 prohibits DEI offices at any public college institution [2], defining them as units established to influence hiring or employment practices in a way that goes against color-blind, sex-neutral, anti-discriminatory law, promoting differential treatment or permitting special benefits based on race or ethnicity, policies implemented related to race or ethnicity, or training programs in reference to color, ethnicity, gender identity, or sexual orientation. The only exceptions to the rule are policies, programs, or activities approved by the institution's chief legal officer, the UT system Office of General Counsel, and the Texas Higher Education Coordinating Board to comply with a specific federal or state law. Furthermore, schools cannot hire employees to perform the duties of a DEI office, solicit DEI statements from potential employees, give any preference on the basis of race, sex, or ethnicity during the hiring process, or require mandatory DEI training. 

The bill restricts DEI policies in hiring practices and forces institutions to reassign their DEI office employees as needed [3], only requiring a recommendation letter if an individual was let go because of their dissolved role. It restricts DEI training—not allowing an institution to hire or assign an employee to implement it—and forbids them from requiring it for any institutional function or role. However, a student or employee can participate in voluntary DEI training offered by an outside medium, as long as it remains untracked by the institution. Any violation of the bill will lead to appropriate discipline and possible termination.

However, there are exceptions to the bill [4]. Academic course instruction and scholarly research is completely protected from the bill’s restrictions. Student organizations that do not receive institutional funding and are not directly connected to a department do not have to abide by this law. Student recruitment and admissions, data collection, and guest speakers are also acceptable exclusions. Additionally, any practice meant to enhance student academic achievement or postgraduate outcomes are allowed, under the condition that  they are unrelated to race, sex, and ethnicity. The bill allows implicit bias training, which focuses on identifying and helping employees move beyond their underdetected assumptions about others, but requires that it is not implemented in reference to race, sex, gender, or ethnicity, removing its impact entirely.   

SB 17 makes Texas’ collegiate institutions more hostile for students of color, exacerbating the effects of existing historical oppression of marginalized groups. While UT’s working guidelines note that its system  “maintains its commitment to academic freedom, freedom of speech, and freedom of expression, in order to promote open inquiry and expand knowledge at its institutions,” it is clear that SB 17 will have an overwhelmingly negative effect on diversity in hiring at Texas institutions. In theory, the bill does not outlaw or prevent diverse hiring…but in practice, it limits institutional ability to correct for and attract faculty and employees of color. 

Furthermore, it actively heightens any weariness that people of color have surrounding the state and its past discriminatory actions. Instead of protecting those with specified classifications, the legislature has decided to target students and faculty of color, making them feel unwelcome on their own campus. While the bill appears race-neutral, it is not. The bill may seem neutral but has a disparate impact on faculty and students of color, directly contradicting the Supreme Court (SCOTUS) precedent. The implementation of Senate Bill 17 violates the compelling interest that higher education institutions have in a diverse faculty, overstepping the bounds of race-targeted legislation and singling out students and faculty of color. Texas public schools should be allowed to use DEI initiatives to create a more diverse collection of staff. 


Legal Background of DEI Initiatives 

In 2022, affirmative action was overturned in higher education admissions; however, it remains a viable and legal solution for employment even at educational institutions [5]. Prior affirmative action case law defines the compelling interest of a school to have a diverse student body to benefit their students, and that compelling interest remains intact in faculty hiring. Affirmative action was originally enacted in 1961 during the Kennedy Administration, looking to equitably increase the number of employed people of color at large [6]. Executive Order 10925 is directly tied to civil rights enforcement policy, allowing employers to try to attract minority groups without directly changing their hiring and promotion decisions. The seventh section of the Civil Rights Act of 1964 further emphasized equal opportunity employment, barring companies from discriminating in employment and encouraging the voluntary use of affirmative action programs for private employers [7]. 

A number of case precedents follow the congressional act defining anti-discriminatory employment and equal opportunity in the context of historical oppression. In particular, United States v. Carolene Products (1938) was a defining case outlining the strict scrutiny theory [8]. The case revolved around the Filled Milk Act, a statutory or legislature-made law that the milk industry lobbied for. The court found that any statutory law that calls into question a constitutional right would be looked at through a stricter lens than special interest laws. The case set the foundation for the strict scrutiny review standard that was further built upon. 

The next important case in employment strict scrutiny was United Steelworkers v. Weber in 1979 [4]. The case involved Weber, a white plant worker, who challenged a remedial affirmative action program adopted by his employer designed to correct for the discriminatory hiring practices they had in place prior to the 1964 Civil Rights Act. Through Weber, the Supreme Court affirmed that all private workplaces have the right to voluntarily adopt affirmative action programs to combat historical segregation in their industry field. While the case is no longer in the purview of SB 17 because it applied to only private sector institutions, it demonstrates the development of employment focused affirmative action.

Then came the case of Fullilove v. Klutznick (1980), which encouraged the federal funding of minority-owned business enterprises through contracts [9]. It motivated contractors to give their contractors to minority businesses with a 10% requirement set by the federal government. Fullilove outlined that racial classifications in the workplace must be narrowly tailored, temporary, and flexible to review. It set an important precedent that the burden of historical discrimination can be shared by white-owned firms or individuals, meaning that they can constitutionally be impacted by remedial affirmative action programs in the workplace or in the economy. It allowed the use of a quota system, something higher education admissions could not use because the policy provided specific measures designed to prevent abuse of the system. 

Similarly, Adarand Constructors, Inc. v. Pena (1995) motivated contractors to use minority-owned small businesses with a financial incentive distributed by the federal government [10]. In this case, the court reversed and remanded the lower court decisions, finding that any racial classification-based legislation required the use of strict scrutiny review in court to figure out if it was a permissible policy or not. Even if the program was remedial in intent, the use of intermediate scrutiny, a less strict standard than strict scrutiny, was not permitted when racial classifications were involved. This case did not outlaw the use of racial classifications in employment practices, it simply emphasized the importance of constitutional and judicial review for these policies and their implementation. Furthermore, the court outlined the issue of standing as the invasion of a legally protected interest. They defined three prongs to legally prove that a plaintiff, the person bringing the case to court, has standing to challenge a policy or law: the invasion of their interest has to be concrete and particularized, actual or imminent, and not conjectural or hypothetical, causing injury for the affected party. 

The employment case law precedent that defines affirmative action programs in workplace environments also applies to higher education institutions for faculty and staff hiring practices as these are employment environments. DEI initiatives clearly fall under the umbrella of remedial affirmative action. But contrary to SB 17’s assertions these initiatives abide by case law remaining narrowly-tailored, flexible, and temporary. Because they fit within strict scrutiny these racial classifications are constitutional under federal law and should be treated as such.

While it is true that affirmative action programs may have an impact on white faculty, this is a burden that they should constitutionally share as white faculty benefited from the disenfranchisement of communities of color in academia. White faculty had less competition systemically and historically because of the disempowerment of employees of color at public education institutions in the past. Through diversity, equity, and inclusion-focused policies, collegiate institutions can equitably correct this historical imbalance. 

DEI initiatives were established by the UT system to help correct for implicit bias and past discriminatory practices that still have substantial impacts today. The fact that UT Austin remains a majority white institution [11], while the state of Texas is less than half white [12] is a testimony to this legacy. As an employer, they have a compelling interest in the diversity of their staff and faculty that permits them to use racial classifications in a remedial sense to correct systemic discrimination.  


Affirmative Action for Admissions 

While affirmative action policies are legal for schools to use in faculty hiring, they are no longer permitted for college admissions purposes. Students for Fair Admissions v. Harvard (2022) and Students for Fair Admissions v. UNC Chapel Hill (2022) were critical to the overturning of past higher education admission precedents [13]. Students for Fair Admissions (SFFA) challenge the use of affirmative action in higher education admissions, hoping to overturn case precedent and force colleges to implement race-neutral policies instead. In the case decisions, the Supreme Court found that affirmative action in higher education admission was unconstitutional because it discriminated against white and Asian American students. The court found that while the programs were well-intentioned, they were not narrowly tailored enough to fulfill the compelling interest of diversity that these programs cleared in the past. The measurable impact of an applicant's race was unclear, and because of that the justices decided that affirmative action in higher education admissions did not pass the constitutional muster. Ultimately, they determined that colleges' use of affirmative action was a violation of the 14th Amendment’s Equal Protection Clause discriminating against students based on their racial and ethnic backgrounds.   

Before this decision, the court had carefully narrowed down the use of affirmative action in higher education into a non-quota, soft factor-based system that corrected for past discrimination and biases for students of color who proved that they deserved the chance to go to a higher education institution. The numerous and complex cases attached to affirmative action in higher education admissions made it clear that educational institutions have a compelling interest in a diverse student body as it benefits all students. And as such they have the right to use racial classifications in a remedial sense.

Fortunately, the outlawing of affirmative action in higher education admissions did not affect Texas public schools as they had previously eliminated the use of such programs through the 10 percent rule [14]. In 1997, through Texas House Bill 588, public education institutions in Texas adopted the rule that “guarantee that Texas students who graduated in the top ten percent of their high school class automatic admission to all state-funded universities.” The rule is 6% for UT Austin admissions because of its prestigious reputation within the UT System, but the law retains educational diversity without an affirmative action program. By welcoming students from all high schools across Texas, the rule self-corrects implicit bias and prior systemic discrimination against lower-income students who are typically students of color. 

Still, affirmative action and its related DEI initiatives are constitutional in the education-related employment law arena. It is clear that the Texas legislature’s SB 17 goes against case precedent and violates the compelling interest schools have in a diverse workplace free from facially neutral laws that have a disparate impact. Facially neutral laws are laws that seem neutral but act discriminatorily against a certain minority group. The 1971 case of Griggs v. Duke Power maintains that laws that seem neutral on their face or in intent cannot be maintained if they operate to continue prior discriminatory practices [15]. SB 17 seems neutral, but in reality, it further perpetuates the majority white academic space built by systemic discrimination. The bill is not compelling or constitutional in the face of federal precedent. 

Examining disparate impact further, the Equal Employment Opportunity Commission decided that hiring employees of color at anything less than a statistically significant 4/5ths or 80% of the rate at which the company or institution was hiring white employees would dictate disparate impact [16]. While disparate impact does not directly implicate discriminatory behavior, it is still a concerning factor that suggests that a workplace may have discriminatory hiring practices that negatively impact workers of color. In order to ignore the rule, companies or institutions have to provide a compelling reason for the discrepancy, which the UT System has failed to do. 

In 2023, UT Austin had approximately 2,540 white faculty members but only had 1,297 employees of color [17]. The most recent data from the Office of Institutional Reporting, Research, and Informational Systems put the institution in the 51.06% range, at least 30% off from creating an equitable workplace. Past years put the ratio of faculty of color to white faculty at an even larger gap, raising a red flag that UT has not overcome the institutional discrimination perpetuated from the past. The most concerning part of this data is that this is the employee ratio with diversity, equity, and inclusion initiatives in place. At least with the initiatives UT Austin has been able to continue to close the disparate impact gap with each passing year, but by removing these initiatives in hiring practice there is no telling how large the gap will grow. The implementation of SB 17 will have unforeseeable effects on the diversity of the faculty at UT System schools.  


The Inherent Value of Employees of Color

The reasoning behind affirmative action defines a compelling interest in diversity for public institutions, that same public interest in diversity is present for all workplaces. The government has a compelling interest in correcting past discriminatory practices, and that interest is also relevant for higher education institutions in employment practice. The compelling interest in diversity and equity in the workplace is clearly defined through the benefits that employees of color bring to all workplaces. 

As Adia Harvey Wingfield explains in her book Flatlining: Race, Work, and Health Care in the New Economy employees of color, through their unique experiences as part of a minority group have a tangible skill set that comes with their identity [18]. Regardless of the field that employees of color are in, they bring benefit to any institution they are present within. In the educational space, their skill sets enable them to connect with the cultural experiences of students of color and help majority-white institutions tailor their policies to better serve people of color. This equity work can only be done by creating more diverse faculty and hiring practices, and systemic solutions to a systemic problem. However, employees of color currently face racism at intersectional, structural, and cultural levels in the workplace. Interactional racism takes the form of face-to-face experiences with other individuals. Cultural racism is examined through society’s hegemonic beliefs and the stereotypes that those beliefs produce. And structural racism is shown through patterned organizational practices and policy. While institutions and workplaces often have limited power over interactional racism, by correcting their practices to not only be non-discriminatory but to actively remediate past discrimination, they can help shift systemic and cultural racism. Systemic racism is not something individual workers of color can fix, however, at an institutional level colleges can help address these issues at a larger scale.   

Not only can employees of color use their skill sets to benefit higher education institutions, they also provide equal representation and mentorship to students of color. By representing and serving as an example for students of color, faculty of color can help other people of color navigate white-centered academia healthily and more sustainably. Their representation helps inspire and guide students of color to better career outcomes, creating more built-in support in the educational system for those who are often left unseen by it. Their work and empowerment can help fix the leaky pipeline of academia [19], where the cultural and systemic practices of an institution isolate marginalized students and lead to them not pursuing their education further, regardless of if they have a desire to do so. 

Ultimately, underserved communities are part of our community too and deserve to be represented at an institutional level. DEI practices make faculty of color, potential hires, and students of color feel more protected and heard by institutions that have traditionally focused on only white voices. By removing the ability to use DEI-centered policies, the Texas legislature is creating a culture of fear and censorship on campus, which will have tangible negative impacts on the progress of these institutions and the communities they are supposed to serve equitably. 


The Impact on the Student Body 

On a larger level, the bill focuses on the hiring and employment practices of Texas higher education institutions. While the bill does not directly affect the academic and educational outcomes of students, it does have an impact on certain student organizations. The bill outlines that student organizations that are simply registered with their institution are not affected, however, sponsored organizations can be depending on the level of institutional power involved in their organizational practices [20]. It may seem as though the bill has limited reach in the student organization arena, but its impact on students, regardless of how small it seems, is incredibly concerning in context. 

Sponsored student organizations receive a larger amount of funding from their direct institutional ties, this means that they are often bigger and have a larger impact on the student body and their interactions with their educational institution [21]. These organizations use DEI initiatives to make the student body feel comfortable and seen on campus. DEI initiatives can include events, support, and further acknowledgment of the distinguishable experience of minorities at educational institutions. For example, Liberal Arts Council is a Liberal Arts College sponsored student organization. As an organization, they had a DEI director and a DEI committee dedicated to students of color outreach and education on diversity, equity, and inclusion. This additional support is important because college is usually the first time students are separated from their parents. Students can feel isolated, and many students of color and white students experience imposter syndrome, feeling like they don’t belong at their institution or the general feeling that they are out of place. Targeted initiatives let students of color connect with people who are experiencing similar things to them, helping narrow down the student body and making it more easily digestible. It is vital for students who have been systematically oppressed to be allowed to connect and share their experiences. once SB 17 went into effect, however, sponsored organizations like the Liberal Arts Council had to reexamine their practices. For the organization, that meant that the previous focus on students of color and LGBTQ+ students had to change. The DEI committee and director position changed to advocacy and engagement, pulling the focus away from supporting communities of color and forcing their events to be carefully tailored to not violate SB 17 guidelines.   

By limiting sponsored student organizations from using DEI initiatives, the Texas government is directly isolating students of color. They are actively making it more difficult for students of color to connect with their institutional community and rely on the support of others through their educational experience. While the law is facially neutral, it has a disparate impact on students of color and their activities, but no effect on white students. It is clear who this bill was meant to target, and students of color and LGBTQ+ should not remain unacknowledged by their community because of state law. Everyone deserves to feel as though they belong at their institution, and the impact this bill has on student organizations could be the difference between a student of color feeling at home or isolated on a UT System campus. 

Students at UT Austin are extremely cognizant of the negative effects this bill will have on diversity at the institution. The forceful closing of the Multicultural Engagement Center on January 1st further emphasized how impactful the bill has been on student morale [22].  In February of 2024, the Austin American-Statesman reported on UT student organizing to support students of color and queer students while staying compliant with the law. A current student noted that “some people say the campus environment within itself, it just feels different, ” and her statement is the rule, not the exception [23]. This bill has had an undeniable effect on marginalized communities on campus. 


Making a Meaningful Change

The UT System has clear standing to fight this law in court. As a higher education institutional system, they could challenge SB 17 based on their 14th Amendment right to the Equal Protection Clause.  Public institutions have the right to treat everyone equally, and it is a concrete constitutional right that is particular to workplace conduct. Everyone deserves equal treatment in their workplace, and for people of color that equal treatment includes addressing systemic discrimination that creates arbitrary barriers to employment. People of color have a unique experience at educational institutions, by creating racially and ethnically neutral laws the state cannot suppress that tangible difference. By forbidding the use of a DEI office and DEI initiatives the state legislature is making it more difficult for public institutions to hire and retain staff of color, causing direct injury to potential employees and those currently employed. They are also actively removing support from the faculty who need it most. The bill outlining that DEI-focused employees can be let go with just a recommendation letter also causes economic injury to those currently employed by the university. The direct impact of this bill on university practices make it actual and imminent, as it will negatively tangibly affect faculty.

Texas public institutions must challenge this law because it will hurt students and staff of color and college campuses in general. When institutions and workplaces fail to foster diversity everyone suffers. In a place like Texas, which is acutely aware of the systemic discrimination in its past, DEI measures are an important piece of attracting faculty and students of color. Not only will SB 17 harm those actively on campus, but it will motivate those considering Texas institutions to choose other educational options that make them feel more welcome. Texas is the second most diverse state in America [24]. The state is special because of the people within this state and the incredible diversity at its fingertips, it would be tragic to ignore it. The UT system should take the initiative and work to challenge this law to support their students and faculty of color and those who will come to UT Austin and other UT system institutions in the future. 

By taking a tangible step in the right direction, the UT System can ensure that it is a productive, safe, and diverse institution for years to come. Something it cannot ensure if SB 17 stands. Public higher education institutions in Texas must take action to protect their minority student populations, fight to overturn Texas Senate Bill 17, and continue their upward progress in correcting systemic discrimination.

 

[1] Senate Bill 17 - Policy and Working Guidance | University Risk and Compliance Services, The University of Texas at Austin, (2023), https://compliance.utexas.edu/sb17 

[2] UT System SB 17 Working Guidance Frequently Asked Questions (PDF) | University Risk and Compliance Services, The University of Texas at Austin, (09/15/2023), https://compliance.utexas.edu/sites/default/files/documents/ut-system-sb-17-guidance-9-25.pdf 

[3] UT System SB 17 Working Guidance Frequently Asked Questions (PDF) | University Risk and Compliance Services, The University of Texas at Austin, (09/15/2023), https://compliance.utexas.edu/sites/default/files/documents/ut-system-sb-17-guidance-9-25.pdf 

[4] UT System SB 17 Working Guidance Frequently Asked Questions (PDF) | University Risk and Compliance Services, The University of Texas at Austin, (09/15/2023), https://compliance.utexas.edu/sites/default/files/documents/ut-system-sb-17-guidance-9-25.pdf 

[5] A Brief History of Affirmative Action | Office of Equal Opportunity and Diversity, University of California Irvine, (2024), https://www.oeod.uci.edu/policies/aa_history.php#:~:text=Kennedy%20issued%20Executive%20Order%2010925,order%20was%20to%20affirm%20the 

[6] A Brief History of Affirmative Action | Office of Equal Opportunity and Diversity, University of California Irvine, (2024), https://www.oeod.uci.edu/policies/aa_history.php#:~:text=Kennedy%20issued%20Executive%20Order%2010925,order%20was%20to%20affirm%20the 

[7] Steelworkers v. Weber, 443 U.S. 193 (1979), Justia Law, https://supreme.justia.com/cases/federal/us/443/193/ 

[8] United States v. Carolene Products Company, 304 U.S. 144 (1938), Oyez, https://www.oyez.org/cases/1900-1940/304us144 

[9] Fullilove v. Klutznick, 448 U.S. 448 (1980), Oyez, https://www.oyez.org/cases/1979/78-1007 

[10] Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), Oyez, https://www.oyez.org/cases/1994/93-1841

[11] Facts & Figures | The University of Texas at Austin, (09/26/2023), https://www.utexas.edu/about/facts-and-figures 

[12] Texas ranks as one of the most diverse states in the country. Here’s what a new study says. | Austin American-Statesman, (09/20/2023), https://www.statesman.com/story/news/state/2023/09/20/wallethub-diversity-rankings-texas-second-most-diverse-states-in-america-2023/70909551007/ 

[13] SFFA V. HARVARD AND SFFA V. UNIVERSITY OF NORTH CAROLINA FAQ | Legal Defense Fund, (06/29/2023), https://www.naacpldf.org/case-issue/sffa-v-harvard-faq/#:~:text=On%20June%2029%2C%202023%2C%20the,Carolina%20(UNC)%20are%20unconstitutional

[15] Griggs v. Duke Power Co., 401 U.S. 424 (1971), Justia Law, https://supreme.justia.com/cases/federal/us/401/424/ 

[16] Understanding the 80% Rule | The Melton Law Firm, https://www.jfmeltonlaw.com/articles/understanding-the-80-rule/ 

[17] Trends in Faculty Data | Institutional Reporting, Research, and Information Systems (IRRIS), https://reports.utexas.edu/spotlight-data/faculty 

[18] Adia Harvey Wingfield, Flatlining: Race, Work, and Health Care in the New Economy | 1st ed. University of California Press, (2019), https://doi.org/10.2307/j.ctvh1dh6c

[19] Adia Harvey Wingfield, Flatlining: Race, Work, and Health Care in the New Economy | 1st ed. University of California Press, (2019), https://doi.org/10.2307/j.ctvh1dh6c

[20] UT System SB 17 Working Guidance Frequently Asked Questions (PDF) | University Risk and Compliance Services, The University of Texas at Austin, (09/15/2023), https://compliance.utexas.edu/sites/default/files/documents/ut-system-sb-17-guidance-9-25.pdf 

[21] UT System SB 17 Working Guidance Frequently Asked Questions (PDF) | University Risk and Compliance Services, The University of Texas at Austin, (09/15/2023), https://compliance.utexas.edu/sites/default/files/documents/ut-system-sb-17-guidance-9-25.pdf 

[22] Naina Srivastava, “Former Multicultural Engagement Center Agencies Demand UT Reestablishes Center” | The Daily Texan, (02/13/2024), https://thedailytexan.com/2024/02/12/former-multicultural-engagement-center-agencies-demand-ut-reestablishes-center/ 

[23] Lily Kepner, “‘Our diversity is our strength’: UT Onyx Honor Society hosts student caucus on SB 17” | Austin American-Statesman, (02/19/2024),  https://www.statesman.com/story/news/education/2024/02/19/hundreds-of-ut-students-gather-for-texas-student-caucus-on-sb-17/72612887007/ 

[24] Texas ranks as one of the most diverse states in the country. Here’s what a new study says. | Austin American-Statesman, (09/20/2023), https://www.statesman.com/story/news/state/2023/09/20/wallethub-diversity-rankings-texas-second-most-diverse-states-in-america-2023/70909551007/ 


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