Handbook of Operating Procedures > Series 200 General Policies and Procedures > 2.5.9 Compliance with State Law Regarding Diversity, Equity, and Inclusion in Institutions of Higher Education

2.5.9 Compliance with State Law Regarding Diversity, Equity, and Inclusion in Institutions of Higher Education

A. Purpose

This purpose of this Policy is to implement Senate Bill 17 and Texas Education Code, Section 51.3525, which require that the University shall maintain an environment that promotes learning, academic freedom, and the creation and transmission of knowledge free from any requirements to exhibit or reflect a specific ideology or political view, and without providing advantages or disadvantages to individuals based on race, sex, color, ethnicity, or national origin.

B. Persons Affected

This Policy applies to all individuals associated with or on the premises of the University, including without limitation Employees, faculty, students, visitors, volunteers, contractors, subcontractors, or vendors.

C. Definitions

1.  Creative work: Includes programmatic components directly related to and part of the creative work and proposed in a grant submission. May include the following:

1. Academic work product of an innovative or interpretive nature, including but not limited to music, dance, visual art, and literature.
2. Non-research written material created for publication.
3. Grant submissions seeking funding for research, instructional, or other activities.

2.  DEI office: An office, division, or other unit of the University, including any group of Employees of any size, that is established for diversity, equity, and inclusion (DEI) and is charged with any of the following purposes or carries out any of the listed duties:

a.  Hiring: Influencing hiring or employment practices with respect to race, sex, color, or ethnicity, other than through the use of color-blind and sex-neutral hiring processes in accordance with any applicable state and federal antidiscrimination laws.

  b.  Differential treatment. Promoting differential treatment of or providing special benefits to individuals on the basis of race, color, or ethnicity.

  c.  Policies. Promoting policies or procedures designed or implemented in reference to race, color, or ethnicity, other than policies or procedures approved in writing by the Chief Legal Officer, the UT System Office of General Counsel, and the Texas Higher Education Coordinating Board for the sole purpose of ensuring compliance with any applicable court order or state or federal law.

  d.  DEI training. Conducting training (required or voluntary), programs, or activities designed or implemented in reference to diversity, equity, and inclusion, including race, color, ethnicity, gender identity, or sexual orientation, other than trainings, programs, or activities developed by an attorney and approved in writing by the Chief Legal Officer, the UT System Office of General Counsel, and the Texas Higher Education Coordinating Board for the sole purpose of ensuring compliance with any applicable court order or state or federal law.

3.  DEI statement:A written or oral statement of a person’s commitment to:

1. furthering diversity, equity, and inclusion based on race, color, ethnicity, national origin, sex, gender identity, and/or sexual orientation; or
2. promoting differential treatment of, or providing special benefits to, individuals based on their identification as a member of one or more of these classifications.

4.  DEI training: A training, program, or activity designed or implemented in reference to diversity, equity, and inclusion, including race, color, ethnicity, gender identity, or sexual orientation.

5.  Preferential consideration: Treating one person more favorably than another, in any respect, because of their inclusion or provision of a DEI statement expressing a preferred viewpoint in materials they provide to the University.

6.  Research personnel: May include any non-faculty staff member or trainee with assigned job responsibilities related to research based on the employment or academic training position they hold at the University, including individuals who serve on University review boards.

7.  Scholarly research: Includes programmatic components directly related to and part of the scholarly research and proposed in a grant submission. May include research conducted by a student, faculty member, or other research personnel in their respective field under generally accepted scientific standards (e.g., systems in place to ensure the quality and accuracy of hypotheses, methods, data, and findings, such as in a peer reviewed or refereed publication).

8.  Special benefit: A term, condition, opportunity, or privilege that is unavailable or substantially better than what is available or provided to others.

D. Policy

1. Prohibitions Under Texas Law

   1. DEI offices. The University shall NOT permit, hire, or assign any Employee or volunteer or contract with a third party to perform any of the duties of a DEI office.
   2. DEI statements. The University shall NOT compel, require, induce, or solicit any person to provide a DEI statement or give preferential consideration to any person based on the provision of a DEI statement.
   3. Preference. The University shall NOT give preference to anyone by treating any specific Employee, applicant for employment, or a participant in any function of the University more favorably than another, in any respect, on the basis of race, sex, color, ethnicity, or national origin.
   4. Required DEI training. The University shall NOT require any person to participate in DEI training as a condition of enrollment, employment, or performing any University function.

    

   2.    Exceptions to Prohibitions

   1. DEI training for compliance. Prohibited DEI training does NOT include a training, program, or activity that is for the sole purpose of ensuring compliance with an applicable court order or state or federal law if it is:

      i. developed by an attorney; and

      ii. approved in writing by the Chief Legal Officer, the UT System Office of General Counsel, and the Texas Higher Education Coordinating Board.

   2. Required training.

      i.  Legal and University obligations. Prohibited DEI training does NOT include annual equal employment opportunity and Title IX compliance trainings, including sexual harassment training, for Employees, faculty, and students that is designed to educate on legal obligations and the University’s commitment to treating Employees, faculty, students, and applicants consistently and fairly without regard to protected classifications, including race, color, sex, sexual orientation, gender identity, pregnancy, religion, national origin, age, disability, genetic information, and citizenship status.

      ii.  Content. Acceptable trainings identify applicable federal and state laws and University Policies, explain definitions, describe Employee and student rights and reporting requirements, outline complaint reporting procedures, and emphasize the prohibition on retaliation.

      iii.  As sanctions. Prohibited DEI trainings do NOT include trainings required of Employees, faculty members, and students as sanctions for violating Policies regarding compliance with Title IX, Title VII, and Chapter 21 of the Texas Labor Code or similar federal or state laws if the trainings are designed to educate recipients on compliance with University Policies.

   3. Grants or accreditation. For purposes of applying for a grant or complying with the terms of accreditation by an accrediting agency, the University or an Employee is permitted to submit to the grantor or accrediting agency a statement that:

      i.  highlights the University's work in supporting:

      1. first-generation college students;

      2. low-income students; or

      3. underserved student populations; and/or

       

      ii. certifies compliance with state and federal antidiscrimination laws.

   4. Data collection and use. Data collection is NOT subject to the prohibitions of this Policy, including the use of collected data. Such uses include but are not limited to:

      i. statements in support of grant proposals or accreditation compliance;

      ii. academic course instruction;

      iii. scholarly research or creative work;

      iv. student academic achievement;

      v. postgraduate outcomes designed and implemented without regard to race, sex, color, or ethnicity; and

      vi. student recruitment and admissions.

   5. Data disclosure.

      i. Impact data. The University may disclose data regarding impacts on certain student subgroups within the umbrella term of “underserved student populations.”

      ii. Accreditation. The University may collect and disclose data and information necessary to maintain accreditation.

   6. Academic instruction. Faculty instruction in their assigned courses, practicums, seminars, and executive education programs is NOT subject to the prohibitions of this Policy.
   7. Scholarly research and creative works. Scholarly research and creative works by students, faculty, or other research personnel and the dissemination of that scholarly research or creative work are NOT subject to the prohibitions of this Policy.
   8. Student organizations.

      i. Registered status. Student organizations that hold registered student organization status pursuant to the University’s rules and Polices are NOT subject to the prohibitions of this Policy.

      ii. Sponsored status. Depending on the level of University control and support and the University’s policies and practices, the programs and activities of a student organization that is sponsored by the University may be subject to the prohibitions of this Policy.

   9. Guest speakers and performers. Guest speakers and performers hosted on a short-term basis for limited duration events under the University’s usual policies and rules are NOT subject to the prohibitions of this Policy.
   10. Student academic achievement and postgraduate outcomes. Policies, practices, procedures, programs, or activities to enhance student academic achievement or postgraduate outcomes that are designed and implemented without regard to race, sex, color, or ethnicity are NOT subject to the prohibitions of this Policy.
   11. Student recruitment and admissions. The prohibitions of this Policy generally do NOT apply to student recruitment and admissions, except those in Subsection D.2.1.

    

   3.    Policy Impact on Programs and Activities

   1. This Policy does NOT prohibit programs and activities designed in reference to sex, as opposed to gender identity or sexual orientation.
   2. Programs and activities designed for women or men that are otherwise lawfully implemented remain permissible (e.g., men’s and women’s athletics programs, single-sex dormitories).
   3. Academic programs (e.g., Women in STEM) are permissible when such programs openly allow participation by both women and men.

    

   4.    Employee Organizations

   1. Prohibited classifications.

      i. The University shall NOT establish Employee groups that are organized in reference to one or more of race, color, ethnicity, gender identity, or sexual orientation. “Established” means created by the administration of a college, school, department, or business unit.

      ii.  Exceptions. This does NOT apply to Employee organizations that are:

        1.  registered with the University; and

        2.  do NOT have an Employee assigned to lead the organization or its activities.

   2. Employee resource groups. Employee resource groups are organizations that are NOT established by the University.

      i. These typically consist of Employees with a common background or a common set of interests.

      ii.  Identity-based groups must be open to all interested participants and receive similar treatment and benefits as other Employee groups.

   3. Ministerial tasks. University staff that handles ministerial tasks (e.g., reserving University spaces, coordinating access to audio visual equipment for meeting spaces) for all Employee organizations may continue to provide such services to all Employee organizations, including those organized in reference to one or more of race, color, ethnicity, gender identity, or sexual orientation.

    

   4.    Institutional Investigative Units. University investigative units that must sometimes consider race, color, ethnicity, gender identity, or sexual orientation in reaching determinations on alleged violations of University Policies are NOT subject to the prohibitions of this Policy.

    

   5.    Recognized History Events. University activities to participate in state, federal, or other widely recognized history events (e.g., Black History Month, Hispanic Heritage Month, Women’s History Month, Pride Month) are NOT subject to the prohibitions of this Policy.

    

   6.    Patient Healthcare and Other Health and Wellness Initiatives. The provision of healthcare to patients and other health and wellness initiatives which are expressly excluded from the definition of programs or activities are NOT subject to the prohibitions of this Policy, as healthcare is individualized and is primarily designed and implemented to address health care needs.   

    

   7.    Employee Compliance. Employees, including contractors or subcontractors hired to perform University work that would otherwise be performed by a University Employee, are subject to discipline, up to and including termination, for violating any provision set out in Subsection D.1. (See HOP 1.22: Compliance Investigations.)

    

   8.    University Compliance and Certification

   1. Education. The University shall educate the University community on permitted and prohibited activities.
   2. Questions. Questions regarding compliance with this Policy shall be directed to the Division Head, the Chief Compliance Officer.
   3. Sub-certifications. Sub-certifications shall be submitted annually to the Chief Compliance Officer, who shall then submit them to the President.
   4. Certification. The President shall, upon confirming all sub-certifications, submit to the Chancellor a certification that the University complies with this Policy.
   5. Money contingent on compliance. The University may NOT spend money appropriated to the University for a state fiscal year until the Board of Regents submits to the legislature and the Texas Higher Education Coordinating Board a report certifying the board's compliance with this Subsection during the preceding state fiscal year. This provision applies beginning with funds appropriated for the fiscal year starting September 1, 2024.

   9. State Audit for Compliance

   1. Notification of audit. Upon receiving notice from the state auditor of an audit of the University under Texas Education Code, Section 51.3525, the University shall promptly notify the UT System Audit Office and the Vice Chancellor and General Counsel of the pending audit.
   2. Cooperation mandatory. The University is required to cooperate with the state auditor conducting the statutory audit. 
   3. Curing violations.

      i. Time frame. If the University receives an audit finding of a violation of Texas Education Code, Section 51.3525, it must cure the violation not later than the 180^th day after the date on which the determination is made.

      ii. Failure to cure. Failure to cure the violation during the 180-day period shall result in ineligibility to receive formula funding increases, institutional enhancements, or exceptional items during the state fiscal biennium immediately following the state fiscal biennium in which the determination is made.

    

   10. Biennial Study. The University shall coordinate with the Texas Higher Education Coordinating Board to complete the statutorily required biennial study.

E. Reference Sources and Authority

• Senate Bill 17
• Texas Education Code, Section 51.3525: Responsibility of Governing Boards Regarding Diversity, Equity, and Inclusion Initiatives
• HOP 1.22: Compliance Investigations
• UT System SB 17 Working Guidance
• Annual DEI Compliance Checklist
• Sub-Certifications

F. Review Responsibilities and Dates

The Division Head for this Policy is the Chief Compliance Officer, and this Policy shall be reviewed every two (3) years or sooner, if necessary, by the Division Head or their designee.