The Texas A&M University System Office of General Counsel
Guidance Regarding the Implementation of SB 17 Relating to Diversity, Equity and Inclusion
September 6, 2023
The Office of General Counsel (OGC) has created the following FAQs to provide guidance to System universities and agencies on the implementation of Senate Bill 17 and revised System Policy 08.01. Many of these FAQs are drawn from questions submitted by TAMUS faculty and staff.
Going forward, OGC stands ready to provide additional guidance on specific situations or issues that are not addressed by these FAQs. However, each System member is responsible for ensuring that it achieves compliance with SB 17. Each member must make the administrative changes necessary under the new law while implementing appropriate communication and monitoring practices to support compliance.
As provided in section 4.4 of System Policy 08.01, the System Ethics & Compliance Office (SECO) will work with each member to support and monitor implementation of SB 17. In addition, the systemwide risk assessment conducted annually by the System Internal Audit Department will include SB 17 compliance. SECO and System Internal Audit will provide information to our Board of Regents to support the annual certification process required by SB 17.
Beginning with FY 24-25, the new law requires that the A&M System Board of Regents annually certify our System’s compliance to the Legislature and the Texas Higher Education Coordinating Board during the prior fiscal year, before we may spend state appropriated funds for the then-current fiscal year. Thus, it is critically important that each System member ensure that changes needed to achieve compliance with SB 17 are implemented.
SB 17 also requires that our System adopt procedures to ensure that appropriate disciplinary action is taken to address conduct by employees or contractors who engage in conduct that violates the new law. Our Ethics Point reporting system will be available to receive and refer reports of any such violations. SECO will coordinate with Compliance Officers of the appropriate System members in the investigation of any such reports. As with any violation of law or System Policy, failure to comply with state law (SB 17) or System Policy 08.01 may result in corrective action or disciplinary measures, as appropriate.
It is important to remember that nothing in SB 17 alters our existing obligations under federal and state law, including the anti-discrimination requirements of Title VI and Title VII of the Civil Rights Act of 1964, and the Equal Protection Clause of the 14th Amendment. We must continue to ensure that our programs and activities are open and available to all persons on a non-discriminatory basis. We recognize that implementation will be a continuing and evolving process, and it is important to begin that process now to achieve an appropriate state of compliance by January 1, 2024, which is the effective date of SB 17.
FREQUENTLY ASKED QUESTIONS
Diversity, Equity, and Inclusion – Implementation of Senate Bill 17
September 6, 2023
Q. What is DEI?
A. DEI stands for diversity, equity, and inclusion. Diversity, Equity, and Inclusion, as defined by SB 17 and System Regulation 08.01, means engaging in any of the following actions:
- Influencing hiring or employment practices with respect to race, sex, color, or ethnicity, other than through the use of equal opportunity;
- Promoting differential treatment of or providing special benefits to individuals;
- Promoting policies or procedures about race, color, or ethnicity, except as expressly authorized by OGC in accordance with state law; or
- Conducting trainings, programs, or activities about race, color, ethnicity, gender identity, or sexual orientation, other than those expressly authorized by OGC in accordance with state law.
Q. May a system university or agency continue to operate an office or department that conducts DEI programs and activities?
A. No. Under SB 17 and System Regulation 08.01, an institution may not operate an office that engages in the practices listed above.
Q. SB 17 suggests our contractors may not have DEI offices or require any DEI training of their employees. Is this correct, and if so, how are we to enforce this with vendors such as Aramark, Chartwells, SSC and contractors building our CCAP projects?
A. The SB 17 prohibition applies when hiring an outside group to run or support DEI activities on behalf of the university. SB 17 does not allow a university to hire contractors to conduct DEI programs or activities on behalf of the university to avoid the new prohibitions. However, SB 17 does not apply to the internal operations or programs of our contractors.
Websites should not have information that promotes DEI programs or activities. Links to diversity offices or to programs that exclude a portion of the student population based on race, color, ethnicity, gender, or sexual orientation should be eliminated. Advertisements and social media should continue to utilize and maintain the EEO statement required under federal law.
Q. May information about DEI be on university websites or social media pages?
A. No. DEI information should not be on university websites, including but not limited to the acronym, DEI, or the phrase “diversity, equity, and inclusion.” Such prohibited information would be that which promotes the differential treatment of or special benefits to certain individuals or groups.
Q. May universities feature references to identity driven professional organizations, such as IEEE Women in Engineering on their website?
A. Yes, if the organization is committed to non-discrimination, is open to all individuals and communicates an all-inclusive message appropriately. The name of the organization does not necessarily constitute a problem under SB 17. It is the activity of an organization that should be the focus when deciding whether to feature content on university websites. For example, if an unaffiliated third-party organization offers several scholarship opportunities, and one of those opportunities impermissibly favors one race over another, a direct reference to that particular scholarship opportunity cannot be on a university website nor may the university provide any support for the administration of that scholarship. This is prudent not only under SB 17, but under the anti-discrimination requirements of Title VI and the Equal Protection Clause of the 14th Amendment. An example of an appropriate all-inclusive message for an organization whose name may suggest otherwise is as follows: “This program welcomes everyone regardless of age, color, disability, ethnicity, sex, gender identity, gender expression, genetic information, marital status, national origin, race, religion, sexual orientation, or veteran status. Our program provides learning opportunities to all participants.”
SB 17 states that the “governing board of an institution of higher education shall ensure that each unit of the institution: does not, except as required by federal law: . . . compel, require, induce, or solicit any person to provide a diversity, equity, and inclusion statement or give preferential consideration to any person based on the provision of a diversity, equity, and inclusion statement.” SB 17 also states that a preference may not be given to a particular applicant based on race, sex, color, ethnicity or national origin for employment.
Q. May a university ask applicants for a faculty position to provide a DEI statement or give preferential consideration to certain applicants based on their provision of a DEI statement?
A. No. Under SB 17, a university can neither compel, require, induce, or solicit a person to provide a DEI statement nor can it give preferential consideration to a person based on the provision of a DEI statement.
Q. May legally protected characteristics, such as race or gender, be considered when hiring faculty?
A. No. Hiring (selecting a particular qualified applicant for a position) must be conducted in accordance with system and university policy which has always been, and continues to be, that faculty members are hired based on merit. Merit can include notable scholarship on a particular topic, awarded grants, education, and experience. As noted above, SB 17, as well as the Chancellor, has stated the System cannot “compel, require, induce or solicit any person to provide a diversity, equity, and inclusion statement, or give preferential consideration to any person, based on the provision of a diversity, equity, and inclusion statement.” TAMUS should continue to hire on merit. However, we can take actions to recruit a diverse pool of applicants from which to select the best qualified person for the position, consistent with federal requirements, such as Executive Order 11246. Applicant pools should be as diverse as possible to hire the best applicants. Advertising jobs in non-traditional outlets/sources is encouraged.
SB 17 prohibits (i) giving preference on the basis of race, sex, color, ethnicity, or national origin to a participant in any function of the institution; (ii) hiring or assigning an employee or contracting with a third party to perform the duties of a DEI office; and (iii) requiring any person performing any institution function to participate in DEI training.
Q. May a university host university/college/department-wide events or programs that support diversity in a general way?
A. Yes, events or programs that support diversity in a general way are not affected by SB 17 as long as they do not promote preferential treatment of any particular group and are open to everyone. Examples include, but are not limited to, events or programs with themes of promoting a welcoming climate, ensuring curricular alignment, and cultural competency.
Q. May a university organize a conference or program that includes DEI programs or activities on campus?
A. No. SB 17 prohibits a university from conducting programs or activities that promote certain legally protected individuals and groups, such as those of a specific race, color, ethnicity, or sexual orientation. However, certain exemptions may apply such as efforts for student recruitment, guest speakers, or performers on short term engagement. There may also be an exception for certain events focused on faculty research or scholarship given the stated exceptions in SB 17.
Q. May a university host multicultural events or programs, such as those that recognize Hispanic Heritage Month, Black History Month, Asian American Pacific Islander Month, Women’s History Month, and Indigenous People’s Day?
A. Yes, as long as these events or programs are open to everyone who wants to participate. The Offices of Student Affairs and Student Success would be appropriate hosts of such events or programs, but they must not show preference for any one group over another. The emphasis must be on history and culture. Attendance at such events cannot be mandatory for students or employees.
If a student organization that is registered with or recognized by a member wants to host a multicultural event or program, even one that may include DEI elements, it can do so because student organizations are exempted from the limitations of SB 17. Guest speakers and performers on short-term engagements are also exempt from SB 17.
Q. May a university leader “recognize” a cultural celebration such as “Black History Month” in the form of an email blast or other campus communication?
A. Yes. SB 17 does not prevent leadership from recognizing the existence, history, and/or importance of such a celebration. However, caution should be taken to avoid differential treatment of campus community members on the basis of race, color, or ethnicity.
Q. May a university host events or programs focused on specific groups, such as Black Aggie Family BBQ, Latinx Theater at MSC, Lavender Graduation, or Rainbow Resource Fair?
A. Yes, subject to certain conditions. The mere name of an event or program does not indicate a violation of SB 17. However, engagement in DEI activities, as defined by the bill, such as promoting differential treatment of or providing special benefits to certain persons or groups does. Therefore, as with multicultural events, university events or programs that focus on specific groups should be open to everyone. And all groups should be evaluated and provided with university support (e.g. funding and access to facilities) according to the same objective standards in determining whether or not the event or program can take place.
Q. May a university support events or programs that are focused on faculty or staff in certain groups?
A. Yes, as long as the university treats all such groups equally. And as with students, these faculty and staff groups must be open to everyone and any university support for such groups must be consistent with the support the university provides to other faculty and staff groups. For example, the university may support a faculty group called, “Women Leaders in Business” if it permits membership of all gender types, even if the group’s primary purpose is to provide career and leadership training for women. And any benefits offered through this group by the university, such as free memberships or travel expenses, would have to be available to all, not just females.
Q. May a university recognize alumni networking groups that focus on specific groups of alumni, such as the Texas A&M Hispanic Network and Black Former Student Network groups.
A. Yes, but to the extent the university engages with stakeholders, such as alumni networking groups, it must avoid showing preference for one over the other. If a university website references alumni groups, providing a link to the Texas A&M Hispanic Network would be permissible as would links to other specific alumni groups as long as A&M was not providing benefits, such as scholarships, to those groups that are closed to a specific ethnicity, race, nation of origin, gender or sexual orientation.
Q. May a university authorize the use of campus facilities for a third-party, identity driven conference, such as a gathering of African-American lawyers?
A. Yes. Outside groups should be provided access to facilities in accordance with the university’s established criteria for facility use, including the standard reservation process and fee schedule. Denying facility access to such a group based on their viewpoint or identity driven purpose would violate state and federal law.
Q. May a university support or fund a third-party conference or program that may include a limited amount of DEI programming?
A. Yes. SB 17 does not prohibit an institution from supporting third-party academic or professional conferences or programs at locations away from campus. For example, a university may be a sponsor for an out-of-state conference that focuses on an appropriate academic topic but includes DEI programming of a limited nature without violating SB 17. However, if an institution were to make attendance at such a conference mandatory, it would violate SB 17.
Q. May a university provide funding or support for a student or student organization to attend an unaffiliated conference that meets the definition of DEI programming?
A. Yes. As noted earlier, student organizations are exempted from SB 17. Moreover, if a student organization seeks funding for travel or attendance to an unaffiliated, third-party conference that promotes its organizational mission, it should not be denied support because of the content or viewpoint of the program, assuming other similarly situated student organizations would receive the same support. The same rationale would apply to an individual student seeking university support for professional development off campus.
Generally, registered student organizations are not affected by the passage of SB 17. The law specifically exempts: an activity of a student organization registered with or recognized by an institution of higher education.
Q. Should a university deny benefits to student organizations that have the express purpose of conducting Diversity, Equity, and Inclusion (“DEI”) programming?
A. No. SB 17 expressly exempts student organizations from its restrictions. Moreover, Section 51.9315 of the Texas Education Code bars universities from denying a student organization any benefit that is generally available to student organizations, if the denial is based on the organization’s political, philosophical, ideological, or academic viewpoint or content. This statute was enacted in 2019 through SB 18 regarding free speech on public university campuses in Texas.
Q. Is a university barred from using state funds to support student organizations that have the express purpose of conducting DEI programming?
A. No. A university cannot deny a student organization generally available funding, regardless of its source. Section 51.9315 defines “benefit” as including “funding sources made generally available to student organizations at an institution of higher education.” If state funds are used in a neutral fashion to support other student organizations, the university cannot deny funding to the student organization because of its DEI work. And of course, SB 17 expressly exempts student organizations from its restrictions.
Q. May a university deny access to speakers brought in by student organizations because the speaker intends to conduct DEI programming?
A. No. SB 17 expressly exempts student organizations from its restrictions as well as short-term speakers. Moreover, 51.9315 also defines “benefit” to include the use of facilities for meetings or speaking purposes. It also requires only content and viewpoint neutral criteria for approving speakers.
Q. May identity driven student organizations continue to receive support and access to facilities?
A. Yes. Identity-driven organizations must be treated the same as non-identity driven organizations. Neutral funding open to all organizations must be made available, as well as access to facilities. Denying neutral funding and facility access would violate state and federal law as content or viewpoint discrimination.
Q. May staff and faculty continue to advise “identity” driven organizations, such as a Women in STEM organization?
A. Yes, as long as they do not receive special funding/compensation for providing this service that other advisors would not receive for advising non-identity driven organizations.
Q. May universities continue to “feature” identity driven organizations on their website or materials?
A. Yes, as long as they are not given preferential treatment because of their identity components. For example, an engineering program would be compliant with SB 17 if it listed all student organizations that are relevant to engineering students. To deny this neutrally available “benefit” would be in violation of state law governing expressive activity on campus.
Generally, academic course instruction is not affected by the passage of SB 17. The law specifically states that its limitations may not be construed to apply to: (1) academic course instruction or (2) scholarly research or a creative work by an institution of higher education’s students, faculty, or other research personnel or the dissemination of that research or work. Moreover, guest speakers and performers on short-term engagements are also exempt from SB 17.
Q. May a professor discuss race, ethnicity, sex, gender, gender identity, sexual orientation, or related topics in his/her course instruction?
A. Yes. SB 17 does not apply to academic course instruction, scholarly research or creative work by an institution of higher education’s students, faculty, or other research personnel or the dissemination of that research work. System policy recognizes a faculty member’s freedom in the classroom provided that comments are appropriate for and relevant to the classroom subject and are subject to the faculty member’s responsibility to maintain and exhibit professional competence in the classroom, to demonstrate professionalism, and to show respect for their students.
Q. May a professor use a statement related to DEI in their course syllabus?
A. A professor may, on their own syllabus, use a statement relating to DEI if it pertains to academic course instruction. However, such statements must not indicate an intention to treat students differently or in a preferential manner on the basis of their race, sex, color, ethnicity, or national origin.
Q. May academic programs still invite (and advertise) research colloquia by guests from outside the university where the research focuses on DEI issues?
A. Yes. SB 17 specifically exempts research, data collection, and guest speakers on a particular topic.
SB 17 exempts programs that support the academic achievement of students if they are designed and implemented without regard to race, sex, color, or ethnicity. Programs promoting academic achievement should be provided to all students regardless of their race, color, ethnicity, sex, gender identity, or sexual orientation. Nothing in SB 17 prevents institutions from training staff to identify common barriers for at-risk students. SB 17 does not apply to programs for first generation, low-income college students, or underserved student populations, as long as the programs are designed and implemented without regard to race, sex, color, or ethnicity. These programs can continue as well as programs for veterans and students with disabilities as required under federal law.
Q. May university members assist students with obtaining fellowships or internships that focus on DEI?
A. Yes. University assistance in obtaining career opportunities, including fellowships or internships, is exempt from SB 17, if the university assistance is designed and implemented without regard to the race, sex, color, or ethnicity of the student. Career centers, as well as student success resources, must be available to all students, regardless of their particular career choice. For example, a political science student applying for a fellowship with the NAACP, may seek assistance from the career center as long as that assistance is available to all students, regardless of their race, sex, color, or ethnicity.
Q. May faculty or staff write a Letter of Recommendation for a student who is applying for a position or internship with an external group focused on race, sex, gender, national origin, sexual orientation, or gender identity?
A. Yes, SB 17 does not prohibit staff or employees from writing letters of recommendation for graduate or undergraduate students. For example, a letter of recommendation for a summer internship with the NAACP would be permitted.
SB 17 states: Nothing in this section may be construed to limit or prohibit an institution of higher education or an employee of an institution of higher education from: for purposes of applying for a grant or complying with the terms of accreditation by an accrediting agency, submitting to the grant or accrediting agency a statement that highlights the institution ’s work in supporting first-generation college students; low-income students; or underserved student populations; or certifies compliance with state or federal antidiscrimination laws.
Q. What does the above provision from SB 17 mean?
A. As part of applying for a grant for research or academic work, a university faculty or staff member can detail the institution’s support of first-generation, low- income, or underserved student populations. Also, the faculty or staff member may certify compliance with state and federal non-discrimination laws as part of the application. Note, however, that this provision in SB 17 does not authorize a grant to perform DEI work that does not constitute academic course instruction, scholarly research or a creative work, data collection, or another activity specifically exempted by SB 17 as discussed in this document. A grant cannot be sought to establish an entity within the university to perform DEI work (for example set up a DEI office) as defined by the statute.
Q. How does SB 17 affect student scholarships?
A. Student scholarships are not affected by SB 17 if they are awarded and administered by a System university without regard to race, sex, color, ethnicity, or national origin, and if a DEI statement is not required or considered as part of the application. However, if a scholarship is closed to a specific race, color, ethnicity, nation of origin, sex, gender identity, or sexual orientation, a System university cannot support the efforts under SB 17, federal law, and System policy. If an entity separate from the university offers a closed scholarship that is prohibited by SB 17, System policy, or federal law, the System university may not participate in any manner in the award or implementation of the scholarship. Further, such “closed scholarships” offered by external groups cannot be specifically advertised on System websites and should be removed if identified.
Senate Bill SB 17 specifically excludes data collection, including that of identifying characteristics of the applicant or employee. Said demographics are required for EEO reports and to comply with other state and federal laws.
Q. May funds, whether they be from endowed chairs or professorships (or faculty fellowships) or from the state, be used to support research on DEI topics?
A. Yes. SB 17 specifically exempts research and data collection.
Q. May researchers use race, ethnicity, color, or sex in gathering data for research?
A. Yes. SB 17 specifically exempts research and data collection.
Senate Bill 17 specifically excludes student recruitment efforts or admissions from the law.
Q. May a university send recruitment staff to an event geared towards recruiting underserved racial or ethnic groups?
Q. May a university train recruitment staff on cultural competence that will assist them in recruiting students from certain identity groups (race, ethnicity, sex, etc.)
Q. Does SB 17 affect sex-based athletic teams?
A. No. Another law, recently passed Senate Bill 15, reinforces the existence of single sex teams. Federal law, including Title IX, specifically permits separation of teams by sex. Moreover, Title IX already requires equitable treatment of student- athletes regardless of sex.
Q. May employees seek out and receive training from third parties that involves race, color, ethnicity, sexual orientation or gender identity?
A. It depends. Senate Bill 17 prohibits institutions from requiring employees to attend trainings designed or implemented in reference to race, color, ethnicity, gender identity, or sexual orientation, unless the training is required under federal or state law. This prohibition applies to university-led trainings and those offered by third parties.
On the other hand, voluntary training through third parties may be permissible for the professional development of individual employees. An employee who seeks institutional support, such as cost of attendance, must articulate a direct professional connection between the third-party training and the employee’s job responsibilities. Institutions should not contract directly with DEI programmers for voluntary or mandatory training on campus as that would constitute an impermissible outsourcing of DEI work.
Q. May college/department monies (some of which are state funds, some of which are local funds) be used to support academic or professional conference travel where the topic of the presentation is DEI?
A. It depends. SB 17 does not preclude support for continuing education or engaging with professional associations or conferences. However, the university should have a neutral basis for providing such funding that does not consider DEI as a factor in providing the funds. Institutional leadership cannot compel attendance at DEI programs nor outsource DEI work.
Q. May a faculty or staff member conduct independent DEI work outside the university, such as work as a consultant or trainer?
A. Yes. Nothing in SB 17 limits faculty or staff members’ ability to conduct such work on their personal time if the work complies with other limitations on outside work, such as conflict of interest or other ethical limitations.
Q. May faculty receive “release time” to conduct research or other scholarly pursuits involving DEI?
A. Yes. If the work is within the faculty member’s subject matter expertise or scope of scholarly work. SB 17 provides an exception for scholarly research.
Q. May a university give preference to a job applicant with second language fluency?
A. Yes, if the preference is legitimately connected to the position description and essential to the job duties and responsibilities and not as a pretext for a racial or ethnic preference.
Q. May institutions maintain offices that provide resources to the LGBTQ community?
A. 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 SB 17. Even though offices solely dedicated to LGBTQ students will need to be restructured, programs supporting the LGBTQ community may be incorporated into a broader student success and multicultural framework.
Also, while SB 17 prohibits institutions from “assigning” or “hiring” an employee to conduct “programs or activities” that are “designed or implemented in reference to. . . gender identity, or sexual orientation,” the bill exempts programs needed for effective compliance with federal or state law.
Current federal guidance1 states that discrimination on the basis of sexual orientation or gender identity constitutes a violation of Title IX. This means that institutions have an affirmative duty to prevent and address such discrimination or risk the following: (1) investigation from the Office for Civil Rights at the Department of Education, which could result in loss of federal funding, and/or (2) a civil rights lawsuit. Moreover, the new Title IX regulations, which are anticipated to be finalized in October 2023, explicitly define sex discrimination to include discrimination based on gender identity and sexual orientation. In addition to federal law, Section 51.282 of the Texas Education Code requires institutions to “develop and implement a comprehensive prevention and outreach program on sexual harassment.”
To the extent that programming previously provided by these offices support compliance with Title IX as well as Section 51.282, such as by eliminating disparate treatment or preventing a hostile environment against the groups in question, they should be maintained. This does not mean that all programming previously supported fits this exception. Such programming should be reviewed by the federally mandated Title IX officer or their designee(s) in order to ensure its positive impact on Title IX and related state law compliance. This may require moving resources and employees with relevant expertise under the supervision or coordination of the Title IX office or its equivalent. Programming provided under the exception should be focused on supporting the A&M System’s commitment to anti-discrimination and eliminating barriers to success.
Resources supporting the academic success of members of the LGBTQ community should be migrated to offices with a broader focus on student success for all students, such as an academic center or multicultural center.
In the case of libraries related to the LGBTQ community, SB 17 does not prohibit the maintenance of such collections. However, they should be migrated to the Title IX Office, the university library, or into a broader multicultural center marketed to all students as appropriate.
Q. May student organizations put on events in support of the LGBTQ community?
A. Yes. Student Organizations are exempt from the limitations of SB 17. As such, student organizations may host programs and initiatives supporting the LGBTQ community, including programs discussing sexual orientation or gender identity.
Q. May university officials ask for, or collect, a student’s preferred pronouns or preferred name?
A. Yes. Nothing in SB 17 affects the ability to ask for or use preferred pronouns. However, institutions should not require students or employees to attend training on the use of preferred pronouns or provide preferential treatment based on pronouns preferred by a student or employee.
Related Statutes, Policies or Requirements
Title IX of the Education Amendments of 1972
Titles VI and VII of the Civil Rights Act of 1964, amended The Rehabilitation Act of 1973, as amended
Americans with Disabilities Act of 1990, as amended Texas Education Code Section 51.9315
Texas Commission on Human Rights Act
Texas Labor Code, Ch. 21, Employment Discrimination
State of Texas Disparity Study Historically Underutilized Business Program System Policy 08.01, Civil Rights Protections and Compliance
System Policy 12.01, Academic Freedom, Responsibility and Tenure