New State Laws on Firing Faculty (SB 18) and
Description: New State Laws on Firing Faculty (SB 18) and Banning DEI Programs Practices (SB 17) Brian L. Evans Interim President Texas AAUP Conference March 21, 2024 Speaking for myself as a private individual Not speaking on behalf of any group,
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slide1. New State Laws on Firing Faculty (SB 18) and Banning DEI Programs & Practices (SB 17) Brian L. Evans
Interim President Texas AAUP Conference March 21, 2024 Speaking for myself as a private individual
Not speaking on behalf of any group, institution, or organization<br>
slide2. ● Founded in 1915 by faculty and has 45,000 members
● Champions academic freedom, advances shared governance, and organizes all faculty to promote economic security and quality education
● Develops standards and procedures to protect academic freedom and ensure shared governance adopted by more than 1500 colleges and universities.
● Welcomes faculty, researchers, grad students & academic advisors as members and others as associate members – join at aaup.org.
● Affiliated with American Federation of Teachers (1.7M including 148,000 professors) on Aug. 1, 2022. Texas AFT has 66,000 members. American Association of University Professors (AAUP)<br>
slide3. Texas AAUP Conference Members at 75 universities, comm. colleges, health-related inst.
Advocacy amplified by Texas AFT & NAACP Legal Defense Fund
In the House, our coordinated effort among 10 higher ed orgs to organize faculty, staff, students, alumni, and others
Led to change in legal definition of tenure from one-year guaranteed contracts to continuous employment (SB 18)
Led to changes in anti-DEI bill including several exceptions for external grants (SB 17)
Helped defeat the censorship bill (SB 16) Karma R. Chávez, Lessons from AAUP Advocacy in Texas, Academe, 2023. How a revived AAUP chapter and a coalition of allies mobilized against a legislative assault.<br>
slide4. In higher education, academic freedom lies at the heart of the free, independent, critical inquiry fundamental to the mission of a college or university
Faculty in AAUP and college/university Presidents in American Association of Colleges & Universities jointly formulated academic freedom principles for teachers: [1]
freedom to discuss all relevant matters in the classroom
freedom to explore all avenues of scholarship, research, and creative expression and to publish the results of such work
freedom from institutional censorship or discipline when speaking or writing as participants in the governance of an educational institution
freedom from institutional censorship when speaking or writing as a citizen Academic Freedom [1] 1940 Statement: https://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure<br>
slide5. Academic freedom empowers faculty as well as other teachers and researchers to
bring the latest breakthroughs into the classroom
innovate in scholarly research and creative endeavors
disseminate knowledge for the benefit of society
Academic freedom allows teachers to help students develop the critical thinking, knowledge, training, and professional networks needed for successful careers
Critical thinking is a required course outcome by THECB. [2]
AAUP, Presidents, and Boards of Regents jointly formulated principles for shared governance and due process [3] which are key safeguards of academic freedom Academic Freedom [2] Texas Higher Ed. Coordinating Board, Lower Division Academic Course Guide Manual, Spring 2018.
[3] 1966 Joint Statement, https://www.aaup.org/report/statement-government-colleges-and-universities<br>
slide6. SB18 Modified Post-Tenure Review in Education Code Part 1 – Adds Tenure Definition
Codifies tenure as continuous employment Sec. 2 Part 4
Only a governing board may grant tenure Sec. 3(b)
Supreme Court held tenure as a property right – property amount in Sec. 3(c) **
Part 2 – Faculty dismissal with due process in Sec. 3(c-1)
“Each governing board … shall adopt policies and procedures regarding tenure”
Defines 10 ways to dismiss a tenured faculty member
Continues provisions for periodic post-tenure review processes
Part 3 – Summary (“Immediate”) Dismissal in Sec. 3(c-4)
Sets minimum standards for institutions that choose to have summary dismissal Underlined text means text added to existing law ** 14th Amendment of the US Constitution: Government cannot deprive an individual of property or liberty without due process, but each State defines the property interest. 6<br>
slide7. Concerns About SB 18 (1/2) Academic Freedom not mentioned
Connect academic freedom as a necessary safeguard of academic freedom
Academic freedom: freedom from censorship by the institution or government
Other academic freedom safeguards include due process & shared governance
Part 2: Seven reasons for termination are undefined or vague and many do not indicate severity or pervasiveness
exhibited professional incompetence
failed to perform duties or meet professional responsibilities
engaged in conduct involving moral turpitude
violated laws or university system or institution policies
engaged in unprofessional conduct that adversely affects the institution
violated … university system or institution policies
other good cause as defined in the institution’s policies 7<br>
slide8. Concerns About SB 18 (2/2) Part 2: Additional grounds for termination in Sec. 3(c-1) include
Failure to complete a development plan from post-tenure review
“other good cause as defined in the institution’s policies”
Part 3: Lack of due process protections for summary dismissal in Sec. 3(c-4)
A “designated administrator” is the sole arbiter in determining the outcome instead of a ”jury of one’s peers”
Does not give faculty opportunity to examine evidence or talk to witnesses
Does not provide faculty the option for legal representation
Allows a faculty grievance process only after termination 8<br>
slide9. SB17 Bans DEI Programs and Practices (1/3) Defines a diversity, equity, and inclusion (DEI) office per Sec. 1(a)
● Influencing hiring or employment practices w/r to race, color, ethnicity or sex
● Promoting differential treatment to individuals on basis of race, color, or ethnicity
● Promoting policies or procedures w/r to race, color, or ethnicity
● Conducting trainings, programs, or other activities designed or implemented in reference to race, color, ethnicity, gender identity, or sexual orientation
Bans per Sec. 1(b)
● DEI offices, officers, programs, practices, and trainings
● Requirement of, or providing preferential treatment for, a DEI statement
● Preference on basis of race, sex, color, ethnicity, or national origin to an applicant for employment, an employee, or a participant in any function of institution
● An employee or third party from performing the duties of a DEI office<br>
slide10. SB17 Bans DEI Programs and Practices (2/3) Exceptions to ban in Sec 1(d):
● Academic course instruction
● Scholarly research or a creative work
● Student organizations
● Guest speakers
● Enhance student academic achievement or postgraduate outcomes that is designed and implemented without regard to race, sex, color, or ethnicity
● Data collection
● Student recruitment or admissions
When applying for grants or complying with terms for accreditation
● Can submit a statement highlighting the institution’s work in supporting first-generation, low-income, and underserved student populations, per Sec 1(c)<br>
slide11. SB17 Bans DEI Programs and Practices (3/3) Penalties for faculty, staff, and contractors per Sec 1(b)(2)
● Discipline is up to and including termination for any employee or contractor who engages in conduct banned on slide 6
● Policies and procedures developed by each Governing Board
Institutional compliance and penalties per Sec. 1(e) and 1(h)
● Institution may not spend State funds each year until Governing Board certifies compliance
● If a state auditor finds an institution out of compliance, the institution has 180 days to cure the violation
● If an institution does not get into compliance, institution will lose formula funding increases, institutional enhancements, or exceptional items in the next biennium
Student or employee may sue if required to participate in DEI training: Sec. 1(i)<br>
slide12. SB17 Exemption for Course Instruction & Research “Don’t do the censors’ work for them” — Jeremy C. Young, PEN America
SB 17 does not affect course instruction, scholarly research, or creative works
● We can and should continue to teach and research about racism, inequality, LGBTQ+ issues, and DEI itself.
● You should not censor yourself by avoiding teaching material that could be controversial. By doing so we make instructors who cannot avoid these subjects MORE vulnerable.
● You might consider reminding students at the beginning of the semester that SB 17 does not affect what they can talk or learn about in class.
Sample syllabus rider: Texas Senate Bill 17, the recent law that outlaws diversity, equity, and inclusion programs at public colleges and universities in Texas, does not in any way affect content, instruction or discussion in a course at public colleges and universities in Texas. Expectations and academic freedom for teaching and class discussion have not been altered post-SB 17, and students should not feel the need to censor their speech pertaining to topics including race and racism, structural inequality, LGBTQ+ issues, or diversity, equity, and inclusion.<br>
slide13. 2023-25 State Budget Cannot Be Used for DEI Practices Special Provisions Relating Only to State Agencies of Higher Education
Proposed Rider Prohibition on Diversity, Equity, and Inclusion Practices
Prohibition on Diversity, Equity, and Inclusion Practices. It is the intent of the Legislature that no funds appropriated by this Act may be expended for diversity, equity, & inclusion practices or similar programs, including personnel, training or activities, on state supported college campuses, state supported university campuses or those who receive state funding, notwithstanding state and federal law. Same language adopted in a Texas House Budget Rider and Senate Budget Rider
Passed by House and Senate, and signed into law All House Higher Ed Budget Riders adopted March 16, 2023<br>
slide14. SB17 and 2023-25 State Budget Ban on DEI Practices Open to legal interpretation by institutional and system/district legal counsel
Penalties for institution violating SB 17 affect the next two-year State budget
Lose formula funding increases, institutional enhancements, or exceptional items
Student Organizations
Have an exception under SB 17; however, they
Cannot receive funding from the State Budget for DEI Practices
Difference between “and” and “or” in SB 17
“conducting trainings, programs, or activities designed or implemented in reference to race, color, ethnicity, gender identity, or sexual orientation”
What constitutes “diversity training”? Giving student advice? Casual conversation?<br>
slide15. Examples of Impact at UT Austin Division of Diversity and Community Engagement
Multicultural Engagement Center (MEC)
Gender and Sexuality Center
Office for Institutional Equity
Monarch Program for guidance and scholarships for undocumented students Division of Campus and Community Engagement
Closed Jan. 1, 2024
Women's Community Center (no LGBTQ+ programming or content)
Center for Access and Restorative Engagement (diversity training discontinued)
Closed Jan. 10, 2024 -- students created Immigrant Student Liberation Collective Lily Kepner, “What UT lost with SB 17: American-Statesman's guide to changes due to Texas' anti-DEI law”, Austin American-Statesman, Jan. 29, 2024. Link. MEC: sponsored student groups — Afrikan American Affairs, Asian Desi Pacific Islander American Collective, Latino Leadership Council, Native American and Indigenous Collective, Queer People of Color and Allies, Students for Equity and Diversity<br>
slide16. Examples of Impact at UT Austin Faculty & Staff Associations: Asian/Asian American; Black; Hispanic; and Pride & Equity
UT student graduations: Black; LGBTQ+; Latinx (bilingual ceremony)
Heman Sweatt Center for Black Males
UT's Public Voices Fellowship to help faculty members from underrepresented groups publish op-eds
Longhorn Center for Academic Equity for graduate school preparation Moved off campus; lost UT Austin resources
Moved off campus; lost UT Austin resources; current help from alumni association
Heman Sweatt Center for Collegiate Males
Closed Nov. 2023
Center for Leadership and Learning Lily Kepner, “What UT lost with SB 17: American-Statesman's guide to changes due to Texas' anti-DEI law”, Austin American-Statesman, Jan. 29, 2024. Link.<br>
Interim President Texas AAUP Conference March 21, 2024 Speaking for myself as a private individual
Not speaking on behalf of any group, institution, or organization<br>
slide2. ● Founded in 1915 by faculty and has 45,000 members
● Champions academic freedom, advances shared governance, and organizes all faculty to promote economic security and quality education
● Develops standards and procedures to protect academic freedom and ensure shared governance adopted by more than 1500 colleges and universities.
● Welcomes faculty, researchers, grad students & academic advisors as members and others as associate members – join at aaup.org.
● Affiliated with American Federation of Teachers (1.7M including 148,000 professors) on Aug. 1, 2022. Texas AFT has 66,000 members. American Association of University Professors (AAUP)<br>
slide3. Texas AAUP Conference Members at 75 universities, comm. colleges, health-related inst.
Advocacy amplified by Texas AFT & NAACP Legal Defense Fund
In the House, our coordinated effort among 10 higher ed orgs to organize faculty, staff, students, alumni, and others
Led to change in legal definition of tenure from one-year guaranteed contracts to continuous employment (SB 18)
Led to changes in anti-DEI bill including several exceptions for external grants (SB 17)
Helped defeat the censorship bill (SB 16) Karma R. Chávez, Lessons from AAUP Advocacy in Texas, Academe, 2023. How a revived AAUP chapter and a coalition of allies mobilized against a legislative assault.<br>
slide4. In higher education, academic freedom lies at the heart of the free, independent, critical inquiry fundamental to the mission of a college or university
Faculty in AAUP and college/university Presidents in American Association of Colleges & Universities jointly formulated academic freedom principles for teachers: [1]
freedom to discuss all relevant matters in the classroom
freedom to explore all avenues of scholarship, research, and creative expression and to publish the results of such work
freedom from institutional censorship or discipline when speaking or writing as participants in the governance of an educational institution
freedom from institutional censorship when speaking or writing as a citizen Academic Freedom [1] 1940 Statement: https://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure<br>
slide5. Academic freedom empowers faculty as well as other teachers and researchers to
bring the latest breakthroughs into the classroom
innovate in scholarly research and creative endeavors
disseminate knowledge for the benefit of society
Academic freedom allows teachers to help students develop the critical thinking, knowledge, training, and professional networks needed for successful careers
Critical thinking is a required course outcome by THECB. [2]
AAUP, Presidents, and Boards of Regents jointly formulated principles for shared governance and due process [3] which are key safeguards of academic freedom Academic Freedom [2] Texas Higher Ed. Coordinating Board, Lower Division Academic Course Guide Manual, Spring 2018.
[3] 1966 Joint Statement, https://www.aaup.org/report/statement-government-colleges-and-universities<br>
slide6. SB18 Modified Post-Tenure Review in Education Code Part 1 – Adds Tenure Definition
Codifies tenure as continuous employment Sec. 2 Part 4
Only a governing board may grant tenure Sec. 3(b)
Supreme Court held tenure as a property right – property amount in Sec. 3(c) **
Part 2 – Faculty dismissal with due process in Sec. 3(c-1)
“Each governing board … shall adopt policies and procedures regarding tenure”
Defines 10 ways to dismiss a tenured faculty member
Continues provisions for periodic post-tenure review processes
Part 3 – Summary (“Immediate”) Dismissal in Sec. 3(c-4)
Sets minimum standards for institutions that choose to have summary dismissal Underlined text means text added to existing law ** 14th Amendment of the US Constitution: Government cannot deprive an individual of property or liberty without due process, but each State defines the property interest. 6<br>
slide7. Concerns About SB 18 (1/2) Academic Freedom not mentioned
Connect academic freedom as a necessary safeguard of academic freedom
Academic freedom: freedom from censorship by the institution or government
Other academic freedom safeguards include due process & shared governance
Part 2: Seven reasons for termination are undefined or vague and many do not indicate severity or pervasiveness
exhibited professional incompetence
failed to perform duties or meet professional responsibilities
engaged in conduct involving moral turpitude
violated laws or university system or institution policies
engaged in unprofessional conduct that adversely affects the institution
violated … university system or institution policies
other good cause as defined in the institution’s policies 7<br>
slide8. Concerns About SB 18 (2/2) Part 2: Additional grounds for termination in Sec. 3(c-1) include
Failure to complete a development plan from post-tenure review
“other good cause as defined in the institution’s policies”
Part 3: Lack of due process protections for summary dismissal in Sec. 3(c-4)
A “designated administrator” is the sole arbiter in determining the outcome instead of a ”jury of one’s peers”
Does not give faculty opportunity to examine evidence or talk to witnesses
Does not provide faculty the option for legal representation
Allows a faculty grievance process only after termination 8<br>
slide9. SB17 Bans DEI Programs and Practices (1/3) Defines a diversity, equity, and inclusion (DEI) office per Sec. 1(a)
● Influencing hiring or employment practices w/r to race, color, ethnicity or sex
● Promoting differential treatment to individuals on basis of race, color, or ethnicity
● Promoting policies or procedures w/r to race, color, or ethnicity
● Conducting trainings, programs, or other activities designed or implemented in reference to race, color, ethnicity, gender identity, or sexual orientation
Bans per Sec. 1(b)
● DEI offices, officers, programs, practices, and trainings
● Requirement of, or providing preferential treatment for, a DEI statement
● Preference on basis of race, sex, color, ethnicity, or national origin to an applicant for employment, an employee, or a participant in any function of institution
● An employee or third party from performing the duties of a DEI office<br>
slide10. SB17 Bans DEI Programs and Practices (2/3) Exceptions to ban in Sec 1(d):
● Academic course instruction
● Scholarly research or a creative work
● Student organizations
● Guest speakers
● Enhance student academic achievement or postgraduate outcomes that is designed and implemented without regard to race, sex, color, or ethnicity
● Data collection
● Student recruitment or admissions
When applying for grants or complying with terms for accreditation
● Can submit a statement highlighting the institution’s work in supporting first-generation, low-income, and underserved student populations, per Sec 1(c)<br>
slide11. SB17 Bans DEI Programs and Practices (3/3) Penalties for faculty, staff, and contractors per Sec 1(b)(2)
● Discipline is up to and including termination for any employee or contractor who engages in conduct banned on slide 6
● Policies and procedures developed by each Governing Board
Institutional compliance and penalties per Sec. 1(e) and 1(h)
● Institution may not spend State funds each year until Governing Board certifies compliance
● If a state auditor finds an institution out of compliance, the institution has 180 days to cure the violation
● If an institution does not get into compliance, institution will lose formula funding increases, institutional enhancements, or exceptional items in the next biennium
Student or employee may sue if required to participate in DEI training: Sec. 1(i)<br>
slide12. SB17 Exemption for Course Instruction & Research “Don’t do the censors’ work for them” — Jeremy C. Young, PEN America
SB 17 does not affect course instruction, scholarly research, or creative works
● We can and should continue to teach and research about racism, inequality, LGBTQ+ issues, and DEI itself.
● You should not censor yourself by avoiding teaching material that could be controversial. By doing so we make instructors who cannot avoid these subjects MORE vulnerable.
● You might consider reminding students at the beginning of the semester that SB 17 does not affect what they can talk or learn about in class.
Sample syllabus rider: Texas Senate Bill 17, the recent law that outlaws diversity, equity, and inclusion programs at public colleges and universities in Texas, does not in any way affect content, instruction or discussion in a course at public colleges and universities in Texas. Expectations and academic freedom for teaching and class discussion have not been altered post-SB 17, and students should not feel the need to censor their speech pertaining to topics including race and racism, structural inequality, LGBTQ+ issues, or diversity, equity, and inclusion.<br>
slide13. 2023-25 State Budget Cannot Be Used for DEI Practices Special Provisions Relating Only to State Agencies of Higher Education
Proposed Rider Prohibition on Diversity, Equity, and Inclusion Practices
Prohibition on Diversity, Equity, and Inclusion Practices. It is the intent of the Legislature that no funds appropriated by this Act may be expended for diversity, equity, & inclusion practices or similar programs, including personnel, training or activities, on state supported college campuses, state supported university campuses or those who receive state funding, notwithstanding state and federal law. Same language adopted in a Texas House Budget Rider and Senate Budget Rider
Passed by House and Senate, and signed into law All House Higher Ed Budget Riders adopted March 16, 2023<br>
slide14. SB17 and 2023-25 State Budget Ban on DEI Practices Open to legal interpretation by institutional and system/district legal counsel
Penalties for institution violating SB 17 affect the next two-year State budget
Lose formula funding increases, institutional enhancements, or exceptional items
Student Organizations
Have an exception under SB 17; however, they
Cannot receive funding from the State Budget for DEI Practices
Difference between “and” and “or” in SB 17
“conducting trainings, programs, or activities designed or implemented in reference to race, color, ethnicity, gender identity, or sexual orientation”
What constitutes “diversity training”? Giving student advice? Casual conversation?<br>
slide15. Examples of Impact at UT Austin Division of Diversity and Community Engagement
Multicultural Engagement Center (MEC)
Gender and Sexuality Center
Office for Institutional Equity
Monarch Program for guidance and scholarships for undocumented students Division of Campus and Community Engagement
Closed Jan. 1, 2024
Women's Community Center (no LGBTQ+ programming or content)
Center for Access and Restorative Engagement (diversity training discontinued)
Closed Jan. 10, 2024 -- students created Immigrant Student Liberation Collective Lily Kepner, “What UT lost with SB 17: American-Statesman's guide to changes due to Texas' anti-DEI law”, Austin American-Statesman, Jan. 29, 2024. Link. MEC: sponsored student groups — Afrikan American Affairs, Asian Desi Pacific Islander American Collective, Latino Leadership Council, Native American and Indigenous Collective, Queer People of Color and Allies, Students for Equity and Diversity<br>
slide16. Examples of Impact at UT Austin Faculty & Staff Associations: Asian/Asian American; Black; Hispanic; and Pride & Equity
UT student graduations: Black; LGBTQ+; Latinx (bilingual ceremony)
Heman Sweatt Center for Black Males
UT's Public Voices Fellowship to help faculty members from underrepresented groups publish op-eds
Longhorn Center for Academic Equity for graduate school preparation Moved off campus; lost UT Austin resources
Moved off campus; lost UT Austin resources; current help from alumni association
Heman Sweatt Center for Collegiate Males
Closed Nov. 2023
Center for Leadership and Learning Lily Kepner, “What UT lost with SB 17: American-Statesman's guide to changes due to Texas' anti-DEI law”, Austin American-Statesman, Jan. 29, 2024. Link.<br>