Alabama SB 129: Defunding DEI Programs

by Beth Ann Powers, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

In June 2023, the United States Supreme Court ruled that affirmative action in colleges admissions was unconstitutional.¹ In this ruling, the Court declared that race, ethnicity, etc. should not be considered in university admissions as these programs “fail to comply with strict scrutiny” and at some points use race as a stereotype or negative.² Not only has this case changed the picture of college admissions, it’s also sparked debate over diversity, equity, and inclusion (“DEI”) programs and initiatives all across the U.S.. As a result, around eighty pieces of legislation have been proposed that reduce or limit DEI programs and offices in some way in twenty-eight states and Congress.³ One in particular, Alabama Senate Bill 129 (“SB 129”), has been approved and will go into place October 1, 2024.

This article explores what Alabama’s bill does and what the removal of DEI programs look like. Part II provides background on diversity, equity, and inclusion programs and overruling of affirmative action in Students for Fair Admissions v. Harvard (“SFFA”). Part III discusses the alarming nature of Alabama’s bill as well as similar initiatives across the U.S.

II. Background

DEI programs were originally started in the mid 1960s for the purposes of promoting inclusion and equal opportunities specifically in areas that historically failed to be easily accessible to minority groups.⁴ The introduction of these programs aimed to create workplace diversity trainings to integrate offices as societal movements, such as the Civil Rights Act, and legal changes began to reshape the corporate world.⁵ These programs developed to address needs of racial and gender equality, as well as ethnic, religious, and LGBTQ+ groups. Initial DEI programs taught through inclusive methods, trying to educate a deeper understanding of diversity and its role in enhancing the workplace.⁶ Typical DEI programs include initiatives focusing on biases, inclusive leadership, and integrating DEI into overall business strategy. The creation of positions such as “Chief Diversity Officer” on executive boards or “Officer of Diversity, Equity, and Inclusion” eventually developed across workplaces as part of DEI initiatives.⁷ Through the years, DEI programs or offices spread all throughout schools, colleges, universities, and workplaces and became an integral part in fostering a sense of community.

In 2023, affirmative action was overruled in the U.S. Supreme Court Case, Students for Fair Admissions v. Harvard.⁸ In this case, the Justices voted 6-2 that considering race in college admissions decisions, “cannot be reconciled with the guarantees of the Equal Protection Clause” as programs that consider race in university admissions “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”⁹ While the SFFA ruling only applies to affirmative action in college admissions many wondered if its rationale would be used to support challenges to other race-related programs outside of just admissions.¹⁰ Consequently, numerous lawsuits have been brought, and legislation proposed and passed, targeting the legality of DEI programs and initiatives.¹¹ One lawsuit specifically challenged the legality of law firms’ “diversity fellowships” that offered diverse law students with stipends after being hired at the law firms.¹² The plaintiff in the suit, the American Alliance for Equal Rights, accused the law firm of being “racially discriminatory” by requiring fellows to be “in a historically underrepresented group in the legal profession, including racial/ethnic minority groups.”¹³ To avoid further litigation, the law firm adjusted its diversity fellowship program to all first-year law students.¹⁴ The lawsuit is just one example of reasoning from the FSSA case being used to adjust or end a DEI program.

III. Discussion

Alabama’s SB 129, signed into law by Governor Kay Ivey on March 19, bans state funding of DEI programs or offices in schools, public colleges, and state agencies.¹⁵ Schools, public colleges, and state agencies will have to evaluate any DEI programs they have and restrict what the bill calls “divisive concepts” that deal with race, class, sexuality, and personal identity.¹⁶ The bill states that these public institutions may not: sponsor or maintain a DEI program or office; “direct or compel a student, employee, or contractor to personally affirm, adopt, or adhere to a divisive concept,”; require people to “attend or participate in any diversity, equity, and inclusion program or any training, orientation, or course work that advocated for or requires assent to a divisive concept”; make anyone “share his or her personal point of view on any divisive concept outside of an academic setting”; spend their own funds “or apply for or accept a grant, federal funding, or private funding, for the purpose of compelling assent to any divisive concept of any other purpose prohibited in this act, provided that such funding may be provided to student, faculty, or staff organizations or associations,” among other things.¹⁷

What are these “divisive concepts” the bill is adamant about preventing being forced on students or employees? The “divisive concepts” cover a wide-range of topics that include the ideas that people in one demographic group are “inherently responsible for actions committed in the past by other members” of that group and that “any individual should accept, acknowledge, affirm, or assent to a sense of guilt, complicity, or a need to apologize on the basis of his or her race, color, religion, sex, ethnicity, or natural origin,” among others.¹⁸ The bill goes on to clarify that student, staff, or faculty groups could host specific DEI events or discussions, so long as they do not use state funds to do so.¹⁹ It also allows public colleges to authorize teaching any “divisive concept” as long as it is done “in an objective manner and without endorsement as part of a larger course of academic institution.”²⁰

SB 129 also goes on to prohibit public colleges from allowing people to use a restroom that differs from their sex assigned at birth.²¹

The law is vague, and what its implications will actually look like are not totally clear. It does not supersede federal laws or previously established accreditation standards.²² Auburn and University of Alabama System officials have emphasized that the bill’s ban has several exceptions that will not prohibit research, scholarship or outreach programs, academic support services, medical care, or instruction for accreditation standards.²³ In K-12 schools, the Alabama State Department of Education that oversees schools claims it will provide guidance to schools before the law goes into effect, then it will be up to local school boards to decide how to handle noncompliance issues.²⁴ For state public colleges, the board of trustees will make decisions about how to enforce noncompliance with the law.²⁵ University of Alabama’s chancellor and the presidents of its universities wrote to faculty, staff, and students ensuring that their campuses will remain welcoming environments while continuing to comply with applicable state and federal law.²⁶

The claimed purpose of the bill is to “prevent compelled speech and indoctrination,” according to Alabama State Senator Will Barfoot, as he introduced the bill.²⁷ However, critics have strongly spoken out against it, particularly concerned with the chilling effect it may have on discourse surrounding any of the restricted topics.²⁸ There is also worry about the effect of the bill on underrepresented students and employees.²⁹ The American Civil Liberties Union (“ACLU”) of Alabama called the bill “a form of classroom censorship” and an “anti-truth bill which curtails an education on systemic inequities, racial violence, and the historic efforts to gain civil rights and liberties for marginalized communities throughout our nation’s history.”³⁰ Alabama House Representative Ontario Tillman called the bill a Fourteenth Amendment violation, “clearly unconstitutional,” and a violation of the First Amendment in its infliction of prior restraint of speech.³¹ A program director at PEN America called the bill “the most restrictive educational gag order in the country.”³²

Clearly, SB 129 has been highly criticized, and rightfully so. Instead of protecting the groups that are at the center of DEI initiatives, the bill strips schools and public agencies from the ability to create safe and welcoming environments for underrepresented communities. In its wording, the bill essentially dresses up its restriction of “divisive concepts” as protecting people of varying race, ethnicity, color, sex, or national origin. When in reality, as the bill’s supporters themselves say, the bill is intended to prevent “indoctrination and compelled speech” and “compel[ling] students to comply or assent to something they don’t believe in.”³³ The compelled speech doctrine is the idea that the government cannot tell people what they must say, for force an individual or group to support certain expression.³⁴ The argument, then, is that certain aspects of DEI programs would prevent individuals from their right to refrain from speaking or interfere with the concept of ‘individual freedom of mind.’³⁵ The reasoning behind SB 129 essentially supports the idea of that people should not have to learn about topics that make them uncomfortable, even when those topics are factually rooted.

The Supreme Court has consistently held that the “clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.”³⁶ It is difficult to reconcile this purpose with what SB 129 is doing removing DEI programs. DEI programs are intended to educate a deeper understanding of diversity and promote respect and inclusion among people of varying backgrounds.³⁷ These programs are not sources of “invidious racial discrimination,” they are not created to exclude people, but to educate more broadly.³⁸ Nonetheless, Alabama senators and representatives were concerned enough about DEI programs to get SB 129 enacted. It may have been Alabama’s state public four-year colleges spending more than $16 million on DEI training, staffing, and programming in 2022 that led to the bill’s proposal, even though some would argue that reflects the perceived importance of such initiatives.³⁹

In Ohio specifically, in 2023 Senate bill 83 was proposed and passed the Senate that would largely ban DEI training efforts at public colleges to “protect the integrity of our universities and colleges.”⁴⁰ SB 83 intends to bar institutions from taking positions on “controversial topics” such as climate change, immigration policy, or abortion.⁴¹ The bill would allow public colleges to offer DEI trainings but only if they were optional, and not required for employment or promotion.⁴² SB 83 has been strongly opposed for its violation of free speech and invasion into public higher education, taking away their ability to make decisions traditionally left to institutions’ boards and faculty.⁴³ In committee hearings, more Ohioans testified against the bill’s approval than any other in Ohio Senate history.⁴⁴ Particularly, free speech advocates and institutions’ faculty testified in opposition.⁴⁵ The future of SB 83 appears shaky, as its movement has been stagnant since being re-referred to the House Rules and Reference committee on January 3.⁴⁶

Outside of pending legislation, Ohio public institutions have also had to monitor their DEI programs, as the Ohio Attorney General Dave Yost told university leaders that they needed to apply the ruling of SFFA not only in their admissions, but in their scholarships as well.⁴⁷ Yost advised college leaders that scholarships based on race violated SFFA, although the Court did not expressly ban such scholarships.⁴⁸ The Court’s ruling in SFFA did not mention scholarships at all and specifically said, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”⁴⁹ Yost has taken a strict interpretation of the ruling, strongly encouraging Ohio public universities to re-evaluate their scholarship processes.⁵⁰ Such pressure could easily cause schools to re-evaluate their DEI programs as well.

The evaluation of DEI programs after the Students for Fair Admissions ruling goes beyond education as well. The Supreme Court is considering if Title VII’s prohibition of employment discrimination requires a plaintiff to show the discrimination caused an injury, which an answer of “no, it does not” could increase the number reverse employment discrimination claims over DEI efforts.⁵¹

IV. Conclusion

In conclusion, the decision to strike down race-based admissions in Students for Fair Admissions v. Harvard had broader implications beyond just college admissions. Widespread debate and scrutiny surrounding race-based considerations and programs have led to numerous bills advocating for the removal of state-funded DEI programs. This removal is problematic as it stifles free-speech and could create a chilling effect in promoting inclusion as well as accurately teaching about the nation’s history.

Cover Photo by Clark Tibbs on Unsplash

Beth Ann Powers

References

1
Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023).
2
Id. at 2166.
3
Bill Chappell, Alabama Governor Signs Ban on DEI Funds That Restricts ‘Divisive Concepts” in Schools, NPR (Mar. 20, 2024), https://www.npr.org/2024/03/20/1239635678/alabama-dei-funding-ban-divisive-concepts.
4
Hellen Golden, History of DEI: The Evolution of Diversity Training Programs, Notre Dame De Namur Univ. (Jan. 1, 2024), https://www.ndnu.edu/history-of-dei-the-evolution-of-diversity-training-programs/.
5
Id.
6
Id.
7
Id.
8
Students for Fair Admissions, 600 U.S. 181.
9
Id. at 2175.
10
Hoang Pham, et. al, Students for Fair Admissions v. Harvard FAQ: Navigating the Evolving Implications of the Court’s Ruling, Stanford L. Sch. Blogs: Ctr for Racial Just. (Dec. 12, 2023), https://law.stanford.edu/2023/12/12/students-for-fair-admissions-v-harvard-faq-navigating-the-evolving-implications-of-the-courts-ruling/.
11
Id.
12
Id.
13
Id.
14
Id.
15
Chappell, supra note 3.
16
Id.
17
Id.
18
Id.
19
Id.
20
Id.
21
Laura Spitalniak, Alabama Governor Sign Law Banning College DEI Funding, Higher Ed Dive (Mar. 20, 2024), https://www.highereddive.com/news/alabama-governor-signs-law-banning-college-dei-funding/710910/.
22
Id.
23
Rebecca Griesbach, How Will Colleges, K-12 Schools Enforce Alabama’s New DEI Ban? When Does it Take Effect?,AL.COM EDUC. LAB (Mar. 25, 2024), https://www.al.com/educationlab/2024/03/how-will-colleges-k-12-schools-enforce-alabamas-new-dei-ban-when-does-it-take-effect.html.
24
Id.
25
Id.
26
Id.
27
Chappell, supra note 3.
28
SB129 – Anti-DEI, ACLU Alabama, https://www.aclualabama.org/en/legislation/sb129-anti-dei; Spitalniak, supra note 21.
29
Griesbach, supra note 23.
30
SB129 – Anti-DEI, ACLU Alabama, https://www.aclualabama.org/en/legislation/sb129-anti-dei.
31
Chappell, supra note 3.
32
Ryan Quinn, Alabama Lawmakers OK Bill Targeting DEI, ‘Divisive Concepts’, Inside Higher Ed (Mar. 20, 2024), https://www.insidehighered.com/news/quick-takes/2024/03/20/alabama-lawmakers-ok-bill-targeting-dei-divisive-concepts.
33
Jacob Ritondo & Ethan Henry, “I See Hatred in This”: SB 129 Passes in State House, The Crimson White (Mar. 8, 2024), https://thecrimsonwhite.com/113698/top-stories/i-see-hatred-in-this-sb-129-passes-in-state-house/.
34
David L. Hudson, Compelled Speech, Free Speech Ctr. at Middle Tenn. State U. (Jul. 23, 2023), https://firstamendment.mtsu.edu/article/compelled-speech/#:~:text=The%20compelled%20speech%20doctrine%20sets,group%20to%20support%20certain%20expression.
35
Id.
36
Loving v. Virginia, 338 U.S. 1, 10 (1967); Washington v. Davis, 426 U.S. 229, 239 (1976).
37
Golden, supra note 4.
38
Id.
39
Spitalniak, supra note 21.
40
Laura Spitalniak, Ohio Republicans to Push Revised Bill Limiting College DEI and Faculty Strikes, Higher Ed Dive (Sept. 13, 2023), https://www.highereddive.com/news/ohio-lawmakers-remake-public-higher-education-sb-83/693440/
41
Id.
42
Id.
43
Id.
44
John Pelcnik,‘The Bill is Alive.’ Extreme Bill Not Dead, Threatens to Incinerate Ohio’s Cherished Colleges, The Columbus Dispatch (Dec. 7, 2023), https://www.dispatch.com/story/opinion/columns/guest/2023/12/07/what-is-the-future-of-ohio-senate-bill-83-has-it-fallen/71766725007/.
45
Spitalniak, supra note 40.
46
S.B. 83 Status, 135th General Assembly (Ohio 2023), https://www.legislature.ohio.gov/legislation/135/sb83/status.
47
Laura Hancock, Affirmative Action: As Colleges Work to Comply With Court Ruling, Dave Yost Says It Also Applies to Scholarships, Cleveland.com (Mar. 8, 2024), https://www.cleveland.com/open/2024/03/affirmative-action-as-colleges-work-to-comply-with-court-ruling-dave-yost-says-it-also-applies-to-scholarships.html.
48
Id.
49
Id.
50
Id.
51
T. Scott Kelly, et. al., DEI Under Scrutiny, Part III: High Court Wades Into Questions of Whether Title VII Sex Discrimination Requires Material Harm, Ogletree Deakins (Dec. 11, 2023), https://ogletree.com/insights-resources/blog-posts/dei-under-scrutiny-part-iii-high-court-wades-into-questions-of-whether-title-vii-sex-discrimination-requires-material-harm/?_gl=1*1fu4jre*_up*MQ..*_ga*MTQ5NjE2Nzg0NC4xNzExNjUwMjMz*_ga_V4WT9JNBFT*MTcxMTc2NTgxNC4yLjAuMTcxMTc2NTgxNC4wLjAuMA.

I. Introduction

II. Background

III. Discussion

IV. Conclusion

Author

References

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