Texas 2023 - 88th Regular

Texas House Bill HB5127 Compare Versions

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1	1	By: Shaheen H.B. No. 5127
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to public higher education reform; authorizing
7	7	administrative penalties.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 51.352, Education Code, is amended by
10	10	amending Subsection (d) and adding Subsection (g) to read as
11	11	follows:
12	12	(d) In addition to powers and duties specifically granted by
13	13	this code or other law, each governing board shall:
14	14	(1) establish, for each institution under its control
15	15	and management, goals consistent with the role and mission of the
16	16	institution;
17	17	(2) appoint the chancellor or other chief executive
18	18	officer of the system, if the board governs a university system;
19	19	(3) appoint the president or other chief executive
20	20	officer of each institution under the board's control and
21	21	management and evaluate the chief executive officer of each
22	22	component institution and assist the officer in the achievement of
23	23	performance goals;
24	24	(4) restrict the membership of a search committee for
25	25	the position of president or other chief executive officer of an
26	26	institution under the board's control and management to members of
27	27	the governing board;
28	28	(5) approve or deny the hiring of a person for the
29	29	position of vice president, provost, associate or assistant
30	30	provost, dean, or associate or assistant dean or a similar position
31	31	by each institution under the board's control and management;
32	32	(6) set campus admission standards consistent with the
33	33	role and mission of the institution and considering the admission
34	34	standards of similar institutions nationwide having a similar role
35	35	and mission, as determined by the coordinating board;
36	36	(7) approve or deny each course in the core
37	37	curriculum, as that term is defined by Section 61.821, at each
38	38	institution under the board's control and management;
39	39	(8) approve or deny each posting or other
40	40	advertisement for a tenured faculty position at each institution
41	41	under the board's control and management; and
42	42	(9) [(5)] ensure that its formal position on matters
43	43	of importance to the institutions under its governance is made
44	44	clear to the coordinating board when such matters are under
45	45	consideration by the coordinating board.
46	46	(g) An institution of higher education may not spend money
47	47	appropriated to the institution for a state fiscal year until the
48	48	governing board of the institution submits to the legislature and
49	49	the Texas Higher Education Coordinating Board a report certifying
50	50	the board's compliance with Subsections (d)(2), (3), (5), (7), and
51	51	(8) during the preceding state fiscal year.
52	52	SECTION 2. Chapter 51, Education Code, is amended by adding
53	53	Subchapter L to read as follows:
54	54	SUBCHAPTER L. PROHIBITIONS REGARDING IDEOLOGICAL OATHS OR
55	55	STATEMENTS
56	56	Sec. 51.601. PURPOSE. The purpose of this subchapter is to
57	57	prohibit institutions of higher education from requiring or giving
58	58	preferential consideration for certain ideological oaths or
59	59	statements that undermine academic freedom and open inquiry and
60	60	impede the discovery, preservation, and transmission of knowledge.
61	61	Sec. 51.602. DEFINITIONS. In this subchapter:
62	62	(1) "Coordinating board" means the Texas Higher
63	63	Education Coordinating Board.
64	64	(2) "Institution of higher education" has the meaning
65	65	assigned by Section 61.003.
66	66	Sec. 51.603. PROHIBITIONS REGARDING IDEOLOGICAL OATHS OR
67	67	STATEMENTS. (a) An institution of higher education may not:
68	68	(1) compel, require, induce, or solicit a student
69	69	enrolled at the institution, an employee or contractor of the
70	70	institution, or an applicant for admission to or employment or
71	71	contracting at the institution to:
72	72	(A) endorse an ideology that promotes the
73	73	differential treatment of an individual or group of individuals
74	74	based on race, color, or ethnicity; or
75	75	(B) provide a statement of the person's:
76	76	(i) race, color, ethnicity, or national
77	77	origin, except to record any necessary demographic information;
78	78	(ii) views on, experience with, or past or
79	79	planned contributions to efforts involving diversity, equity, and
80	80	inclusion, marginalized groups, antiracism, social justice,
81	81	intersectionality, or related concepts; or
82	82	(iii) views on or experience with race,
83	83	color, ethnicity, national origin, or other immutable
84	84	characteristics; or
85	85	(2) provide preferential consideration to a student
86	86	enrolled at the institution, an employee or contractor of the
87	87	institution, or an applicant for admission to or employment or
88	88	contracting at the institution on the basis of the person's
89	89	unsolicited statement in support of an ideology described by
90	90	Subdivision (1)(A).
91	91	(b) This section may not be construed to:
92	92	(1) restrict academic research or coursework;
93	93	(2) prevent a person from providing to an institution
94	94	of higher education information described by Subsection (a) on the
95	95	person's own initiative separate from any specific requirement or
96	96	request from the institution; or
97	97	(3) prevent an institution of higher education from
98	98	requiring an applicant for admission to or employment or
99	99	contracting at the institution to:
100	100	(A) disclose or discuss the content of the
101	101	applicant's research or artistic creations;
102	102	(B) certify compliance with state and federal
103	103	antidiscrimination law; or
104	104	(C) discuss pedagogical approaches or experience
105	105	with students with learning disabilities.
106	106	(c) Not later than December 1 of each year, each institution
107	107	of higher education shall submit to the lieutenant governor and the
108	108	speaker of the house of representatives a report certifying the
109	109	institution's compliance with this section.
110	110	SECTION 3. Subchapter Z, Chapter 51, Education Code, is
111	111	amended by adding Sections 51.9317, 51.9318, and 51.9319 to read as
112	112	follows:
113	113	Sec. 51.9317. DIVERSITY, EQUITY, AND INCLUSION OFFICES AND
114	114	EMPLOYEES PROHIBITED. (a) In this section:
115	115	(1) "Coordinating board" means the Texas Higher
116	116	Education Coordinating Board.
117	117	(2) "Diversity, equity, and inclusion office" means an
118	118	office, division, or other unit of an institution of higher
119	119	education established for the purpose of:
120	120	(A) influencing hiring or employment practices
121	121	at the institution with respect to race, sex, color, or ethnicity,
122	122	other than through the use of color-blind and sex-neutral hiring
123	123	processes in accordance with any applicable state and federal
124	124	antidiscrimination laws;
125	125	(B) promoting differential treatment of or
126	126	providing special benefits to individuals on the basis of race,
127	127	color, or ethnicity;
128	128	(C) promoting policies or procedures designed or
129	129	implemented in reference to race, color, or ethnicity, other than
130	130	policies or procedures approved in writing by the institution's
131	131	general counsel and the office of the attorney general for the sole
132	132	purpose of ensuring compliance with any applicable court order or
133	133	state or federal law; or
134	134	(D) conducting trainings, programs, or
135	135	activities designed or implemented in reference to race, color,
136	136	ethnicity, gender identity, or sexual orientation, other than
137	137	trainings, programs, or activities developed by an attorney and
138	138	approved in writing by the institution's general counsel and the
139	139	office of the attorney general for the sole purpose of ensuring
140	140	compliance with any applicable court order or state or federal law.
141	141	(3) "Institution of higher education" has the meaning
142	142	assigned by Section 61.003.
143	143	(b) An institution of higher education may not establish or
144	144	maintain a diversity, equity, and inclusion office or hire or
145	145	assign an employee of the institution, or contract with a third
146	146	party, to perform the duties of a diversity, equity, and inclusion
147	147	office.
148	148	(c) Subsection (b) may not be construed to:
149	149	(1) restrict:
150	150	(A) academic course instruction;
151	151	(B) research or creative works by an institution
152	152	of higher education's students or faculty;
153	153	(C) the activities of student organizations
154	154	registered with or recognized by an institution of higher
155	155	education;
156	156	(D) the guest speakers or performers who may be
157	157	invited to speak or perform at an institution of higher education
158	158	for short-term engagements;
159	159	(E) health services provided by licensed
160	160	professionals at an institution of higher education;
161	161	(F) services provided by appropriate
162	162	professionals at an institution of higher education to veterans of
163	163	the armed forces of the United States or persons with a physical or
164	164	cognitive disability; or
165	165	(G) an institution of higher education's ability
166	166	to:
167	167	(i) respond to a request for information
168	168	from a grantmaking agency or athletic association; or
169	169	(ii) collect data; or
170	170	(2) prohibit an institution of higher education from:
171	171	(A) establishing or maintaining a legal office or
172	172	other unit, hiring or assigning an employee who is an attorney, or
173	173	contracting with a third-party attorney or law firm to ensure the
174	174	institution's compliance with any applicable court order or state
175	175	or federal law;
176	176	(B) establishing or maintaining an academic
177	177	department that does not establish policy or procedures for other
178	178	departments; or
179	179	(C) registering or recognizing student
180	180	organizations at the institution.
181	181	(d) Nothing in this section may be construed as prohibiting
182	182	bona fide qualifications based on sex that are reasonably necessary
183	183	to the normal operation of an institution of higher education.
184	184	(e) Any person may notify the attorney general of a
185	185	violation or potential violation of this section by an institution
186	186	of higher education. The attorney general may file suit for a writ
187	187	of mandamus compelling the institution to comply with this section.
188	188	(i) If an institution of higher education determines that an
189	189	employee of the institution has violated this section, the
190	190	institution shall:
191	191	(1) take the following action against the employee:
192	192	(A) for the first violation, place the employee
193	193	on unpaid leave for the next academic year; or
194	194	(B) for the second or a subsequent violation,
195	195	discharge the employee; and
196	196	(2) report the determination and the action taken by
197	197	the institution to the coordinating board.
198	198	(j) The coordinating board shall maintain and provide to
199	199	each institution of higher education a list of persons against whom
200	200	action has been taken under Subsection (i).
201	201	(k) An institution of higher education may not hire an
202	202	employee who is included on the coordinating board's list
203	203	maintained under Subsection (j) before:
204	204	(1) if the employee was placed on unpaid leave under
205	205	Subsection (i)(1)(A), the end of the academic year for which the
206	206	employee is placed on unpaid leave; or
207	207	(2) if the employee was discharged under Subsection
208	208	(i)(1)(B), the fifth anniversary of the date on which the employee
209	209	was discharged.
210	210	(l) If the coordinating board determines that an
211	211	institution of higher education has violated this section, the
212	212	coordinating board shall assess an administrative penalty against
213	213	the institution in an amount equal to the lesser of $1 million or
214	214	one percent of the amount of the institution's operating expenses
215	215	budgeted for the state fiscal year preceding the state fiscal year
216	216	in which the violation occurred.
217	217	(m) An administrative penalty collected under Subsection
218	218	(l) may only be appropriated to an institution of higher education
219	219	that the coordinating board has not determined to have violated
220	220	this section during the two state fiscal years preceding the state
221	221	fiscal year for which the appropriation is made.
222	222	Sec. 51.9318. STATEMENTS REQUIRED TO BE INCLUDED IN MISSION
223	223	STATEMENT, BYLAWS, FACULTY HANDBOOK, AND STUDENT HANDBOOK. (a) In
224	224	this section, "institution of higher education" has the meaning
225	225	assigned by Section 61.003.
226	226	(b) Each institution of higher education shall adopt an
227	227	institutional mission statement that includes, or incorporate into
228	228	the institution's institutional mission statement if the
229	229	institution has already adopted an institutional mission
230	230	statement, the following statements in whole and without
231	231	interruption:
232	232	(1) "We affirm that (name of institution) will educate
233	233	students by means of free, open, and rigorous intellectual inquiry
234	234	to seek the truth.";
235	235	(2) "We affirm our duty to equip students with the
236	236	intellectual skills they need to reach their own informed
237	237	conclusions on matters of social and political importance.";
238	238	(3) "We affirm the value of viewpoint diversity in
239	239	campus intellectual life, including in faculty recruitment and
240	240	hiring.";
241	241	(4) "We affirm our duty to ensure that no aspects of
242	242	(name of institution) life, in or outside the classroom, require,
243	243	favor, disfavor, or prohibit speech or action that supports any
244	244	political, social, or religious belief.";
245	245	(5) "We affirm our commitment to create a community
246	246	dedicated to civil and free inquiry that respects the intellectual
247	247	freedom of each member, supports individual capacities for growth,
248	248	and tolerates the differences in opinion that naturally occur in a
249	249	public university community.";
250	250	(6) "We affirm the value of institutional neutrality:
251	251	that institutions of higher education should not take collective
252	252	positions on political and social controversies of the day."; and
253	253	(7) "These values take priority over any other value
254	254	we may also adopt."
255	255	(c) Each institution of higher education shall incorporate
256	256	into the institution's bylaws, faculty handbook, and student
257	257	handbook the substance of the following reports issued by the
258	258	University of Chicago:
259	259	(1) the Report of the Committee on Freedom of
260	260	Expression; and
261	261	(2) the Kalven Committee Report on the University's
262	262	Role in Political and Social Action.
263	263	Sec. 51.9319. CERTAIN MANDATORY TRAINING PROHIBITED. (a)
264	264	In this section:
265	265	(1) "Coordinating board" means the Texas Higher
266	266	Education Coordinating Board.
267	267	(2) "Institution of higher education" has the meaning
268	268	assigned by Section 61.003.
269	269	(3) "Training" includes a training, seminar,
270	270	discussion group, workshop, or other instructional program,
271	271	whether provided in person, online, or by any other means, with a
272	272	purpose of advising, counseling, influencing, or teaching
273	273	participants. The term does not include:
274	274	(A) an academic course offered for credit; or
275	275	(B) an activity of a student organization
276	276	registered with or recognized by an institution of higher education
277	277	that affects only the organization's members.
278	278	(b) An institution of higher education may not require a
279	279	student, employee, or applicant for employment at the institution
280	280	to participate in training on diversity, equity, inclusion, bias,
281	281	oppression, gender identity, or related concepts as a condition of:
282	282	(1) admission to or enrollment at the institution;
283	283	(2) employment or promotion at the institution;
284	284	(3) participating in any function of the institution;
285	285	or
286	286	(4) graduating from the institution.
287	287	(c) This section may not be construed to:
288	288	(1) limit the academic freedom of any individual
289	289	faculty member to direct the instruction of a course taught by the
290	290	faculty member; or
291	291	(2) prohibit any training:
292	292	(A) that is:
293	293	(i) developed by an attorney; and
294	294	(ii) approved in writing by the
295	295	institution's general counsel and the office of the attorney
296	296	general as being required to comply with any applicable court order
297	297	or state or federal law; and
298	298	(B) for which the materials are made publicly
299	299	available on the institution of higher education's Internet
300	300	website.
301	301	(d) Any person may notify the attorney general of a
302	302	violation or potential violation of this section by an institution
303	303	of higher education. The attorney general may file suit for a writ
304	304	of mandamus compelling the institution to comply with this section.
305	305	(e) A student or employee of an institution of higher
306	306	education who is required to participate in training in violation
307	307	of this section may bring an action against the institution for
308	308	injunctive or declaratory relief.
309	309	(h) If an institution of higher education determines that an
310	310	employee of the institution has violated this section, the
311	311	institution shall:
312	312	(1) take the following action against the employee:
313	313	(A) for the first violation, place the employee
314	314	on unpaid leave for the next academic year; or
315	315	(B) for the second or a subsequent violation,
316	316	discharge the employee; and
317	317	(2) report the determination and the action taken by
318	318	the institution to the coordinating board.
319	319	(i) The coordinating board shall maintain and provide to
320	320	each institution of higher education a list of persons against whom
321	321	action has been taken under Subsection (h).
322	322	(j) An institution of higher education may not hire an
323	323	employee who is included on the coordinating board's list
324	324	maintained under Subsection (i) before:
325	325	(1) if the employee was placed on unpaid leave under
326	326	Subsection (h)(1)(A), the end of the academic year for which the
327	327	employee is placed on unpaid leave; or
328	328	(2) if the employee was discharged under Subsection
329	329	(h)(1)(B), the fifth anniversary of the date on which the employee
330	330	was discharged.
331	331	(k) If the coordinating board determines that an
332	332	institution of higher education has violated this section, the
333	333	coordinating board shall assess an administrative penalty against
334	334	the institution in an amount equal to the lesser of $1 million or
335	335	one percent of the amount of the institution's operating expenses
336	336	budgeted for the state fiscal year preceding the state fiscal year
337	337	in which the violation occurred.
338	338	(l) An administrative penalty collected under Subsection
339	339	(k) may only be appropriated to an institution of higher education
340	340	that the coordinating board has not determined to have violated
341	341	this section during the two state fiscal years preceding the state
342	342	fiscal year for which the appropriation is made.
343	343	SECTION 4. Section 51.942, Education Code, is amended by
344	344	adding Subsection (c-1) to read as follows:
345	345	(c-1) For purposes of Subsection (c)(5), good cause for
346	346	revoking the tenure of a faculty member includes the faculty
347	347	member's violation of Section 51.9317 or 51.9319.
348	348	SECTION 5. (a) Section 51.352(d), Education Code, as
349	349	amended by this Act, applies beginning with the 2023-2024 academic
350	350	year.
351	351	(b) Section 51.352(g), Education Code, as added by this Act,
352	352	applies beginning with money appropriated to a public institution
353	353	of higher education for the state fiscal year beginning September
354	354	1, 2024.
355	355	SECTION 6. (a) Except as provided by Subsection (b) of this
356	356	section, Subchapter L, Chapter 51, and Sections 51.9317, 51.9318,
357	357	and 51.9319, Education Code, as added by this Act, apply beginning
358	358	with the 2023-2024 academic year.
359	359	(b) Sections 51.9317(i) and 51.9319(h), Education Code, as
360	360	added by this Act, apply only to a person who enters into or renews
361	361	an employment contract at a public institution of higher education
362	362	on or after the effective date of this Act.
363	363	SECTION 7. A public institution of higher education may not
364	364	spend money appropriated by the legislature for the state fiscal
365	365	biennium beginning September 1, 2025, until the institution's
366	366	governing board has filed with the Texas Higher Education
367	367	Coordinating Board and posted on the institution's Internet website
368	368	a report that:
369	369	(1) states the steps taken by the institution to
370	370	comply with Section 51.9317, Education Code, as added by this Act;
371	371	and
372	372	(2) certifies the institution's compliance with
373	373	Section 51.9317, Education Code, as added by this Act.
374	374	SECTION 8. This Act takes effect immediately if it receives
375	375	a vote of two-thirds of all the members elected to each house, as
376	376	provided by Section 39, Article III, Texas Constitution. If this
377	377	Act does not receive the vote necessary for immediate effect, this
378	378	Act takes effect September 1, 2023.