By: Creighton, et al. S.B. No. 17
A BILL TO BE ENTITLED
AN ACT
relating to the powers and duties of the governing boards of public
institutions of higher education.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 51.352(d), Education Code, is amended to
read as follows:
(d) In addition to powers and duties specifically granted by
this code or other law, each governing board shall:
(1) establish, for each institution under its control
and management, goals consistent with the role and mission of the
institution;
(2) appoint the chancellor or other chief executive
officer of the system, if the board governs a university system;
(3) appoint the president or other chief executive
officer of each institution under the board's control and
management and evaluate the chief executive officer of each
component institution and assist the officer in the achievement of
performance goals;
(4) ensure that a majority of the members of a search
committee for the position of president or other chief executive
officer of an institution under the board's control and management
are members of the board;
(5) set campus admission standards consistent with the
role and mission of the institution and considering the admission
standards of similar institutions nationwide having a similar role
and mission, as determined by the coordinating board; and
(6) [(5)] ensure that its formal position on matters
of importance to the institutions under its governance is made
clear to the coordinating board when such matters are under
consideration by the coordinating board.
SECTION 2. Subchapter G, Chapter 51, Education Code, is
amended by adding Section 51.3525 to read as follows:
Sec. 51.3525. RESPONSIBILITY OF GOVERNING BOARDS REGARDING
DIVERSITY, EQUITY, AND INCLUSION INITIATIVES. (a) In this
section, "diversity, equity, and inclusion office" means an office,
division, or other unit of an institution of higher education
established for the purpose of:
(1) influencing hiring or employment practices at the
institution with respect to race, sex, color, or ethnicity, other
than through the use of color-blind and sex-neutral hiring
processes in accordance with any applicable state and federal
antidiscrimination laws;
(2) promoting differential treatment of or providing
special benefits to individuals on the basis of race, color, or
ethnicity;
(3) promoting policies or procedures designed or
implemented in reference to race, color, or ethnicity, other than
policies or procedures approved in writing by the institution's
general counsel and the office of the attorney general for the sole
purpose of ensuring compliance with any applicable court order or
state or federal law; or
(4) conducting trainings, programs, or activities
designed or implemented in reference to race, color, ethnicity,
gender identity, or sexual orientation, other than trainings,
programs, or activities developed by an attorney and approved in
writing by the institution's general counsel and the office of the
attorney general for the sole purpose of ensuring compliance with
any applicable court order or state or federal law.
(b) The governing board of an institution of higher
education shall ensure that each unit of the institution:
(1) does not, except as required by federal law:
(A) establish or maintain a diversity, equity,
and inclusion office;
(B) hire or assign an employee of the institution
or contract with a third party to perform the duties of a diversity,
equity, and inclusion office;
(C) 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;
(D) give preference on the basis of race, sex,
color, ethnicity, or national origin to an applicant for
employment, an employee, or a participant in any function of the
institution; or
(E) require as a condition of enrolling at the
institution or performing any institution function any person to
participate in diversity, equity, and inclusion training, which:
(i) includes a training, program, or
activity designed or implemented in reference to race, color,
ethnicity, gender identity, or sexual orientation; and
(ii) does not include a training, program,
or activity developed by an attorney and approved in writing by the
institution's general counsel and the office of the attorney
general for the sole purpose of ensuring compliance with any
applicable court order or state or federal law; and
(2) adopts policies and procedures for disciplining an
employee or contractor of the institution who engages in conduct in
violation of Subdivision (1), including by termination, as
appropriate.
(b-1) An accrediting agency may not take or threaten to take
adverse action against an institution of higher education based on
the institution's compliance with this section. If an accrediting
agency takes or threatens to take adverse action against an
institution of higher education in violation of this subsection,
the attorney general, the institution, or an employee of the
institution may bring an action for declaratory or injunctive
relief against the agency.
(b-2) Subsection (b)(1) may not be construed to apply to:
(1) academic course instruction;
(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;
(3) an activity of a student organization registered
with or recognized by an institution of higher education;
(4) guest speakers or performers on short-term
engagements;
(5) a policy, practice, procedure, program, or
activity to enhance student academic achievement or postgraduate
outcomes that is designed and implemented without regard to race,
color, ethnicity or sex;
(6) data collection; or
(7) student admissions.
(c) An institution of higher education may not spend money
appropriated to the institution for a state fiscal year until the
governing board of the institution submits to the legislature and
the Texas Higher Education Coordinating Board a report certifying
the board's compliance with Subsection (b) during the preceding
state fiscal year.
(c-1) In the interim between each regular session of the
legislature, the governing board of each institution of higher
education, or the board's designee, shall testify before the
standing legislative committees with primary jurisdiction over
higher education at a public hearing of the committee regarding the
board's compliance with Subsection (b).
(d) The state auditor shall periodically conduct a
compliance audit of each institution of higher education to
determine whether the institution has spent state money in
violation of this section. The state auditor shall adopt a schedule
by which the state auditor will conduct compliance audits under
this subsection. The schedule must ensure that each institution of
higher education is audited at least once every four years.
(e) If the state auditor determines pursuant to a compliance
audit conducted under Subsection (d) that an institution of higher
education has spent state money in violation of this section, the
institution is ineligible to receive state funds for the state
fiscal year immediately following the state fiscal year in which
the determination is made, other than state funds appropriated to
pay debt service on bonds or notes previously authorized for the
institution.
(f) A student or employee of an institution of higher
education who is required to participate in training in violation
of Subsection (b)(1)(E) may bring an action against the institution
for injunctive or declaratory relief.
SECTION 3. (a) Except as provided by Subsection (b) of this
section, this Act applies beginning with the 2023-2024 academic
year.
(b) Section 51.3525(c), Education Code, as added by this
Act, applies beginning with money appropriated to a public
institution of higher education for the state fiscal year beginning
September 1, 2024.
SECTION 4. If any provision of this Act or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this Act that can be
given effect without the invalid provision or application, and to
this end the provisions of this Act are declared to be severable.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2023.