Texas Governor Warns Against DEI in Hiring Practices

Governor Greg Abbott is cracking down on public institutions that use diversity, equity and inclusion practices in hiring, according to a memo from the governor’s office obtained by The Texas Tribune.

Written by Abbott’s chief of staff, Gardner Pate, the memo warns that using DEI policies in hiring violates both federal and state employment laws by illegally discriminating against “certain demographic groups,” though it does not specify which ones.

“The innocuous sounding notion of Diversity, Equity and Inclusion (DEI) has been manipulated to push policies that expressly favor some demographic groups to the detriment of others,” Pate wrote in the memo, which was sent to state institutions—including colleges and universities—on Monday.

Texas’s move to limit DEI in hiring comes less than a week after Florida governor Ron DeSantis announced proposed higher education reforms that include defunding DEI initiatives at state universities.

Most Colleges Stay Silent

It’s hard to know how most higher ed institutions in Texas are interpreting the news or adjusting hiring practices; of the more than one dozen universities in the state that Inside Higher Ed contacted, only two responded to a request for comment.

“The University of Houston System is in receipt of the letter from the Governor’s Chief of Staff reminding us about discrimination laws,” read the system’s statement to Inside Higher Ed. “We recognize and support compliance with all state and federal laws and continue to train our employees in this regard. Discrimination is antithetical to our core values. Our employment policies and practices are consistent with these laws, and we have no offices, departments or programs promoting discrimination in the guise of Diversity, Equity and Inclusion.”

Texas A&M also responded, writing, “As a public university, we will continue to follow all state and federal laws.”

And while Texas Tech did not respond to a direct inquiry, the university released a statement addressing the matter.

“Texas Tech University’s faculty hiring practices will always emphasize disciplinary excellence and the ability of candidates to support our priorities in student success, impactful scholarship, and community engagement,” read the statement posted to the university’s website Monday. “Recently, we learned of a department that required a diversity, equity, and inclusion statement in addition to the usual applicant materials as part of a faculty search. We immediately withdrew this practice and initiated a review of hiring procedures across all colleges and departments. We will withdraw the use of these statements and evaluation rubrics if identified.”

It is unclear if Texas Tech was responding to the Abbott memo or to an opinion piece published Monday in The Wall Street Journal, which argued that the university penalizes potential faculty members by stressing DEI policies in hiring, such as by asking candidates about their contributions to DEI initiatives. But by Wednesday night, the statement was no longer accessible on the university’s website.

An Abbott spokesperson provided a statement but did not answer specific questions.

“The letter from the Governor’s chief of staff is a reminder that state agencies and public universities must follow federal and state law in their hiring practices. Both federal and state law make equity quotas illegal. Equity is not equality. Here in Texas, we give people a chance to advance based on talent and merit. Aspiring to Dr. Martin Luther King, Jr.’s dream, we should not be judged by the color of our skin, but by the content of our character,” Renae Eze, a spokesperson for the Abbott administration, said in an emailed statement to Inside Higher Ed.

Mixed Reactions

Proponents of DEI efforts, who believe such initiatives are necessary to counteract bias against underrepresented students and employees, expressed dismay over the Abbott memo.

Paulette Granberry Russell, president of the National Association of Diversity Officers in Higher Education, told Inside Higher Ed in a statement that Abbott’s administration is “grossly misconstruing federal anti-discrimination law, twisting it to fit their own political agenda and silence any effort to advance equity in a country that has long struggled with its founding promise of justice and liberty for all.”

She emphasized that “inclusive and equitable institutions” benefit everyone.

“The memo and its claims are ridiculous and beyond an attempt for state government overreach,” she wrote. “They are just one more step in a broader assault on the basic underpinnings of diversity, equity and inclusion, terms that some have sought to turn into dog whistles because they have not bothered to understand the basic history of America and the principles that can set it on a brighter path forward.”

Academic freedom advocates also expressed concern over the memo.

Jeremy C. Young, senior manager of free expression and education at the free speech advocacy group PEN America, said in a statement that while the organization is “concerned about the free expression implications of mandatory diversity statements in university hiring processes,” it also firmly believes that “decisions about DEI initiatives on campus, should be made by university stakeholders via a process of shared governance, not by politicians. Governor Abbott’s memo is an intimidation tactic that constitutes government overreach into the affairs of higher education institutions. It should be opposed by all free expression advocates, whatever they think of diversity statements or DEI work.”

The Foundation for Individual Rights and Expression struck a similar tone.

“Loyalty oaths and political litmus tests have no place in our nation’s public universities. For years, FIRE has criticized institutions of higher education when they require students and faculty to declare their personal agreement with a politicized understanding of ‘diversity’ as a condition of consideration for admission, hiring, or promotion,” Joe Cohn, legislative and policy director for FIRE, said in a statement to Inside Higher Ed.

While Cohn described “the chilling, coercive effect of mandatory diversity statements” as “a significant problem,” he also said the Abbott administration’s move poses a threat to academic freedom, noting that “legislation and executive action to address this problem must be carefully crafted to avoid trading one set of constitutional problems for another.”

Opponents of DEI initiatives, meanwhile, are taking a victory lap.

Political activist Chris Rufo, who has close ties to DeSantis and has been instrumental in writing model legislation to help states defund DEI initiatives, celebrated the news on Twitter.

“Three weeks ago, we published the Manhattan Institute playbook for ‘abolishing DEI bureaucracies and restoring colorblind equality in public universities.’ Since then, Gov. DeSantis and Gov. Abbott have stepped into the ring and become champions of this fight. Let’s get it done,” Rufo tweeted Wednesday.

DeSantis recently appointed Rufo as a trustee at New College of Florida, where he and other board members have been tasked with converting NCF into a replica of the private, Christian Hillsdale College.

Legal Questions

Whether the memo has any teeth or is just an intimidation tactic designed to undermine DEI initiatives, as some have claimed, remains to be seen. The Abbott administration did not respond to questions about Texas employment law that currently permits DEI considerations in hiring.

Stephanie Hamm, a Houston-based attorney who works in employment law as a partner at Thompson & Horton LLP, said by email that she believes two provisions in Texas’s Labor Code provide “legal grounds for pushing back on the statements in Abbott’s memo.”

One provision in the code states that “an employer does not commit an unlawful employment practice by developing and implementing personnel policies that incorporate work force diversity programs.” Another section, which Hamm says is narrower, says that “a public school official does not commit an unlawful employment practice by adopting or implementing a plan reasonably designed to end discriminatory school practices.”

Hamm noted that “under current Texas law, it is not per se illegal to consider diversity in connection with employment practices,” as the Abbott administration has claimed.

“If his mask litigation playbook [during the COVID-19 pandemic] is any guide, he’ll start with these types of memos and letters, and the next step will be specific threats of legal action (through the AG’s office). I don’t know if that’s what will happen here. But, overall, any college that has received a letter (or that has seen the memo) should consult with their lawyers to discuss any DEI programs that they have in place,” Hamm said.

Josh Blackman, a law professor at South Texas College of Law, said that Abbott’s memo refers to federal civil rights laws, namely Title VI—which prohibits discrimination and exclusion from federally assisted programs on the basis of race, color or national origin—and Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin.

He said he suspects Abbott is playing the long game and looking ahead to the case before the Supreme Court brought by Students for Fair Admissions, which alleges that Harvard University discriminated against Asian American students in admissions. Many observers expect the outcome of the case will result in the fall of affirmative action.

“If Title VI prohibits certain DEI measures, then that federal law would trump, or pre-empt state labor law,” Blackman said by email. “Stated differently, the state labor code should be read to conform to federal law. Abbott is trying to get ahead of the pending Supreme Court case, Students for Fair Admission [sic]. That case will likely hold that Harvard’s affirmative action policies violate Title VI. If so, schools in Texas that accept federal money (all of them) will have to re-assess their DEI policies.”