Alabama enacted Act 2024-34 on March 20, 2024, prohibiting state agencies, local boards of education, and public institutions of higher education, from engaging in specific actions related to “divisive concepts.” (the “Act”).[i] The Act allows “state agencies and political subdivisions, including local boards of education and public institutions of higher education” to discipline or terminate employees or contractors that knowingly violate the Act. The Act becomes effective October 1, 2024.
The Act includes an eight (8) part definition of “divisive concept” that identifies attributes or concepts ascribed to a person based on race, color, religion, sex, ethnicity, or national origin. These attributes or concepts include superiority or inferiority, support for discrimination or adverse treatment, and a person’s moral character. Additionally, the definition targets issues that include whether a person, consciously or unconsciously, should be considered inherently racist, sexist, or oppressive based on their race, color, religion, sex, ethnicity, or national origin, as well as whether a person should be assigned fault, blame, or bias. Lastly, the definition addresses concepts of whether an 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 national origin,” or whether “meritocracy or traits such as hard work ethic are racist or sexist.”
Prohibitions under the Act include sponsoring any program or maintaining any office that “promotes diversity, equity, and inclusion,” or “DEI.” Further, the Act prohibits programs that require attendance “based on an individual’s race, sex, gender identity, ethnicity, national origin, or sexual orientation.” This prohibition does not prevent programs, training, or events required to comply with state law, federal law, or court orders. In addition to prohibiting DEI offices in state agencies, the Act prohibits state agencies, local boards of education, and public institutions of higher education from requiring students, employees, and contractors to personally affirm divisive concepts; attend or participate in any DEI programming or training that advocates divisive concepts; or share their point of view on any divisive concept outside of an academic setting. Further, the Act prohibits state agencies, local boards of education, and public institutions of higher education from requiring students, employees, or contractors to participate in lobbying for state or local legislation related to a divisive concept. The Act prohibits state agencies, local boards of education, and public institutions of higher education from penalizing or discriminating against a student, employee, or contractor for refusing to support or assent to a divisive concept or diversity statement.
The Act identifies several activities or actions not prohibited. These include actions such as hosting DEI programs or discussions (as long as the sponsors do not use state funds for the program), actions taken in furtherance of satisfying accreditation standards or requirements, teaching a divisive concept in “an objective manner and without endorsement,” or teaching of topics or historical events “in a historically accurate context.” Additionally, the Act does not prohibit state agencies from “promoting racial, cultural, or ethnic diversity or inclusiveness, provided these efforts are consistent with the requirements of this act.” Lastly, the Act does not prohibit housing, athletic programming, or social organizations segregated by sex. The Act does, however, require public institutions of higher education to designate all multi-occupancy restrooms based on biological sex.
This Act represents a significant change in state policy. All state agencies, public universities, school boards, and contractors working for the state should evaluate all DEI initiatives, programming, and curriculum for compliance with this new law. Any potential violations need to be further scrutinized through any conflicting state, federal, or court-ordered mandates. Consult with counsel to ensure compliance with these new requirements.
[i] Acts of Alabama, Act #2024-34. (https://arc-sos.state.al.us/cgi/actdetail.mbr/detail?year=2024&act=%20%2034&page=bill).
