Texas Legislative Update on Diversity, Equity, and Inclusion-Related Bills

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In the recent 87th legislative session, the Texas Legislature contended with several bills that address or may impact areas relevant to diversity, equity, and inclusion (DEI) initiatives within Texas government, public and private schools, and businesses. This article highlights House Bill 3979, which was signed into law by Governor Abbott on June 16, 2021, and covers other DEI-related bills that, although not passed, are relevant to a public or private employer’s DEI initiatives and may provide insight as to what may be on the horizon in Texas—whether statewide or on a local level.

House Bill 3979: Relating to the Social Studies Curriculum in Public Schools
Effective September 1, 2021, HB 3979 provides for the Texas State Board of Education’s adoption of “essential knowledge and skills” in the social studies or civics curriculum, including an understanding of delineated U.S. social movements, founding documents, and even U.S. Supreme Court decisions. For any social studies course in the required curriculum, “a teacher may not be compelled to discuss a particular current event or widely debated and currently controversial issue of public policy or social affairs,” and if the teacher chooses to do so, that teacher must “to the best of the teacher’s ability, strive to explore the topic from diverse and contending perspectives without giving deference to any one perspective.”

Of note, HB 3979 provides that a teacher, administrator, or other employee of a state agency, school district, or open-enrollment charter school may not “be required to engage in training, orientation, or therapy that presents any form of race or sex stereotyping or blame on the basis of race or sex,” “require or make part of a course” certain concepts, such as “an individual, by virtue of the individual’s race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously” or “members of one race or sex cannot and should not attempt to treat others without respect to race or sex.”

Some of HB 3979’s language is identical to former President Trump’s Executive Order 13950, which prohibited messages in federal workplace trainings that implied “an individual, by virtue of the individual’s race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.” President Biden revoked former President Trump’s executive order in President Biden’s Executive Order 13985. However, the training portion of HB 3979 appears limited to “training, orientation, or therapy” related to “any social studies course in the required curriculum,” so it remains to be seen the overarching impact that HB 3979 will have on diversity and inclusiveness trainings for state agency, school district, or open-enrollment charter school employees outside of this narrow focus.

Bills That Were Not Passed But Are Relevant to DEI

House Bill 188: Relating to the Prohibition of Certain Discrimination Based on Sexual Orientation or Gender Identity or Expression
There were at least a dozen bills including HB 188, its companion bill SB 233, and a similar bill HB 2524, that while were not passed, sought to amend Texas law to prohibit discrimination on the basis of sexual orientation or gender identity or expression in areas such as public accommodations, by state contractors, in the employment context, and in the sale or lease (or the terms and conditions of the sale or lease) of real property. Of note, discrimination on the basis of sexual orientation or gender identity or expression remains illegal under federal law as decided by the U.S. Supreme Court in 2020 in its Bostock v. Clayton County decision.

House Bill 392: Relating to Discrimination on the Basis of Hair Texture or Protective Hairstyle Associated with Race
Commonly referred to as The Crown Act in other States that have passed a similar law, HB 392 if passed, would have amended Texas law to

  1. prohibit public school districts or public institutions of higher education from adopting a student dress or grooming policy that discriminates against a hair texture or protective hairstyle (including braids, locks, and twists) commonly or historically associated with race;
  2. prohibit employment discrimination on the basis of an employee’s hair texture or protective hairstyle; and
  3. include discrimination because of or on the basis of a person’s hair texture or protective hairstyle as constituting a form of race discrimination under the Texas Fair Housing Act.

House Bill 1113: Relating to Staff Development for Public School Employees in Cultural Competence and Implicit Bias
If passed, HB 1113 would have required a school district or open-enrollment charter school to provide staff development in cultural competence and implicit bias to employees of the district or school who regularly interact with students.

House Bill 4111: Relating to the Employment of Diversity, Equity and Inclusion Officers by School Districts
HB 4111 if passed would have required all school districts to employ a diversity, equity, and inclusion officer with “significant professional experience” in DEI including “demonstrated experience” working with certain student populations such as students with limited English proficiency and students enrolled in special education programs, and hold an “approved certification” in DEI. Each DEI officer would have been tasked with leading the district’s “efforts to establish and sustain a culture of diversity, equity, and inclusion for all students by addressing systemic inequities that lead to differences in student achievement, among other responsibilities.

Although most of the 50+ DEI-related bills introduced during the past legislative session were not passed, they demonstrate a notable uptick in efforts to increase DEI-related legislation in Texas.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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