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.