By: Shaheen H.B. No. 5127
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to public higher education reform; authorizing
  administrative penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 51.352, Education Code, is amended by
  amending Subsection (d) and adding Subsection (g) 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)  restrict the membership of a search committee for
  the position of president or other chief executive officer of an
  institution under the board's control and management to members of
  the governing board;
               (5)  approve or deny the hiring of a person for the
  position of vice president, provost, associate or assistant
  provost, dean, or associate or assistant dean or a similar position
  by each institution under the board's control and management;
               (6)  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;
               (7)  approve or deny each course in the core
  curriculum, as that term is defined by Section 61.821, at each
  institution under the board's control and management;
               (8)  approve or deny each posting or other
  advertisement for a tenured faculty position at each institution
  under the board's control and management; and
               (9) [(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.
         (g)  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 Subsections (d)(2), (3), (5), (7), and
  (8) during the preceding state fiscal year.
         SECTION 2.  Chapter 51, Education Code, is amended by adding
  Subchapter L to read as follows:
  SUBCHAPTER L. PROHIBITIONS REGARDING IDEOLOGICAL OATHS OR
  STATEMENTS
         Sec. 51.601.  PURPOSE. The purpose of this subchapter is to
  prohibit institutions of higher education from requiring or giving
  preferential consideration for certain ideological oaths or
  statements that undermine academic freedom and open inquiry and
  impede the discovery, preservation, and transmission of knowledge.
         Sec. 51.602.  DEFINITIONS. In this subchapter:
               (1)  "Coordinating board" means the Texas Higher
  Education Coordinating Board.
               (2)  "Institution of higher education" has the meaning
  assigned by Section 61.003.
         Sec. 51.603.  PROHIBITIONS REGARDING IDEOLOGICAL OATHS OR
  STATEMENTS. (a)  An institution of higher education may not:
               (1)  compel, require, induce, or solicit a student
  enrolled at the institution, an employee or contractor of the
  institution, or an applicant for admission to or employment or
  contracting at the institution to:
                     (A)  endorse an ideology that promotes the
  differential treatment of an individual or group of individuals
  based on race, color, or ethnicity; or
                     (B)  provide a statement of the person's:
                           (i)  race, color, ethnicity, or national
  origin, except to record any necessary demographic information;
                           (ii)  views on, experience with, or past or
  planned contributions to efforts involving diversity, equity, and
  inclusion, marginalized groups, antiracism, social justice,
  intersectionality, or related concepts; or
                           (iii)  views on or experience with race,
  color, ethnicity, national origin, or other immutable
  characteristics; or
               (2)  provide preferential consideration to a student
  enrolled at the institution, an employee or contractor of the
  institution, or an applicant for admission to or employment or
  contracting at the institution on the basis of the person's
  unsolicited statement in support of an ideology described by
  Subdivision (1)(A).
         (b)  This section may not be construed to:
               (1)  restrict academic research or coursework;
               (2)  prevent a person from providing to an institution
  of higher education information described by Subsection (a) on the
  person's own initiative separate from any specific requirement or
  request from the institution; or
               (3)  prevent an institution of higher education from
  requiring an applicant for admission to or employment or
  contracting at the institution to:
                     (A)  disclose or discuss the content of the
  applicant's research or artistic creations;
                     (B)  certify compliance with state and federal
  antidiscrimination law; or
                     (C)  discuss pedagogical approaches or experience
  with students with learning disabilities.
         (c)  Not later than December 1 of each year, each institution
  of higher education shall submit to the lieutenant governor and the
  speaker of the house of representatives a report certifying the
  institution's compliance with this section.
         SECTION 3.  Subchapter Z, Chapter 51, Education Code, is
  amended by adding Sections 51.9317, 51.9318, and 51.9319 to read as
  follows:
         Sec. 51.9317.  DIVERSITY, EQUITY, AND INCLUSION OFFICES AND
  EMPLOYEES PROHIBITED.  (a)  In this section:
               (1)  "Coordinating board" means the Texas Higher
  Education Coordinating Board.
               (2)  "Diversity, equity, and inclusion office" means an
  office, division, or other unit of an institution of higher
  education established for the purpose of:
                     (A)  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;
                     (B)  promoting differential treatment of or
  providing special benefits to individuals on the basis of race,
  color, or ethnicity;
                     (C)  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
                     (D)  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.
               (3)  "Institution of higher education" has the meaning
  assigned by Section 61.003.
         (b)  An institution of higher education may not establish or
  maintain a diversity, equity, and inclusion office or 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)  Subsection (b) may not be construed to:
               (1)  restrict:
                     (A)  academic course instruction;
                     (B)  research or creative works by an institution
  of higher education's students or faculty;
                     (C)  the activities of student organizations
  registered with or recognized by an institution of higher
  education;
                     (D)  the guest speakers or performers who may be
  invited to speak or perform at an institution of higher education
  for short-term engagements;
                     (E)  health services provided by licensed
  professionals at an institution of higher education;
                     (F)  services provided by appropriate
  professionals at an institution of higher education to veterans of
  the armed forces of the United States or persons with a physical or
  cognitive disability; or
                     (G)  an institution of higher education's ability
  to:
                           (i)  respond to a request for information
  from a grantmaking agency or athletic association; or
                           (ii)  collect data; or
               (2)  prohibit an institution of higher education from:
                     (A)  establishing or maintaining a legal office or
  other unit, hiring or assigning an employee who is an attorney, or
  contracting with a third-party attorney or law firm to ensure the
  institution's compliance with any applicable court order or state
  or federal law;
                     (B)  establishing or maintaining an academic
  department that does not establish policy or procedures for other
  departments; or
                     (C)  registering or recognizing student
  organizations at the institution.
         (d)  Nothing in this section may be construed as prohibiting
  bona fide qualifications based on sex that are reasonably necessary
  to the normal operation of an institution of higher education.
         (e)  Any person may notify the attorney general of a
  violation or potential violation of this section by an institution
  of higher education. The attorney general may file suit for a writ
  of mandamus compelling the institution to comply with this section.
         (i)  If an institution of higher education determines that an
  employee of the institution has violated this section, the
  institution shall:
               (1)  take the following action against the employee:
                     (A)  for the first violation, place the employee
  on unpaid leave for the next academic year; or
                     (B)  for the second or a subsequent violation,
  discharge the employee; and
               (2)  report the determination and the action taken by
  the institution to the coordinating board.
         (j)  The coordinating board shall maintain and provide to
  each institution of higher education a list of persons against whom
  action has been taken under Subsection (i).
         (k)  An institution of higher education may not hire an
  employee who is included on the coordinating board's list
  maintained under Subsection (j) before:
               (1)  if the employee was placed on unpaid leave under
  Subsection (i)(1)(A), the end of the academic year for which the
  employee is placed on unpaid leave; or
               (2)  if the employee was discharged under Subsection
  (i)(1)(B), the fifth anniversary of the date on which the employee
  was discharged.
         (l)  If the coordinating board determines that an
  institution of higher education has violated this section, the
  coordinating board shall assess an administrative penalty against
  the institution in an amount equal to the lesser of $1 million or
  one percent of the amount of the institution's operating expenses
  budgeted for the state fiscal year preceding the state fiscal year
  in which the violation occurred.
         (m)  An administrative penalty collected under Subsection
  (l) may only be appropriated to an institution of higher education
  that the coordinating board has not determined to have violated
  this section during the two state fiscal years preceding the state
  fiscal year for which the appropriation is made.
         Sec. 51.9318.  STATEMENTS REQUIRED TO BE INCLUDED IN MISSION
  STATEMENT, BYLAWS, FACULTY HANDBOOK, AND STUDENT HANDBOOK. (a) In
  this section, "institution of higher education" has the meaning
  assigned by Section 61.003.
         (b)  Each institution of higher education shall adopt an
  institutional mission statement that includes, or incorporate into
  the institution's institutional mission statement if the
  institution has already adopted an institutional mission
  statement, the following statements in whole and without
  interruption:
               (1)  "We affirm that (name of institution) will educate
  students by means of free, open, and rigorous intellectual inquiry
  to seek the truth.";
               (2)  "We affirm our duty to equip students with the
  intellectual skills they need to reach their own informed
  conclusions on matters of social and political importance.";
               (3)  "We affirm the value of viewpoint diversity in
  campus intellectual life, including in faculty recruitment and
  hiring.";
               (4)  "We affirm our duty to ensure that no aspects of
  (name of institution) life, in or outside the classroom, require,
  favor, disfavor, or prohibit speech or action that supports any
  political, social, or religious belief.";
               (5)  "We affirm our commitment to create a community
  dedicated to civil and free inquiry that respects the intellectual
  freedom of each member, supports individual capacities for growth,
  and tolerates the differences in opinion that naturally occur in a
  public university community.";
               (6)  "We affirm the value of institutional neutrality:
  that institutions of higher education should not take collective
  positions on political and social controversies of the day."; and
               (7)  "These values take priority over any other value
  we may also adopt."
         (c)  Each institution of higher education shall incorporate
  into the institution's bylaws, faculty handbook, and student
  handbook the substance of the following reports issued by the
  University of Chicago:
               (1)  the Report of the Committee on Freedom of
  Expression; and
               (2)  the Kalven Committee Report on the University's
  Role in Political and Social Action.
         Sec. 51.9319.  CERTAIN MANDATORY TRAINING PROHIBITED. (a)
  In this section:
               (1)  "Coordinating board" means the Texas Higher
  Education Coordinating Board.
               (2)  "Institution of higher education" has the meaning
  assigned by Section 61.003.
               (3)  "Training" includes a training, seminar,
  discussion group, workshop, or other instructional program,
  whether provided in person, online, or by any other means, with a
  purpose of advising, counseling, influencing, or teaching
  participants.  The term does not include:
                     (A)  an academic course offered for credit; or
                     (B)  an activity of a student organization
  registered with or recognized by an institution of higher education
  that affects only the organization's members.
         (b)  An institution of higher education may not require a
  student, employee, or applicant for employment at the institution
  to participate in training on diversity, equity, inclusion, bias,
  oppression, gender identity, or related concepts as a condition of:
               (1)  admission to or enrollment at the institution;
               (2)  employment or promotion at the institution;
               (3)  participating in any function of the institution;
  or
               (4)  graduating from the institution.
         (c)  This section may not be construed to:
               (1)  limit the academic freedom of any individual
  faculty member to direct the instruction of a course taught by the
  faculty member; or
               (2)  prohibit any training:
                     (A)  that is:
                           (i)  developed by an attorney; and
                           (ii)  approved in writing by the
  institution's general counsel and the office of the attorney
  general as being required to comply with any applicable court order
  or state or federal law; and
                     (B)  for which the materials are made publicly
  available on the institution of higher education's Internet
  website.
         (d)  Any person may notify the attorney general of a
  violation or potential violation of this section by an institution
  of higher education.  The attorney general may file suit for a writ
  of mandamus compelling the institution to comply with this section.
         (e)  A student or employee of an institution of higher
  education who is required to participate in training in violation
  of this section may bring an action against the institution for
  injunctive or declaratory relief.
         (h)  If an institution of higher education determines that an
  employee of the institution has violated this section, the
  institution shall:
               (1)  take the following action against the employee:
                     (A)  for the first violation, place the employee
  on unpaid leave for the next academic year; or
                     (B)  for the second or a subsequent violation,
  discharge the employee; and
               (2)  report the determination and the action taken by
  the institution to the coordinating board.
         (i)  The coordinating board shall maintain and provide to
  each institution of higher education a list of persons against whom
  action has been taken under Subsection (h).
         (j)  An institution of higher education may not hire an
  employee who is included on the coordinating board's list
  maintained under Subsection (i) before:
               (1)  if the employee was placed on unpaid leave under
  Subsection (h)(1)(A), the end of the academic year for which the
  employee is placed on unpaid leave; or
               (2)  if the employee was discharged under Subsection
  (h)(1)(B), the fifth anniversary of the date on which the employee
  was discharged.
         (k)  If the coordinating board determines that an
  institution of higher education has violated this section, the
  coordinating board shall assess an administrative penalty against
  the institution in an amount equal to the lesser of $1 million or
  one percent of the amount of the institution's operating expenses
  budgeted for the state fiscal year preceding the state fiscal year
  in which the violation occurred.
         (l)  An administrative penalty collected under Subsection
  (k) may only be appropriated to an institution of higher education
  that the coordinating board has not determined to have violated
  this section during the two state fiscal years preceding the state
  fiscal year for which the appropriation is made.
         SECTION 4.  Section 51.942, Education Code, is amended by
  adding Subsection (c-1) to read as follows:
         (c-1)  For purposes of Subsection (c)(5), good cause for
  revoking the tenure of a faculty member includes the faculty
  member's violation of Section 51.9317 or 51.9319.
         SECTION 5.  (a)  Section 51.352(d), Education Code, as
  amended by this Act, applies beginning with the 2023-2024 academic
  year.
         (b)  Section 51.352(g), 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 6.  (a)  Except as provided by Subsection (b) of this
  section, Subchapter L, Chapter 51, and Sections 51.9317, 51.9318,
  and 51.9319, Education Code, as added by this Act, apply beginning
  with the 2023-2024 academic year.
         (b)  Sections 51.9317(i) and 51.9319(h), Education Code, as
  added by this Act, apply only to a person who enters into or renews
  an employment contract at a public institution of higher education
  on or after the effective date of this Act.
         SECTION 7.  A public institution of higher education may not
  spend money appropriated by the legislature for the state fiscal
  biennium beginning September 1, 2025, until the institution's
  governing board has filed with the Texas Higher Education
  Coordinating Board and posted on the institution's Internet website
  a report that:
               (1)  states the steps taken by the institution to
  comply with Section 51.9317, Education Code, as added by this Act;
  and
               (2)  certifies the institution's compliance with
  Section 51.9317, Education Code, as added by this Act.
         SECTION 8.  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.