What You Need to Know
- Key takeaway #1
Utah's new diversity, equity, and inclusion ("DEI") ban, called the "Equal Opportunity Initiatives" law, took effect on July 1, 2024. The law prohibits diversity training, hiring, and inclusion programs in higher education, public education, and government employment, including the elimination of campus DEI offices and programs. - Key takeaway #2
The law mandates (a) compliance reviews and reporting by educational institutions and government employers, with potential state appropriation withholding for non-compliance, and (b) annual training on academic freedom and freedom of speech for faculty and staff. - Key takeaway #3
In light of the growing trend of anti-DEI laws, colleges and universities must stay apprised of relevant local, state, and federal legislative developments and take steps to comply with this new complex web of legal requirements.
As of July 1, Utah's "Equal Opportunity Initiatives" law is in effect. This law prohibits "discriminatory practices" at higher education institutions, public education systems, and government employers within Utah. In response to the law, colleges and universities like the University of Utah, Southern Utah University, Utah State University, and Weber State University have reportedly already closed DEI offices and cultural centers.
The law defines "discriminatory practices" to include practices, programs, policies, or initiatives "referred to or named diversity, equity, and inclusion" or that "assert[s] that meritocracy is inherently racist or sexist"—a definition that effectively eliminates DEI offices and programs at Utah's educational institutions. The law also prevents the use of diversity statements or commitments in hiring or admissions, and prevents colleges and universities from using public funding to support gender- or race-specific academic awards.
This law is the latest in a string of similar state laws and rules enacted over the last two years in Alabama, Iowa, Florida, Texas, and North Dakota. Similar DEI-targeting legislation has been introduced in more than two dozen additional states, and several of those bills have passed through a legislative chamber, including two highly-watched bills in Missouri. Alabama's DEI ban will take effect on October 1.
Prohibited Activity
The main provisions of Utah's new law prohibit the state's public colleges, universities, K-12 schools, and government entities from:
- "requiring an individual, before, during, or after admission or employment to provide certain submissions or attend certain training that promotes differential treatment"; and
- "using an individual's certain characteristics in decisions regarding aspects of employment or education."
"Submissions" include but are not limited to hiring decisions and admission to, advancement in, or graduation from an institution or academic program. For example, the law prohibits submissions that require applicants to write about "[p]ersonal identity characteristics" meaning "an individual's race, color, ethnicity, sex, sexual orientation, national origin, religion, or gender identity" or that require applicants to state their beliefs about DEI.
The law also prohibits the use of training in higher education institutions that would involve "personal identity characteristics." Similarly, these institutions may not "establish[ ] or maintain[ ] an office that engages in certain practices," such as "diversity, equity, and inclusion." The law prohibits universities from offering support services to individual gender- or race-specific support services groups, instead it requires those services to be open to all students. Finally, the law requires annual training on academic freedom and freedom of speech for faculty and staff at higher education institutions.
The law exempts classroom instruction, research, and accreditation activities from the scope of the DEI prohibition. It also exempts compliance activities for federally-funded grants with diversity expectations and/or reporting requirements.
Compliance and Oversight
The law requires the Utah Board of Higher Education, the State Board of Education, the state auditor, and executive agency directors "to review and report compliance with certain requirements" in 2025, and then on a biennial basis after 2026. Specifically, the law requires reports to the Higher Education Appropriations Subcommittee (the "Subcommittee"). For example, the Utah Board of Higher Education must report biennial compliance with the law's prohibition on submissions, trainings, and other "prohibited discriminatory practices." The law provides that the Utah Board of Higher Education shall make rules in accordance with Utah's Administrative Rulemaking Act, to establish a procedure for accepting and processing individual complaints against an institution for alleged violations on prohibited "submissions," "trainings," and other "discriminatory practices."
Non-compliance may result in withholding of state appropriations. The Utah Legislature may withhold future state appropriations if: (a) the Subcommittee identifies a violation and (b) an institution fails to cure the violation under a "remediation plan" within 180 days after the creation of that plan.
Higher education institutions must also perform third party campus climate surveys, and those institutions must report their findings to the Office of Legislative Research and General Counsel ("OLRGC"). The OLRGC then must provide survey summaries to the Utah Legislature's Education Interim Committee.
Educational Institutions Should Take Steps to Ensure Compliance with This Law
To comply with this law, higher education institutions in Utah should:
- review and update application, enrollment, scholarship, and employment policies to ensure they do not run afoul of the new prohibitions on "discriminatory practices";
- contract with a third-party to conduct campus climate surveys;
- review support services offered to individual gender- or race-specific support services groups, to ensure such services are open to all students;
- review practices related to employment and admissions to ensure they no longer contain "diversity statements"; and
- develop and implement training programs on academic freedom and freedom of speech for faculty and staff.
This law and those like it represent a significant shift in how state-funded educational institutions and employers approach issues of equality, non-discrimination, and inclusion in the wake of the U.S. Supreme Court's 2023 decisionin Students for Fair Admissions v. Harvard.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.