Tennessee (Kind of) Tackles DEI in Higher Ed

Though well-intentioned, the state’s anti-DEI laws are easily evaded.

[Editor’s note: The following article continues the Martin Center’s series on the status of higher-ed reform in states of interest to our readers. Please read our reports on Florida, Arizona, West Virginia, Oklahoma, and South Dakota.]

The DEI takeover at the University of Tennessee-Knoxville (UTK) and throughout the University of Tennessee System has met with some legislative opposition. The legislature has sought to turn DEI offices away from excesses, while also building elements of a healthy university. Neither effort is yet sufficient to put UTK or the UT System on a new course.

Tennessee has used legislative power to defund DEI efforts in the past. In May 2016, the legislature diverted monies from UTK’s Office of Diversity and Equity toward minority scholarships. All four employees of the office were either reassigned or left the university.

Within five years, however, UTK and the state’s other universities had ignored the legislature’s seemingly strong signal. By 2022, under the noses of the legislature, UTK had put in place 26 DEI administrators, revamped its hiring and promotion policies to encourage more equity, and begun undertaking a review to infuse general education with more diversity classes. Each department at UTK had developed a diversity action plan, as they were required to do by the university’s strategic plan. Most, if not all, universities in the system had hired high-level DEI administrators who were readying to do the same.

UTK and the state’s other universities have ignored the legislature’s strong anti-DEI signal.The legislature has not been as quick or direct in tackling this new DEI buildup as it was in 2016. During the “Summer of Floyd,” UTK announced plans to make SAT or ACT scores optional for admission. It wasn’t until 2022 that the legislature passed a resolution asking UTK’s board of trustees to accomplish a reversal and that the tests were reinstated as a requirement.

Also in 2022, the legislature held hearings and grilled university officials, moves that culminated in a “divisive concepts” bill accompanied by a more accessible grievance procedure for employees. This law pledged respect for academic and classroom freedom but banned “compelled speech” and removed “divisive concepts” like inherent racial bias or racial superiority from university trainings. Furthermore, it prohibited university employees from taking adverse actions if students refused to believe in “divisive concepts.”

More than a dozen states had passed “divisive concepts” laws by the end of 2022. (Idaho passed the first.) Though professors and university administrators howl that such laws stifle free speech, “divisive concepts” laws partly legislate and clarify a well-established limit on government power. “No official,” as the Supreme Court wrote in 1943, “can prescribe what shall be orthodox.” Government cannot compel people to profess any particular religious belief, to utter a political belief, or even to state something like the Pledge of Allegiance (within narrow exceptions) as a condition of employment, admission to school, or getting a grade.

Some find promise in “divisive concepts” laws. I am aware of no successful higher-education grievances under them. They have been subject to legal challenge nearly everywhere. Generally, as applied to higher education, such laws survive as states concede that they proscribe little speech, or they are thrown out as unconstitutional limits on free speech if states try to widen the range of expression prohibited. Tennessee’s law has been challenged and (so far!) upheld, but it is not clear that it has yielded any tangible results. The juice from such laws is not worth the squeeze.

In April 2023, Tennessee passed the “Tennessee Higher Education Freedom of Expression and Transparency Act,” which expanded on the 2022 “divisive concepts” bill. Tennessee joins Florida, Texas, and North Dakota as states that have sought to halt DEI growth in public colleges and universities. Do No Harm, an organization allied in the fight against DEI, calls this bill “one of the best bills in America.” If so, America has a lot of work to do.

It is not clear that Tennessee’s “divisive concepts” law has yielded any tangible results.Like Florida (line 269) and Texas (line 11ff.), Tennessee bans the use of DEI statements in hiring and admissions. This will probably work about as well as all bans of DEI statements (i.e., alternative ideological tests will be found in hiring processes).

Tennessee chose to regulate DEI offices rather than (like Florida, Texas, and the earlier Tennessee legislature) eliminate them altogether. In Florida, no state or federal monies can be expended on offices that (in Florida’s language) “advocate for diversity, equity, and inclusion, or promote or engage in political or social activism.” Much the same is true in Texas, where “an institution of higher education may not establish or maintain a diversity, equity, and inclusion office.” If properly executed, such actions would be broad, deep, and transformational (though universities are carrying out guerrilla campaigns of non-compliance). According to Tennessee’s university system, diversity, equity, and inclusion offices must promote a climate of intellectual diversity and exchange in addition to their normal DEI functions.

Tennessee’s universities cannot fund membership in organizations, or travel to conferences, that promote “divisive concepts,” though, according to its university system, there are no such “organizations that require endorsement of a divisive concept.” This portion of the bill will do nothing. The bill requires that universities compile annual reports of complaints made under the “divisive concepts” law, which can be made through its normal reporting system. Reports will start coming out next year.

Tennessee has taken steps to support alternative university programming. The flagship effort is the Institute of American Civics (IAC) at UTK, established through legislation in spring 2022. The IAC has a charter emphasizing traditional American civics education (with an emphasis on American institutions and the principles of the American constitutional order), civil discourse, and constructive debate, with hopes of building non-partisan, civic-engagement initiatives.

Yet UTK has not been urgently developing the IAC. The Hamilton Center at the University of Florida, established about the same time as the IAC, already has a director, 10 faculty members, and eight visiting faculty/fellows, while the IAC has only a director and two visiting fellows. The IAC has gone out of its way to appoint board members with a bipartisan flavor, including condescending, committed leftists like John Meacham (reputed author of the famous Dark Brandon speech). The Hamilton Center has a board of academic advisors, academics all, without any leftists. The Hamilton Center has ambitions to be offering majors and minors as early as fall 2024 and to develop a required civics class for all University of Florida undergraduates. The IAC is nowhere near ready to do anything like that. Hamilton controls its own hiring and tenure policies, while the IAC operates within the Baker School. Hamilton has a budget nearly twice that of the IAC. If Tennessee is serious, it needs to increase support for the IAC, as well as perhaps develop a course that all UTK students must take.

Tennessee legislators have done little beyond putting lipstick on its DEI pig.In 2022, the DEI problem in Tennessee was, by every measure, far worse than it was in Florida. (Compare UTK to UF.) Florida tackled its smaller problem with vigor, including through a renewed dedication to missional appointments for boards of trustees and for the university system, numerous leadership changes among university presidents, intelligent legislative reforms, dedicated implementation of those reforms, and rhetorical leadership from the governor. Even Texas A&M, embarrassed at the exposure of its own woke revolution, changed leadership.

Tennessee legislators have done little beyond putting lipstick on its DEI pig. Its reforms are easily evaded or insignificant. Solutions are slow-walked. They make DEI faculty wail and act frightened, though privately DEI professionals know such reforms are meaningless. The outrage keeps the Overton Window locked comfortably against serious reform. But if the universities will throw a fit no matter what Tennessee’s government does, why not go big?

A serious approach begins with (1) defunding DEI offices throughout the system; (2) concerted efforts to reform at least one substantial university through board and executive appointments (like Florida has done at New College and Florida Polytechnic University); (3) more missional appointments to boards of trustees generally; (4) a serious build-out of an independent and more explicitly conservative IAC (which would include putting tested conservatives on its boards, a faster timeline for getting the IAC operational, and more lavish funding, preferably at the expense of less useful university departments); and (5) a top-to-bottom review of degree-granting programs, using both economic and missional criteria, to determine which deserve public funding and which do not.

Scott Yenor is senior director of state coalitions at the Claremont Institute’s Center for the American Way of Life and a professor of political science at Boise State University.