Act of Alabama 2024-34

Act of Alabama 2024-34 is an Alabama law, passed during the 2024 legislative session, which prohibits "certain public entities" from operating "diversity, equity and inclusion" programs or promoting "divisive concepts", and requires public colleges to designate restrooms "on the basis biological sex".

The bill was created in the context of similar pieces of state legislation having been enacted in Florida, North Dakota, South Dakota, Tennessee, Texas, and Utah since late 2022, partly informed by President Donald Trump's 2020 "Executive Order on Combating Race and Sex Stereotyping" which barred government agencies and contractors, including the armed forces, from promoting "race or sex stereotyping or scapegoating".

At the time Alabama's law passed, at least 18 other states were considering similar proposals. The bill's primary sponsor, Will Barfoot (R-District 25), had introduced a similar but broader bill in the 2022 session, but it did not pass. Some of the provisions of that bill did make their way into Act of Alabama No. 2022-290 by amendment. That legislation applied only to public grade schools. The 2024 law expanded those constraints to public institutions of higher education.

A prominent lobbyist for the anti-DEI law was Earl Tilford, whose 501(c)(4) social welfare non-profit, Alabamians for Academic Excellence and Integrity, distributed a booklet from a conservative think tank stoking fears that DEI programs were a cover for radical left-wing policy. Tilford contributed to the booklt and testified during committee hearings.

In spring 2023 Alabama public college presidents were asked by Alabama legislators to report on their expenditures for Diversity, Equity and Inclusion efforts. Analysis of their reports found that almost all such spending was used to conduct federally-mandated services.

Alabama's anti-DEI bill advanced as Senate Bill 129, introduced on February 20 and co-sponsored by 25 of the state's 27 Republican senators. It was referred to the Senate Committee on County and Municipal Government and given a favorable report the following day. During subsequent readings in the Senate, several amendments offered by Merika Coleman (D-District 19, Linda Coleman-Madison (D-District 20, and Bobby Singleton (D-District 24), were adopted, generally aimed at narrowing the scope of prohibited speech, and resolving conflicts with existing laws.

The bill passed the Senate by a 26-7 vote on February 22. It was given its first reading in the State House of Representatives on February 27 and referred to the House Committee on State Government. It returned with a favorable report on March 5. During debate, an amendment offered by Marcus Paramore (R-District 89) specifically exempted clinical research from the bill. Another, from Jamie Kiel (R-District 18) protected private contractors from being penalized unless they "knowingly violated" the act. The revised bill passed the house by a vote of 75-28 on March 7. The changes were adopted by the Senate on March 19. Governor Kay Ivey signed the bill the following day. It is scheduled to go into effect on October 1, 2024.

Requirements

The law prohibits any state agency, local public board of education, or public institution of higher education, from sponsoring any "DEI program" (as defined) or maintaining an office, location or department which does so; and from requiring any student, employee or contractor to participate in such a program.

It also prohibits the same entities from directing or compelling any student, employee or contractor to affirm, adopt or adhere to a "divisive concept" (as defined) or to participate in any program which advocates for or requires assent to such a concept. It also prohibits those entities from requiring students, employees or contractors to petition state or local governments to enact policies relating to a divisive concept.

Further, public institutions may not require a student, employee or contractor to share a personal point of view regarding such a concept, except in the context of an objective discussion as part of a course of instruction in an academic setting. They are prohibited from penalizing or discriminating against any student, employee or contractor for "refusing to support, believe, endorse, embrace, confess, or otherwise assent" to a divisive concept, or to a diversity statement (which is not defined).

Lastly, the law prohibits the same entities from holding classes, trainings or orientations for which enrollment or attendance is made solely on the basis of race or color, and from authorizing or soliciting funding "for the purpose of compelling assent to any divisive concept or any other purpose prohibited in this act." An exception to bar on funding was made for organizations led by students, faculty or staff independent of the institution.

Divisive concepts

The law defines the term "divisive concepts" as any of the following:

a. That any race, color, religion, sex, ethnicity, or national origin is inherently superior or inferior.

b. That individuals should be discriminated against or adversely treated because of their race, color, religion, sex, ethnicity, or national origin.

c. That the moral character of an individual is determined by his or her race, color, religion, sex, ethnicity, or national origin.

d. That, by-virtue of an individual's race, color, religion, sex, ethnicity, or national origin the individual is inherently racist, sexist, or oppressive, whether consciously or subconsciously.

e. That individuals, by virtue of race, color, religion, sex, ethnicity, or national origin are inherently responsible for actions committed in the past by other members of the same race, color, religion, sex, ethnicity, or national origin.

f. That fault, blame, or bias should be assigned to members of a race, color, religion, sex, ethnicity, or national origin on the basis of race, color, religion, sex, ethnicity, or national origin.

g. That any individual should accept, acknowledge, affirm, or assent to a sense of guilt, complicity, or a need to apologize on the basis of his or her race, color, religion, sex, ethnicity, or national origin.

h. That meritocracy or traits such as a hard work ethic are racist or sexist.

DEI programs

The law defines the term "diversity, equity and inclusion program" as "any program, class, training, seminar, or other event where attendance is based on an individual's identity, ethnicity, national origin, race, sex, gender, or sexual orientation, or that otherwise violates this act." It excludes "programs, classes, trainings, seminars, or other events that are necessary to comply with applicable state law, federal law, or court order."

Exclusions

Section 4 lists several exceptions to the activities prohibited by the act.

The law stipulates that nothing in its language "may be construed to inhibit or violate the first Amendment rights of any student or employee, or to undermine the duty of a public institution of higher education to protect, to the greatest degree. academic freedom, intellectual diversity, and free expression."

Specific exceptions to the law's requirements include the activities of the Alabama Office of Minority Affairs, as well as programs or events hosted by student, employee or contracted groups without the sponsorship of the public institution. The law does not prevent employees or contractors from answering questions posed by participants in programs that include divisive concepts.

Collecting and reporting demographic information, and abiding by any requirements of accreditation are exempted from the law. The "teaching of topics or historical events in a historically accurate context" is expressly permitted. Activities relating to scientific or clinical research, to health care, to personal security, or to academic support services are excluded from the law's requirements. So long as they are otherwise consistent with the act, efforts by state agencies to promote "racial, cultural, or ethnic diversity or inclusiveness," are not prohibited.

Housing, athletic programs, and social organizations are permitted to limit participation to sex, and public institutions of higher learning are mandated to "ensure that every multiple occupancy restroom be designated for use by individuals based on their biological sex, as defined by Act of Alabama 2022-290 (Code of Alabama §16-1-54).

Enforcement

The law provides that all state agencies and boards may terminate employees or contractors whom they determine have "knowingly violated" the provisions of the law, following their own established policies for termination of employees for cause. It expresses the legislature's intent that the act would be enforced by constitutionally-created boards of trustees.

References

• Griesbach, Rebecca (February 21, 2024) "Alabama closer to banning college DEI programs, implementing university bathroom rules." AL.com
• Stephenson, Jemma (February 23, 2024) "‘Divisive concepts,’ anti-DEI bill passes Alabama Senate." Alabama Reflector
• Griesbach, Rebecca (March 20, 2024) "Alabama Gov. Kay Ivey signs DEI bill into law: What the ‘divisive concepts’ ban will do." AL.com
• Johnson, Roy S. (March 28, 2024) "My chat with man who stoked the anti-DEI flames in Alabama." opinion AL.com

External links

• Act of Alabama 2024-34 (full text), at sos.state.al.us