AAUP@UT

By Gary L. Bledsoe, Esq.
thanks to Ms. Alberta Phillips and Dr. Angela Valenzuela for their feedback
April 15, 2024

Introduction

In an effort to motivate conservative voters and antagonize and divert progressives and minorities, the far right conceived the idea of going after diversity, equity and inclusion (DEI) programs and initiatives (Rufo, 2023). To do that, they reached for the playbook they used to scare the public and degrade the scholarship regarding Critical Race Theory (CRT). Just as they promoted a deeply false narrative defining and describing CRT, they launched a similar campaign against DEI. Consequently, extreme states like Florida and Texas led the way in passing laws aimed at eliminating or severely cutting back DEI efforts in government and higher education. Utah’s Republican conservative governor who presents as more reasonable or moderate in his politics—perhaps pressured by the more extreme wing of his party—signed such a bill into law. Sadly, many other states are expected to adopt similar laws in the near future (Bryant & Appleby, 2024).

Drawing on our civil rights heritage and struggle, the purpose of this brief is to provide the policy and political landscape of this right-wing attack on higher education, together with ideas on protecting individuals, on the one hand, and what organizations can do in the wake of these attacks, on the other.

Policy and Political Landscape

In Texas, when Senate Bill 17 (SB 17) was laid out during the regular 88th Texas Legislative Session by its GOP sponsor, Senator Brandon Creighton, Senator Royce West, a stalwart and highly respected state Senator, engaged Senator Creighton in a conversation that many felt revealed the bill sponsor could not or would not define DEI or say what it was, even though the bill had been filed and was being presented to a Senate Committee. They then discussed getting someone to come before the Committee who knew what DEI was. Clearly the Senator had not actually written this bill. The New York Times has published an article that demonstrated how racial bias was a motivating factor for some of the bill’s proponents (Confessore, 2024).

The forces that seek to eliminate and thwart DEI are organized (Confessore, 2024). They have vast resources to dismantle such programs. Many nonprofits like those described by Jane Mayer in Dark Money (2017) have been created and billionaires who oppose affirmative action, equality in government and education as well as diversity, equity, and inclusion—and who have a disdain for the 14th Amendment—have joined together to fund them.

It is worth noting what the true and unspoken agenda is of these groups: To turn back DEI in order to maintain and elevate White privilege within government and higher education systems where they are not only over-represented but manifest higher completion rates than students of color (Carnevale & Strohl, 2016). Higher completion means higher earnings, exacerbating intergenerational privilege and educational advantage that as parents, they later pass on to their children (Carnevale & Strohl, 2016). In contrast, DEI aims to help counter white privilege for poor and working class whites, minorities, disadvantaged citizens such as veterans or first-in-family to attend college students and others. In other words, these efforts seek to maintain the status quo and actually make middle- and upper-class white privilege the law of the land. The good people who occupy the positions seeking to broaden opportunity are inconsequential casualties of this anti-DEI movement.

Efforts to level those playing fields, which soared following the George Floyd killing, became the focus of those conservative groups. Their tactics included promoting false statements, including that DEI programs were illegal (Williams, 2023). Ultimately in Texas, after the latter was proved false, they settled on another false narrative, stating that DEI initiatives provided privilege or “benefits” to certain populations, such as African Americans, Latinos, and LGBTQ+ people. In other words, DEI equates to “reverse discrimination” against straight, white people. Hence, SB 17 was the “fix” to a made-up problem. Throughout the 88th Texas Legislative Session, no evidence was provided to back up the claim by legislators that White people were being displaced or disadvantaged by DEI programs or initiatives. And since the legislative session, we have seen gross overreach where Universities are being bullied into cutting people and programs well beyond the scope of the actual law. Every effort is being made to eliminate programs, activities, and personnel who might assist or aid minority or non-traditional students, while programs, activities, and personnel that are responsible for supporting or reinforcing white privilege are allowed to remain.

The landscape is dreary. In some states such as has been reported regarding Florida, they have already fired all DEI employees (Lawson, 2023). In other states like Texas, they have fired some, and demoted or reassigned others into positions that may not be secure in the future, but others have been terminated or laid off in some Universities including many at the University of Texas at Austin. Moreover, student organizations have been adversely impacted (Srivastava, 2023). But the fallout also has created an environment of fear, anxiety, and suspicion among Faculty and Students of Color in Texas universities (Zamora & Valenzuela, 2024). We have heard from a number of students and professors that they have considered or are presently considering leaving their campuses for more welcoming places elsewhere. A report by the American Association of University Professors (2023) indicates as much (also see Mangan 2024a).

As Martin Luther King once said, when you hear the bell tolling you need not ask “For whom the Bell Tolls”, because he says, “It tolls for thee.” When they come for each of us individually, we must realize it is a very difficult task for us to prevail individually. With all its resources, the other side has people paid to identify potential targets around the country and to generate momentum in each and every case. As of now, they have DEI and equality advocates and allies beat on the ground game. They have media that are not worried about balance or fairness that will run with their claims without analyzing or fact-checking them, and university officials who in wanting to keep their own positions, genuflect and sacrifice the good and honorable people who have done nothing wrong and have done their jobs with integrity.

What happened at Harvard University recently is a prime example of an entire ecosystem of conservatives, including their media and elected officials, ganging up on its first African American President, Claudine Gay. Individuals, by and large, do not have the financial resources, media attention, or political power to engage in such fights. Now, we are seeing attack tactics by conservatives evolve by invoking “plagiarism.” This alleged “plagiarism” issue has been identified as fertile territory. It was successful in Gay’s case. We no doubt will hear more and more about that. Think about this, the conservative media publishes a likely nefarious story about someone being guilty of plagiarism, the person is then put on leave if they are a member of the staff, professor, or top official and informed that they must fight to maintain their tenure. Justice can be attained, but in my estimation, the internal systems in many if not most universities will yield to far-right pressures unless there is formidable opposition. Regardless, the damage is done by discouraging future candidates of color from applying for such positions (Mangan, 2024b).

This means that each and every individual who is wrongfully attacked on nefarious charges should be connected with a strong and viable organization, and not one that will crater to the needs and wants of an administration.

In this paper I outline ideas and activities that we should consider to put ourselves into an effective position to prevail in this fight. Let us remember how the American colonists were outnumbered by British regulars and mercenaries who had superior artillery and training, yet the American colonists, with substantial help from Black soldiers, were able to prevail. In the 1940’s, 50’s, and 60’s Black leadership successfully attacked Jim Crow, and at least for a time, they were able to subdue it despite the vast institutional strength on the other side. They did this with a diverse group of allies of all different races, political affiliations, sexes or sexual preferences who all helped fuel the movement. This is the spirit we must undertake in the “New Jim Crow” era. We never know who the champion of our cause might be, it might be those among us who is least expected (Bass, 1981).

Protecting the Individual

The individual should become aware that not everyone is their friend and that frequently when people come after you for one reason, they might find another and more legitimate reason to take action. As my wife says to me all the time, when you know someone wants to shoot you with a gun they brought to the fight, don’t be foolish and supply them the bullets. Here are some suggestions:

• Don’t use university equipment to communicate or address your personal issues. Universities consider anything on their computers, even your email communications, to be their property and thus, not confidential so they will review those emails whenever they desire to do so;
• Don’t use university WIFI because they sometimes take positions that the use of their WIFI on any device gives them the right to view everything on that device;
• Don’t ever lose your temper and put yourself in jeopardy for an insubordination charge; If you disagree or oppose an action, say so in neutral terms, language, and behavior; or write a respectful email on your device and blind copy yourself. Where appropriate backup your systems.
• Remember that not everyone is your friend. You should be very careful who you talk to about details regarding what is happening around the university as there certainly will be “enemies” and perhaps even “friends” who are looking for examples of differential treatment to report to their bosses or superiors. Martin Luther King Jr. had a similar experience in Albany, Georgia where one of the Black leaders went to speak with the Sheriff every night after meeting with Dr. King and other leaders to let the Sheriff know of their plans. Johnnie Cochran discovered in the Geronimo Pratt trial that his co-counsel went to talk with the District Attorney each night after the defense lawyers had met in order to inform them of their strategy. This is another reason for you to become a member of a reputable organization that will stand with you through difficult times. You should be able to confide in and trust them. Get into the practice of documenting things using your own personal devices and equipment. The time might come when you need that documentation to counter false allegations or lies.
• Dot your i’s and cross your t’s every day;
• Never send an official response while you are angry if you can avoid it. Remember that the matter could end up in litigation and there will be many different kinds of persons reviewing it;
• Review university employment rules and get copies of them for your use if the need arises;
• Maintain copies of any important documents to which you have legitimate access. Don’t be put in the position of being locked out of your office, files, computer records, or being walked out by security. Think about having a backup device or thumb drive because once litigation or administrative procedures start, the documents you need are somehow no longer available or cannot be found;
• Connect with an organization that you can trust and that will be with you in the fight such as some Faculty and/or Staff organizations, or associations like the NAACP, LULAC, AAUP, or labor unions;
• Familiarize yourself with your state law and university policy to determine what the requirements or prohibitions might be for the use of electronic equipment; and
• Talk to people in your community about lawyers who are courageous and trustworthy and who will fight to protect your rights. The National Employment Lawyer’s Association and the National Bar Association are two organizations of note that might have lawyers nearby who might meet these criteria.

These are just some things an individual might do to put themselves in the best position possible, knowing that even by doing this you will remain an underdog. Hence, the importance of belonging to an organization that can provide cover.

What the Organizations Can Do

Many articles have been published telling us this is a national, state, and local right-wing effort, and we have seen how states like Florida, Texas, and Utah have adopted such laws despite their geographic distance from each other. And we have seen coordinated attacks against DEI at universities even in Blue states like Massachusetts and New York. They are going after university professors affiliated with anything involving People of Color, in general, and Black and Brown people, in particular. When the opposition uses the phrase, “diversity, equity and inclusion,” these are buzzwords for anti-Black, anti-Latino and anti-LGBTQ+ initiatives.

There are reports of right-wing organizations making expansive public information or document requests to public universities that in turn give those requestors any and everything. There are even students who register for classes of certain professors to get information that can be used against those faculty members, who oftentimes are Latino or African American. In Texas, a conservative think tank has published a toll-free number to solicit complaints of suspected violations of the new DEI law, which is having a chilling effect on teaching. DEI officials in other parts of the country are under attack. too, and in some instances, the attacks are coming from some of the same persons who have made plagiarism allegations against African-American educators. Here is a list of things that organizations can do.

Be data-forward. Request or partner with a national organization like NADOHE or AAUP to survey its members to see what has occurred and is occurring in this footprint;

• Build an archive. Identify and monitor news articles and social media on the topic;
• Establish a tracking system utilizing a brigade of faculty and students to identify and track actions involving DEI and minority programs, or DEI or minority officials, that have occurred at universities. In Texas, many feel that the cuts of programs, personnel, and activities went too far at many universities, meaning cuts weren’t required under the law that was passed;
• Establish or secure third parties to make document requests to public universities for information about communications by its executives with anti-DEI forces, copies of document requests made that include requests for DEI documents or about persons associated with DEI or programs that might benefit racial or ethnic minorities (so that we know who is looking and what they are looking for), and all nonprivileged requests and documents generated by the University Office of General Counsel;
• Identify a pool of experts, particularly on the issue of plagiarism, so that experts who are both experts in their fields but also somewhat insulated from attacks directed at them, either through personal moral fortitude or otherwise being somewhat beyond the reach of attack groups;
• Get your side of the story out and prepare a media strategy to counter the likely onslaught that we might see; partner with certain media, including online news organizations, radio stations, podcasts, letters, and opinion editorials to regular newspapers, or streaming broadcasts, such as Roland Martin, and Latino and African American newspapers and publishers, as well as to Spanish language and other language presses and news outlets; Partner with state and national organizations of like mind to explore how best to utilize litigation. It will be necessary for individuals who find themselves fighting for their jobs (as many are right now) for some nefarious reason, or more direct lawsuits against appropriate parties for causes of action such as liable, defamation, and slander;
• Promote strategies with organizations that can conduct investigations to make sure these conservative organizations have followed the applicable law;
• Work with legislators championing bills that seek to repeal laws like SB17;
• Explore whether national organizations could raise the level of official communications from President Biden on DEI;

In well-documented instances where anti-DEI actions by universities actually involve discrimination, aggrieved parties should consider filing Title VI Complaints with the United States Department of Education Office of Civil Rights or the Educational Opportunities Section of the Department of Justice Office of Civil Rights;

• Support proposed legislation on Ethnic Studies which has significant implications for K-12 education, particularly since it correlates to higher educational attainment . (Cabrera, Milem, Jaquette, & Marx, 2014), while challenging whitewashed historical accounts;
• Be aware of and respond to legislative attempts to eliminate critical fields and disciplines in higher education curriculum as evidenced by Florida’s recent elimination of Sociology (Hartocollis, 2024);
• Be aware of the Project 2025 playbook by the Heritage Foundation and a network of other organizations that seek to end DEI nationally, and
• Identify leverage points such as requirements for continued accreditation or requirements for existing or future research funding where the playing field can be made more level.

Summary

The opposition has money, resources, and organization. Certainly, we are outmatched on that front, but not in our dedication or passion for justice. We must use the tools we have to fight back. How? We must join together to wage an effective fight and at the same time, build the infrastructure across organizations that share our values and recruit allies needed for the long game. We can and must create our own ecosystem to fight back, as we have done in the past when multiple organizations joined together to fight Jim Crow and advance civil rights. The Rev. Martin Luther King Jr. warned Americans of goodwill about the Rumpelstiltskin Syndrome: Don’t be asleep when a revolution is occurring around you or for sure you will suffer the consequences. You will be in the position of doing nothing to prevent that even though you could have, had you been awake. In this fight, in order to be successful, we must have a diverse army, filled with decency towards their fellow human beings and equipped with the same kind of intestinal fortitude that carried great Americans like Harriet Tubman and Abraham Lincoln through the most difficult and trying times. We cannot permit them to use the guise of eliminating discrimination to cloak this campaign to not only make white privilege our custom, pattern, policy and practice, but to once again make it the law of the land.

References

American Association of University Professors (2023, September 27), Faculty in red states express concerns over political interference. https://aaup-utaustin.org/2023/09/27/faculty-in-red-states-express-concerns-over-political-interference/

Bass, J. (1981). Unlikely heroes: The dramatic story of the Southern judges of the 5th Circuit who translated the Supreme Court’s Brown decision into reality. https://www.amazon.com/Unlikely-Heroes-Dramatic-Southern-Translated/dp/B01B98AZ0Q

Bryant, J. & Appleby, C. (2024, April 3). These states’ Anti-DEI legislation may impact higher education. https://www.bestcolleges.com/news/anti-dei-legislation-tracker/

Cabrera, N. L., Milem, J. F., Jaquette, O., & Marx, R. W. (2014). Missing the (student achievement) forest for all the (political) trees: Empiricism and the Mexican American studies controversy in Tucson. American Educational Research Journal, 51(6), 1084-1118.

Carnevale, A. P. & Strohl, J. (2013). Separate and unequal: How higher education reinforces the intergenerational reproduction of White racial privilege. Georgetown University. Public Policy Institute Center on Education and the Workforce. https://cew.georgetown.edu/wp-content/uploads/SeparateUnequal.FR_.pdf

Confessore, N. (2024, Jan. 20) “America is under attack”: Inside the anti-D.E.I. crusade. https://www.nytimes.com/interactive/2024/01/20/us/dei-woke-claremont-institute.html

Hartocollis, A. (2024, Jan. 24). Florida eliminates sociology as a core course at Its universities. New York Times. https://www.nytimes.com/2024/01/24/us/florida-universities-sociology.html

Lawson, L. (2024, March 1). Diversity, equity and inclusion employees will no longer have a job at UF, Gainesville Sun. https://www.gainesville.com/story/news/education/campus/2024/03/01/university-of-florida-fires-all-diversity-equity-inclusion-employees/72807436007/

Mangan, K. (2024a). “After DEI Ban, UT-Austin Eliminates a Division and Lays Off Its Former Diversity Staff”, Chronicle of Higher Education. https://www.chronicle.com/article/after-dei-ban-ut-austin-eliminates-a-division-and-fires-its-former-diversity-staff

Mangan, K. (2024b). For sputtering diversity efforts, Claudine Gay’s resignation risks further setbacks, Chronicle of Higher Education. https://www.chronicle.com/article/for-sputtering-diversity-efforts-claudine-gays-resignation-risks-further-setbacks

Mayer, J. (2017). Dark money: The hidden history of the billionaires behind the rise of the radical right. Anchor, 2016.

Montgomery, Ben (2/13/2023). Christopher Rufo’s anti-DEI crusade visits University of South Florida. https://www.axios.com/local/tampa-bay/2023/02/13/university-south-florida-dei-christopher-rufo

Project 2025. (2023). Mandate for leadership: The conservative promise. The Heritage Foundation. https://www.project2025.org/

Rufo, C. (2023, July 27). Guest Essay “D.E.I. Programs are Getting in the way of Liberal Education”, https://www.nytimes.com/2023/07/27/opinion/christopher-rufo-diversity-desantis-florida-university.html

Srivastava, N. (2023, January 19). UTSG announces changes due to Senate Bill 17, Daily Texan. https://thedailytexan.com/2024/01/18/utsg-announces-changes-due-to-senate-bill-17/

Wiedman, R. (2024, Feb. 12). The money game, New York Magazine. https://nymag.com/intelligencer/article/bill-ackman-war-harvard-mit-dei-claudine-gay.html

Williams, J. C. (2023, August 29). No, SCOTUS Did Not Make Your Company’s DEI Programs Illegal. https://hbr.org/2023/08/no-scotus-did-not-make-your-companys-dei-programs-illegal

Zamora, E. & Valenzuela, A. (2024, Feb. 13). Anti-DEI Law Implementation Has Been a Disaster, Texas Observer. https://www.texasobserver.org/anti-dei-law-implementation-has-been-a-disaster/