University DEI under fire in new draft bill

BOISE — An Idaho lawmaker is preparing to introduce a bill seeking to restrict anything related to diversity, equity and inclusion, or DEI, in higher education that would be enforceable by the state attorney general and through private lawsuits.

Sen. Ben Toews, R-Coeur d’Alene, presented his draft to the DEI task force Thursday. The group cannot introduce or pass bills, but will consider the proposal and come back later to consider its draft recommendation.

Toews said he used aspects and definitions from legislation in other states as well as universities like Harvard and the University of Washington.

“We’re looking for what’s worked in other places to attempt to make sure that universities and higher education institutions have that freedom of thought that we want,” Toews said.

The draft includes a lengthy definition for DEI, which would mean any training, programs, or activities “designed or implemented in accordance with the tenets or concepts of critical theory.” Critical theory is a social and political philosophy that seeks to “understand and overcome social structures through which people are dominated or oppressed,” according to the Encyclopedia Britannica.

The bill goes on to say DEI could include anything based on ideas of unconscious or implicit bias, internalized racism, systemic oppression, social justice, racial privilege, patriarchy, gender theory, misgendering, heteronormativity, allyship or others. Trainings that are designed by attorneys to ensure compliance with court orders or state or federal law would be excluded from penalties under the bill.

Universities would not be allowed to hire a DEI “officer,” which would be any full-time or part-time employee or independent contractor whose duties would relate at all to DEI.

“Diversity training,” would also be prohibited, but would not include policies “that are necessary to comply with state or federal law, including laws relating to prohibited discrimination or harassment.”

Students could not be required to take any courses related to DEI in order to graduate or obtain their degree, unless their degree falls within a category related to DEI.

Colleges and universities would be required to submit an annual report to the attorney general and House and Senate education committees that certifies that the institution is in compliance with the law; the report would need to be signed by the president of the institution “under penalty of perjury.”

Under the legislation, anyone would be able to notify the attorney general of a potential violation of the law, which would allow the state’s top lawyer to order the school to comply through a writ of mandumus, and seek civil penalties for any violations of the law that could equal 2% of the school’s operating expenses for the prior fiscal year.

Separately, any student, staff member or alumnus would be able to use a “private cause of action,” which gives them the ability to sue the school for violating the law for attorney’s fees and costs, injunctive relief, monetary damages and “any other appropriate relief.”

The bill is not meant to limit research, creative works, activities by student organizations, or appearance of guest speakers and performers “who do not receive any form of compensation in exchange for their presentations, performances or appearances,” the draft said.

Senate Minority Leader Melissa Wintrow, D-Boise, said she had several questions about the bill, including about the private cause of action.

“I think that’s just riddled with problems that would be very harmful to universities as well as students, faculty and staff,” Wintrow said.

Over the past few legislative sessions, lawmakers when debating previous bills aimed at libraries had questioned the use of a private cause of action, which many legislators worried would incentivize frivolous lawsuits and financially damage libraries.

Toews said the ability to sue was meant to give students, staff and former students “the ability to seek a solution if they’re running into problems.”

Wintrow highlighted other areas where she felt the bill could chill free speech and said, ultimately, she didn’t see why the emphasis was placed on restricting these activities instead of addressing other issues in higher education.

“Big picture, quite frankly, I’m not sure why we’re focused on these kinds of issues,” she said. “As we go forward, I’d much rather talk about the affordability of college. … I have to say I’m kind of troubled, that I’m thinking about all the time and money that’s been spent on this issue.”

The committee did not set a date to meet again, but co-Chairperson Judy Boyle, R-Midvale, said the members would “look this over for a few days,” before returning to consider it again. If the group opts to recommend the proposal, it will go through a germane committee for introduction and a public hearing process.

Guido covers Idaho politics for the Lewiston Tribune, Moscow-Pullman Daily News and Idaho Press of Nampa. She may be contacted at lguido@idahopress.com and can be found on Twitter @EyeOnBoiseGuido.7