Over the last two years, starting even before the Supreme Court’s decision regarding affirmative action in June 2023, there has been a noticeable uptick in bills introduced in state legislatures restricting inclusion, equity, and diversity (IE&D) practices. Since 2023, dozens of “anti-IE&D” bills have been introduced throughout the country, 12 of which have become law.¹ Anti-IE&D bills have also been recently introduced into the United States Congress.

While this surge in anti-IE&D legislation has largely focused on regulating governmental entities, legislators in some states have also sought to restrict the IE&D practices of private institutions, with Florida becoming the first state in the nation to enact such a law in April of 2022, although enforcement of this law is currently enjoined.

In contrast to anti-IE&D bills, several jurisdictions have sought to introduce or have passed “pro-IE&D” bills which would, for example, require certain public institutions to provide IE&D training for faculty and staff, establish positions to facilitate such training, and/or develop diversity plans for faculty and students.

These continuing and polarizing changes to the law have sown confusion for public and private institutions alike, leaving public and private institutions unsure of their legal obligations as they relate to IE&D practices.

Defining Features of Anti-IE&D Bills Targeting Public Institutions

The anti-IE&D bills that have been introduced and/or signed into law vary widely in scope—though the vast majority of such bills have targeted only public employers. Some states, such as Tennessee, have chosen to enact anti-IE&D legislation that is narrow in scope in that it only prohibits mandatory implicit bias training for Local Education Agencies and public institutions of higher education. Other states, however, such as Arkansas, have gone so far as to propose criminal penalties for certain violations. Notwithstanding their differences, defining features common to many of the recent anti-IE&D bills have emerged.

• IE&D Training

Of the 12 anti-IE&D bills that have become law, at least 6 of them, including bills in Alabama, North Carolina, North Dakota, Tennessee, Texas, and Utah, have included provisions prohibiting IE&D training for students or employees of certain public institutions. Additionally, at least 16 other states have introduced legislation that similarly restricts IE&D training in specific public entities, including Arizona, Florida, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, Pennsylvania, South Carolina, West Virginia, and Wyoming.

While some of these bills, such as North Dakota’s Senate Bill 2247 and Kentucky’s Senate Bill 6, appear to prohibit all IE&D training in public institutions of higher education, the majority of anti-IE&D bills introduced or enacted have focused on banning IE&D training that is mandatory or training that requires individuals to affirm the concepts being discussed during such training.

• IE&D Offices and Programs

At least five states, including Alabama, Florida, Texas, Utah, and Wyoming, have enacted anti-IE&D bills that prohibit the establishment of IE&D offices and programs in certain public entities. A dozen other states have proposed similar restrictions on IE&D offices and programs, including Arizona, Idaho, Iowa, Kentucky, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, West Virginia, and Wisconsin.

Though some states, such as Florida, Texas, and Wyoming, have enacted laws that prohibit the use of state funds to maintain IE&D offices and programs, the language used in other anti-IE&D bills, such as those enacted in Utah and Alabama, appears to prohibit the existence of virtually all IE&D offices and programs in certain public institutions, regardless of how they are funded.

• Diversity Statements

Diversity statements—narratives written by prospective employees and students which outline how their experiences will help create a diverse and inclusive environment—have also been a primary focus of anti-IE&D bills, with at least seven states, including Florida, Idaho, Indiana, North Carolina, North Dakota, Texas, and Utah, having banned certain public institutions from requesting or requiring that prospective employees and/or students submit such a statement. An additional 15 states, including Arizona, Georgia, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, West Virginia, and Wisconsin, have introduced similar prohibitions on diversity statements in certain public institutions.

Though some states, such as Idaho, have enacted laws that prohibit only mandatory diversity statements, other states, such as Utah, prevent the consideration of any diversity statements, notwithstanding whether such statements are provided voluntarily.  To be clear, these laws do not prevent individuals from submitting diversity statements; rather, they simply prohibit certain public institutions from considering such statements when making hiring and/or admissions decisions.

The overwhelming majority of these bills, however, do not indicate whether they only prohibit diversity statements that are affirmatively requested or required, or also further prohibit the consideration of such statements even when they are voluntarily provided.

• Preferential Treatment

At least four states, including Alabama, Florida, Texas, and Utah, have enacted anti-IE&D bills that prevent certain public entities from considering specific protected traits in employment decisions or from allowing such traits to influence an individual’s admission to, advancement in, or graduation from, a public institution.

While some states, such as Utah, have enacted legislation that prohibits certain public institutions from making hiring and/or admissions decisions based on a wide gamut of traits, including race, color, ethnicity, sex, sexual orientation, national origin, religion, and gender identity, other states, such as Alabama and Florida, have merely sought to target preferential treatment provided on the basis of race, color, and/or ethnicity. 

Although this type of provision has been enacted by only four states, at least 15 other states, including Arizona, Arkansas, Idaho, Iowa, Kentucky, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, West Virginia, and Wisconsin have proposed similar restrictions.

• Private Right of Action

Arizona, Kansas, Louisiana, Missouri, Nebraska, North Dakota, and Texas have each proposed anti-IE&D laws that provide aggrieved individuals with a private right of action to seek equitable relief and/or damages for violations of such laws. To date, just two states, North Dakota and Texas, have enacted such legislation.

The bills enacted in North Dakota and Texas, like many of the other anti-IE&D bills that have been proposed thus far, provide individuals with a private right of action only for the violation of certain provisions of the law.

Currently, we are not aware of any lawsuits that have been filed that rely on the private right of action established in these statutes.

The Impact of Anti-IE&D Bills on Private Employers

While the vast majority of anti-IE&D bills that have been introduced thus far apply solely to public institutions, Florida is the first and only state to extend some of these restrictions to private employers.

Florida House Bill 7 (“Stop W.O.K.E. Act”), enacted in 2022, amended the Florida Civil Rights Act to make it unlawful for any covered employer (generally, those with employees in Florida and employing 15 or more employees company-wide) to subject any individual working in Florida, as a condition of their employment, to training or instruction that “espouses or promotes” such individual to believe in various IE&D concepts related to race, color, sex, or national origin. On March 4, 2024, however, the Eleventh Circuit upheld a preliminary injunction against portions of this law, and further determined that such provisions are unconstitutional. Litigation is ongoing.

While the Stop W.O.K.E. Act is the only anti-IE&D bill enacted that sought to explicitly govern the conduct of private employers, other states have seemingly attempted to extend the prohibitions contained in these bills to private employers by targeting government contractors.

For example, Arizona has introduced an anti-IE&D bill, Senate Bill 1005, which restricts certain public entities from entering or renewing contracts with companies that participate in IE&D programs. While Senate Bill 1005 has been introduced into the Arizona state Senate, it has yet to become law. Similarly, Alabama’s anti-IE&D law, Senate Bill 129, which was signed into law in March 2024, prohibits state departments from incentivizing private sector employees to implement IE&D programs or initiatives as a condition of awarding a state contract.

Pro-IE&D Bills

In  stark contrast to the numerous bills that seek to restrict IE&D programs, there are a growing number of states that have proposed and/or enacted legislation to promote IE&D programs including but not limited to Washington State, Massachusetts, New York, and New Jersey.

In Washington State for example, public colleges are now required to provide IE&D training for faculty and staff.  Likewise, lawmakers in Massachusetts have proposed a law that would require every state and quasi-state agency to establish and maintain a senior-level position with the title: “director of diversity, equity and inclusion.” Finally, New Jersey has proposed amending its laws to require that public institutions of higher education establish a faculty and student diversity plan.

We will continue to keep readers apprised of any new bills concerning IE&D programs affecting employers that are enacted. In the meantime, both public and private institutions should review their current IE&D programs and policies in light of the current, ongoing and conflicting legislative changes regarding IE&D by numerous.