Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                              H.B. 261
Approved for Filing: R. Bailey 6                             3rd Sub. (Cherry)
         6 01-19-24 11:46 AM 6
                      Representative Karianne Lisonbee proposes the following substitute bill:
                             EQUAL OPPORTUNITY INITIATIVES
                                         2024 GENERAL SESSION
                                              STATE OF UTAH
                                       Chief Sponsor: Katy Hall
                                     Senate Sponsor: Keith Grover
 6
 LONG TITLE
 General Description:
        This bill prohibits an institution of higher education, the public education system, and a
 governmental employer from taking certain actions and engaging in discriminatory
 practices.
 Highlighted Provisions:
        This bill:
        < defines terms;
        < prohibits an institution of higher education, the public education system, and a
 governmental employer from:
              C    requiring an individual, before, during, or after admission or employment, to
 provide certain submissions or attend certain training that promotes differential
 treatment;
              C    using an individual's certain characteristics in decisions regarding aspects of   3rd Sub. H.B. 261
 employment or education; and
              C    engaging in certain practices;
        < requires the Utah Board of Higher Education (board), the State Board of Education
 (state board), and the governor to ensure compliance with certain requirements;
        < prohibits an institution of higher education, the state board, and a governmental
     *HB0261S03*
      3rd Sub. (Cherry) H.B. 261                                              01-19-24 11:46 AM
 employer from establishing or maintaining an office that engages in certain practices;
        < requires an institution of higher education to:
            C   contract with a third party to conduct campus climate surveys;
            C   provide certain training; and
            C   collect and send the surveys to the Office of Legislative Research and General
 Counsel (OLRGC);
        < requires OLRGC to provide campus climate survey summaries to the Education
 Interim Committee at certain times;
        < provides for certain measures of legislative oversight;
        < appropriates funding for a certain institution of higher education program;
        < provides that an individual may submit a complaint for noncompliance to:
            C   for an institution, the board; or
            C   for public education, the state board;
        < provides limited exceptions to the prohibitions in this bill; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        This bill provides a special effective date.
 Utah Code Sections Affected:
 AMENDS:
        53B-1-301, as last amended by Laws of Utah 2023, Chapter 374
        53E-1-201, as last amended by Laws of Utah 2023, Chapters 1, 328 and 380
        67-3-1, as last amended by Laws of Utah 2023, Chapters 16, 330, 353, and 480
 ENACTS:
        53B-1-116, Utah Code Annotated 1953
        53B-1-117, Utah Code Annotated 1953
        53B-1-118, Utah Code Annotated 1953
        53E-3-1101, Utah Code Annotated 1953
        53G-2-103, Utah Code Annotated 1953
        53G-2-104, Utah Code Annotated 1953
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       01-19-24 11:46 AM                                                3rd Sub. (Cherry) H.B. 261
        53G-2-105, Utah Code Annotated 1953
        67-27-105, Utah Code Annotated 1953
        67-27-106, Utah Code Annotated 1953
        67-27-107, Utah Code Annotated 1953
61
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 53B-1-116 is enacted to read:
        53B-1-116. Prohibition on the use of certain submissions in higher education --
 Exceptions.
        (1) As used in this section, "prohibited submission" means the same as that term is
 defined in Section 67-27-105.
        (2) Except as provided in Subsections (4) and (6), an institution may not require,
 request, solicit, or compel a prohibited submission as a certification or condition before taking
 action with respect to:
        (a) employment, including decisions regarding:
        (i) hiring;
        (ii) terms of employment;
        (iii) benefits;
        (iv) compensation;
        (v) seniority status;
        (vi) tenure or continuing status;
        (vii) promotion;
        (viii) performance reviews;
        (ix) transfer;
        (x) termination; or
        (xi) appointment;
        (b) admission to, advancement in, or graduation from an institution or an academic
 program;
        (c) participation in an institution-sponsored program; or
        (d) qualification for or receipt of state financial aid or other state financial assistance.
        (3) An institution may not grant any form of preferential consideration to an individual
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        3rd Sub. (Cherry) H.B. 261                                                 01-19-24 11:46 AM
 who, with or without solicitation from the institution, provides a prohibited submission for
 consideration for any action described in Subsection (2).
         (4) If federal law requires an institution to accept or require a prohibited submission,
 the institution:
         (a) may accept the prohibited submission only to the extent required under federal law;
 and
         (b) shall limit consideration of the information contained in the prohibited submission
 to the extent necessary to satisfy the requirement under federal law.
         (5) For a required prohibited submission under Subsection (4), an institution shall:
         (a) prepare a report to the institution's governing board detailing the circumstances
 under which a prohibited submission is required; and
         (b) publish the report described in Subsection (5)(a) on the institution's governing
 board website in a conspicuous location.
         (6) Nothing in this section limits or prohibits an institution's authority to establish
 policies that:
         (a) are necessary to comply with state or federal law, including laws relating to
 prohibited discrimination or harassment;
         (b) require disclosure of an employee's academic research, classroom teaching, or
 coursework; or
         (c) require an applicant for employment, tenure, or promotion to disclose or discuss the
 applicant's:
         (i) research;
         (ii) teaching agenda;
         (iii) artistic creations; or
         (iv) pedagogical approaches or experiences with students of all learning abilities.
         (7) (a) Beginning on July 1, 2025, the board shall conduct a biennial review of an
 institution of higher education's compliance with this section as follows:
         (i) for 2025, on each institution of higher education; and
         (ii) for 2026, and every year after, on one-half of the degree granting institutions of
 higher education and one-half of the technical colleges.
         (b) If the board identifies a violation of this section, the board shall:
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        01-19-24 11:46 AM                                                  3rd Sub. (Cherry) H.B. 261
           (i) on or before 30 days after the day on which the board identifies the violation, work
 with the institution to create a remediation plan; and
           (ii) provide the institution 180 days after the day of the creation of the remediation plan
 to cure the violation.
           (8) On or before November 1 of each year, the board shall prepare and submit a report
 to the Higher Education Appropriations Subcommittee on:
           (a) the review process and each institution's compliance determination; or
           (b) if a violation is identified, the remediation plan and progress under Subsection
 (7)(b).
           (9) The Legislature may withhold future state appropriations to an institution that fails
 to cure a violation of this section within the time provided under Subsection (7)(b).
           (10) The board shall make rules in accordance with Title 63G, Chapter 3, Utah
 Administrative Rulemaking Act, to establish a procedure for accepting and processing an
 individual's complaint against an institution for an alleged violation of this section.
           Section 2. Section 53B-1-117 is enacted to read:
           53B-1-117. Prohibition on the use of certain training in higher education --
 Exceptions.
           (1) As used in this section, "prohibited training" means the same as that term is defined
 in Section 67-27-106.
           (2) An institution may not require prohibited training.
           (3) An institution shall annually train the institution's faculty and staff on academic
 freedom and freedom of speech in accordance with state or federal laws.
           (4) (a) Beginning on July 1, 2025, the board shall conduct a biennial review of an
 institution of higher education's compliance with this section as follows:
           (i) for 2025, on each institution of higher education; and
           (ii) for 2026, and every year after, on one-half of the institutions of higher education
 and one-half of the technical colleges.
           (b) If the board identifies a violation of this section, the board shall:
           (i) on or before 30 days after the day on which the board identifies the violation, work
 with the institution to create a remediation plan; and
           (ii) provide the institution 180 days after the day of the creation of the remediation plan
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        3rd Sub. (Cherry) H.B. 261                                                  01-19-24 11:46 AM
 to cure the violation.
           (5) On or before November 1 of each year, the board shall prepare and submit a report
 to the Higher Education Appropriations Subcommittee on:
           (a) the review process and each institution's compliance determination; or
           (b) if a violation is identified, the remediation plan and progress under Subsection
 (4)(b).
           (6) The Legislature may withhold future state appropriations to an institution that fails
 to cure a violation of this section within the time provided under Subsection (4)(b).
           (7) The board shall make rules in accordance with Title 63G, Chapter 3, Utah
 Administrative Rulemaking Act, to establish a procedure for accepting and processing an
 individual's complaint against an institution for an alleged violation of this section.
 The following section is affected by a coordination clause at the end of this bill.
           Section 3. Section 53B-1-118 is enacted to read:
           53B-1-118. Prohibited discriminatory practices -- Restrictions -- Campus climate
 survey -- Exceptions.
           (1) As used in this section:
           (a) "Personal identity characteristics" means an individual's race, color, ethnicity, sex,
 sexual orientation, national origin, religion, or gender identity.
           (b) (i) "Prohibited discriminatory practice" means engaging in or maintaining a policy,
 procedure, practice, program, office, initiative, or required training that, based on an
 individual's personal identity characteristics:
           (A) promotes the differential treatment of an individual without a important
 governmental interest;
           (B) influences the employment decisions of an individual other than through the use of
 neutral hiring processes with regard to personal identity characteristics and in accordance with
 federal law;
           (C) influences an individual's admission to, advancement in, or graduation from an
 institution, the public education system, or an academic program; or
           (D) influences an individual's participation in an institution-sponsored or public
 education system-sponsored program.
           (ii) "Prohibited discriminatory practice" also means engaging in or maintaining a
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        01-19-24 11:46 AM                                                 3rd Sub. (Cherry) H.B. 261
 policy, procedure, practice, program, office, initiative, or required training that:
         (A) asserts directly or indirectly that one personal identity characteristic is inherently
 superior or inferior to another personal identity characteristic;
         (B) asserts directly or indirectly that an individual, by virtue of the individual's
 personal identity characteristics, is inherently privileged, oppressed, racist, sexist, oppressive,
 or a victim, whether consciously or unconsciously;
         (C) asserts directly or indirectly that an individual should be discriminated against in
 violation of Title VII and Title IX, receive adverse treatment, be advanced, or receive
 beneficial treatment because of the individual's personal identity characteristics;
         (D) asserts directly or indirectly that an individual's moral character is determined by
 the individual's personal identity characteristics;
         (E) asserts directly or indirectly that an individual, by virtue of the individual's personal
 identity characteristics, bears responsibility for actions committed in the past by other
 individuals with the same personal identity characteristics;
         (F) asserts directly or indirectly that an individual should feel discomfort, guilt,
 anguish, or other psychological distress solely because of the individual's personal identity
 characteristics;
         (G) asserts directly or indirectly that meritocracy is inherently racist or sexist;
         (H) asserts directly or indirectly that socio-political structures are inherently a series of
 power relationships and struggles among racial groups;
         (I) promotes resentment between, or resentment of, individuals by virtue of their
 personal identity characteristics;
         (J) ascribes values, morals, or ethical codes, privileges, or beliefs to an individual
 because of the individual's race, color, ethnicity, sex, sexual orientation, national origin, or
 gender identity;
         (K) considers an individual's personal identity characteristics in determining receipt of
 state financial aid or other state financial assistance; or
         (L) is referred to or named diversity, equity, and inclusion.
         (iii) "Prohibited discriminatory practice" does not include policies or procedures
 required by state or federal law, including laws related to prohibited discrimination or
 harassment.
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        3rd Sub. (Cherry) H.B. 261                                               01-19-24 11:46 AM
         (c) "Student success and support" means an office, division, employment position, or
 other unit of an institution established or maintained to provide support, guidance, and
 resources that equip all students, including all students at higher risk of not completing a
 certificate or degree, with experiences and opportunities for success in each student's academic
 and career goals, and without excluding individuals on the basis of an individual's personal
 identity characteristics.
         (d) "Title VII" means Title VII of the Education Amendments of 1972, 20 U.S.C. Sec.
 1681 et seq.
         (e) "Title IX" means Title IX of the Education Amendments of 1972, 20 U.S.C. Sec.
 1681 et seq.
         (2) An institution may not:
         (a) take, express, or assert a position or opinion on subjects described in Subsection
 67-27-105(1)(b)(ii);
         (b) establish or maintain an office, division, employment position, or other unit of an
 institution established to implement, develop, plan, or promote campus policies, procedures,
 practices, programs, or initiatives, regarding prohibited discriminatory practices; or
         (c) employ or assign an employee or a third-party whose duties for an institution
 include coordinating, creating, developing, designing, implementing, organizing, planning, or
 promoting policies, programming, training, practices, activities, and procedures relating to
 prohibited discriminatory practices.
         (3) An institution shall:
         (a) ensure that all students have access to programs providing student success and
 support;
         (b) publish the titles and syllabi of all mandatory courses, seminars, classes,
 workshops, and training sessions on the institution's website in an online database readily
 searchable by the public;
         (c) annually train employees on the separation of personal political advocacy from an
 institution's business and employment activities;
         (d) develop strategies to promote viewpoint diversity; and
         (e) establish policies and procedures to include opportunities for education and
 research on free speech and civic education.
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        01-19-24 11:46 AM                                                3rd Sub. (Cherry) H.B. 261
         (4) Beginning on or before July 1, 2025, the board shall report to the Higher Education