Text of ID S 1357 (2024)

LEGISLATURE OF THE STATE OF IDAHO Sixty-seventh Legislature Second Regular Session - 2024 IN THE SENATE SENATE BILL NO. 1357 BY EDUCATION COMMITTEE AN ACT 1 RELATING TO HIGHER EDUCATION FAIRNESS; AMENDING TITLE 33, IDAHO CODE, BY 2 THE ADDITION OF A NEW CHAPTER 68, TITLE 33, IDAHO CODE, TO DEFINE TERMS, 3 TO PROHIBIT DIVERSITY, EQUITY, AND INCLUSION IN HIGHER EDUCATION, TO 4 PROHIBIT DIVERSITY TRAINING, TO PROHIBIT POLITICAL LOYALTY TESTS, TO 5 PROVIDE FOR ATTORNEY GENERAL ENFORCEMENT, AND TO PROVIDE FOR A PRIVATE 6 CAUSE OF ACTION; PROVIDING SEVERABILITY; AND DECLARING AN EMERGENCY AND 7 PROVIDING AN EFFECTIVE DATE. 8 Be It Enacted by the Legislature of the State of Idaho: 9 SECTION 1. That Title 33, Idaho Code, be, and the same is hereby amended 10 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 11 ter 68, Title 33, Idaho Code, and to read as follows: 12 CHAPTER 68 13 HIGHER EDUCATION FAIRNESS 14 33-6801. DEFINITIONS. As used in this chapter: 15 (1) "Diversity, equity, and inclusion" means any program or initiative 16 of an institution of higher education established for the purpose of: 17 (a) Influencing hiring or employment practices at the institution of 18 higher education with respect to race, color, ethnicity, national ori- 19 gin, sex, disability, or religion, other than through the use of color- 20 blind and sex-neutral hiring processes in accordance with any applica- 21 ble state and federal anti-discrimination laws; 22 (b) Promoting differential treatment of or providing special benefits 23 to individuals on the basis of race, color, ethnicity, national origin, 24 sex, disability, or religion; 25 (c) Promoting policies or procedures designed or implemented in ref- 26 erence to race, color, ethnicity, national origin, sex, disability, or 27 religion, other than policies or procedures approved in writing by the 28 institution of higher education's general counsel and the attorney gen- 29 eral of the state of Idaho for the sole purpose of ensuring compliance 30 with any applicable court order or state or federal law; or 31 (d) Conducting trainings, programs, or activities designed or imple- 32 mented in reference to race, color, ethnicity, national origin, sex, 33 disability, or religion. This excludes trainings, programs, or activi- 34 ties developed by an attorney and approved in writing by the institution 35 of higher education's general counsel and the attorney general of the 36 state of Idaho for the sole purpose of ensuring compliance with any ap- 37 plicable court order or state or federal law. 38 (2)(a) "Diversity, equity, and inclusion office" means any division, 39 office, center, or other unit of an institution of higher education 40 that is responsible for creating, developing, designing, implementing, 41 2 organizing, planning, or promoting policies, programming, training, 1 practices, activities, and procedures relating to diversity, equity, 2 and inclusion. 3 (b) A "diversity, equity, and inclusion office" expressly includes but 4 is not limited to the following: 5 (i) The blue sky institute at Boise state university; 6 (ii) The gender equity center at Boise state university; 7 (iii) The Boise state uniting for inclusion and leadership in di- 8 versity (BUILD) program at Boise state university; 9 (iv) The center for multicultural and educational opportunities 10 (CMEO) at Boise state university; 11 (v) The office of equity and diversity at the university of Idaho; 12 (vi) The black and African American cultural center at the univer- 13 sity of Idaho; 14 (vii) The LGBTQA office at the university of Idaho; 15 (viii) The office of multicultural affairs at the university of 16 Idaho; 17 (ix) The women's center at the university of Idaho; 18 (x) The office of equity and inclusion at Idaho state university; 19 and 20 (xi) The diversity resource center at Idaho state university. 21 (c) A "diversity, equity, and inclusion office" does not include: 22 (i) An office certified by the attorney general of the state of 23 Idaho as operating with the sole and exclusive mission of ensur- 24 ing legal compliance with the institution of higher education's 25 obligations under title IX of the education amendments of 1972, as 26 amended; the federal Americans with disabilities act, as amended; 27 the federal age discrimination in employment act, as amended; ti- 28 tle VI of the federal civil rights act of 1964; an applicable court 29 order; or other applicable state or federal law; 30 (ii) An academic department defined as a unit of an institution of 31 higher education that exists primarily for the purpose of offer- 32 ing courses for degree credit and that does not establish policy or 33 procedures to which other units of the institution of higher edu- 34 cation are subject; 35 (iii) An office solely engaged in new student recruitment; or 36 (iv) A registered student organization. 37 (3)(a) "Diversity, equity, and inclusion officer" means an individ- 38 ual whose duties for the institution include coordinating, creating, 39 developing, designing, implementing, organizing, planning, or promot- 40 ing policies, programming, training, practices, activities, and proce- 41 dures relating to diversity, equity, and inclusion and who is a full- 42 time or part-time employee of an institution of higher education or com- 43 ponent thereof or an independent contractor of an institution of higher 44 education. 45 (b) A "diversity, equity, and inclusion officer" expressly includes 46 but is not limited to the following positions: 47 (i) Vice provost for community engagement and belonging at Boise 48 state university; 49 3 (ii) Assistant to the vice president for equity initiatives at 1 Boise state university; 2 (iii) Administrative assistant II at the student equity center at 3 Boise state university; 4 (iv) Director of the blue sky institute at Boise state university; 5 (v) Programs and projects coordinator of blue sky institute at 6 Boise state university; 7 (vi) Associate dean of students at the gender equity center at 8 Boise state university; 9 (vii) Engaging men project director at the gender equity center at 10 Boise state university; 11 (viii) Program manager at the gender equity center at Boise state 12 university; 13 (ix) Project director of violence prevention and response initia- 14 tives at the gender equity center at Boise state university; 15 (x) Management assistant at the gender equity center at Boise 16 state university; 17 (xi) Managing director of the equity advocates program at Boise 18 state university; 19 (xii) Program assistant for the BUILD program at Boise state uni- 20 versity; 21 (xiii) Director, BUILD program at Boise state university; 22 (xiv) Instructional consultant for inclusive teaching and interim 23 director, BUILD program at Boise state university; 24 (xv) Director, center for multicultural and educational opportu- 25 nities at Boise state university; 26 (xvi) Chief diversity officer and executive director of tribal re- 27 lations at the university of Idaho; 28 (xvii) Director, black and African American cultural center at the 29 university of Idaho; 30 (xviii) Administrative assistant for the black and African Ameri- 31 can cultural center at the university of Idaho; 32 (xix) Director, LGBTQA office at the university of Idaho; 33 (xx) Director, office of equity and diversity at the university of 34 Idaho; 35 (xxi) Administrative assistant for the LGBTQA office at the uni- 36 versity of Idaho; 37 (xxii) Idaho EPSCoR diversity, outreach, and communications coor- 38 dinator at the university of Idaho; 39 (xxiii) Director, office of multicultural affairs at the univer- 40 sity of Idaho; 41 (xxiv) Program coordinator, office of multicultural affairs at 42 the university of Idaho; 43 (xxv) Director, women's center at the university of Idaho; 44 (xxvi) Office of violence against women project director at the 45 university of Idaho; 46 (xxvii) Program coordinator, women's center at the university of 47 Idaho; 48 (xxviii) Office manager, women's center at the university of 49 Idaho; 50 4 (xxix) Micron director of diversity, inclusion, and outreach at 1 the university of Idaho; 2 (xxx) Associate dean of diversity, inclusion, and outreach, uni- 3 versity of Idaho college of law; 4 (xxxi) Associate dean for inclusion, college of education, health 5 and human sciences, at the university of Idaho; 6 (xxxii) Director, office of equity and inclusion at Idaho state 7 university; 8 (xxxiii) Associate director, office of equity and inclusion, di- 9 versity resource center at Idaho state university; 10 (xxxiv) Gender resource center assistant director at Idaho state 11 university; and 12 (xxxv) Management assistant, office of equity and inclusion, at 13 Idaho state university. 14 (c) A "diversity, equity, and inclusion officer" does not include: 15 (i) Any full-time or part-time employee who is a licensed attor- 16 ney and whose sole job duties related to diversity, equity, and 17 inclusion are to ensure compliance with the institution of higher 18 education's obligations under title IX of the education amend- 19 ments of 1972, as amended; the federal Americans with disabilities 20 act, as amended; the federal age discrimination in employment act, 21 as amended; title VI of the federal civil rights act of 1964; ap- 22 plicable court order; or other applicable state and federal law; 23 (ii) Any faculty member while engaged in teaching, research, and 24 the production of creative works; the dissemination of their re- 25 search and creative works; or advising a registered student organ- 26 ization; or 27 (iii) A guest speaker or performer with a short-term engagement. 28 (4) "Diversity training" means a training, seminar, discussion group, 29 workshop, or other instructional program, whether provided in-person, on- 30 line, or by any other means, with a purpose of advising, counseling, demon- 31 strating, explaining, instructing, or teaching participants about diver- 32 sity, equity, and inclusion. "Diversity training" does not include an aca- 33 demic course offered for credit or activities of a registered student organ- 34 ization affecting only its members. "Diversity training" does not limit or 35 prohibit an institution of higher education's authority to establish poli- 36 cies that are necessary to comply with state or federal law, including laws 37 relating to prohibited discrimination or harassment. 38 (5) "Institution of higher education" means the following entities 39 that are accredited by the northwest commission on colleges and universities 40 or another accrediting body recognized by the state board of education: 41 (a) Public universities or any component thereof, including any com- 42 ponent of the university of Idaho that receives funding appropriated by 43 the Idaho legislature; 44 (b) Public colleges, community colleges, or any component thereof; 45 (c) Public career technical schools operated by the state of Idaho or 46 any political subdivision thereof; and 47 (d) Any component of private universities, colleges, or community col- 48 leges in Idaho that receives funding appropriated by the Idaho legisla- 49 ture. 50 5 (6) "Mandatory" means a requirement of any kind imposed on a student, 1 employee, or applicant for employment, including but not limited to: 2 (a) A requirement that, if not fulfilled, may adversely affect the sta- 3 tus, salary, or benefits of an employee or applicant for employment at 4 the institution of higher education or component thereof; 5 (b) A requirement to participate in any administrative process or deci- 6 sion-making body of the institution of higher education, such as a hir- 7 ing committee; 8 (c) A requirement to participate in any otherwise available program 9 sponsored by the institution of higher education or component thereof; 10 (d) A requirement to receive any generally available benefit offered by 11 the institution of higher education; 12 (e) A requirement to live in any residential facility used exclusively 13 for housing or boarding students or faculty; or 14 (f) A requirement for the application or receipt of any scholarship, 15 loan, grant, financial aid, or forgiveness program. 16 (7)(a) "Political loyalty test" means compelling, requiring, or solic- 17 iting a person to identify a commitment to or to make a statement of per- 18 sonal belief in support of: 19 (i) Any ideology or movement that promotes the differential 20 treatment of a person or a group of persons based on race or eth- 21 nicity, including an initiative or a formulation of diversity, 22 equity, and inclusion beyond upholding the equal protection of the 23 laws guaranteed by the fourteenth amendment to the United States 24 constitution or a theory or practice that holds that systems or in- 25 stitutions upholding the equal protection of the laws guaranteed 26 by the fourteenth amendment to the United States constitution are 27 racist, oppressive, or otherwise unjust; or 28 (ii) A specific partisan, political, or ideological set of be- 29 liefs. 30 (b) A political loyalty test does not include fidelity to, or an oath or 31 effort taken to uphold general state and federal laws, the constitution 32 of the United States, or the constitution of the state of Idaho. 33 33-6802. DIVERSITY, EQUITY, AND INCLUSION BUREAUCRACIES -- PROHIBI- 34 TION. (1) The university of Idaho and any private institution of higher edu- 35 cation in the state of Idaho shall not expend funds appropriated by the Idaho 36 legislature to establish, sustain, support, or staff a diversity, equity, 37 and inclusion office or to contract, employ, engage, or hire an individual 38 to serve as a diversity, equity, and inclusion officer. Any other institu- 39 tion of higher education shall not otherwise expend any funds derived from 40 any funds appropriated by the Idaho legislature or any bequests, charges, 41 deposits, donations, endowments, fees, grants, gifts, income, receipts, tu- 42 ition, or any other source. 43 (2) Nothing in this section shall be construed to cover or affect an in- 44 stitution of higher education's funding of: 45 (a) Academic course instruction; 46 (b) Research and creative works by the institution of higher educa- 47 tion's students, faculty, or other research personnel, and the dissemi- 48 nation thereof; 49 6 (c) Activities of registered student organizations; 1 (d) Arrangements for guest speakers and performers with short-term en- 2 gagements; or 3 (e) Mental or physical health services provided by licensed profes- 4 sionals. 5 (3) Nothing in this section shall be interpreted as prohibiting bona 6 fide qualifications based on sex that are reasonably necessary to the normal 7 operation of an institution of higher education. 8 (4) Any funds that would otherwise have been expended on diversity, eq- 9 uity, and inclusion offices or diversity, equity, and inclusion officers in 10 fiscal year 2025 may be reallocated, at the discretion of the governing board 11 of the institution of higher education, to merit scholarships for lower-in- 12 come and middle-income students and to reduce tuition for in-state students. 13 (5) No funds appropriated to an institution of higher education for 14 fiscal year 2025 shall be expended until its governing board has filed a re- 15 port with the state board of education that: 16 (a) Discloses the steps taken to comply with the provisions of this sec- 17 tion by the governing board and its staff, the administration, staff, 18 and faculty of the institution of higher education under the board's 19 governance; 20 (b) Discloses the number and job titles of the individuals deemed to be 21 required by the institution of higher education's obligations to comply 22 with title IX of the education amendments of 1972, as amended; the fed- 23 eral Americans with disabilities act, as amended; the federal age dis- 24 crimination in employment act, as amended; title VI of the civil rights 25 act of 1964; applicable court order; or other applicable state and fed- 26 eral law; and 27 (c) Includes a certification that the institution of higher education 28 under the board's governance is fully compliant with the provisions of 29 this section. The institution of higher education shall also make such 30 report available to the public on its website. 31 33-6803. DIVERSITY TRAINING -- PROHIBITION. An institution of higher 32 education shall not require mandatory diversity training. 33 33-6804. POLITICAL LOYALTY TESTS -- PROHIBITION. (1) No political 34 loyalty test shall be required or solicited as part of an admissions process, 35 employment application process, hiring process, contract renewal process, 36 or promotion process or as a condition of participation in any administra- 37 tive or decision-making function of any institution of higher education of 38 the state. 39 (2) No institution of higher education shall grant preferential con- 40 sideration to an applicant, teacher, employee, or student for opinions ex- 41 pressed or action taken pertaining to another individual or a group of in- 42 dividuals in which the institution's consideration is based on race, sex, 43 color, ethnicity, gender identity, or sexual orientation of those other in- 44 dividuals. 45 (3) Nothing in this section shall prevent an institution of higher edu- 46 cation from requiring an applicant or candidate: 47 7 (a) To disclose or discuss the content of the applicant's or candi- 1 date's scholarly research or creative works; 2 (b) To certify compliance with state and federal anti-discrimination 3 laws; 4 (c) To discuss pedagogical approaches or experience with students with 5 mental or physical disabilities; or 6 (d) To affirm fidelity to or provide an oath to uphold the constitution 7 and laws of the state of Idaho and the United States. 8 (4) Nothing in this section shall prevent an applicant or candidate 9 from providing or disclosing any information described in this section on 10 the applicant's or candidate's own initiative. 11 (5) Annually by July 1, each Idaho institution of higher education's 12 office of general counsel shall transmit a written report verifying the in- 13 stitution of higher education's compliance with the provisions of this chap- 14 ter to the speaker of the house of representatives and to the president pro 15 tempore of the senate. 16 33-6805. ATTORNEY GENERAL ENFORCEMENT. The provisions of this chapter 17 shall be enforced by the attorney general, as follows: 18 (1) Any person may notify the attorney general of a violation or poten- 19 tial violation of this chapter by an institution of higher education; and 20 (2) The attorney general may file suit for a writ of mandamus compelling 21 the institution of higher education to comply with this chapter. 22 33-6806. PRIVATE CAUSE OF ACTION. (1) This chapter creates a private 23 cause of action. 24 (2) Any student enrolled in a degree program at an institution of higher 25 education, any faculty member of an institution of higher education, any 26 staff member of an institution of higher education, or any alumnus of an in- 27 stitution of higher education may bring an action against such institution 28 of higher education that violates the provisions of this chapter. 29 (3) If the claimant shows that the institution of higher education 30 committed a violation as described in subsection (2) of this section, the 31 claimant shall be entitled to injunctive relief. 32 (4) Notwithstanding any other law to the contrary, a civil action 33 brought under this section may be brought in: 34 (a) The county in which all or a substantial part of the events or omis- 35 sions giving rise to the claim occurred; 36 (b) The county of residence in this state at the time the cause of action 37 occurred for any one of the claimants; 38 (c) The county of the principal office in this state of any one of the 39 defendants that is not a natural person; or 40 (d) The county of residence for the claimant. 41 (5) This section shall not be construed to: 42 (a) Limit the academic freedom of any individual faculty member to di- 43 rect the instruction within the faculty member's own course; or 44 (b) Prohibit any program or training scripted by licensed attorneys and 45 required to comply with the institution of higher education's obliga- 46 tions under title IX of the education amendments of 1972, as amended; 47 the federal Americans with disabilities act, as amended; the federal 48 8 age discrimination in employment act, as amended; title VI of the fed- 1 eral civil rights act of 1964; applicable court order; or other applica- 2 ble state and federal law, provided the institution of higher education 3 makes the materials for the program publicly available on the institu- 4 tion of higher education's website. 5 SECTION 2. SEVERABILITY. The provisions of this act are hereby declared 6 to be severable and if any provision of this act or the application of such 7 provision to any person or circumstance is declared invalid for any reason, 8 such declaration shall not affect the validity of the remaining portions of 9 this act. 10 SECTION 3. An emergency existing therefor, which emergency is hereby 11 declared to exist, this act shall be in full force and effect on and after 12 July 1, 2024. 13