The University of Alabama in Huntsville Working Guidance for Compliance with Federal Law and SB129 I. INTRODUCTION The University of Alabama in Huntsville (“The University” or “UAH”) is committed to compliance with all applicable federal and state laws. In accordance with those laws, the University ensures that no program contains impermissible restrictions or preferences related to race, color, religion, sex, ethnicity, or national origin. Likewise, the University remains committed to supporting all members of our campus community who bring with them a variety of experiences and perspectives. The University will continue providing open and equal access to resources and opportunities in a welcoming and supportive environment and equipping all campus community members for success. Similarly, the University’s commitment to free speech and expression remains resolute. Following a 2023 U.S. Supreme Court decision, federal law prohibits discrimination based on race, color, religion, national origin, ethnicity, and sex.[1] On June 29, 2023, the Court ruled race conscious admissions programs used by Harvard University and the University of North Carolina were not legal in the cases Students for Fair Admissions (SSFA) v. Harvard and Fair Admissions v. North Carolina. In addition, the Alabama State Legislature passed, and Governor Kay Ivey signed into law, Senate Bill 129 (SB129),[2] which defines and imposes limitations related to “divisive concepts” as well as Diversity, Equity, and Inclusion programs. SB129 becomes effective and enforceable on October 1, 2024. To assist in implementing any changes that may need to be made across campus to comply with federal and state law, the University provides the following legal guidance. Intended to be broad and over-arching, this guidance will not address every scenario or issue. Schools, colleges, and units should continue to seek legal advice from the Office of Counsel for additional questions or issues. II. RESTRICTIONS IN SB129 (filed as ALABAMA ACT 2024-34) The primary focus is on limiting activities and events associated with “divisive concepts” and “diversity, equity, and inclusion programs,” as those terms are defined in the law. 1. What is a “divisive concept” according to SB129? According to the law, the following concepts are considered “divisive”: That any race, color, religion, sex, ethnicity, or national origin is inherently superior or inferior. That individuals should be discriminated against or adversely treated because of their race, color, religion, sex, ethnicity, or national origin. That the moral character of an individual is determined by his or her race, color, religion, sex, ethnicity, or national origin. That, by virtue of an individual’s race, color, religion, sex, ethnicity, or national origin, the individual is inherently racist, sexist, or oppressive, whether consciously or subconsciously. That individuals, by virtue of race, color, religion, sex, ethnicity, or national origin, are inherently responsible for actions committed in the past by other members of the same race, color, religion, sex, ethnicity, or national origin. That fault, blame, or bias should be assigned to members of a race, color, religion, sex, ethnicity, or national origin, on the basis of race, color, religion, sex, ethnicity, or national origin. That any individual should accept, acknowledge, affirm, or assent to a sense of guilt, complicity, or a need to apologize on the basis of his or her race, color, religion, sex, ethnicity, or national origin. That meritocracy or traits such as a hard work ethic are racist or sexist. 2. What is a “Diversity, Equity, and Inclusion Program” according to SB129? Diversity, equity, and inclusion (DEI) programs are defined as “[a]ny program, class, training, seminar, or other event where attendance is based on an individual’s race, sex, gender identity, ethnicity, national origin, or sexual orientation, or that otherwise violates [the law].” Under the law, programs, classes, trainings, seminars, or other events that are necessary to comply with applicable state law, federal law, court order, or accreditation requirements are NOT considered DEI programs. 3. What is the University prohibited from doing under SB129? SB129 explicitly states that the University may NOT do any of the following: Sponsor a DEI program. Maintain any office, physical location, or department that promotes DEI programs. Direct or compel a student, employee, or contractor[3] to personally affirm, adopt or adhere to a “divisive concept.” Require students, employees, or contractors to attend or participate in any training, orientation, or coursework that advocates for or requires an individual to agree with a “divisive concept.” Require students, employees, or contractors to share their personal view on a “divisive concept” outside of an academic setting where the teaching or discussion of the “divisive concept” is done in an objective manner, without endorsement, and in a way that does not compel assent to the concept. Require students, employees, or contractors to participate in any activity, which is part of required curriculum or mandatory professional training, that involves lobbying at the state/local level for legislation related to a “divisive concept.” Penalize or discriminate against students, employees, or contractors based on their refusal to support or otherwise assent to a “divisive concept” or a diversity statement. Condition enrollment or attendance in a class, training, or orientation on the basis of race or color. Apply for or use funding—including grants, federal funding, and private funding—for the purpose of compelling assent to a “divisive concept” or any other purpose prohibited in the law. Limit participation in any UAH-sponsored event or class based on an individual’s race, color, sex, gender identity, ethnicity, national origin, or sexual orientation. 4. Does SB129’s restrictions apply to University employees? Yes. The restrictions in the law apply to the University, but they also apply to any University employees acting within the scope of their employment, which is generally considered to be the range of activities and conduct that an employee is reasonably expected to perform as part of their job. III. EXCEPTIONS AND APPLICATION Are there exceptions to the foregoing restrictions? Yes. SB129 provides for numerous exceptions. SB129 does not impact First Amendment rights or limit the protections in place for academic freedom, intellectual diversity, or free expression. The law provides flexibility to allow the following: Student, staff, and faculty organizations/associations may host DEI programs or discussions that involve “divisive concepts,” provided that no state funds are used to sponsor any such program and the sponsor of the program is clearly identified in any promotional materials and signage. The University may continue to provide state funding to student, staff, and faculty organizations/associations on a non-discriminatory basis. However, state funds may not be used to host DEI programs or discussions that may involve “divisive concepts.” The University has discretion to provide space or ancillary services to any student or employee, including student, staff, and faculty organizations/associations, on a non-discriminatory basis. Ancillary services include, but are not limited to, support and guidance in complying with applicable University policies and laws, assistance with security needs, and registration of events. The University may take all steps to provide instruction or take any action necessary to satisfy any accreditation standard or requirement. The University and its employees may teach or discuss any “divisive concept” in an objective manner and without endorsement as part of a larger course of academic instruction. Any such teaching or discussion cannot compel assent to any “divisive concept,” and no student shall be penalized for refusing to support or endorse such a concept. The University and its employees may teach topics and historical events in a historically accurate context. The University and its employees may respond to questions that are raised during orientation, course work, or trainings related to “divisive concepts” or DEI. The University and its employees may collect or report required demographic data. The University and its employees may perform research, collect data, and engage in clinical trials targeted to support individuals of any specific demographic. The University may engage in recruiting and outreach programs targeted to support individuals of any specific demographic. The University may offer academic support services targeted to support individuals of any specific demographic. The University may provide medical, mental or other health care targeted to support individuals of any specific demographic. The University may segregate housing, athletic programming, and social organizations that may be otherwise legally segregated by sex. Academic Instruction and Support 1. Does SB129 dilute academic freedom? No. The law specifically protects each faculty member’s academic freedom to provide instruction in all academic settings. 2. Are faculty allowed to discuss “divisive concepts” in class? Yes. Faculty can discuss “divisive concepts” in class, but a faculty member cannot require a student to agree with a “divisive concept” or penalize a student for refusing to support or endorse a “divisive concept.” The teaching or discussion of any “divisive concept” must be done in an objective manner, without endorsement. This is consistent with the University’s longstanding efforts to promote an environment where the campus community can engage in free and open thought, inquiry, and expression. 3. Does the law allow the University to provide courses that relate to matters of race, gender, social justice, etc.? Yes. Federal and state law protect the academic freedom to decide what and how to teach. Under SB129, however, faculty must not require students to agree—through direct engagement or through academic penalties—with any “divisive concept.” The teaching or discussion of any “divisive concept” must be done in an objective manner, without endorsement. 4. Does SB129 impact accreditation requirements? No. SB129 specifically does not apply to actions taken in furtherance of satisfying any accreditation standard or requirement. 5. Can the University still provide academic support to specific demographic groups? Yes, provided the same or similar academic support is available to other members of the campus community. 6. Are there any best practices that faculty can adopt to best comply with SB129? Yes. Be familiar with the restrictions in the law, which are set out herein. If discussing “divisive concepts,” avoid any statements that can be construed as an effort to require anyone to assent or agree to any of the “divisive concepts.” If teaching or discussing “divisive concepts,” it must be done in an objective manner, without endorsement. Consider including language in the syllabus explaining students may be introduced to or intellectually challenged with “divisive concepts” and other topics that could be difficult, but they do not have to assent to any position and are strongly encouraged to think independently and analytically about all of the material presented in the class. Preferred Syllabus Language All University faculty, instructors and teaching staff have the academic freedom to explore, discuss, and provide instruction on a wide range of topics in an academic setting. This class may present difficult, objectionable, or controversial topics for consideration, but will do so through an objective, scholarly lens designed to encourage critical thinking. Though students may be asked to share their personal views in the academic setting, no student will ever be required to assent or agree with any concept considered “divisive” under Alabama law, nor penalized for refusing to support or endorse such a concept. All students are strongly encouraged to think independently and analytically about all material presented in class and may express their views in a time, place, and manner, consistent with class organization and structure, and in accordance with the University’s commitment to free and open thought, inquiry, and expressions. Faculty should not include a personal diversity statement in their syllabus. If a department or college requires the use of a statement to satisfy accreditation requirements, the following template should be used. If specific language is required for accreditation, please work with the Office of Counsel to incorporate that into this template. The University of Alabama in Huntsville welcomes students, faculty, and staff regardless of their cultural differences, beliefs, values, ethnicity, race, age, gender, gender identity, sexual orientation, disabilities, or religion. I/we/department are committed to providing opportunities for all qualified individuals, regardless of background, to access this institution, connect with others, and take advantage of the opportunities to achieve personal and professional success afforded by UAH’s mission of teaching, research and service. I/we/department will act to support equal opportunity, foster collaboration, and assist all students who may face challenges in accessing education and educational achievement. Avoid requiring a diversity statement for course credit. Research and External Funding 1. Does the law impact the University’s ability to perform research? No. Federal and state law do not impact the University’s ability to perform research, including, but not limited to, the ability to collect data. 2. Does the law place limitations on the pursuit of grants or external funding? Yes. However, the restriction under SB129 is extremely narrow. The University may not pursue a grant or funding to support a program designed to require individuals to agree to any “divisive concept.” Under federal law, training grants may not contain impermissible restrictions or preferences related to race, sex, color, ethnicity, or national origin. The University and its employees may perform research on topics or issues that impact a specific demographic group and can engage in clinical trials targeted to support individuals of any specific demographic. 3. How can the University respond to questions in grant applications regarding diversity, equity, and inclusion? When responding to questions from grantors, the University should try to address the specific question with a statement that includes, for example: A review of the University’s work in supporting: first-generation college students, students facing social, economic, educational, cultural, or other life circumstance challenges, students who demonstrate achievement and determination in the face of personal challenges, disadvantaged student populations, and/or certifying compliance with applicable anti-discrimination laws, rules, and regulations. Student Organizations 1. Does SB129 impact the creation of registered student organizations? No. 2. Can a registered student organization limit participation in the organization based on race, color, sex, gender identity, ethnicity, national origin, or sexual orientation? Membership in registered student organizations at the University has been and will continue to be open to all UAH students without regard to race, religion, sex, ability, status, national origin, age, gender identity, gender expression, sexual identity, or veteran status, except in cases of designated fraternal organizations exempted by federal law from Title IX regulations concerning discrimination on the basis of sex. This does not change with SB129. Additionally, non-discrimination language must be included in the student group’s organizational documents. For more information on student organizations, please visit New RSO Registration. 3. Can a registered student organization have a name that implies that it is exclusive to a certain group or may limit membership or participation based on race, color, sex, gender identity, ethnicity, national origin, or sexual orientation? Yes, provided membership and event participation is open to all, and all literature, marketing, webpages and other materials regarding the group and its events promote that the group and its events are open to everyone. 4. Can a registered student organization have a DEI committee or DEI officer? Yes. Registered student organizations have autonomy to create such committees and offices. 5. Can a registered student organization host or sponsor a “DEI program” or events that promote divisive concepts? Yes, subject to the following requirements and limitations. The registered student organization hosting the program must clearly identify the sponsor of the program or event in any advertisements, marketing, signage and other materials relating to the program. UAH is unable to provide state funds to the registered student organization to be used for a specific “DEI program” or event that promotes “divisive concepts.” UAH does have discretion to provide assistance as appropriate with matters ancillary to the “DEI program” or event promoting a “divisive concept,” such as assistance as appropriate with program registration, providing appropriate security, and compliance with applicable University policies. 6. Can a registered student organization use UAH space to host a speaker, program, training or other event that may be considered a DEI program or that may discuss a divisive concept? Yes. Use of University space by registered student organizations will continue to be governed by the Use of Outdoor Areas of Campus Policy, Use of Facilities Policy, Charger Union Use of Space & Reservation Policy, and other applicable policies without regard to viewpoint. 7. Can UAH provide state funding to a registered student affinity organization? Registered student affinity organizations should be treated consistent with all other registered student organizations. Thus, the University may provide funding to registered student organizations in a non-discriminatory manner that is consistent across all groups — both affinity and non-affinity organizations. UAH is unable to provide state funding to be used to fund a DEI program or for a specific event that may promote a divisive concept, and a registered student organization cannot use funds it receives from UAH for that purpose. 8. Can a UAH employee volunteer to assist a registered student affinity organization (e.g., as a faculty advisor)? Registered student affinity organizations should be treated consistent with all other registered student organizations. Thus, an employee may volunteer to serve a registered student affinity group in a non-discriminatory manner. That service must be done outside of the scope of their employment. Faculty/Staff Groups 1. Can a faculty/staff group limit participation in the organization or its events based on race, color, sex, gender identity, ethnicity, national origin, or sexual orientation? No. Group membership and event participation must be open to all. 2. Can a faculty/staff group have a name that implies it may limit membership or participation based on race, color, sex, gender identity, ethnicity, national origin, or sexual orientation? Yes, provided membership and event participation is open to all, and all literature, marketing, webpages, and other materials reflect this. Any such group will not be considered an official group of the University or any campus unit. 3. Can UAH provide funding to faculty/staff affinity groups? Employee affinity groups should be treated consistent with all other employee groups. Thus, the University can provide funding to such groups in a non-discriminatory manner that is consistent with what is provided to non-affinity groups. UAH is unable, however, to provide state funding to any faculty/staff group to fund a DEI program or for a specific event that may promote a divisive concept, and a faculty/staff group cannot use funds it receives from UAH for that purpose. 4. Can a faculty/staff group have a DEI committee or DEI officer? Yes. Such groups have autonomy to create such committees and offices, but these groups/positions may not be listed or included as official administrative functions of any campus unit. Any such group or position will not be considered an official position or group of the University or any campus unit. 5. Can a faculty/staff group host or sponsor a “DEI program”? Yes, subject to the following requirements and limitations. The group hosting the program must identify itself as the sponsor at the event and in any advertisements, marketing, and other materials relating to the event. UAH is unable to provide additional funding to the group to be used for a specific “DEI program.” UAH has the discretion to provide assistance as appropriate with matters ancillary to the “DEI program,” such as assistance with event registration, providing appropriate security, and compliance with applicable University policies. 6. Can a faculty/staff group host or sponsor a speaker, program, training, or other event that discusses a divisive concept? Yes, subject to the following requirements and limitations. The faculty/staff group hosting the program/event must identify the sponsor at the event and in any advertisements, marketing, and other materials relating to the event. UAH is unable to provide state funding to a faculty/staff group to be used to fund a specific event that may promote a divisive concept. UAH has discretion to provide assistance as appropriate with matters ancillary to the program/event such as assistance with event registration, providing appropriate security, and compliance with applicable University policies. 7. Can a faculty/staff group use UAH space to host a speaker, program, training or other event that may be considered a DEI program or that may discuss a divisive concept? Use of University space by faculty groups will continue to be governed by the Use of Outdoor Areas of Campus Policy, Use of Facilities Policy, Charger Union Use of Space & Reservation Policy, and other applicable policies without regard to viewpoint. Employment Matters 1. Are any UAH employees being terminated because of SB 129? No. 2. Does the law impact the University’s ability to broadly advertise open employment positions and recruit from a diverse pool of applicants? No. The University will continue to recruit outstanding faculty and staff from all backgrounds. Faculty and staff are strongly encouraged to consult with their assigned human resources professional when posting new positions. Diversity statements cannot be required nor considered—either directly or indirectly—in any part of the application or hiring process. Additional resources to assist with job searches are provided by the UAH human resources department. Student Recruiting and Admissions 1. Does federal or state law impact the University’s ability to recruit students from a wide spectrum of backgrounds? No. The University will continue to recruit outstanding students from all backgrounds who will bring a variety of experiences and viewpoints that will positively contribute to the campus community. 2. Does federal or state law limit the University’s ability to award scholarships to current and incoming students? The University will continue to offer competitive scholarship opportunities to its students in a manner that complies with federal and state law. The full array of scholarships offered are constantly being assessed to ensure compliance. No current student will lose scholarship funds if changes are made to ensure compliance with applicable law. Miscellaneous Items 1. What is considered “state funds” for purposes of SB129? State funds include any of the University’s money regardless of its source, including State and federal appropriations, tuition, fees, grants/awards, etc. 2. What classifies as a “UAH sponsored” event or program? An event or program that is organized, in whole or in part, by a University division, department, program, office, etc. and financed with state funds. Solely providing space and/or ancillary services as allowed under SB129 does not classify an event or program as “UAH sponsored.” 3. Does SB129 impact available restroom facilities at UAH? No. Multi-occupancy restrooms will continue to be designated with signage related to biological sex (i.e., restrooms will continue to be marked “women” and “men”). UAH also has numerous individual occupancy restrooms across campus available for use by all individuals. University policy has long prohibited discrimination based on gender identity and gender expression. [1] Title VI of the Civil Rights Act of 1964, Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., 42 U.S.C. Section 1981, and 42 USC 1983. [2] Codified at Ala. Code § 41-1-90 et seq. [3] A “contractor” is considered to be any third-party individual or entity that provides services to the University other than construction services. [4] A “registered student organization” is one that has gone through the formation process set forth by UAH.
