CRT in Higher Education: Is a Day of Reckoning Coming for the University of Texas?

Louis K. Bonham

As I previously reported, earlier this year the University of Texas at Austin (UT) went off the deep end of all things “woke” and politically correct. Despite warnings from alumni, faculty, and organizations like the Foundation for Individual Rights in Education and the National Association of Scholars, UT quietly adopted a “Strategic Plan for Faculty Diversity, Equity, and Inclusivity” that is truly chilling. Among other questionable practices, this plan institutionalizes the Critical Race Theory version of “equity” (equality of results, as opposed to equal opportunity, nondiscrimination, and meritocracy) as the paramount driver of decisions on hiring, promotion, tenure, leadership positions, and even teaching awards and endowed chairs at UT. It also creates a bureaucracy of diversity commissars in each college to enforce the new orthodoxy and mandates re-education of virtually all faculty in the new catechism.

UT insiders tell me this plan was the brainchild and pet project of UT Vice Provost Edmund Gordon, a pronounced CRT advocate. UT’s adoption of this extraordinarily ill-considered plan was the last straw for me (and, based on responses I have received to my article, apparently many other UT alumni as well). UT President Jay Hartzell’s response to this criticism has been to simply ignore it, which seems to be his preferred modus operandi. President Hartzell’s calculus appears to be that, with the Texas legislature now safely adjourned from its biennial session, UT can simply continue on its merry way, unmolested by the unenlightened peasantry.

He may be in for a rude awakening.

The visceral public backlash against CRT in education is emerging as one of the hottest political issues of recent times, cutting across just about all demographic lines. Indeed, even advocates of CRT now apparently recognize it is politically radioactive. Their new go-to defense is not to defend the CRT principles they have loudly espoused and demanded be implemented in curricula and administration, but instead to assert that CRT is not being taught or institutionalized at all.

Politicians across the country have felt this prevailing political wind and are acting accordingly. Texas politicians have also sensed the rising public anger, and late in the 2021 session added and quickly passed HB 3979, which bans the teaching of certain CRT concepts in public K-12 schools.

But what of Texas’ flagship public educational institution, the University of Texas at Austin, that is much farther down the CRT road than any K-12 school in the state? President Hartzell, like his predecessor Greg Fenves, is apparently quite happy to adopt CRT principles as official UT policy, either because he agrees with them or because he is simply afraid of or unwilling to stand up to campus activists. The Board of Regents remains, as it unfortunately has been for many years, too cowardly to exercise any sort of meaningful oversight or control over what goes on at UT. Will Texas public officials step up and address what is happening at UT, as their counterparts in Idaho recently didregarding comparable “diversity” practices at the University of Idaho?

It appears that they may. In researching this article, I requested comments from Texas Governor Abbott’s office and the campaign of former Texas State Senator Don Huffines (a conservative critic of Gov. Abbott who is challenging him for the GOP nomination) regarding their thoughts on the situation at UT.

Senator Huffines issued the following statement:

CRT has been slowly seeping into our education system over the last 40 years. Greg Abbott has allowed public institutions like my alma mater, The University of Texas, to implement CRT openly and proudly. CRT eradicates freedom and diversity of thought. It is a harmful indoctrination being forced on our children, and I will not tolerate it. As governor, I will ban CRT at all levels of education, including colleges and universities. Any public school that does not comply will lose their state funding. All state agencies and contractors will additionally be banned from implementing CRT. In my administration, this Marxist drivel won't receive even a penny of taxpayer money.

Regarding Gov. Abbott’s role in UT’s decline, Senator Huffines makes a fair point. For quite some time now, every member of the UT Board of Regents has been appointed by Gov. Abbott, yet his appointees have done absolutely nothing to arrest UT’s long march toward wokeness over scholarship, “equity” over equal opportunity and meritocracy, and political correctness over free speech and free inquiry. Indeed, noted commentator and UT critic Mark Pulliamindicates that he met with a senior advisor to Gov. Abbott three years ago and raised exactly these issues—but Gov. Abbott’s adviser dismissed Mark’s concerns, and nothing was done.

Gov. Abbott’s office in turn referred me to his signing statement on HB 3979:

House Bill 3979 is a strong move to abolish critical race theory in Texas, but more must be done. The issue will be added to a special session agenda.

Whether in response to critics like Senator Huffines, or from his own belated recognition of the problem and public sentiment, Gov. Abbott may finally be willing to take concrete action. If he follows through and takes the extraordinary step of including CRT in higher education in the agenda for the special session scheduled for later this summer, UT could find itself with a serious problem.

Unlike a regular session of the Texas Legislature, where thousands of bills compete for time and attention on a very short clock (140 days every other year), bills introduced in special sessions tend to sail through. With the GOP in firm control of both houses of the Legislature, and with red-hot public anger over CRT sweeping through public education, the stars may be aligning for some long-overdue legislative oversight of UT.

What should the Texas Legislature do? For starters, President Hartzell, Board of Regents Chairman Eltife, and especially Vice Provost Gordon should all be called to testify under oath regarding what is going on at the Forty Acres, and in particular to address the hard questions about the “Strategic Plan for Faculty Diversity, Equity, and Inclusivity”that UT has studiously avoided answering. In advance of the hearing, legislative committee staffers should also obtain and release for public review Dr. Gordon’s (and President Hartzell’s) communications regarding the development of the DEI plan, as UT would undoubtedly invoke the “deliberative process” privilege to block any efforts by the public to obtain them via Texas Public Information Act requests. (As I learned from my investigation of activities at UT Law School, sweeping invocation of “deliberative process” is apparently UT’s standard technique to frustrate TPIA inquiries into questionable activities. However, if the Legislature demands these documents, the “deliberative process” privilege in the TPIA does not exist, and it would be exceedingly foolish and counterproductive for UT to try and resist legislative oversight efforts on that basis.)

The simplest legislative action would be to immediately cut UT’s budget for the amounts it intends to spend on its institutionalization of CRT principles (including its “Strategic Plan for Faculty Diversity, Equity, and Inclusivity”), with provisions for automatic future cuts if UT responds by reallocating other resources to cover those cuts, and to redistribute such funds to other Texas higher education institutions. (If other public universities in Texas see that even UT is not immune from legislative oversight, I suspect they will be dissuaded from following in its footsteps.)

Other suggestions for curative legislation that the Texas Legislature should consider:

  • Confirm and reiterate that the use of race, sex, or other identity characteristics in hiring, promotion, tenure, or other employment practices in higher education (with exceptions for narrowly tailored programs designed to redress demonstrable past discrimination) is illegal under Texas law. This would cauterize the immediate symptom: UT’s institutionalization of the CRT concept of “equity” over equality of opportunity and nondiscrimination.

    Texas law—specifically, Chapter 21 of Texas Labor Code (Texas Commission on Human Rights Act (TCHRA))—already makes it illegal to discriminate in employment matters on the basis of race, color, disability, religion, sex (including sexual orientation), national origin, or age (if against someone over 40). This Texas law prohibits favoring or disfavoring an individual in employment matters based on such classifications and is fully applicable to public institutions such as UT.

    As suggested by Cornell Law Professor William Jacobson, the Texas Legislature could pass a bill that includes a laundry list of suspect practices (such as many of those contained in UT’s “Strategic Plan for Faculty Diversity, Equity, and Inclusivity”) and making legislative findings that such practices do violate the TCHRA. Such legislative findings would eliminate any possible doubt that UT’s stated intent to discriminate in the name of “equity” is illegal under Texas law, and would check the likely reluctance of elected Democrat judges in Austin to interpret TCHRA in this fashion.
  • Ban requiring or encouraging support of a particular political or philosophical position in hiring, promotion, tenure, or other employment practices in higher education. This similarly cauterizes the practice of requiring the affirmative support of a particular political agenda (e.g., “social justice” or “diversity, equity, and inclusivity”) as a requirement for employment or promotion, or of otherwise disfavoring those who are deemed insufficiently “woke.”
  • For public colleges, prohibit requiring, favoring, or disfavoring a particular political or philosophical position to gain admission, to pass required courses, or to receive a degree or certificate.
  • For public colleges, require adoption of the Chicago Statement as official policy.
  • Create a private right of action for violations of any of the foregoing, with no personal immunity for state employees or officials who participate in such violations. (As the situation in California public universities aptly demonstrates, without teeth such as this, prohibitions of “woke” discrimination become meaningless, as public university officials and employees can (and do) brazenly ignore the law without consequence.)
  • Regarding UT, begin to seriously evaluate whether Texas public higher education funds (especially distributions from the $30 billion Permanent University Fund) could be better spent on hard science research and education, and on regional or distance learning schools that focus on educating more Texans at a lower cost, rather than on funding an Austin citadel of woke indoctrination and “social justice.”

One thing I would encourage the legislature to avoid: purport to ban the teaching of CRT in public universities entirely. Unlike K-12 public education, where schools have a captive audience of children who are compelled by law to attend, I view the teaching of CRT in higher education the same way I view the teaching of Marxism, Lamarckism, eugenics, or astrology: I have no issue with adult students choosing to learn about these subjects if they want. (Making CRT courses mandatory, adopting CRT principles as official university policy, or spending large amounts of state funding on CRT courses are different matters.) Unlike much of the UT administration and faculty (such as “Larry and Friends” at the UT Law School, and a certain dean in the School of Business), I do not demand a monopoly of acceptable ideas or expressions, or believe that university students must be shielded from words and ideas that they dislike: both are anathema to the fundamental basis of higher education. Frankly, students who are unwilling or unable to deal with opposing viewpoints or the people holding them lack the maturity required for higher education in the first place, particularly in graduate programs at what is supposed to be an elite university.

As I have with past NAS articles about UT, I requested an interview of President Hartzell or someone else at UT for this article. Once again, UT’s press office confirms that it declines to respond.

With a special session on the horizon, however, UT’s days of simply ignoring critics and disgusted alumni may be numbered. To paraphrase Joe Louis, UT can run but it cannot hide.

Louis K. Bonham is an intellectual property litigator. He is a graduate of the University of Texas (BA ’83, JD ’86), was an Articles Editor on the Texas Law Review, and served as a law clerk to the Hon. Edith H. Jones of the US Court of Appeals for the Fifth Circuit.

Image: Michael Barera, Wikimedia CommonsCreative Commons Attribution-Share Alike 4.0 International license, cropped.

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