Why Aren’t Red States Red? (Part 1)

Some red states are leaders in public policy, consistently enacting conservative measures that drive their economies forward. But in some red states, conservatives are frustrated that large Republican majorities don’t necessarily produce solid conservative legislation.

One of those states is Texas. Republicans control the Texas House of Representatives 85-64 and the Senate 19-12. Texas has a Republican governor, Greg Abbott. And yet, despite those numbers and the state’s conservative image, a strong anti-DEI bill failed to become law in this year’s session. Texas lawyer and activist Louis Bonham explains what happened:

What’s the Matter with Texas?

On the last day of the session, the Texas Legislature passed SB17, which facially outlaws and defunds DEI departments, practices, and mandatory training at Texas state universities. Governor Greg Abbott is not expected to veto it, and so it will either be signed into law or become law without his signature in the next few days.

Conservative groups such as the Texas Public Policy Foundation have crowed that SB17 is the strongest anti-DEI legislation in the country, and the National Association of Scholars (whose members have been instrumental in investigating and highlighting the omnipresence of DEI at flagship Texas schools) praise it as having stout enforcement provisions.

Unfortunately, as will be explained below, I do not share these optimistic views.

Texas desperately needs legislative action in this area. As John has previously written here on Power Line, and as I have detailed elsewhere, hard-edged DEI is firmly established as official policy at Texas state universities, especially its flagship institutions. This is despite the fact that DEI principles like Kendian discrimination for the “right” reasons and DEI “loyalty oaths” are hugely unpopular with Texas voters. Due to years of willful inaction by Governor Abbott and the state university regents he has appointed, legislative initiatives to combat DEI being official state policy are the only realistic solutions.

So why am I not celebrating SB17 becoming law?

As I’ll explain, SB17 was eviscerated by a faction of Texas House GOP members. As with the putative anti-DEI funding rider to the state appropriations bill, HB1 (which defunds DEI programs — but only applies to programs that violate specific provisions of the Texas Constitution), SB17 morphed into a Potemkin piece of symbolic legislation, because it provides nothing in the way of meaningful enforcement or disincentives for violating it. GOP politicians (especially those who sabotaged it) will point to it as demonstrating their conservative, anti-DEI bona fides, when in reality it will do little or nothing — assuming it even goes into effect.

How this happened is a lesson on the nuances of how Texas government operates. It helps to explain why despite having a conservative voter base and the GOP in control of all the levers of statewide power, Texas lags far behind states like Florida in addressing “wokeness” in state institutions, as well as many other areas in which one would think Texas would be a conservative leader.

Texas Government and Machine Politics

To understand how SB17 was sabotaged, one needs to understand the peculiar structure and practices of Texas government.

Texas operates under the Constitution of 1876, which was passed in the wake of Reconstruction and was designed to minimize state power. The Legislature meets for only 140 days every other year, plus any special sessions called by the Governor (which typically are rare). During a regular session, nothing can be passed by either chamber during the first 60 days of the session unless 4/5ths of each chamber agrees to suspend the rule, or the Governor declares the bill to be an emergency matter.

After a bill is filed, it is formally “read” for the first time in the chamber, after which the presiding officer refers it to a committee. Most bills are then never heard from again.

If the committee hears and passes the bill (usually after amending it, often in a way contrary to the intent of the original author), then it is reported back to the chamber. Reported bills must be approved twice by each chamber (on “second reading” and “third reading”, with those readings being at least three days apart unless the chamber suspends the rules), with a dizzying array of additional procedural and parliamentary rules that must be satisfied before a bill can be voted on.

In the Senate, most bills can be considered only by a suspension of regular order, which requires a 5/9ths majority, which in practice means the Senate passes nothing that does not have at least 5/9ths support.

Once one chamber passes a bill, then it goes to the other chamber, where the process starts all over again. If the other chamber changes anything, back it goes to the original chamber for a vote on whether to accept the other chamber’s amendment. If the amendments are rejected, the bill can be sent to a conference committee, whose report will have to be adopted by both houses. And remember, for most bills, all of this has to happen in the final 80 days of the session. Most bills that do pass get their final approval in the frenetic last days of the session.

Long and short: by constitutional design, it’s hard to get anything through the Texas Legislature. And it’s even harder when you then factor in the power of the House Speaker and Lieutenant Governor, whose political muscle exceeds that of the Governor (who is largely a figurehead under the 1876 Constitution).

The House Speaker and the Lieutenant Governor (who presides over the Senate) have essentially absolute control over what bills will come to the floor for second and third readings. There is no “discharge petition” practice, whereby members can force a vote on a particular bill. As a result, if the Speaker or Lieutenant Governor do not want a particular bill passed, they can simply never let it come up for a vote.

Their power is further enhanced because they alone decide the membership and chairs of various committees, and committee chairs similarly have absolute authority over what bills the committee will hear (and if so, when). Thus, even if a majority — or even a supermajority — of members in both chambers are in favor of particular legislation, the presiding officer and his hand-picked committee chairs in one chamber can see to it that the bill never gets through the process (or that it comes to the floor in a form that the presiding officer’s cabal prefers).

The Texas Lieutenant Governor is elected statewide, while the House Speaker is elected by the House members. In Congress, as in most states, this would mean that members of the majority party would caucus, vote on the caucus’ choice for Speaker, and then all members of the caucus would support that nominee (with dire political consequences for any caucus members who did not). However, while the Texas GOP platform has called for that practice to be followed for many years, since the GOP regained a majority in the Texas House a generation ago, a succession of “Republicans in Name Only” politicians have bucked the system, using an archaic Texas practice known as “pledge cards.”

Under this system, a Speaker does not get elected by obtaining the support of a majority of his party’s caucus. Instead, he cuts deals with individual members (e.g., sign your pledge card for me and I’ll put you on this committee; get your faction to sign their pledge cards for me and I’ll make you chair of this committee). When he has pledge cards from a majority of House members, he formally announces that he is running for Speaker, and thus is then usually elected almost unanimously — members know he has the votes to be elected anyway, and not voting for the Speaker likely insures that your legislation will never get a vote.

Following the “pledge card” practice means that a relatively small number of often nominal Republicans can elect a speaker by allying with the Democrat minority, which understandably would prefer to have a Speaker who is not a GOP stalwart . . . especially if that Speaker also gives Democrat members control of certain committees as a sweetener.

That is precisely what has happened. For years, the House Speaker was Joe Straus, a “moderate” Republican who had a core group of supporters (whom he rewarded) but owed his election to support from Democrats (whom he also rewarded with committee chairs). As a result, many conservative initiatives that had broad popular support never saw the light of day, because either the Democrat committee chair let the bills die in committee, or because Straus didn’t let them come up for a vote or only did so late in the game when he knew the Senate would not have time to pass them before the session ended.

Straus was succeeded by a member of his cabal, Dennis Bonnen. After a political scandal forced Bonnen to stand down, his replacement was another member of the cabal, Dade Phelan, who is the current Speaker and has continued this political machine’s control over the Texas House.

SB17’s History

Before the session convened in January 2023, there were high expectations that the Texas Legislature would pass some serious anti-DEI legislation. These were amplified by a bombshell Wall Street Journal article by John Sailer of the National Association of Scholars, which documented that DEI “diversity statements” were being used as blatant political litmus tests in hiring at Texas Tech. This (and the looming legislative session) forced the Texas Tech administration to disavow the practice, and prompted Governor Abbott’s office (but not Governor Abbott) to issue a statement reminding state employees that hiring on any basis other than merit was illegal. It similarly caused the boards of UT and Texas A&M (which had previously been supine on the issue) to announce they were “pausing” or discontinuing certain DEI initiatives. Recognizing the interest in the issue, Lieutenant Governor Dan Patrick included anti-DEI legislation in his list of legislative priorities for the session.

Before the session started, I received and contributed to a preliminary draft of anti-DEI legislation (which contained a section dealing with higher education that eventually became SB17). This draft recognized that university DEI employees and their allies in their school’s administration were likely to “resist” being told to halt what they consider to be a moral imperative; indeed, some such people have openly discussed how they would evade such bans. This preliminary draft included robust enforcement provisions, including by private citizen lawsuits, with state employees who violated the law or otherwise allowed it to be violated being personally liable for statutory damages (no immunity).

In the initially filed version of SB17, however, the private enforcement mechanism was removed, but in its place was a provision that required employees found to have violated the law be suspended without pay or benefits for one year for the first offense, and permanently terminated for a second. It also provided that institutions found to have violated SB17 would have the lesser of $1 million or 1% of their state appropriation deducted. It also had provisions allowing people to file complaints regarding violations with the Texas Attorney General’s office, which could bring mandamus actions to enforce the law. While not as effective as a private right of action, these remedies still would have created major disincentives for state employees and institutions to ignore or try to circumvent the law.

The Senate’s Higher Education subcommittee, however, considered a committee substitute version that dramatically cut down SB17, including replacing the enforcement provisions with one that required institutions to annually certify compliance with the law, and that a finding by the state auditor (who would be required to audit each institution every few years) of a violation would result in the institution being ineligible to receive any state funding (other than to pay debt service) for the next fiscal year. While this severely reduced the disincentives for individual state employees to violate the law, it still provided a “big stick” that likely would have made most institutions take the law seriously.

This version of SB17 (which was a priority of Lieutenant Governor Patrick, and backed by the senate GOP caucus) passed the Senate, and was sent to the House. And that’s where the shenanigans began.

My sources indicate that Speaker Phelan — who has been and remains at war with LG Patrick on many issues — was opposed to SB17, at least in the serious form passed by the Senate. The bill was referred to the House Higher Education committee, which is headed by Phelan crony John Kuempel, where it sat for almost a month; indeed, at one point it looked like the bill would not be considered in time for the House to vote on it. When it was considered, it was in the form of a committee substitute bill that was developed behind the scenes. My sources at the Capitol reported that SB17 supporters were kept completely in the dark about what the House committee was up to, and first learned what was in the committee substitute from an article in the Texas Tribune — a left wing Austin paper that was apparently in cahoots with the Phelan machine.

The House committee substitute gutted any serious enforcement of SB17. Institutions found by the state auditor to have violated SB17 would be given six months to “cure” the violation (with, as we will see, no definition or description of what “cure” entails). Failure to do so would mean that the institution would be ineligible for any increases in state funding or special appropriations, but would trigger no other penalties or repercussions.

Most tellingly, the House Committee substitute removed the typical “severability” provision in the bill, which provided that if a court invalidated a particular part of the law, the remaining portions would continue in effect. Put differently, by removing the severability provision, a court finding that one part of the law is invalid creates a serious risk that the entire law would be invalidated (especially by a judge opposed to efforts to eliminate DEI as official state policy). In my opinion, there is zero reason to remove such a provision unless you are deliberately trying to facilitate killing the entire law in court.

Upon being reported to the House, this committee substitute then faced a “filibuster by amendment” attempt by DEI supporters. After hours of debate (at a time late in the session when legislative floor time is very precious), a deal was reached that added a provision requiring schools to use “best efforts” to provide displaced DEI employees other jobs at the school at the same pay rate. That version of SB17 was passed by the House.

When SB17 was returned to the Senate, it refused to concur with the House amendments. SB17 was thus sent to a conference committee with almost no time left in the session. Scant hours before the end of session deadlines, the Conference Committee came up with a version that cut the last-minute employment provision for displaced DEI employees, but left in place the gutting of the enforcement provisions and deletion of the severability provision. A few hours before session ended, both houses adopted the conference version.

A Paper Bill

So, SB17 is about to become Texas law, with most DEI departments at state schools to be disbanded and defunded, and many DEI practices discontinued, as of January 1, 2024. But if state university administrators and DEI functionaries — who did not want it passed and are openly hostile to it — won’t abide by it and act to circumvent it, what happens?

In my opinion, nothing. Nada. Zilch. Zip.

Consider the following hypothetical.

Assume the dean of the UT business school decides that she’ll just give her Assistant Dean for DEI a new title, but her department’s DEI activities will not change, nor will her department discontinue their race and sex conscious hiring practices and reliance on diversity statements / scoring in employment decisions. Assume further that the once-every-few-years state audit catches this. What happens to her, her department, and/or UT?

As I read SB17, neither the flagrantly violating official, her department, nor UT suffer any repercussions for such deliberate, intentional violations of SB17. Instead, UT merely gets 6 months to “cure” the specific violations that were caught. (Of course, for any violations not caught by the state auditor, nothing happens at all, because there’s no way under SB 17 anyone else who is outside of UT has the power or standing to force UT to do anything.)

But what does “cure” mean? How would UT “unspend” monies expended in violation of the law? Does it have to terminate employees hired in violation of it? How would it “cure” illegally requiring “diversity statements” from job applicants and making hiring decisions based on them, such as disqualifying applicants deemed insufficiently pious to the creed of DEI? How would it “cure” subjecting students and employees to illegal mandatory DEI training?

Or does “cure” merely mean discontinuing illegal behavior that the state auditor happens to detect? If so, there’s truly no disincentive to ignoring SB17 and continuing with business as usual, if the worst that can happen is that you’re told to stop if you get caught (and if you are, you have six months to stop).

Who determines whether UT has actually “cured” the problem, or has merely rearranged the deck chairs until the next audit? SB17 doesn’t say, but it’s clear that outsiders or whistleblowers have no say in the process. Indeed, it would appear that UT could simply discontinue the illegal activity long enough to claim the problem was cured, receive its annual appropriation, and then reimplement the illegal behavior until the next audit . . . and then rinse and repeat ad infinitum.

But can’t we just trust UT to obey the law? As SB17 requires its administration to annually certify that it is in compliance, surely UT wouldn’t fib in order to get its funding? Hardly. Currently, UT must annually certify that it does not engage in race or sex discrimination in order to qualify for federal funds. Despite having numerous programs and activities that violate Title VII and Title IX by discriminating against white and Asian men, UT routinely certifies that it is in compliance with federal law, because it knows the Biden administration will not enforce it. And what if UT does falsely certify compliance with SB17? All that happens is that UT gets notice and six months to “cure” that violation of the law.

Recall also that UT President Jay Hartzell has publicly defended UT’s preferential hiring initiatives on the grounds that such is necessary to have an adequate number of “role models” for various “underrepresented” identity groups. Of course, the United State Supreme Court held in Wygant almost forty years ago that such justifications for racial preferences in educational employment decisions were unavailing, and such behavior was illegal. That settled law deters Hartzell not one bit. Indeed, when a faculty member tried to warn him of the illegal nature of UT’s DEI initiative, Hartzell quite literally laughed at the suggestion. (Hartzell, along with other UT administrators, is currently being sued for retaliation against that faculty member.)

Nor did well established First Amendment law dissuade UT from implementing blatantly illegal “speech codes” at the behest of DEI proponents, which UT discontinued only after it was sued. When it comes to obeying the law or being “woke,” UT’s track record is to choose wokeness over the law.

What of the UT System Board of Regents? Surely they would never cotton to such illegal conduct by the UT administration, and would adopt and enforce rules and procedures to ensure compliance with SB17, wouldn’t they? Again, history teaches differently. The UT regents are well aware about what is going on at UT, but instead of being the adults in the room and putting a stop to things like UT’s unconstitutional speech codes, DEI practices that Gov. Abbott’s office and the U.S. Supreme Court say are illegal, or other unlawful behavior by the UT administration, like the other regents at Texas state schools the UT regents have instead blessed the administration’s lawlessness for years.

Indeed, as veteran UT watchers will recall, the last time a UT regent (Wallace Hall) actually tried to do something about the rampant lawlessness and corruption he uncovered at UT (allegations that were later proven correct, leading to the firing of the dean of the law school and the resignation of UT President Powers), the UT Board of Regent’s response was to change its rules so that regents like Hall were prohibited from undertaking any actions not on the Board’s official meeting agenda — which is wholly under the control of the Board’s chairman. (How any UT regent can ever hope to meaningfully satisfy their fiduciary obligations under such strictures is beyond me.) Expecting UT or its Board of Regents to obey any law they cannot be compelled to is beyond naive: they perceive they are above the law.

More fundamentally, will SB17 even go into effect on January 1? Recall that the House committee, headed by one of Speaker Phelan’s cronies (Representative Kuempel, whose father preceded him in office and was part of the Straus machine), inserted what appears to be a “poison pill” in SB17 by removing the severability clause. Thus, if for example a group of UT administrators were to challenge a provision of SB17 in the friendly confines of the Travis County District Courts (the judges of which are all elected Democrats in probably the bluest county in the state), an adverse finding could easily nuke the entire law. And that appears to have been the whole idea.

SB17 does contain a provision allowing students and employees to sue to enjoin mandatory DEI training, but provides no damages or other penalties for violators. So what’s the disincentive to departments or administrators simply retaining their mandatory DEI training? If someone complains and has the funds to file a lawsuit, the worst that happens is that the violator is eventually told to stop (with, of course, Texas taxpayers on the hook for the violator’s legal defense costs). Again, there’s no disincentive to DEI administrators to simply ignore SB17, as the worst that can happen is that they might be told to stop at some point in the future. We should thus expect to see many such violations of the law occurring.

What IS the Matter With Texas?

Why Phelan’s machine decided to gut SB17 is indeed a mystery, and so far no one is talking. Perhaps it’s just part of the ongoing war between the conservative Lieutenant Governor and his allies and the “moderate” Speaker and his machine, wherein something one side wants is often reflexively opposed by the other. Perhaps Phelan was “persuaded” by lobbying by UT and Texas A&M, both of which opposed the bill and any efforts to rein in their DEI practices. Or perhaps, as so often has been the case, Phelan and his machine want to merely appear to take a conservative or “anti-woke” position, but do not really support such principles, and so do not want to see them actually implemented.

Another possible motive comes from the appropriation bill (HB1). Buried in this massive bill is a provision (beginning at p.531) that provides an additional $1 billion in funding for Texas state universities. However, HB1 also provides:

Such funding is contingent upon the passage of Senate Bill 17 or other similar legislation relating to the powers and duties of the governing boards of public institutions of higher education and the passage of Senate Bill 18 or other similar legislation relating to tenure and employment status at public institutions of higher education in this state.

So apparently there was a deal in place, whereby state universities got $1 billion of the unprecedented state surplus, but only if LG Patrick’s anti-DEI and tenure reform bills passed. But then Phelan and company gutted SB17 and SB18 late in the session, and then essentially dared the Senate to reject their changes and thus kill not only SB17 but also the much-touted $1 billion in additional higher education funding. The Senators on the conference committee blinked. As a result, instead of being penalized for embracing DEI as official state policy, state universities wind up getting an additional $1 billion in state funding, and in return proponents of educational reform got versions of SB17 and SB18 that were completely emasculated. In short, SB17 supporters got chumped.

So why the claims of victory? Perhaps the SB17 proponents in the Senate and supporters like TPPF and NAS just want to say, “well, that’s the best we could get,” and claim it as a win, rather than admit that their side got outsmarted and outmanuevered by the Phelan machine. I, for one, demur from such face-saving. If bare-knuckle Texas politics means SB17 was the best that could be achieved at the moment, so be it. But don’t call this a victory, and don’t let those who deliberately gutted the bill slink away.

Cicero is credited as the source of the aspirational maxim esse quam videri, which translates as “to be, rather than to seem,” or in modern parlance, “reality, not just appearance.” (This has been adopted as the motto of the State of North Carolina and many organizations, as well as being part of the historic heraldry of many families (including mine).) When it comes to SB17, the moral instead is videri quam esse, as it seems those involved value appearances over actually doing something.

Author’s notes:

I reached out to many of the people involved with SB17 for comment, including Rep. Kuempel and the House members who gutted the bill, and the key Senate proponents who ultimately went along with its evisceration. In many cases, I even provided a draft of this article. None responded.

I similarly sent a draft to the Texas Public Policy Foundation, a reliably conservative organization that was one of the major supporters of the bill, and asked why it considers SB17 a huge victory when the bill has no viable enforcement mechanism. They too did not respond.

The National Association of Scholars — which has published many of my writings on DEI and on Texas schools, and whose opposition to DEI practices is beyond question — did respond to my request for comment, writing as follows:

SB 17 commits Texas universities to prohibit DEI loyalty oaths. Many potential recruits for DEI bureaucracies will now shy away from coming to Texas, and current members of the DEI bureaucracies will seek more secure jobs elsewhere. Now that Texas policymakers have committed themselves to prohibit DEI loyalty oaths, we will be glad to urge them to give full effect to their commitment by strengthening enforcement provisions. We have never imagined that the entirety of illiberal DEI bureaucracies would be swept away by one law–whatever the law, policymakers will have to maintain oversight on malfeasant and nonfeasance academic administrators. We congratulate Texas policymakers for taking a necessary first step by passing SB 17–and urge them to follow up by taking complementary steps to ensure enforcement of SB 17.

While I agree with my friends at NAS that additional measures are indeed required, I remain unconvinced that SB17’s bare prohibition of the use of diversity statements will deter the DEI functionaries in the least. Recall that after John Sailer’s reporting, Governor Abbott’s office issued a statement that made it clear that the use of diversity statements in hiring decisions at Texas state universities was going to be nuked, one way or another; indeed, even the liberal Dallas Morning News admitted that the use of diversity statements in this fashion did not “represent the proper use of DEI.”

Did this cause Texas university diversicrats to begin planning for life without the use of “woke” political litmus tests in hiring decisions? No. For example, after the statement from Gov. Abbott’s office, the Texas A&M diversicrats held a Zoom meeting, in which the head of the school’s diversity office described ways they could still “do the work” of advancing the DEI agenda without formal diversity statements (e.g., ask the applicant various questions during the interview process, rather than require a formal diversity statement). (Sources tell me that similar “wirearounds” to SB17 are already under development at UT.) In short, the DEI functionaries view SB17’s prohibitions as obstacles to be circumvented, not principles that must be followed.

Recall also that while Texas Tech purported to disavow reliance on diversity statements / scoring in hiring decisions as contrary to existing university policy, it does not appear that any disciplinary action has been taken against anyone who was involved in such “improper” activities. It thus appears to me that Texas Tech’s official contrition is contrived, and its only actual regret was that it got caught.

As SB17 provides no consequences for circumventing its ban on diversity statements, I thus disagree with NAS’s belief that SB17 meaningfully stops the use of political litmus tests in hiring and other decisions at Texas universities. I see no reason why such evasion will not be attempted; indeed, university administrators will likely encourage it.

And, of course, the formal prohibition on diversity statements means nothing if Rep. Kuempel’s “poison pill” amendment results in SB17 being invalidated in toto.

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