An Open Letter to Texas Governor Abbott on Illegal DEI Practices: Where’s the Beef?

Dear Gov. Abbott,

After National Association of Scholars Senior Fellow John Sailer’s bombshell report in the Wall Street Journal documented the use of “diversity statements” as ideological hiring filters at Texas Tech University, your chief of staff hastily issued a statement reminding state employees that such practices are, in fact, illegal. This has been cited in the press as evidence that you, like Florida Governor DeSantis and officials in Oklahoma, South Carolina, and many other states, are now going to crack down on diversity, equity, and inclusion (DEI) practices at Texas state universities.

Forgive me if I do not share such optimism, and if I question whether your office’s recent statement was sincere. Your history consistently shows that you have either tacitly supported the exact policies that your office now acknowledges are illegal or have been unwilling to do anything about them.

The explosion of DEI programs and their use of illegal racial, ethnic, sex, and ideological discrimination by Texas state universities—especially the institutionalization of the Kendian ethos that such discrimination is a moral imperative, notwithstanding that, as United States Court of Appeals Judge James Ho has noted, such a worldview directly conflicts with federal law—has occurred during your tenure as our governor. To the best of my knowledge, you have been in office long enough to have appointed every single regent at every Texas state university. Yet none of these regents—who are supposed protect Texans’ interests, and not merely enjoy luxury accommodations at sporting events and the perks of overseeing multi-billion-dollar endowments—have done anything to put a stop to these illegal activities.

Nor can you credibly claim to have been unaware that illegal DEI programs and practices have become pervasive at Texas state universities during your administration. For example, University of Texas alumnus, attorney, and commentator Mark Pulliam extensively documented the adoption of such practices as official university policy under former University of Texas President Gregory Fenves. On July 16, 2018, he met in person with your senior policy advisor (John Colyandro) to lay out what he had uncovered, and what he thought you could do about it (such as statements denouncing such practices as illegal and improper, and appointing university regents committed to doing something about them). Mr. Colyandro simply dismissed Pulliam’s concerns. History demonstrates that since then, these illegal policies have become widespread at Texas state universities—all of this indisputably occurring on your watch.

Further, after UT adopted an Orwellian faculty hiring DEI initiative in 2021, your political opponents criticized your complete inaction on the spread of DEI policies in Texas higher education. In connection with an article I was writing on the subject, I requested a response from your office to such charges. Your press officer provided a statement to the effect that you recognized that more needed to be done in this area, and that you would be including it in the agenda for the upcoming special session. However, when you issued the call for the special session, you did not do so. When I then asked your office why you had changed your mind, my request for comment was ignored.

[Related: “Research, Teaching, and DEI”]

Long and short, you own the spread of illegal DEI programs at Texas universities. At the very least, you could have appointed regents like Wallace Hall who take oversight responsibilities seriously. (Recall that Mr. Hall, who was appointed by Gov. Perry, uncovered all sorts of crooked activities at UT, which ultimately led to the ousting of UT President Powers. Recall, also, that when politicians who benefitted from such corrupt practices came after Mr. Hall, you refused to support him and to reappoint him and other regents who supported his efforts.) Instead, you have appointed regents who either lack the skills or the courage to do anything about the spread of illegal DEI activities at Texas universities, or who actually support practices your office now recognizes are illegal.

I’m cautiously willing to accept that you have now had an epiphany, and are indeed shocked, shocked to find that such illegal activities are ubiquitous at Texas state universities. However, beyond having your staff issue anemic statements, will you actually do anything about it?

Consider four concrete examples:

1. Racial “Role Models”

As you likely know from your time as a practicing attorney, judge, and Texas attorney general, in 1986 the United States Supreme Court held in Wygant that racial discrimination in education employment decisions was illegal, and, specifically, that racial discrimination for the purpose of having teachers of certain races serve as “role models” was forbidden. That has been clearly established law for almost 40 years.

When a UT faculty member questioned UT President Jay Hartzell (44:30 in the video) about UT’s new faculty DEI initiative and pointed out that experts had challenged its legality (a point that President Hartzell quite literally laughed at (45:45)), Hartzell later stated that one of UT’s justifications for its race-conscious hiring practices was its belief that they were necessary to provide faculty “role models” for various demographic groups (30:35)—a rationale that has been unquestionably illegal for over a generation. Contrary to President Hartzell’s attitude, such illegality is no laughing matter.

By implementing UT’s faculty DEI hiring initiatives (which include many, many practices and procedures that are illegal, as exhaustively documented in another National Association of Scholars report), President Hartzell and his administration have repeatedly demonstrated that they believe they are above the law.

[Related: “The ‘Racial Pairing’ Fallacy”]

Are you going to do anything about this illegal behavior by state employees? Are you going to insist that your appointed regents do their job and rein in such illegal conduct, including firing state employees who refuse to abide by settled law? Are you willing to call for and support legislation stripping such scofflaws of any legal immunity and allowing them to be sued individually by Texas citizens?

2. Discrimination in Faculty Hiring

John Sailer’s reporting documented the blatant, institutionalized discrimination in faculty hiring at Texas Tech against individuals whose required “diversity statements” were deemed insufficiently “woke.” In subsequent testimony to the Texas Senate Finance Committee, Texas Tech Chancellor Ted Mitchell disavowed such practices, claiming they were limited to a single department and promising to “correct” them. (Whether his contrition was sincere or was contrived to avoid cuts to Texas Tech’s state appropriations is an open question.)

But what of the individuals at Texas Tech who designed and implemented formal hiring metrics that scored candidates on how “woke” they were—behavior that even the progressive Dallas Morning News admits “raise[s] concerns and doesn’t represent the proper use of DEI”? Are these state employees going to be in any way disciplined or removed from hiring decisions? Or will they instead be allowed to continue to make discriminatory hiring decisions at Texas Tech with a wink and a nod and a quiet reminder not to put their discrimination in writing (a very common practice on campuses today)?

And what of the Texas Tech administrators who now claim to have been unaware of this illegal behavior—a claim which rings rather hollow, given the size of the DEI bureaucracy they have implemented at their school? (Indeed, as UT President Jay Hartzell’s responses to faculty questions about UT’s DEI hiring initiative make clear, one of the avowed purposes of such DEI initiatives is to affirmatively favor “woke” candidates and screen out those deemed insufficiently pious to the creed of DEI.) Will there be any repercussions for such administrators, especially if (as I expect will be the case) they refuse to remove the involved individuals from future hiring decisions?

3. Anti-DEI Lawsuits

Lawsuits have been filed against Texas universities to enjoin some of these illegal DEI practices (as well as attempts by university administrators to punish faculty who had the temerity to blow the whistle on them).

Do you think it is a worthwhile use of taxpayer funds to defend such lawsuits, particularly when your administration recognizes that these practices are illegal? Indeed, given that such activities (such as the attempts to punish Professor Richard Lowery for exercising his First Amendment rights and blowing the whistle on UT’s illegal activities) violate “clearly established” law, the individuals involved very likely will not have qualified immunity (as “woke” University of Iowa officials found out the hard way). Why should Texas taxpayers be forced to pay the legal fees of state employees who believe they are above the law?

[Related: “Lowery v. Texas A&M University System: The Beginning of the End of DEI Discrimination?”]

4. Racial Preferences in Admissions

Most legal observers (even progressive ones) believe that the Supreme Court will shortly overrule Grutter and Fisher v. UT and declare that racial preferences or discrimination in university admissions decisions are illegal. Just as California university administrators have essentially ignored a voter referendum banning affirmative action, it is beyond naive to expect that the entrenched DEI bureaucracy in Texas state universities will obey such a decision. Like the segregationists in the wake of Brown v. Board of Education, these “true believers” will consider it a moral imperative to “resist” a Supreme Court decision that contradicts their principles.

If, as expected, the Supreme Court declares the use of race in university admissions to be illegal, will you or your appointed regents do anything concrete to ensure respect for the law, including firing state employees who refuse to follow it? Or will you tacitly support a self-styled la résistance by continuing to turn a blind eye toward their illegal behavior at state universities?

As a native Texan, you are, of course, familiar with our idiom “all hat and no cattle.” Until this month, on illegal DEI programs at Texas public universities, you have been “no hat and no cattle.”  This is in stark contrast to Florida Governor DeSantis, who has unashamedly denounced DEI programs in higher education, required state universities to report their expenditures on DEI programs (reports that are being used to defund them), and appointed university regents with specific mandates to root out DEI programs.

Your staff’s recent statement shows that you may finally be donning a Stetson on this issue. But the real question is straightforward: where’s the beef?

Louis K. Bonham

Austin, Texas

Author’s Note: I requested comment from Gov. Abbott’s office, the UT press office, Texas Tech Chancellor Ted Mitchell, and John Colyandro. None responded.

Image: Adobe Stock


  • Louis K. Bonham

    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.

3 thoughts on “An Open Letter to Texas Governor Abbott on Illegal DEI Practices: Where’s the Beef?

  1. The author writes:
    Like the segregationists in the wake of Brown v. Board of Education, these “true believers” will consider it a moral imperative to “resist” a Supreme Court decision that contradicts their principles.
    Segregation and racial and sex discrimination was typically enforced by informal norms and the belief systems of those making housing/employment decisions. We are now at a point that the norm is to favor women/minorities through these same informal norms. I think it is probably useless to try to challenge a particular mindset but what can be done is ensure that quality measures are in place and upheld. These are at least somewhat quantifiable.

  2. This is what it is going to take — repeated, direct questions forcing Republican politicians to take a stand either with us or against us — forcing them to actually “walk the walk” in addition to merely “talking the talk.”

    It’s a true shame that Alan West was defeated in the primary because I’ve got a pretty good idea what he’d be doing — and he’s also Black so the “racism” claims wouldn’t go too far.

Leave a Reply

Your email address will not be published. Required fields are marked *