Divisive Concepts Act Information and Resources
The University of Memphis promotes a welcoming, creative and supportive learning environment for all our students, faculty and staff. We believe that learning environments demand a robust exchange of ideas and thoughts. Diversity within our community makes us stronger as an institution and provides a more meaningful environment for diverse thoughts and experiences.
The Tennessee General Assembly passed a bill which was signed into law, commonly known as the Divisive Concepts Legislation. The law identifies sixteen (16) ideas or concepts and prohibits institutions of higher learning from requiring faculty, staff or students to endorse, embrace, confess, support or otherwise assent to one or more of these concepts.
The University of Memphis provides the following information to serve as guidance and a resource to faculty, staff, students and the general public in understanding the implications and adherence to this new regulation while continuing to promote academic freedom.
The Concepts
1. One (1) race or sex is inherently superior or inferior to another race or sex;
2. An individual by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously;
3. An individual should be discriminated against or receive adverse treatment because of the individual's race or sex;
4. An individual’s moral character is determined by the individual’s race or sex;
5. An individual by virtue of the individual’s race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
6. An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual's race or sex;
7. A meritocracy is inherently racist or sexist, or designed by a particular race or sex to oppress another race or sex;
8. This state or the United States is fundamentally or irredeemably racist or sexist;
9. Promotes or advocates the violent overthrow of the United States government;
10. Promotes division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people;
11. Ascribes character traits, values, moral or ethical codes, privileges, or beliefs to a race or sex, or to an individual because of the individual’s race or sex;
12. The rule of law does not exist, but instead is a series of power relationships and struggles among racial or other groups;
13. All Americans are not created equal and are not endowed by their Creator with certain unalienable rights, including, life, liberty and the pursuit of happiness;
14. Governments should deny to any person within the government’s jurisdiction equal protection of the law;
15. Includes race or sex stereotyping; defined as ascribing traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of race or sex; and
16. Includes race or sex scapegoating; defined as assigning fault, blame, or bias to a race of sex, or to members of a race or sex, because of their race or sex, and includes any claim that consciously or subconsciously, and by virtue of a person’s race or sex, members of a race are inherently racist or inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.
Prohibitions
A. The law provides that institutions of higher education shall not penalize, discriminate against or treat adversely either a student or employee because the individual refused to support, believe, endorse, embrace, confess, act upon or otherwise assent to one or more of the enumerated divisive concepts.
B. The law prohibits the institution from using state-appropriated funds to incentivize a faculty member to incorporate one or more divisive concepts into the curricula.
C. The law prohibits institutions from conducting mandatory training of students or employees IF the training includes one or more of the divisive concepts.
D. Institutions cannot create training materials that include any of the 16 divisive concepts.
E. The law prohibits the use of state funds for fees, dues, subscriptions or travel related to the membership, meetings, or activities of an organization if participation in the organization requires an individual or their employer, to endorse, embrace or support a divisive concept.
F. The law prohibits the institution from requiring an applicant for admission to submit a personal diversity statement or to affirm the applicant’s agreement with an institutional diversity statement as a part of the employment process.
Faculty and Staff
Faculty are not required to modify the content of their academic courses or seminars to comply with the mandatory training prohibitions of the Public Chapter.
The law specifically states that it does not infringe on academic freedom and free speech in the classroom. The law does not impact the faculty’s ability to freely engage in the dissemination of knowledge and lead robust, respectful debate in the classroom.
The legislation does prohibit faculty members and staff from penalizing, discriminating against or imposing adverse treatment on a student due to the student’s refusal to support, believe, endorse, embrace, confess, act upon or otherwise agree to one or more the divisive concepts.
The legislation prohibits all state public institutions of higher education from conducting mandatory training of students or employees if the training includes one or more of the “divisive concepts” (See above).
Training
Training, under the Public Chapter is defined as seminars, workshops, trainings and orientations.
The University does not interpret the prohibition on mandatory training to apply to training;
1. That (1) is required as part of the curriculum of an academic program (e.g., academic courses, academic seminars) or;
2. Is required for purposes of complying with an academic accreditation requirement.
3. That the institution provides to students or employees on the non-discrimination requirements under federal or state law.
Campus leaders should ensure compliance with the legislation regarding mandatory training.
FAQs
1. Must I alter the course(s) I teach if the subject matter covers areas related to historical subjects, such as slavery, Jim Crow, Women’s Rights, LGBTQ rights, etc.?
No, the law does not prohibit the discussion or exploration of divisive concepts when relevant to a given course or subject matter, but students cannot be forced or compelled to endorse, adopt or adhere to any of the divisive concepts.
2. What if I find that some mandatory training we require of faculty could be described as divisive concepts?
In order to maintain compliance, you should remove any references to the divisive concept. You should also review the training if there are concerns and consider converting the training to optional/recommended training.
3. Does the law prohibit/eliminate DEI (Diversity, Equity & Inclusion) positions and efforts?
No. The legislation requires DEI staff positions to continue to promote diversity, non-discrimination and equal opportunities.
4. Will faculty and staff be liable if there is a claim against them under this legislation?
Under the Act, if an individual believes there has been a violation, the person may file suit, however nothing under the legislation authorizes a lawsuit against an individual employee. If you are sued, the State of Tennessee generally provides legal representation through the Attorney General’s Office.
However, employees may have personal liability if it is determined that they have acted willfully, maliciously or criminally or if they acted for personal gain.
5. Can the University cover the cost of memberships for dues or travel in conjunction with membership if the organization requires the individual (or its employer) to endorse or promote one of the divisive concepts, as defined in the law?
No, state funds cannot be utilized if participation in such an organization requires an individual or an individual’s employer to endorse or promote a divisive concept. We expect department leaders to continue communicating with faculty and staff as they review programs and membership organizations to ensure compliance with this legislation.
6. During an interview of a prospective faculty or staff member, may I ask the applicant their ideological or political viewpoint?
In accordance with the legislation, University faculty and staff are prohibited from asking the applicant about their political or ideological viewpoint as a condition of employment, tenure, promotion or graduation.
7. Will the University provide training on the divisive concepts legislation?
We will continue to respond to questions and concerns you have as we adhere to our goal of creating a robust learning environment and a professional working community at the University. We will utilize existing training, educational and development models as necessary to convey and update faculty and staff about this legislation. We will also share and invite individuals to view the website as a source for information and guidance.
Diversity and Inclusion are our strengths. Students, staff and faculty come from all over the world to be a part of the University of Memphis experience. Teaching about challenging topics is key to continuing to promote excellence. We will adhere to the law and continue to educate and inspire.
Questions
We encourage you to ask questions as you encounter situations. If you believe you have circumstances unique to your teaching or employment environment, please submit your question to the Office of Legal Counsel by completing the form below. You will be contacted to discuss resolutions.
We will continue working together to maintain our commitment to create great leaders.
If you believe a violation of T.C.A. § 49-7-1901 et. seq. has occurred, you may file a report of the alleged violation. The University will investigate and take appropriate steps should a violation be determined. You may submit your complaint via email to legalcounsel@memphis.edu.