Can the Legislature force UA and Auburn to end DEI programs? It’s not clear

William J. Samford Hall at Auburn University, as seen on August 14, 2023 in Auburn, Alabama. (Brian Lyman/Alabama Reflector)

A bill limiting the ability of Alabama colleges and universities to operate diversity, equity and inclusion (DEI) programs is almost on Gov. Kay Ivey’s desk. 

But if the legislation becomes law, some campuses may be more affected than others. 

While most public colleges and universities in Alabama operate under state law, the two flagship systems in the state — the University of Alabama and Auburn University — are in the state constitution. That means that the powers that the Legislature has over the universities is much less clear. 

The bill, SB 129, sponsored by Sen. Will Barfoot, R-Pike Road, would limit state funding for DEI measures. Both the Senate and the House of Representatives have approved the legislation, though the Senate must concur in House changes or form a conference committee to work out differences in the bill.

The legislation itself appears to anticipate the issue. 

“It is the intent of the Legislature that all constitutionally created boards of trustees comply with the requirements of this act,” the bill says.

Barfoot told reporters after it passed the Senate on Feb. 22 that the extent to which the Legislature could compel compliance from Alabama or Auburn was a “great question.” 

“I think that certainly, the Legislature has the ability to add that language in, you saw that happen today, it is the intent,” he said. “So, the courts can interpret that as they will, if it’s challenged, certainly the court will interpret that, but I think that was the intent. I know that it was the intent of those who voted in favor of it today.”

Multiple messages were left with Barfoot asking to speak further on the topic.

The line between the Legislature’s authority and the universities’ boards of trustees is hazy. Both Alabama and Auburn have self-perpetuating boards of trustees and broad control over their own policies. While the state provides funding to both schools through the Education Trust Fund budget, it cannot control the tuition rates set by the schools.

The Denny Chimes at the University of Alabama in Tuscaloosa, Alabama, reflected in water on campus. (Stock photo/Getty Images)

Othni Lathram, director of the Alabama Legislative Services Agency, wrote in an email Tuesday that there is not a “simple answer” to the application of the law to Alabama and Auburn.

“That limit stems from the fact that the boards of trustees of those universities are constitutionally vested with the management and control of the institutions,” he wrote. “Argument over where that limit falls is usually somewhat muted by the fact that the Legislature has authority to exercise general legislative power of the state in ways that impact the universities and does have discretion over the appropriation process for those institutions.”

Lathram cited Stevens et. al. v. Thames, a 1920 Alabama Supreme Court case concerning the removal of items from Mobile Medical College to Tuscaloosa. Chief Justice C.J. Anderson wrote that sections of the Constitution governing the University of Alabama and limiting the Legislature’s ability to move UA from Tuscaloosa and Auburn University from Auburn only applied to those schools and not Mobile Medical College, which he called “a mere subsidiary located in another congressional district.”

Lathram said this case formed the basis of the argument that the Legislature’s power over Alabama and Auburn is limited. 

Both universities told the Reflector after the bill passed the Senate that they were planning to follow “applicable” laws.

“As a land-grant university, Auburn is committed to delivering exceptional experiences and support to all of our students with particular emphasis on providing access and opportunity to the citizenry of Alabama so that they benefit fully from an Auburn education,” Auburn said in a statement provided by spokeswoman Jennifer Adams. “We work hard each day at Auburn to create an environment where our faculty, staff and students are welcomed, valued, respected and engaged. We remain committed to providing these exceptional experiences while continuing to support academic freedom and freedom of expression. As always, Auburn will act consistently with applicable state and federal law.”

Lynn Lowe Cole, vice chancellor for system communications for the University of Alabama, wrote the school “will continue to act in accordance with applicable state law.”

“The University of Alabama System and its institutions – The University of Alabama, The University of Alabama at Birmingham, The University of Alabama in Huntsville and the UAB Health System – are dedicated to our mission of providing exceptional educational, research and patient care experiences to all people, of all backgrounds, in welcoming environments,” UA said in a statement released by Cole. “Our institutions support open thought, academic freedom and free expression. We are committed to providing resources and opportunities that are accessible to all and will continue to work with the legislature as we equip our campus community members for success at our universities and beyond.”

The limit that both Lathram and Jim Purcell, executive director of the Alabama Commission on Higher Education, noted is that the Legislature does provide some funding to the universities. The University of Alabama system is budgeted to receive $672.5 million from the Education Trust Fund budget this year. Auburn and its affiliates are slated to get about $362 million.

“The bill sponsors are specifically signaling in legislative intent that the constitutionally-created higher education entities, UA system and Auburn University (and AUM), should comply with this law,” wrote Purcell in a statement after it passed the Senate. “All of the other higher education boards are created in law and would also have to comply. Can a constitutional entity object? Sure.  If they do however, it is not without risk, as the Legislature could adjust future state appropriations for institutions that don’t comply.”

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