Tennessee Divisive Concepts Act

As MTSU works to comply with the new Tennessee Divisive Concepts Act, we remain committed to creating a welcoming and supportive environment for all of our students, faculty, and staff. We recognize that the diversity represented within our community makes us stronger and enhances the educational experience for all.

We are aware that concerns have been raised about the law’s implications. It defines and bans divisive concepts, which include race or sex stereotyping or scapegoating, and prohibits the indoctrination of a particular ideology or political viewpoint. The law also prohibits mandatory training that includes one or more of the defined divisive concepts.

One concern voiced is about how it impacts the classroom. The law specifically states that it does not infringe on academic freedom and free speech, two core elements to a vibrant academic environment, or our ability to comply with academic accreditation requirements. As such, the law does not affect the capacity for faculty to lead the dissemination of knowledge in the classroom. In addition, we will continue to protect faculty’s ability to freely engage in teaching, research, scholarship, and creative activity.

Another concern is about the future of our training. We will maintain our training on non-discrimination, equal opportunity, and diversity, equity, and inclusion. We do not anticipate any changes in our current practices other than to ensure that our trainings comply with the law. Respect for diversity, which acknowledges our vast cultures and ways of thinking, remains one of our core community standards.

We want to assure you that MTSU will continue to provide a variety of activities and programs that will provide opportunities for us to share in the cultures, faiths, customs, and traditions that are important parts of all our backgrounds. We will continue to advance our campus as a marketplace of ideas that celebrates the richness of the wide variety of cultures and life experiences reflected in the MTSU community. We are a community of inquiry, not indoctrination, and campus conversations on these topics will enhance our understanding of the proper role of free expression in our society.

Thank you for working to make MTSU a community devoted to learning, growth, and service.

Divisive Concept and Freedom of Expression Guidance

Public Chapter No. 818 (the “Divisive Concepts Act” or the “Act”) was passed by the General Assembly and signed by Governor Lee effective April 8, 2022. Tenn. Code Ann. §§ 49-7-1901-1908. The Act is intended to prohibit Tennessee public institutions of higher education from taking certain actions with regard to divisive concepts and the ideologies or political viewpoints of students and employees. It also addresses mandatory training that includes divisive concepts as defined in the law. This webpage is designed to provide guidance and clarification as to the Act’s scope.

While there has been extensive discussion of the Act’s impact on training and the ability to discuss diversity, equity, and inclusion (“DEI”) topics in the classroom, it is important to highlight significant carve-outs and limitations to its scope. In part, the Act specifically states that it shall not be interpreted to:

• infringe on faculty’s right of academic freedom
• infringe on the First Amendment right to freedom of speech
• require action contrary to any state or federal law or any academic accreditation standards
• prohibit training students or employees on state and federal non-discrimination laws
• limit the university’s diversity, equity, and inclusion (“DEI”) work so long as such efforts are consistent with the Act

As such, the Act preserves academic freedom and other First Amendment rights. It does not prohibit the teaching of a subject matter, nor does it mandate the teaching of any subject matter. In other words, it does not impact the content or conduct of any course of academic instruction. Likewise, the Act does not alter or amend any provision of the following:

• MTSU Policy 201 – Academic Freedom and Responsibility
  • Faculty continue to have the right of academic freedom in their teaching, research, scholarship, and creative activity subject only to the accepted standards of professional responsibility
• MTSU Policy 103 – Free Speech on Campus
  • MTSU is committed to allow students and faculty to make judgments about ideas for themselves and to act on those judgments, not by seeking to suppress free speech, but by openly and vigorously contesting the ideas they oppose
• Campus Free Speech Protection Act
  • “An institution shall be committed to maintaining a campus as a marketplace of ideas for all students and all faculty in which the free exchange of ideas is not to be suppressed because the ideas put forth are thought by some or even by most members of the institution’s community to be offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrongheaded”

The Act was amended by Public Chapter No. 268 (the “Tennessee Higher Education Freedom of Expression and Transparency Act”), which was passed by the General Assembly and signed by Governor Lee with an effective date of July 1, 2023. While this legislation introduces new requirements under the Act, it does not alter or amend the Act’s reinforcement of academic freedom and First Amendment principles, compliance with academic accreditation standards, state and federal non-discrimination training, or that compliant DEI efforts can continue.

What are divisive concepts?

The Act is centered on the designation of certain principles as “divisive concepts.” This term is defined to include a concept that

• One race or sex is inherently superior to another race or sex;
• An individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously;
• An individual should be discriminated against or receive adverse treatment because of the individual’s race or sex;
• An individual’s moral character is determined by the individual’s race or sex;
• 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;
• An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex;
• A meritocracy is inherently racist or sexist, or designed by a particular race or sex to oppress members of another race or sex;
• This state or the United States is fundamentally or irredeemably racist or sexist;
• Promoting or advocating the violent overthrow of the United States government;
• Promoting division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people;
• Ascribing 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;
• The rule of law does not exist, but instead is a series of power relationships and struggles among racial or other groups;
• 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;
• Governments should deny to any person within the government’s jurisdiction the equal protection of the law;
• Race or sex stereotyping, which is 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
• Race or sex scapegoating, which is defined as assigning fault, blame, or bias to a rase or 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.

What is prohibited by the Divisive Concepts Act?

While the Act does contain prohibitions related to the listed divisive concepts, it does not impact the academic teaching, debate, or discussion of any topic. The prohibitions detail that the university 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 divisive concepts.
• require a student or employee to endorse a specific ideology or political viewpoint to be eligible for hiring, tenure, promotion, or graduation.
• ask the ideological or political viewpoint of a student, job applicant, job candidate, or candidate for promotion or tenure.
• use state funding to incentivize faculty to incorporate one or more divisive concepts into academic curricula.

These proscriptions do not restrict or prohibit the discussion or exploration of divisive concepts when relevant to a given course and its objectives, but students cannot be compelled or directed to personally affirm, adopt, or adhere to any of the divisive concepts. While students are free to take reasoned exception to the data or views offered in any course of study and to reserve judgment about matters of opinion, they are responsible for learning the content of any course of study for which they are enrolled. This is consistent with the university’s aim to promote scholarly inquiry.

How does the Act impact training outside academic classes/instruction?

The Act does not prohibit training, which includes seminars, workshops, trainings, and orientations, about non-discrimination, equal opportunity, or DEI, and the university recognizes such training as valuable and appropriate. However, it does specifically denounce the use of divisive concepts in training. In particular, the Act provides that the university shall not:

• conduct any mandatory training for students or employees that contains one or more divisive concepts.
  • For avoidance of doubt, if there are consequences for a student or employee not attending a training, it is considered mandatory or required.
• use training programs or training materials for students or employees that contain one or more divisive concepts.

These provisions apply whether the training is produced internally or through a third party.

In the event a question is asked by a training participant related to a divisive concept, the individual conducting the training is not restricted from responding to the question so long as the response does not endorse or advocate for divisive concepts. Also, for clarification, the training restriction on divisive concepts does not limit or otherwise impede the ability to explore, debate, critique, or discuss divisive concepts in an academic course component that is designated as or called a seminar.

The university does not read the Act as a prohibition on DEI trainings, but we must take care in considering the design of those trainings. To comply with the Act’s training-related requirements, departments and administrative units should:  

• review current training programs and confirm that they do not contain any divisive concepts;
• ensure that those who create new training programs understand the prohibitions in the Act; and
• require third parties who conduct training to abide by the Act.

It is important to note that trainings may still inform students or employees, or foster discussion, about pre-conceptions, opinions, or stereotypes that people – regardless of their race or sex – may have regarding those that are different such as socio-economic status. Trainings may also discuss matters from a historical or factual standpoint and should include attribution of statements with historical reference or additional context to address the accuracy of the content provided.

Again, the Act does not prevent the university from promoting DEI, provided such efforts are consistent with the requirements of the Act. The university will continue to promote a community that is respectful of all members.

What is the impact of enactment of the Tennessee Higher Education Freedom of Expression and Transparency Act?

The “Tennessee Higher Education Freedom of Expression and Transparency Act” amends the Divisive Concepts Act by including the following new supplemental provisions:  

• Reporting: Under this law, a student or employee alleging a violation of  Tenn. Code Ann. § 49-7-1903 may file a report for investigation, and the university is required to submit an annual report of any violations and corrective actions.
• Use of Institutional Property: Consistent with the legislation, the university already applies and enforces its facilities use policy uniformly to all uses of campus property and/or facilities in a content and viewpoint neutral manner.
• Hiring and Admissions: The law states that public institutions shall not require an applicant for employment or admission to submit a personal diversity statement or to affirm the applicant’s agreement with an institutional diversity statement as part of the application or admissions process.
• State Funds: Prohibits use of state funds for fees, dues, subscriptions, or travel in conjunction with the membership, meetings, or activities of an organization if participation in such organization requires an individual, or an individual’s employer, to endorse or promote a divisive concept as defined in state law. The university is not aware of organizations that require endorsement of a divisive concept as defined in state law.
• DEI staff: The law does not prohibit job titles that include diversity, equity, or inclusion. The law states that higher education institutions must ensure that such employees’ efforts strengthen and increase diversity of thought and facilitate the free exchange of ideas along with the support of student academic achievement and workforce readiness. The university continues to support academic freedom and to maintain its standing as an intellectual setting in which issues are analyzed and openly debated.
• Notification and training: The legislation directs the university to notify students and employees of the restrictions and the definition of divisive concepts set out in the Act. Accordingly, the university will notify students and employees at the beginning of each semester. The law also calls for the university to provide non-mandatory training to employees about the Act. This Guidance serves that function.

Are faculty and staff subject to liability under the Act?

Although the Act permits individuals who believe a violation of the Act has occurred to file suit, nothing in the Act authorizes a lawsuit against an individual employee. If an individual employee is sued, the State of Tennessee generally provides legal representation, through the Attorney General’s Office, and protections against liability. Tenn. Code Ann. § 9-8-307(h), provides that state employees, including MTSU employees, have immunity from liability for acts or omissions within the scope of their employment, unless the acts or omissions are willful, malicious, criminal, or done for personal gain.

For additional information regarding this guidance, contact the Assistant to the President for Community Engagement and Inclusion or the Office of the University Counsel.