Divisive Concepts | Legal Resources | Legal Counsel

According to the Act, the term “divisive concept” means a concept that:

1. One (1) race or sex is inherently superior 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 members of another race or sex;
8. This state [Tennessee] or the United States is fundamentally or irredeemably racist or sexist;
9. Promoting or advocating the violent overthrow of the United States government;
10. Promoting division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people;
11. 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;
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 the equal protection of the law;
15. Includes race or sex stereotyping, meaning ascribing traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex; or
16. Includes race or sex scapegoating, meaning assigning fault, blame, or bias to a race 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.

The following are prohibited under the new Act:

• Certain Acts with Respect to “Divisive Concepts”: Universities may not positively or negatively incentivize, informally pressure, indoctrinate, or otherwise compel students or employees to embrace “divisive concepts.” In addition, universities may not show bias or favoritism for or against an individual’s viewpoints or affiliations.
• “Divisive Concept” Discrimination: Universities are prohibited from discriminating against a student or employee because the individual refuses to support, believe, endorse, embrace, act upon, or otherwise assent to a “divisive concept.”
• Training Restrictions: Universities may not conduct any mandatory training for students or employees that contains one or more “divisive concepts” or use training programs or materials for students or employees that contain one or more “divisive concepts.” The training restriction on “divisive concepts” does not limit the ability to discuss “divisive concepts” in an academic course. The Act does not prohibit the University from training students or employees on federal or state non-discrimination laws.
• Use of State Funds for Incentives: Universities are prohibited from using state-appropriated funds to incentives, beyond payment of regular salary or other regular compensation, a faculty member to incorporate one or more “divisive concepts” into academic curricula.
• Use of State Funds for Fees, Dues, Subscriptions, or Travel: Universities are prohibited from using state funds for fees, dues, subscriptions, or travel associated with memberships, meetings, or activities of an organization that requires an individual, or the individual’s employer, to endorse or promote a “divisive concept.”
• University Access and Fees: Under the new law, a university may not deny a student group access to its property if the property is used by other student groups. A university must be neutral when approving and scheduling use of university property. The law prohibits universities from requiring a student group to pay fees or security deposits not charged to all other student groups. Tennessee State University’s policy currently takes a content/viewpoint neutral approach for scheduling events, and the University currently complies with this principle under the Campus Free Speech Protection Act.
• Personal Diversity Statements: The Act prohibits universities from requiring an applicant for employment or admission at the University to submit a personal diversity statement or affirm the applicant’s agreement with an institutional diversity statement as part of the application or admissions process.

• Notice: The Act requires universities to notify students and employees of the definition of “divisive concepts,” as well as restrictions in this new law, on the University’s website and in introductory materials provided to new students and employees.
• Required Job Duties for DEI Professionals: The Act requires universities who hire any individual who has “diversity, equity, or inclusion” in their primary job title to ensure that the employee’s efforts strengthen and increase intellectual diversity and promote the free and respectful exchange of ideas, as well as ensure that the employee’s duties include efforts to support student academic achievement and workforce readiness, such as mentoring, career readiness and support, workforce development, and other related learning support activities. The Act does not limit universities’ diversity, equity, and inclusion (“DEI”) work so long as such efforts are consistent with the Act. The Act also requires universities to submit a report to their chief executives on how the universities are complying with the DEI requirements. This University’s Office of the Equity and Inclusion, in coordination with the Office of the General Counsel, will draft an annual report for the University’s President.
• Training: The Act requires universities to provide training to employees to ensure compliance with this law. Training may be found here. The Office of General Counsel is also available to provide additional training.
• Investigate & Report Violations: The Act requires universities to investigate reports of violations of this law and take steps to correct violations. The Act also requires universities to report violations and corrective action taken annually to the Comptroller of the Treasury. The Office of the General Counsel, in coordination with Academic Affairs, is responsible for this requirement.
• Conduct a Biennial Survey & Report Results: The Act requires universitities to conduct a biennial survey of students and employees to assess campus climate with regard to diversity of thought and comfort level in speaking freely on campus, regardless of political affiliation or ideology. TSU’s 2023 survey results may be found here.

The Act must not be interpreted to infringe on rights of academic freedom, infringe on rights to freedom of speech, or require action contrary to any state or federal law, rule or regulation, or any academic accreditation standards. See T.C.A. § 49-7-1906.

The Act does not impact the teaching, debate, or discussion of any academic topic or course; however, students cannot be compelled or directed to personally affirm, adopt, or adhere to any “divisive concept.”

Any student or employee who believes that they have been subject to a violation of the Divisive Concepts Act may file a complaint of the alleged violation with the University by submitting this form. Tennessee State University will investigate all complaints and take appropriate steps to correct any violation that is found to have occurred.