OKLAHOMA CITY - The University of Oklahoma (“OU”) Board of Regents is canceling diversity, equity, and inclusion programs across campus, all under the guise of “enforcing” the Governor’s anti-DEI Executive Order. But in fact, the Executive Order is only a convenient excuse the Board of Regents invokes to avoid scrutiny as they eliminate diversity, equity, and inclusion efforts at OU.
The following statement is attributable to the ACLU of Oklahoma, the American Civil Liberties Union, Lawyers’ Committee for Civil Rights Under Law, and Schulte Roth & Zabel LLP, attorneys for Oklahoma educators and students challenging HB 1775:
"Since the Governor signed his anti-DEI Executive Order, OU has closed its 'Gender + Equality Center,' an office committed to preventing gender-based violence and supporting the 2SLGBTQ+ community. Most recently, OU announced the cancellation of the beloved NEW Leadership program, an initiative centered on encouraging and preparing more women to run for office. OU blames each of these backward moves on the Governor’s anti-DEI Executive Order No. 23-31. OU is using this Executive Order as pretext. The text of the Executive Order, the Governor’s own comments, and the Oklahoma Constitution all dispel the idea that any of OU’s recent actions come from anywhere other than the Regents themselves.
The Executive Order makes exceptions precisely for programs like NEW Leadership. The Executive Order has six formal requirements, five of which only apply to 'mandate[d]' programming, not optional programming like NEW Leadership. The one requirement that purports to apply to optional programming omits 'sex' as a prohibited classification, meaning NEW Leadership’s focus on women falls entirely outside the Executive Order’s scope. Governor Stitt has clarified as much himself, stating that it is 'completely false' that the Executive Order caused NEW Leadership to end. On this point at least, the Governor is correct.
More importantly, no Executive Order, regardless of its text, could compel OU to take such actions. The Oklahoma State Constitution dictates that '[t]he government of the University of Oklahoma shall be vested in a Board of Regents.' Okla. Const. Art. 13, § 8. The Oklahoma Court of Civil Appeals, Oklahoma Supreme Court, and United States Supreme Court have all affirmed that this power is 'very broad and necessarily includes the power to pass all rules and regulations.' See Pyeatte v. Bd. of Regents of Univ. Of Okla., 102 F. Supp. 407, 413 (W.D. Okla. 1951) aff’d 343 U.S. 936. In fact, the power vested in the Regents by the Oklahoma Constitution is so broad that it 'implies a negation of its exercise by any other office or department'—i.e. the Governor. Bd. Of Regents of Univ. Of Oklahoma v. Baker, 638 P.2d 464, 466-69 (Okla. 1981); see also Franco v. State, 482 P.3d 1, 9 (Okla. Civ. App. 2020).
In short, outside of appointing the Regents, the Governor has no power to control OU–and certainly not with respect to its DEI programming. The OU Board of Regents itself often emphasizes this independence, claiming to have 'plenary power over decisions regarding the health, welfare, and education of its students.' See Bd. of Regents of Univ. of Okla. Motion to Dismiss Plaintiffs’ Amendment Complaint and Brief in Support, at 9, Black Emergency Response Team, et al., v. Drummond, et al, No. 5:21-CV-1022-G (W.D. Okla. Nov. 23, 2021) (Doc. 51). Yet when the Board of Regents exercises this power to eliminate popular programs like NEW Leadership and the Gender + Equality Center, it foists the blame onto the Governor.
The blame lies squarely with OU for failing to live up to its own values as an institution. In a statement still accessible on OU’s website, OU’s President says, 'At OU, we cherish our diversity, in all its forms—intellectual, political, socio-economic status, race, gender, sexual orientation, religion, nationality, and more.' But OU’s recent actions under the guise of the Executive Order don’t cherish diversity; they undermine it.
OU could still change course. When the Oklahoma Constitution vested the Regents with the sole power to make decisions regarding the health, welfare, and education of its students, it likewise gave them the authority to prioritize student success over politics. For the sake of OU’s students and the State of Oklahoma, we hope OU finds the courage to defend diversity efforts, not discard them, because, in the words of OU’s current President, 'the values of freedom and diversity are essential to the success of our students and society.'"
