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The Indiana attorney general, in coordination with Gov. Mike Braun’s administration, is reviewing all state contracts to ensure that they do not violate the state’s anti-DEI laws.
As of July 1, all state contracts must now include revised language making clear that the contractor will not pursue DEI policies that are “inconsistent with Indiana’s nondiscrimination laws,” according to a press release from Indiana Attorney General Todd Rokita.
“No one gets a free pass for unlawful discrimination just because they claim to have good intentions,” Rokita said in the release. “Treating people differently in the workplace or at school based on race and sex is a destructive practice and illegal. We will continue to enforce the law against higher education institutions and working to eliminate this terrible Diversity, Equity and Inclusion known as DEI nonsense.”
The attorney general’s office did not respond to The Indiana Lawyer’s requests for further comment. It is unclear if the state is currently pursuing legal action against any state contractor.
The Indiana Chamber of Commerce, the state’s largest business advocacy group, declined to comment.
According to the newly revised nondiscrimination clause in state contracts, some examples of “unlawful” DEI programs or practices include implementing quotas or otherwise attempting to balance a workforce by race or sex, making resources or other forms of workplace support available only to employees of a particular race and separating employees into groups based on race when administering workplace trainings even if the separate groups receive the samer programming content or amount of employer resources.
Any state contractor or grantee found operating unlawful DEI programs or initiatives may face civil penalties under Indiana’s False Claims Act, as their programs will be viewed as a breach of contract.
Potential punishment could be a fine of at least $5,000 and up to three times the amount of damages sustained by the state, according to the act.
State Rep. Ed DeLaney, an Indianapolis Democrat and a retired attorney who advocated for businesses, said his one-word answer to describe the approach of the Republican attorney general and governor is “sad.”
“I’m trying to think about, as an in-house counsel, how I would deal with this,” DeLaney told The Lawyer. “How much detergent do I have to put on all my policies and my rule books and my handbooks? You know what, if my handbook says we don’t discriminate and we try to be fair to everybody, is that a problem?”
DeLaney also questioned the time and monetary costs the new effort could add to the state.
“How many forms is he going to have?” DeLaney asked. “How many investigators does he have to send out to look and see whether they really secretly are doing DEI?”
This effort could also damage the interest businesses might have in coming to the state, DeLaney added.
“I’m a business, do I want to apply for a contract… when I’m going to have to go through this test of purity with Todd Rokita as the judge?” he asked. “If I’m an Indiana business, I don’t want him telling me what to do or how to do it.”
This new move follows Gov. Braun’s executive order in January that eliminated DEI practices in state government, replacing them with MEI efforts – merit, excellence and innovation. The order also eliminated the state’s chief equity, inclusion and opportunity office.
“We must make every effort to ensure freedom and opportunity for all Hoosiers and with my decisive action by executive order, we have done just that,” Braun said in statement released in conjunction with Rokita’s announcement about the state contract review.
“Replacing divisive diversity, equity and inclusion policies with those that reward merit, excellence and innovation is foundational to our success and honors my commitment to a level playing field for all,” Braun added.
Earlier this summer, Rokita set his sights on higher education, sending letters to the University of Notre Dame, Butler University and DePauw University—all nonprofit, private schools—questioning their DEI-related programs, enrollment practices and goals.
Dissatisfied with the answers from Notre Dame and Butler, Rokita filed formal civil investigative demands with those schools, requiring the release of more information.
All three schools said they do not engage in unlawful discrimination.
DeLaney encouraged the state business community to stand up against the attorney general’s push.
“They’ve got to stand up and say, ‘Enough, we want to be able to run an employment office the way that we think is appropriate and consistent with the law,” he said.
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