Licensing Based on Merit Model Act

An increasing number of occupational licensing boards in other states have incorporated
unlawful diversity, equity, and inclusion (“DEI”) programming into their requirements for
obtaining and maintaining occupational licenses. State-issued licenses should be granted and
maintained based on merit and objective qualifications—not based on race, color, ethnicity,
national origin (other than as it relates to immigration status under United States law), sex,
sexual orientation, gender identity, or any other unlawful consideration. In addition, no one in
this state should be required to affirm commitment to DEI or undergo DEI training as a condition
of obtaining or maintaining a state-issued license.

Summary: AN ACT relating to occupational licensing boards; prohibiting occupational licensing boards from considering DEI in licensing and credentialing decisions; prohibiting occupational licensing boards from requiring DEI training or commitments to earn or maintain a state-issued occupational license; empowering the attorney general to investigate and file civil actions regarding violations; creating a private right of action for violations; providing remedies and penalties; and providing an effective date.

SECTION 1. Legislative Findings.

The State of [name of state] finds that:

  1. The State of [name of state] views the application and credentialing processes for state- issued occupational licenses to be of critical importance to the public health and safety of the people of this state.
  2. Indeed, courts have long recognized the significant interest states have in promoting and protecting public health and safety by regulating the practice of certain professions and occupations.1
  3. Over the past several years, there has been a push in many states to compromise the integrity of the application and credentialing processes for state-issued occupational
    licenses by considering factors other than merit and objective qualifications in licensing decisions and incorporating requirements that are unrelated to the relevant qualifications
    for such licenses under the guise of “diversity, equity, and inclusion” or “DEI.”
  4. The incorporation of DEI in state occupational licensing has taken various forms, including but not limited to (a) consideration of DEI in determining who will be granted a state-issued occupational license; (b) requiring mandatory DEI training as a condition of obtaining or maintaining a state-issued occupational license; and (c) requiring applicants or licensees to affirm or reaffirm their commitment to DEI through written, oral, or other means.
  5. For example, a 2023 report from the Federation of State Medical Boards’ (“FSMB”) “Workgroup on Diversity, Equity and Inclusion in Medical Regulation and Patient Care” purports to provide “practical guidance” on implementing DEI initiatives in state medical boards.2 FSMB urges state medical boards to “prioritiz[e] DEI in medical licensing and discipline”3 and to have the medical profession in each state “reflect the state’s population,”4 which is tantamount to an unlawful racial quota for medical professionals. In addition, among other things, FSMB encourages all state medical boards to mandate “medical education on bias and equity/disparities on initial licensing and license renewal;”5 to “[a]pply [an] equity lens in all application reviews;”6 to “[c]reate [a] committee responsible for reviewing all policies and guidelines through [an] equity lens;”7 and to address “insufficient diversity in [the] licensee population” through grant opportunities “to increase diversity and access to diverse providers.”8
  6. Another example is the 2020 executive order of a state governor directing the state’s licensing department to begin the process of incorporating “implicit bias training standards as part of the knowledge and skills necessary” for all licensed health professionals in that state.9
  7. Such “implicit bias” training and other DEI training efforts frequently classify people based on characteristics protected by civil rights laws and promote the belief that certain groups are naturally racist or otherwise prejudiced, resulting in increased race- or sex-based resentment between groups and decreased representation, thereby conflicting with this state’s civil rights laws.10
  8. Consideration of DEI in determining whether an applicant will be granted a state-issued occupational license is unconstitutional and conflicts with this state’s civil rights laws
  9. State licensees, or applicants for state licenses, should neither be required to undergo DEI training nor affirm or reaffirm commitment to DEI.
  10.  DEI compromises the integrity of this state’s occupational licensing and credentialing processes and conflicts with civil rights laws. DEI has no place in this state’s occupational licensing processes.

SECTION 2. Definitions

  1. “Diversity, equity, and inclusion” means any differential treatment of, or assignment of any fault or blame to, an individual or group based on race, color, ethnicity, national origin (other than as it relates to immigration status under United States law), sex, sexual orientation, or gender identity.
  2. “Diversity, equity, and inclusion practice or procedure” means any initiative, policy, process, program, mandate, requirement, standard, criteria, metric, statistic, or other practice or procedure related to diversity, equity, and inclusion.
  3. “Diversity, equity, and inclusion training” means a training, conference, presentation, meeting, or professional development that:
    1. encourages, promotes, or implements diversity, equity, and inclusion; and
    2. does not include a training that is:
      1. expressly required by a court order or controlling federal or state law; and
      2. developed by an attorney and certified in writing by the occupational licensing board’s general counsel and the attorney general.

       

  4. “Occupational licensing board” means any state executive branch board, commission, department, or other agency that is: (i) established for the primary purpose of regulating the entry of persons into, or regulating the conduct of persons within, a particular profession or occupation; and (ii) authorized by law to issue and revoke occupational licenses.

SECTION 3. Prohibition.

  1. When taking any action with respect to an occupational license for a person in this state, no occupational licensing board shall do any of the following:
    1. Grant or deny issuance or renewal of a state license based on any diversity, equity, and inclusion practice or procedure.
    2. Require, encourage, facilitate, or confer any benefit for, the completion of diversity, equity, and inclusion training by an applicant for an initial license or an existing licensee.
    3. Require, encourage, facilitate, or confer any benefit for, the affirmation or reaffirmation of a commitment to diversity, equity, and inclusion, or any diversity, equity, and inclusion practice or procedure, whether through oral, written, or other means, by an applicant for an initial license or an existing licensee.

SECTION 4. Enforcement.

  1. Section 3 of this Act may be enforced through a civil action brought against an occupational licensing board by any person who was or is an applicant or holder of a state-issued license. [If exhaustion of administrative remedies is required by state law before a private right of action may be brought, insert appropriate language per state law here.]
  2. Section 3 of this Act also may be enforced against an occupational licensing board by the attorney general. Any violation of Section 3 of this Act shall constitute a violation of [state civil rights law], and the attorney general may investigate and seek remedies as provided in that law. Any violation of Section 3 of this Act also shall constitute an unfair act in violation of [state UDAP statute], and the attorney general may investigate and seek remedies as provided in that law.
  3. In addition to any other remedies available at law or equity, an occupational licensing board that violates Section 3 of this Act shall be obligated to pay the party bringing the lawsuit:
    1. the party’s reasonable attorneys’ fees and costs;
    2. damages in an amount equal to three times all monies paid to the occupational licensing board, whether dues, fees, or otherwise; and
    3. actual damages incurred as a result of the denial of issuance of a state license, whether in connection with an application for an initial license or renewal of an existing license.
  4. In addition to any other remedies available at law or equity, in an action brought by the attorney general, an occupational licensing board that violates Section 3 of this Act shall be liable to pay civil penalties to the State in an amount up to $1,000 per violation.

SECTION 5. Severability.

[Include relevant severability provision from state statutes.]

SECTION 6. Applicability and Effective Date.

[Include relevant applicability provision from state statutes and effective date.]

1 See, e.g., Dent v. State of W.Va., 129 U.S. 114, 122 (1889); Brokamp v. James, 66 F.4th 374, 398 (2d Cir. 2023), cert. denied, 144 S. Ct. 1095 (2024); Sims v. Tinney, 482 F. Supp. 794, 797 (D.S.C. 1977), aff’d, 615 F.2d 1358 (4th Cir. 1979).
2 https://www.fsmb.org/siteassets/advocacy/policies/dei-workgroup-final-report.pdf (p. 1).
3 https://www.fsmb.org/siteassets/advocacy/policies/dei-workgroup-final-report.pdf (p. 2).
4 https://www.fsmb.org/siteassets/advocacy/policies/dei-workgroup-final-report.pdf (p. 5).
5 https://www.fsmb.org/siteassets/advocacy/policies/dei-workgroup-final-report.pdf (p. 13).
6 https://www.fsmb.org/siteassets/advocacy/policies/dei-workgroup-final-report.pdf (p. 14).
7 https://www.fsmb.org/siteassets/advocacy/policies/dei-workgroup-final-report.pdf (p. 15).
8 https://www.fsmb.org/siteassets/advocacy/policies/dei-workgroup-final-report.pdf (p. 20).
9 https://www.michigan.gov/whitmer/news/state-orders-and-directives/2020/08/05/executive-directive-2020-7.
10 See https://www.thecentersquare.com/california/article_b720f18e-32f8-11ee-a264-2fe8341ed116.html; see also https://networkcontagion.us/wp-content/uploads/Instructing-Animosity_11.13.24.pdf.

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