UNC Board of Governors courts more controversy with new proposed rule on hiring and enrollment

Proponents say their objective is to protect freedom of speech and thought, but critics see other motives and many potential landmines

Discussions about political debates, beliefs, affiliations, ideals or principles could be banned in employment and enrollment processes at UNC System schools, if the UNC Board of Governors approves a proposed rule change.

System leaders say the change, introduced in a meeting of the board’s university governance committee Wednesday, will provide politically neutral protections for intellectual freedom and freedom of speech for students, faculty and university employees. But critics, including faculty leaders, say the move is part of a national conservative attack on diversity, equity and inclusion (DEI) work.

That work has been a greater focus on campuses in the last decade and are part of requirements by a number of accrediting agencies, leading to opposition from Republican lawmakers across the country and conservative groups like North Carolina’s own James G. Martin Center for Academic Renewal.

“We cannot condition employment or enrollment on adherence to any set of beliefs, no matter how well intended,” said UNC System President Peter Hans Thursday. “There’s a long list of good and worthy ideas we could require people to hold. That’s not the role of the university. If we require students and employees to conform to a prescribed set of beliefs, that simply isn’t true to our tradition of free minds, free speech, free thought. Legally, intellectually, morally — it’s our responsibility to protect students, faculty and staff from compelled speech.”

Targeting DEI?

The proposed change, written broadly, doesn’t give specific examples of “compelled speech.” But in practice, the proposed language would prohibit “DEI statements” — either asking students or prospective hires for their view on diversity, equity and inclusion or asking that they commit to the institution’s values on the subject.

“[T]he University shall neither solicit nor require an employee or applicant for academic admission or employment to affirmatively ascribe to or opine about beliefs, affiliations, ideals, or principles regarding matters of contemporary political debate or social action as a condition to admission, employment, or professional advancement,” the proposed change reads.

“Nor shall any employee or applicant be solicited or required to describe his or her actions in support of, or in opposition to, such beliefs, affiliations, ideals, or principles,” it reads. “Practices prohibited here include but are not limited to solicitations or requirements for statements of commitment to particular views on matters of contemporary political debate or social action contained on applications or qualifications for admission or employment or included as criteria for analysis of an employee’s career progression.”

Andrew Tripp, general counsel for the UNC System, said nothing in the policy would prohibit a student or prospective employee offering their thoughts on any number of political or social issues. But they couldn’t be asked about them in an interview except as it would relate to their willingness to adhere to existing laws, agency policies or licensure and certification requirements.

Mimi Chapman, chair of the faculty at UNC Chapel Hill, called the proposed change another example of political appointees on the system’s governing board overreaching into an area — hiring of faculty — that should be left to campus processes.

“It’s more overreach, but at this point I’m not surprised by that,” Chapman told Policy Watch.

Some departments do ask for DEI statements or make DEI-related questions part of their hiring, advancement or tenure processes and some don’t, Chapman said, adding that the board of governors should not make that decision.

“We have a strategic plan at UNC-Chapel Hill,” Chapman said. “And the first pillar of it is building our community together. And it talks a lot about having an inclusive, diverse, welcoming campus. And so if you ask someone to write a DEI statement as part of a search or if you ask questions in the course of an interview about how you approach these things, what do you do in your classroom to make sure that all students feel welcome and affirmed, what you do when there’s a difficult conversation or wherever, that seems like part of that. I mean, what you’re doing is saying, ‘Is this person aligned with our values as an institution?’”

Hans agreed that diversity, equity and inclusion are laudable values, saying the board and the system embrace them as well. But a certain view of them can’t be a prerequisite for hiring, he said, without sacrificing intellectual diversity.

Keeping tuition as low as possible is a value for the system, Hans said, by way of an analogy. But there may be many different views on the subject or how it could be accomplished. As a result, the system will continue to pursue that as part of its value system but would not ask prospective employees to adhere to share their views to be sure they align.

Conversations about issues touching on politics or social issues may be necessary because of the nature of certain positions, Hans said. In that case, the system may consider making exceptions.

Practical problems

But the prospective change could cause problems beyond DEI and university values, some prominent faculty members said.

“The proposed regulation would prohibit faculties from ‘soliciting’ potential employees ‘to opine’ about ‘matters of contemporary debate or social action,’” said Gene Nichol, UNC law professor. “Law schools across the U.S. require potential faculty members to present papers or ‘job talks’ as part of the interviewing process – at which vigorous questioning and skepticism by existing faculty members plays a central role in the hiring process.”

Section (e) of the proposed policy change could speak to that, the system counsel said. Nothing in the rule should “prohibit discussion with, or questioning of, an employee or applicant regarding the content of the employee’s or applicant resume, curriculum vitae, body of scholarship or other written work or oral remarks as presented by the employee or applicant in his or her own support.”

Likewise, Tripp said, information that applicants post on social media would likely be fair game as they are volunteering that information publicly and reasonable questions about it could arise.

But under the proposed language it remains unclear how much vigorous questioning and skepticism would be considered appropriate and where it may stray into asking someone to “opine about beliefs, affiliations, ideals or principles regarding matters of contemporary political debate or social action.”

“It is hard to imagine a more sweeping, vague, and overbroad prohibition against interrogation than requiring a questioner to avoid all ‘matters of contemporary debate,’ Nichol said.

As the proposed change made its way through faculty circles this week, a number of individuals shared hypothetical conflicts and problematic questions that they say the proposed rule could raise under real-world conditions on campuses. Among them:

• Could a university looking at candidates doing research on COVID-19 ask them to submit an optional statement on whether the virus originated in a laboratory? Would any such request count as “soliciting” them to “opine” on matters of “contemporary political debate,” even if it is not mandatory?
• If a candidate for a position on the law faculty gave a talk about whether Congress has the power to use the Constitution’s Commerce Clause to pass a law guaranteeing access to abortion services, could a member of the faculty follow up with a question about where the candidate comes down on the question, beyond the typical pros and cons?
• If a candidate for a position with UNC’s Center for Middle East & Islamic Studies refers to Jerusalem as a city in Palestine rather than a city in Israel, could they be asked in an interview about what led them to that view? Would that go beyond their work product into their personal politics?
• Who decides what is a matter of “contemporary political debate” and how would that be determined?

“The proposed rule is dangerous, unworkable and, frankly, stupid,” Nichol said. “It is, however, highly representative of the work of the clown car we now call the UNC Board of Governors. So we can expect it to be quickly passed. Recall that no person or institution in the state of North Carolina has as accomplished a record of violating free speech and academic freedom over the last decade as the UNC Board of Governors.”

The proposed language is publicly available for debate between now and the board’s February meeting, where the board is expected to debate adopting a version of the change.

FULL TEXT OF THE PROPOSED CHANGE

Prohibition on Compelling Speech 

a. To mitigate the risk of compelled speech that undermines the intellectual freedom and fostering of free expression required of the University of North Carolina by Article 36 of Chapter 116 of the General Statutes and embraced in Chapter VI of the UNC Code and Section 1300.8 of UNC Policy, the University shall neither solicit nor require an employee or applicant for academic admission or employment to affirmatively ascribe to or opine about beliefs, affiliations, ideals, or principles regarding matters of contemporary political debate or social action as a condition to admission, employment, or professional advancement.

Nor shall any employee or applicant be solicited or required to describe his or her actions in support of, or in opposition to, such beliefs, affiliations, ideals, or principles. Practices prohibited here include but are not limited to solicitations or requirements for statements of commitment to particular views on matters of contemporary political debate or social action contained on applications or qualifications for admission or employment or included as criteria for analysis of an employee’s career progression.

Any constituent institution believing a requirement or solicitation prohibited hereby to be necessary for reasons related to the educational, research, or public service mission of the University established in G.S. 116-1 shall obtain prior written approval to include such a requirement or solicitation from the President following discussion in open session of a meeting of the Committee on University Governance attended by the requesting constituent institution’s chancellor, its provost, and its chair of its board of trustees.

b. Any employee who acts in contravention of the foregoing prohibition on compelling speech, violating Section 5(a) above, shall be subject to existing disciplinary measures taken against employee(s).

c. Except as provided under current law, nothing in Section 5 creates or vests a private remedy or claim in any employee or applicant for admission or employment subjected to a practice prohibited hereby.

d. Nothing in Section 5 modifies or otherwise affects the University’s existing guarantee of the right of academic freedom in its faculty’s academic scholarship or classroom instruction, or research pursuits, subject only to institutional academic tenure policies as contemplated in Section 602 of The Code, as well as applicable law and UNC Code and Policy.

e. Nothing in Section 5 infringes upon the ability of an employee or applicant for academic admission or employment to voluntarily opine or speak regarding any matters, including those of contemporary political debate or social action, as contemplated in Section 5(a). Nor shall anything in Section 5 prohibit discussion with, or questioning of, an employee or applicant regarding the content of the employee’s or applicant’s resume, curriculum vitae, or body of scholarship, or other written work or oral remarks presented by the employee or applicant in his or her own support.

f. Nothing in Section 5 modifies or affects the University’s ability to ensure its employees comply with applicable federal or state law or existing employment requisites under the law or agency policy, such as employment oaths, appointment affidavits, and licensure and certification requirements.