BY HANK REICHMAN

At the biennial membership meeting last June the AAUP’s governing Council voted to condemn the University of North Carolina Board of Governors and System Office for multiple violations of widely accepted standards of shared governance and academic freedom and for a sustained climate of institutional racism. The vote came after publication of a special committee report calling attention to serious violations of academic freedom and shared governance and deep-rooted patterns of systemic racism created by long-standing political interference and complicit top-down administrations. [I was a member of this committee]

Now the UNC board is poised to take another step in the wrong direction.

On January 18, the board’s university governance committee voted to send to the system’s full board a policy that, if approved, would prohibit UNC schools from asking applicants for employment, promotion or academic admission to share a broad range of personal beliefs. The proposed policy would bar questions requiring applicants “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.”

UNC System President Peter Hans said the proposed policy would fulfill “our responsibility to protect students, faculty and staff from compelled speech.”  The broadly written policy doesn’t offer examples of “compelled speech.”  But clearly the proposed language would prohibit “DEI statements,” which may ask or require faculty to describe their contributions to diversity, equity, and inclusion when they apply for jobs, tenure, or advancement.  As UC Davis law professor Brian Soucek has argued, such mandatory statements, if done appropriately, are not unconstitutional and do not violate academic freedom.

“[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.”

As UNC law professor Eric Muller pointed out on Twitter, “Calling this a prohibition on ‘compelled’ speech is misleading. Here’s why: opining on these ‘beliefs, etc.,’ about political/social stuff is something that ‘the University shall neither solicit nor require … as a condition to admission or employment.’  Note the word ‘solicit.'”

“I get that to ‘require’ communication about a topic as a condition of admission, etc., is to ‘compel’ that speech.  But the rule says we can’t ‘solicit’ a communication about the forbidden topics.  I take that to mean we can’t offer candidates the option of addressing those topics,” he said. 

“So this ‘prohibition on compelling speech’ is actually a prohibition on giving people the option to speak.  That’s what we should be calling it,” Muller continued.  “And here’s the irony: the rule says that its purpose is to risk undermining ‘the intellectual freedom and fostering of free expression required of the University’ by law.”  In other words, he added, “To foster speech, we need to … suppress speech.”

Gene Nichol, another UNC law professor and, like Muller, a target of board attacks on academic freedom documented in the AAUP report, agreed.  “The proposed regulation would prohibit faculties from ‘soliciting’ potential employees ‘to opine’ about ‘matters of contemporary debate or social action,’” Nichol told North Carolina Policy Watch.  “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,’”

Responding to that criticism, Andrew Tripp, general counsel for the UNC System, argued that the policy would not “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, he added, 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.

Still, it is by no means clear how much questioning and skepticism would be permissible and where it might stray into asking someone to “opine about beliefs, affiliations, ideals or principles regarding matters of contemporary political debate or social action.”

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.

“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?’”

“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 UNC System will accept public comments on the proposal until the board’s next meeting, in February.  Forgive me if I’m skeptical about the efficacy of such comments, but do feel free to let them know what you think.

Contributing editor Hank Reichman is professor emeritus of history at California State University, East Bay; former AAUP vice-president and president of the AAUP Foundation; and from 2012-2021 Chair of AAUP’s Committee A on Academic Freedom and Tenure. His book, The Future of Academic Freedom, based in part on posts to this blog, was published in 2019.  His Understanding Academic Freedom was published in October, 2021.