Some diversity efforts are ending or pausing after UNC System banned 'compelled speech'

[Leroy N. Soetoro]

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Though described by UNC System leaders as content- and viewpoint-neutral,
a new ban on “compelled speech” in hiring and admissions decisions appears
to have directly impacted diversity efforts in faculty hiring and
evaluation on some campuses.

Changes that are attributed to the UNC Board of Governors’ new policy
include a prohibition on asking for “DEI statements” — generally,
statements in which faculty seeking employment or promotion are asked to
detail how they have contributed to diversity, equity or inclusion in
their work — in hiring at UNC-Chapel Hill. That change extends to the
university’s medical school, which has recently been subject to criticism
by a national free-speech group over the school’s previous DEI statement
requirements, first implemented about two years ago.

Meanwhile, at N.C. State University, a committee of faculty exploring how
units across the university could implement “more consistent” evaluation
protocols for faculty DEI contributions has paused — but not ended — its
work, citing a need for more “time to really understand better the
implications of the compelled speech policy,” faculty chair Herle McGowan
told The News & Observer.

The changes at UNC and N.C. State come after the Board of Governors in
February approved a change to the UNC Policy Manual that prohibits the
state’s public universities from asking or requiring applicants for
employment, promotion or academic admission to describe their beliefs on
“matters of contemporary political debate or social action.”

The policy does not specify examples of such matters or the types of
beliefs or topics that must be avoided in hiring or admissions processes.
UNC System President Peter Hans told reporters after the board’s initial
vote on the issue in January that “the policy very intentionally is
content-neutral” on those matters.

Sarah Ludington, director of the First Amendment Clinic at the Duke
University School of Law, called the policy’s language — and that of
nearly identical legislation considered, and in one case passed, by the
General Assembly this session — and its lack of specificity “problematic.”
Ludington told The N&O it could lead to self-censorship among hiring
managers and applicants.

“It’s such a vague concept that it’s almost impossible to define with any
accuracy,” Ludington said. “And when we’re talking about a speech
regulation, that’s really problematic, because if you’re worried you’re
running afoul of the law, you’re just not going to talk about it at all.”

Now, roughly four months after the Board of Governors passed its policy,
faculty told The N&O they are working to understand how they can continue
to pursue diversity work — and be evaluated for it — in ways that do not
violate the ban.

“This is still a relatively new development, and faculty are trying to
figure out what the impacts on their individual careers are going to be of
the compelled speech policy and their individual work and direction,”
McGowan said.

Asking for DEI statements no longer allowed at UNC
The UNC System’s legal affairs division issued guidance on the Board of
Governors’ policy on March 17. Like the policy itself, that guidance,
which is available online, does not list specific examples of “matters of
contemporary political debate or social action,” though it does discuss
general practices in a hiring or admissions process that would be
prohibited or accepted.

“Generally prohibited is the practice of including topical questions
across a class of job postings, promotion and tenure policies, or
admissions applications that do little other than signal ideological
preferences of the institutions on matters of contemporary political
debate or social action,” the guidance states in part. “That may be
appropriate for private employers. It is not for the University — which is
founded on the notion that all ideas, even those that some may find
disagreeable or worse, are welcome.”

But guidance from UNC-Chapel Hill’s Office of Human Resources on the
policy is more explicit: hiring managers at the university should “avoid
any required or supplemental questions that solicit or require the
applicant to attest to viewpoints or beliefs,” including “a DEI
statement.”

It is unclear how many academic departments at the university had required
applicants to write such statements prior to the Board of Governors’
policy change, but the UNC School of Medicine did so beginning in 2021,
UNC Health spokesperson Alan Wolf told The N&O by email.

Previous guidelines for hiring processes at the medical school, outlined
in a nearly 50-page document dated May 2021, included requirements for
applicants to describe their contributions to aspects of the School of
Medicine’s mission, including teaching, research, professional service and
DEI.

“The purpose of the DEI statement is to highlight how SOM faculty support
a diverse, equitable and inclusive campus community,” an appendix
explaining the required DEI statement read. “It is hoped that creation of
a DEI statement as scholarly documents will foster productive
conversations about the faculty’s role in improving higher education.”

Examples of possible contributions to the school’s DEI efforts were listed
as “hosting a scientific seminar speaker from an [under-represented]
group,” promoting “a positive inclusive learning/working environment
within the SOM” and “demonstrating cultural competence in clinical,
diagnostic, procedural, or other professional work,” among several others.

The most recent version of the guidelines, dated March 2023 and updated to
follow the Board of Governors’ policy, includes no mention of the word
“diversity” anywhere across its 50 pages, and no longer includes a
requirement for applicants to write DEI statements. The term “DEI” is
mentioned once in the document, when a faculty member’s involvement on
“DEI committees” is listed as a possible example of “professional
service.”

Wolf said the medical school’s current policies and procedures, as well as
those for the entire university, “protect our faculty’s Constitutional
rights.”

Do DEI statements violate First Amendment?
The medical school was criticized this past spring by the Foundation for
Individual Rights and Expression (FIRE), a national free speech group,
which expressed concerns over the school’s previous requirement for
“faculty to demonstrate commitment to diversity, equity, and inclusion.”
FIRE also criticized recommendations from task forces at the medical
school that called for “faculty to be ‘assessed regarding their
contributions in the domain of social justice.’”

The university told FIRE in a June 16 letter that the task forces’
recommendations “did not result in medical school faculty being assessed
for their contributions in the area of social justice.” The DEI statement
requirement had been removed from the school’s hiring guidelines the month
before FIRE sent its first letter to the university on the topic in April.

In an interview with The N&O, Alex Morey, FIRE’s director of campus rights
advocacy, said the organization’s efforts were meant to ensure UNC was
meeting its “First Amendment obligations not to be compelling faculty
speech, not to be forcing faculty to pledge allegiance to any particular
ideology, whether it’s communism or patriotism or DEI.”

“There’s really no good way to implement something like that at an
institution that is required to respect faculty rights by virtue of the
First Amendment,” Morey said.

Ludington, the Duke law school professor, said questions about diversity
on an application or in an interview could be appropriate under the First
Amendment, depending on how they are worded.

“If a medical school has decided that it is vitally important for the
doctors they’re training to know how to work with different communities
and cultures, and they request a statement of how people have dealt with
that in their own experiences, I think that is a reasonable topic of
conversation,” Ludington said.

UNC’s university-wide guidance on the new policy includes examples of
permissible questions tied to diversity that interviewers could ask,
generally focused on how applicants would work with, engage or communicate
with diverse groups.

One acceptable question asks: “What strategies might you use to ensure
access to resources and promote student success in a public university
setting where students reflect the socioeconomic, racial, religious, and
other diverse characteristics across the state?”

The Board of Governors’ policy also includes a process by which
universities could request exceptions to the policy to ask about topics
that could be considered “matters of contemporary political debate or
social action.”

Constitutional issues could arise, Ludington said, if applicants were
required to state certain, specific views on a topic.

If a university “were to say, ‘We only hire people who support diversity,’
I think that’s different,” Ludington said, “because there, you’re
requiring people to support a particular ideology, as opposed to
discussing their experiences promoting diversity.”

The School of Medicine’s previous hiring guidelines, used prior to the
Board of Governors’ policy change, stated that DEI statements were
“required but the content is up to [the] faculty member and DEI statements
are not graded.”

Medical school professor Sue Estroff told The N&O that “the idea that
everybody has to pledge allegiance to a particular kind of thing just
doesn’t happen” in the school’s hiring and faculty evaluation processes,
including during the time when DEI statements were required.

NC State faculty attempt to pursue DEI, comply with policy
As the UNC School of Medicine has moved to no longer require DEI
statements, a group of faculty at N.C. State wants to consider how
academic departments at the university can evaluate faculty’s DEI
contributions in their work in ways that comply with the Board of
Governors’ policy.

The university’s Faculty Senate in January formed a committee to assess
what evaluation procedures were in place across the university and
potentially propose more consistent protocols across academic departments.

McGowan, the Faculty Senate chair, and committee co-chair Corey Johnson
said faculty across the university are commonly evaluated on their
contributions in the areas of teaching, research and service, but the
practice of evaluating or recognizing faculty for their DEI-related work
is less consistent, and departments may not have established protocols to
do so.

“We just want to make sure folks who are doing that work, who choose to
highlight it and submit it as part of their evaluation process, are duly
acknowledged as doing such,” Johnson said.

Soon after it formed, the committee decided to pause its work, citing the
Board of Governors’ policy and questions it created for the group over
how, or if, DEI could be considered in hiring and evaluations. The
committee will “touch base again in the fall” after allowing time to see
how implications of the policy have unfolded, McGowan said.

“Right now we are paused to take a wait-and-see approach, to make sure
that we are progressing in a good manner — something that’s a benefit to
the faculty at N.C. State that does not violate the compelled speech
policy,” McGowan said.

The Board of Governors’ policy does not limit faculty’s ability to discuss
political topics in the classroom or in their research, and does not
prohibit applicants from volunteering information on those topics in an
interview or elsewhere in an application process. UNC System guidance on
the policy also states hiring managers are allowed to “fairly question the
speech, research, and experience of applicants and employees,” such as
information presented on a resume.

McGowan said she “firmly” believes “nothing the committee is doing would
be in violation” of the policy, particularly because its work is not
intended to force faculty to incorporate DEI into their work, nor to add
requirements like DEI statements to hiring processes.

Neither McGowan nor Johnson said they were aware of academic departments
at N.C. State that required DEI statements as part of their overall hiring
processes.

“There’s been a perception or a speculation that that must be the outcome
the committee is going for,” McGowan said, adding “that’s not true.”

Johnson said the committee’s work and its to-be-seen outcomes are not
meant to exclude or negatively impact faculty who may not choose to engage
in DEI work, adding that the group’s hope is for DEI work to remain
voluntary among faculty.

“We also want to make sure that as we sort of unfold this work, we’re
doing so in the spirit of elevating the conversation around diversity,
equity, inclusion and belonging in ways that’s meaningful,” Johnson said,
“but not in ways that’s exclusionary.”

©2023 The Charlotte Observer. Visit charlotteobserver.com. Distributed by
Tribune Content Agency, LLC.


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