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

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.”