Top Public Policy Issues Facing Governing Boards in 2023–2024:
Political Influence

While issues around efforts to promote diversity, equity, and inclusion (DEI) have faced challenges at the federal level, including in front of the Supreme Court, the majority of challenges have come from the states. Prior to the recent legislative activity at the state level, media reports documented how colleges and universities were adopting DEI programing at a quick pace.

The Chronicle of Higher Education reports that since 2021, 85 bills in 28 states have been introduced (30 bills in 16 states thus far in 2024) to prohibit various college and university DEI programs, including those for staff training and hiring. Thirteen states have enacted prohibitions into law; Alabama, Idaho, Indiana, Iowa, Utah, Wyoming are among the most recent. Absent any state legislation, the University of North Carolina Board of Governors is seriously considering a policy change that would repeal the system’s diversity and inclusion policy for all of the system’s 16 universities. Many colleges and universities have renamed or been forced to reevaluate, refocus, or scale back their DEI efforts in order to avoid running afoul of new laws and to protect jobs. As the Chronicle of Higher Education documents, criticism of campus DEI offices has become embroiled in disagreements over race, free speech, and antisemitism and Islamophobia, the latter particularly since the Israel-Hamas War.

DEI efforts and offices have also come under considerable criticism in Congress. In December, Rep. Dan Crenshaw (R-TX) introduced a bill that would amend the Higher Education Act to prevent colleges and universities from receiving federal funding if they require students to write DEI statements. His bill would also prevent the use of DEI statements as a condition of employment or enrollment. In March, Rep. Greg Murphy (R-NC) introduced the EDUCATE Act, which according to his office press release, “would cut off federal funding to medical schools that force students or faculty to adopt specific beliefs, discriminate based on race or ethnicity, or have diversity, equity, and inclusion (DEI) offices or any functional equivalent. The bill would also require accreditation agencies to check that their standards do not push these practices, while still allowing instruction about health issues tied to race or collecting data for research.” An identical bill has been introduced in the Senate.

In fall 2023, three Republican-led congressional committees held hearings on antisemitism: the House Ways and Means Committee and the House Judiciary Committee in November, and most notably, the House Education and the Workforce Committee in December.

The Education and the Workforce hearing immediately became newsworthy because of the responses from the college presidents of Harvard University, the University of Pennsylvania, and the Massachusetts Institute of Technology (MIT) to a committee member’s question about whether calls for the genocide of Jews violated campus speech policies and whether students who voiced such calls should be disciplined. The presidents’ cautious responses prompted heavy criticism from many quarters and led to the resignations of two of the presidents. In late February, the Education and the Workforce Committee followed up with a bipartisan roundtable on antisemitism with nine student witnesses, a follow-up to its December hearing. The roundtable’s witnesses included three from Harvard University, the University of Pennsylvania, and MIT, and others from Rutgers University, Cooper Union for the Advancement of Science and Art, and Columbia University. A second Education and the Workforce hearing in April featured the president and the board co-chairs of Columbia University. As in the December hearing, committee members asked tough, sometimes leading, questions. While experts suggest the witnesses fared better in the hearing than their counterparts at the end of 2023, their testimony inflamed tensions on campus, leading to a new wave of demonstrations and campus unrest. A third Education and the Workforce Committee hearing, titled “Calling for Accountability: Stopping Antisemitic College Chaos,” is scheduled for May 23.{~?~AD: Based on the hearing date, this section may need to be updated. } Invited witnesses are the presidents of Northwestern University and Rutgers University, and the chancellor of UCLA.

In early January, Harvard University began its response to a committee-announced investigation that asked for documents and internal communications regarding antisemitic incidents, plus board meeting minutes and information on its DEI programs. Harvard officials were then subpoenaed for more documents and information in mid-February because committee members contended that Harvard’s response to the January documents request was “severely insufficient.” Rep. Virginia Foxx (R-NC), chair of the Education and the Workforce Committee, said the committee’s examination could be expanded.

Rather than investigations by congressional committees, Democrats prefer that the Department of Education’s Office of Civil Rights (OCR) investigate complaints about antisemitism and incidents of anti-Muslim behavior for possible violations of Title VI of the Civil Rights Act. Since the start of the Israel-Hamas War, OCR has opened more than 33 investigations on college and university campuses. Republicans on the Senate Appropriations Committee have asked Education Secretary Miguel Cardona to do more, even to pull federal funding for institutions that aren’t addressing antisemitism.

The House Ways and Means Committee hearing was generally polite and, for the most part, bipartisan. However, in the weeks that followed, the committee chair, Rep. Jason Smith (R-MO), sent a letter to the presidents of Harvard University, Cornell University, the University of Pennsylvania, and MIT, suggesting that their failure to protect Jewish students calls into question the tax-exempt status of their institutions and that of their endowments. While the tax-exempt status is unlikely to be revoked in the current Congress or by the IRS, the chair’s letter is an unsettling development.

Campus protests and demonstrations over the war in Gaza have become international news. Some have turned violent. There are significant implications for the American political landscape and the November elections. Republican leaders have visited Columbia and George Washington Universities, demanding stronger action by university presidents and campus and local police to combat antisemitism. Some are calling for the intervention of the National Guard. On May 1, the House passed the Antisemitism Awareness Act with bipartisan support. The act would put into law the International Holocaust Remembrance Alliance’s definition of antisemitism. In the latest development, House Speaker Mike Johnson (R-LA) pledged a coordinated effort among six key House committees—inquiries, hearings, and investigations—that may threaten federal funding for research and, as noted above, private universities’ tax-exempt status. “Antisemitism is a virus and because the administration and woke university presidents aren’t stepping up, we’re seeing it spread… House Republicans will speak to this fateful moment with moral clarity,” Johnson said at an April 30 press conference.

Political interference by Congress into the internal affairs of colleges and universities is becoming all too real. Even though elite universities may be the primary target of legislators, with campus unrest spreading to many other public and private colleges, no institution is immune. Office of Civil Rights investigations are also likely to increase, but without the fanfare of a congressional investigation. In any case, as difficult as it may be, it is incumbent upon college and university administrators and governing boards to orient and educate their campus communities on civil discourse and disagreements. And, as noted in the Academic Freedom and Free Speech section, administrators and governing boards should continue to seek the right balance between free speech and expression and the protection of students, faculty, and staff from harassment and violence.

Tenure, the traditional safeguard of academic freedom, has also become a primary target for higher education’s critics. But as Inside Higher Ed reported, although tenure wasn’t unscathed in the 2023 legislative sessions, it fared better than many feared. Bills to restrict tenure failed in a few states, but the story certainly has not ended.

In a recent example, the Foundation for Individual Rights and Expression (FIRE) and PEN America, two advocates of free expression, said that giving presidents decision-making authority over tenure (one example of tenure policy revisions) was not an immediate cause for alarm, but they still criticized new “amorphous standards” that trustees set, including consideration of faculty members’ “effectiveness … and integrity in communications” and their “collegiality.”

It may be too early to tell what the 2024 legislative sessions may bring regarding tenure. Thus far, the most serious is Indiana Senate Bill 202, which was signed into law on March 13, 2024. Faculty in Indiana charge that the bill “would severely constrain academic freedom,” particularly regarding its requirement and policing of “intellectual diversity.” SB 202 would leave it to each governing board to establish policies “limiting or restricting the granting of tenure or a promotion if certain conditions related to free inquiry, free expression, and intellectual diversity are not met; and disciplinary actions that will be taken if … a determination has been made that a tenured faculty member has failed to meet certain criteria related to free inquiry, free expression, and intellectual diversity.” The bill also “…requires the review and consideration, at least every five years, of certain criteria related to free inquiry … [and] intellectual diversity” and “requires the establishment of a procedure that allows students and employees to submit complaints that a faculty member … is not meeting certain criteria related to free inquiry … and intellectual diversity and establishes requirements regarding the procedure and submitted complaint.

Public institutions and their boards are also dealing with a spate of “free speech” laws aimed at curbing alleged hostility over political viewpoints. Members of public governing boards may feel torn between the duty to defend academic freedom and independence and their reluctance to go against the wishes of the elected officials who appoint and confirm them. Institutions and boards are also adopting policies or making public statements to bolster and protect campus free speech and to ensure that diverse viewpoints are welcome in the classroom and in forums featuring guest speakers offering differing, opposing, or controversial positions. Needless to say, the demonstrations and protests as a result of the Israel-Hamas War are testing campus free speech codes regardless of whether institutions are required to uphold the First Amendment of the Constitution.

Academic freedom and tenure are linked, and attacks on one are often attacks on the other. Several elected officials have claimed that academic freedom is a shield that faculty use while indoctrinating students and coercing them into accepting professors’ views. Organizations such as the American Association of University Professors have argued that lawmakers, rather than activist professors, are the issue. These advocates say that some state governments are censoring entire fields of knowledge and are a true danger to the future of higher education. Faculty at some institutions have expressed serious concerns about the commitment of their administrators to academic freedom and faculty members’ free speech because crackdowns on protests over the war in Gaza have resulted in faculty members being arrested or barred from campus.

Members of Congress are also starting to follow state legislatures in this area. The House Judiciary Committee has been investigating university research centers that collaborate to identify misinformation on the web and social media, such as efforts to discredit vaccination programs and foreign interference in U.S. elections. Unfortunately, but predictably, intimidation and online threats to the safety of research center faculty rose after the committee’s announcement of its investigation. In November, the committee and its Select Subcommittee on the Weaponization of the Federal Government released an interim staff report titled The Weaponization of “Disinformation” Pseudo-experts and Bureaucrats: How the Federal Government Partnered with Universities to Censor Americans’ Free Speech.

Even though major changes to tenure by and large were not enacted in the states and boardrooms in 2023, PEN America and the American Association of Colleges and Universities have been tracking the persistent attacks on academic freedom that are occurring and may recur in the 2024 legislative sessions that commenced in January. In a recent article, they report that eight states have imposed government mandated dictates on teaching and learning, specifically designed to restrict higher education institutions. And as noted earlier, the Indiana legislature is considering major changes that would affect tenure and academic freedom at the state’s public colleges and universities.

To help campus leaders navigate this difficult terrain going forward, PEN America and the American Council on Education partnered to produce a resource guide, Making the Case for Academic Freedom and Institutional Autonomy in a Challenging Political Environment. And importantly, AGB published the AGB Board of Directors’ Statement on Influences Impacting Governing Board Independence and Leadership in December 2023. The statement addresses the responsibility of governing boards to protect free speech, academic freedom, and institutional autonomy from outside intrusions, political actors, donors, alumni, foreign influences, unions, and others.

As long as policymakers perceive higher education as aloof, unresponsive, and ineffective, they will continue to try and enact changes that directly impact governing board authority.

• What is the status of the board’s and institution’s efforts toward justice, diversity, equity and inclusion? How have these efforts been received on the campus(es) and by external constituents? How is the board addressing any controversies that have developed or may do so?
• Has the board found a need to defend faculty members or administrators in the past year, or does it anticipate that it might have to do so in the near future?
• What percent of the faculty is tenured at our institution? Is the board supportive of the institution’s tenure and post-tenure policies, or are revisions deemed necessary?
• What policy guidance exists at our institution(s) regarding campus free speech for students, faculty members, and invited speakers?