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

The state of Florida has become, in fact, ground zero for the fight over efforts to promote diversity, equity, and inclusion (DEI) in higher education, from faculty hiring to success programs for minority and other underrepresented students. Florida Governor Ron DeSantis, a likely contender for the GOP presidential nomination, has donned the mantle of champion of statutes and policies aimed at forcing curricular and other changes on campuses he contends are dominated by “woke” liberal faculty members and administrators hostile to conservative viewpoints. In signing his signature “Stop WOKE Act” in April 2022, DeSantis declared, “We believe in education, not indoctrination. We believe an important component of freedom in the state of Florida is the freedom from having oppressive ideologies opposed [sic] upon you without your consent.” A federal judge called that statute “positively dystopian” and blocked parts of it.

Separately, DeSantis demanded to know how much state colleges and universities are spending on diversity, equity, and inclusion efforts. According to the Tampa Bay Times, the sum amounted to $34.5 million at Florida’s 12 public universities and ranged from $63 for a graduation ceremony for LGBTQ students at Florida Gulf Coast University to $4.1 million for an Upward Bound program at the University of South Florida.ⁱ

DeSantis launched a further push against DEI and “ideological indoctrination” in January 2023, saying he would seek passage of legislation “to bring more accountability to the higher education system,” including putting faculty hiring decisions into the hands of boards of trustees and presidents and allowing them to call a post-tenure review at any time. His legislative agenda also would bar public institutions from promoting DEI and teaching critical race theory, as well as ban the use of “political filters like DEI statements in hiring practices.”ⁱⁱ

DeSantis earlier took steps to turn the public New College of Florida, a small liberal arts institution, into what an education appointee said would become the Hillsdale College of the South. Hillsdale is a private, Christian college in Michigan that eschews federal student aid and considers itself a defender “of our Western philosophical and theological inheritance.” At New College, DeSantis appointed six conservative academics and activists to the board of trustees, who promptly removed the president and installed a former Republican speaker of the Florida House of Representatives to reorient the institution, which enrolled 650 students in 2020-2021, a tiny fraction of the state’s one million public college students. One of the new trustees, Christopher Rufo, is the co-author of model legislation from the conservative Manhattan Institute to abolish DEI offices and end mandatory diversity training at public universities.ⁱⁱⁱ

That blueprint could provide a template for states seeking to hamstring DEI efforts in higher education, as DEI programs has come in for scrutiny elsewhere, too. Outgoing Oklahoma Secretary of Education Ryan Walters, for instance, asked the chancellor of the State Regents for Higher Education, Oklahoma’s constitutional state coordinating agency, to document “every dollar that has been spent over the last ten years on diversity, equity, and inclusion.”

Tenure, the traditional safeguard of academic freedom, has also become a primary target for higher education’s critics.Even before Governor DeSantis proposed letting boards of trustees in Florida institute post-tenure reviews at any time, the State University System of Florida’s Board of Governors, which oversees Florida’s 12 public universities, was considering requiring post-tenure reviews every five years instead of seven. Anyone who received a final performance rating of “unsatisfactory” after appeals would receive a notice of termination from the chief academic officer. It remained to be seen whether this potential regulation would be superseded by the tenure provisions in Governor DeSantis’ new proposed legislation.

Other states are trying to pass similar measures. After the University of Texas at Austin Faculty Council voted overwhelmingly in support of teaching race and gender theory, Texas Lieutenant Governor Dan Patrick, a Republication, announced a flurry of bills affecting all Texas higher education institutions that would prohibit any teaching and spending on justice, diversity, and inclusion; eliminate tenure at all public universities in the state; and require six-year reviews of those who already hold tenure. “Tenured professors must not be able to hide behind the phrase ‘academic freedom,’ and then proceed to poison the minds of our next generation,” said Patrick, who also called for giving Boards of Regents more authority to address tenure issues.ⁱ In response, American Association of University Professors President Irene Mulvey said the damage to the reputation of the University of Texas System and to student and faculty recruitment would be “devastating” and “and poses a real and present danger to the future of higher education in the United States.”ⁱⁱ

In Mississippi, the Board of Trustees of State Institutions of Higher Learning ceded the authority to award tenure to the presidents of its eight public universities while also changing some criteria for obtaining tenure. The Foundation for Individual Rights and Expression (FIRE) and PEN America, two free expression advocates, said that giving presidents decision-making authority was not in itself cause for alarm, but they criticized new “amorphous standards” that the trustees set, including consideration of faculty members’ “effectiveness … and integrity in communications” and their “collegiality.”ⁱⁱⁱ

Meanwhile the Board of Regents for the University System of Georgia in 2021 changed its rules for post-tenure reviews of tenured faculty members, making it easier to terminate professors for poor performance. In addition to those states, look for others to seek changes to the tenure and post-tenure processes over these next two years, whether or not their public governing boards support such actions.

Public institutions and their boards are also dealing with a spate of “free speech” laws aimed at curbing the alleged hostility to conservative views on campuses. 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.

In June 2022, PEN America and the American Association of Colleges and Universities decried the spate of state bills—they counted 70 in 28 states—that impose restrictions on teaching and learning. “The majority of these restrictions are focused on concepts related to race, racism, or gender that legislators regard as divisive or otherwise objectionable. (They) infringe upon freedom of speech and academic freedom, constraining vital societal discourse on pressing questions relating to American history, society, and culture,” they said. Circumscribing free inquiry and expression “to hew to political directives and agendas …. undermines our society’s democratic future.”ⁱ

To help campus leaders navigate this difficult terrain going forward, PEN America and the American Council on Education joined together to produce a resource guide in February, “Making the Case for Academic Freedom and Institutional Autonomy in a Challenging Political Environment.” The Association of Governing Boards is updating its own guidelines on the topic of undue external influence.

As long as governors, legislators, and other policy makers perceive an advantage in attacking higher education, such attacks will continue in 2023 and 2024. At the same time, leaders of the major higher education groups in Washington, including the Association of Governing Boards, are laying the groundwork to create a national coalition to recognize the importance of higher education as a strategic asset of the United States. The primary intent is to present an action plan to the President and Congress by June 2024 for meeting the challenges and needs that the country and its colleges and universities now face.

• Freedom of Speech and Diversity, Equity, and Inclusion on Campus
• AGB Board of Directors’ Statement on Justice, Equity, and Inclusion and Guidance for Implementation
• Community Letter on Free and Open Academic Inquiry and Debate on Our Campuses is Essential to Our Democracy and National Well-being (March 2022)

• 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?