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 programming 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, Kansas, Utah, and Wyoming are among the most recent. 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. Some have eliminated positions and programs in the face of potential legislation. Absent any state legislation, the University of North Carolina Board of Governors voted to end its DEI policy and require the system’s 16 universities to report on compliance progress by September 1. 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 2023, 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 2024, 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. Neither bill has advanced beyond its respective committee. In June, U.S. Sens. Bill Cassidy (R-LA), JD Vance (R-OH), Marsha Blackburn (R-TN), Kevin Cramer (R-ND), Eric Schmitt (R-MO), and Rick Scott (R-FL) introduced the Dismantle DEI Act to eliminate all federal DEI programs. The bill would also eliminate funding for educational accreditation agencies that receive federal funding and maintain DEI programs.

Campus protests and demonstrations over the war in Gaza have become international news. Some have turned violent, and student demonstrators on several campuses have been suspended, with significant implications for the American political landscape and the November elections. Republican leaders have held hearings and visited college campuses demanding stronger action by university presidents and campus police to combat antisemitism. Several bills on antisemitism and campus unrest have been introduced in the House and Senate; none have been passed by both chambers. Many institutions await what the fall semester may bring.

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 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.

In late February, the Education and the Workforce Committee followed up its December hearing with a bipartisan roundtable on antisemitism with nine student witnesses. 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 suggested the witnesses fared better in the hearing than their counterparts in December, their testimony inflamed tensions on the Columbia campus, leading to a new wave of demonstrations and campus unrest and, in August 2024, the resignation of Columbia’s president. A third Education and the Workforce Committee hearing, titled “Calling for Accountability: Stopping Antisemitic College Chaos,” was held on May 23. Invited witnesses were the presidents of Northwestern University and Rutgers University, and the chancellor of UCLA. After the hearing, the committee chair, Rep. Virginia Foxx (R-NC), sent a letter to the president and board chair of Northwestern castigating the president for his “obstructive and misleading testimony” and demanding that the university comply with the committee’s document requests regarding the handling of the campus encampment or face a subpoena.

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,” Johnson said at an April 30 press conference. “… House Republicans will speak to this fateful moment with moral clarity.” The next day, the House passed the Antisemitism Awareness Act, House Bill 6090, with bipartisan support. The bill would put into law the International Holocaust Remembrance Alliance’s definition of antisemitism and specifically calls for enforcing federal antidiscrimination laws in education based on shared ancestry/ethnic characteristics. It awaits action in the Senate.

The House Ways and Means Committee hearing in November 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 was an unsettling development. Then in July, after internal deliberations and likely in response to the speaker’s May pledge, the committee held a markup of two bills targeting colleges and universities. The first, H.R. 8913, the Protecting American Students Act, would increase the number of college endowments subject to the 1.4 percent endowment excise tax by some 10 to 12 institutions. The second bill, H.R. 8914, the University Accountability Act, could result in fines on colleges and universities of $100,000 or 5 percent of a university’s aggregated administrative compensation if a federal court issued a civil judgment that the institution violated Title VI of the Civil Rights Act.

Meanwhile in the Senate, Bob Casey (D-PA) and Tim Scott (R-SC) introduced their version of the Antisemitism Awareness Act. The bill has language similar to House Bill 6090, but no further action has been taken. In July, Sens. Joni Ernst (R-IA) and Bill Cassidy (R-LA) and two others introduced the Restoring Civility on Campus Act, which would increase fines on institutions for discrimination based on shared ancestry/ethnic characteristics. The bill also puts more stringent requirements on the Office of Civil Rights regarding its investigations of complaints of discrimination.

Several states are also passing laws adopting the definition of antisemitism from the International Holocaust Remembrance Alliance. All could affect the students, faculty, and staff of colleges and universities. Ohio enacted the most specific law in regard to higher education. The legislature passed and Governor DeWine signed into law The CAMPUS Act. A spokesperson for the Inter-University Council of Ohio, which represents public universities in Ohio, stated that the law will be a “framework to help all institutions of higher education in Ohio achieve … a safe, inclusive, and respectful educational environment for all students.” Among other measures, the law requires Ohio institutions to adopt and publicize their policies on time, place, and manner restrictions on student protests, and requires the state chancellor to create a task force on antisemitism and other forms of racial, religious, and ethnic bias, harassment, and intimidation.

The courts have also gotten involved after lawsuits by Jewish students alleging that their universities didn’t do enough to protect them during demonstrations and encampments. A federal judge dismissed a suit against MIT while allowing a suit against Harvard to proceed. In Los Angeles, a federal judge issued a directive requiring UCLA and the students who sued the university to find an agreeable solution to the students’ claim that a pro-Palestinian encampment and its location violated their civil rights.

Rather than conducting investigations by congressional committees, Democratic members 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 and through early June, OCR has opened 145 investigations on college and university campuses for discrimination based on “shared ancestry.” OCR investigations do not preclude lawsuits in federal court. 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.

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.

Tenure, the traditional safeguard of academic freedom, has also become a primary target for higher education’s critics. As reported in August by Inside Higher Ed, over the past two years, 10 states have proposed legislation that would weaken or eliminate tenure. In 2023, Florida may have passed the most consequential legislation. The law requires revisions to existing Board of Governors policy for tenure and post-tenure review for the Florida University System. And it requires tenured faculty to “undergo a comprehensive post-tenure review” every five years. The law also changes the faculty appeal process regarding decisions on tenure, evaluations, discipline, promotions, and termination. Three university faculty members recently filed a lawsuit alleging that the legislation is unconstitutional.

In 2024, the most serious legislation may be Indiana Senate Bill (SB) 202, which was signed into law in March. 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.”

As the August Inside Higher Ed story points out, no state thus far has banned tenure, nor may legislation be the only threat to tenure. An equal threat may be enrollment and budget declines that require governing boards to close academic programs or merge and close institutions, and subsequently terminate tenured faculty. Current debates in two states are worth noting. Faculty layoffs are being debated in Wisconsin as a result of enrollment and budget declines, and legislation on tenure passed nearly 10 years ago. And in North Dakota, the State Board of Higher Education is discussing changes to tenure policy for the North Dakota University System in part because of enrollment declines, but also in response to legislation to diminish tenure protections, proposed but not enacted, in this year’s legislative session.

Relatedly, 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.” All this is occurring as the numbers and percentages of tenured faculty continue to decline. According to the American Association of University Professors (AAUP), 68 percent of faculty members are “contingent,” that is, they are non-tenured or have non-tenure-track appointments. In 1987, 47 percent of faculty had such status. In addition, according to the latest IPEDS (Integrated Postsecondary Education System) data that AAUP analyzed, part-time faculty outnumber full-time tenured faculty by more than two to one.

Public institutions and their boards are also dealing with a spate of “free speech” laws aimed at curbing alleged hostility over political viewpoints. At the same time, institutions and boards are 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 administrators’ commitment to academic freedom and the faculty members’ free speech because crackdowns on protests over the war in Gaza have resulted in faculty members being arrested or barred from campus.

PEN America and the American Association of Colleges and Universities have been tracking the persistent attacks on academic freedom that are occurring. 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.

The Florida Board of Governors is calling for a review of courses at all university system institutions for evidence of antisemitic or anti-Israel bias. The system chancellor’s office will conduct an initial review, and if deemed necessary, members of each institution’s faculty will conduct a further review of identified courses. The review was prompted by a complaint about the use of a particular textbook in a class on terrorism and homeland security at Florida International University. The American Association of University Professors and the Foundation for Individual Rights and Expression (FIRE) have raised concerns about the review and the potential impact on academic freedom. Already, as part of the Stop WOKE Act, Florida has tried to legislate how faculty can talk about race and gender. Lower courts have blocked the legislation, and the case is now before a three-judge panel of the Eleventh Circuit Court of Appeals. In opening arguments, the attorney representing Florida and defending the Act said the state can “insist that professors not offer—or espouse … and endorse—viewpoints that are contrary to the state’s,” and “…because in the classroom the professor’s speech is the government’s speech … the government can restrict professors on a content-wide basis and restrict them from offering viewpoints” (emphasis added). Indiana’s attorney general is making the same argument in defense of Indiana’s new law requiring faculty to ensure “intellectual diversity.” Four faculty members have brought a challenge to the law. One can anticipate that sooner or later, attorneys general in other states will make similar arguments. Oklahoma has a similar law, House Bill 1775, regarding the teaching of race and gender, that is also bound up in the courts. And Louisiana has passed one law, which includes a provision stating that “no professor shall impose the professor’s political views onto students,” and another law requiring that the Ten Commandments be displayed in all K–12 and higher education classrooms. Concerns about the former center around its ambiguity; the latter will almost certainly be challenged in court.

Members of Congress are also starting to cause concern around academic freedom where they can. 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 following a March 2023 hearing. In November 2023, 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. Renée DiResta, the former research director at Stanford University’s Internet Observatory and a member of its Election Integrity Unit, detailed the threats and harassment she and others experienced after the March hearing. The Election Integrity Unit was recently closed.

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.

• AGB Board of Directors’ Statement on Influences Impacting Governing Board Independence and Leadership
• Influences on Board Independence and Leadership Toolkit
• Trusteeship Podcast Episode 41: Board Independence Under Fire, Part I
• Trusteeship Podcast Episode 42: Board Independence Under Fire, Part II
• 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 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 your institution? Is the board supportive of the institution’s tenure and post-tenure policies, or are revisions deemed necessary?
• What policy guidance exists at your institution regarding campus free speech for students, faculty members, and invited speakers?