On Thursday 23 May, the UNC Board of Governors voted 22-2 to replace the Regulation on Diversity and Inclusion (§300.8.5) of the UNC System Policy Manual and Code. The new Regulation aims to strike a balance between what is referred to—in this Regulation and in contemporary discussions—as institutional neutrality, on one hand, and academic freedom and freedom of speech on the other. The need to achieve a reasonable and proper balance between these principles is not new. The new Regulation has been drafted in response to G.S.§116-300, which is new. Indeed, G.S.§116-300 reaffirms statutes and freedoms already enshrined in state and federal law, including the Constitution of the United States. One novel departure is clause (3a), which states: “The constituent institution shall remain neutral, as an institution, on the political controversies of the day.”
Institutional neutrality is championed by the Foundation for Individual Rights and Expression (FIRE), which offers this definition: “Institutional Neutrality is the idea that colleges and universities should not, as institutions, take positions on social and political issues unless those issues ‘threaten the very mission of the university and its values of free inquiry.’ ” FIRE’s definition is grounded in the Kalven Report, which states: “These extraordinary instances apart [identified just below], there emerges, as we see it, a heavy presumption against the university taking collective action or expressing opinions on the political and social issues of the day, or modifying its corporate activities to foster social or political values, however compelling and appealing they may be.”
Understood properly, institutional neutrality is sensible, especially for public institutions such as those comprising the UNC System. However, clause (3a) omits crucial circumstances where a university may take a position on social or political issues. Indeed, the Kalven Report states that the university has an obligation to do so: “From time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.” These cases are rare, but not singular. The very topic of the limits or restrictions of speech on campus is both a political controversy of the day and one whose outcome substantially impacts the functioning of the UNC institutions. Note that FIRE recognizes the same exception where “those issues ‘threaten the very mission of the university and its values of free inquiry.’ ”
For G.S.§116-300 to respect these established facts and parameters about freedom of speech, clause (3a) should state, “The constituent institution shall remain neutral, as an institution, on the political controversies of the day, except where it is necessary to protect the functioning or mission of the constituent institution or the values of free inquiry” or words having those effects. While it is not the purview of the Board of Governors to amend legislation enacted by the North Carolina General Assembly, the Board is in a position to communicate the omission in clause (3a) to the North Carolina General Assembly for a friendly amendment. In anticipation of that friendly amendment, the Board of Governors should swiftly amend §300.8.5 of the UNC System Policy Manual to reflect the exception recognized by FIRE and in the Kalven Report.
This omission has one other consequence. Section VII of the newly adopted §300.8.5 overlooks the important exception of protecting or fulfilling the mission of the university. As stated in G.S.§116-1, the mission of the UNC System “is to discover, create, transmit, and apply knowledge to address the needs of individuals and society.” G.S.§116-1 also states that “Teaching and learning constitute the primary service that the university renders to society.” Student success—that is, successful teaching and learning—depends on students feeling that they belong at the institution they attend. One component is the assurance that their persons and viewpoints will be treated equally. Sections I–V of the newly adopted §300.8.5 encode that. Another component is the assurance that the constituent institution they attend is a supportive and welcoming place for all learners. That assurance is accomplished through various expertly led programs at constituent institutions. While it may be that certain changes will be necessary in order for UNC institutions to maintain institutional neutrality, these activities are overlooked in Section VII of the newly adopted §300.8.5 of the UNC System Policy Manual, which should also be swiftly amended accordingly.