Wilson Library at the University of North Carolina at Chapel Hill (Photo: Clayton Henkel)
The UNC-Chapel Hill Board of Trustees passed changes to the university’s non-discrimination policy Thursday that some members warned go well beyond last month’s U.S. Supreme Court decision against considering race in admissions.
The high court’s ruling found using race as a criterion in admissions decisions to be a violation of the Fourteenth Amendment’s equal protection clause. But it also explicitly stated “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
Conservative critics have seized on that line, warning colleges and universities could ask such questions as a proxy for race. The new policy language passed in a resolution by the board of trustees Thursday would make it nearly impossible to craft questions — or consider answers — about racial experiences or how race has affected an applicant’s life.
The university “shall not establish through application essays or other means” any proxies “premised upon race-based preferences in hiring or admissions,” the resolution reads. “If the University considers the personal experience of applicants for admission, each applicant must be treated based on his or her experiences as an individual – not on the basis of race.”
“My duty is not to my own ideology”
At least one board member, Ralph Meekins, warned against passage of the resolution before consulting carefully with university counsel.
“I know for a fact…that this resolution goes well beyond the Supreme Court ruling. And if you talk to any lawyer, they’ll tell you the same,” Meekins, who is an attorney, said. “I don’t know what the opinion of our lawyers is on this. Or, actually, I do. But I can’t disclose what the opinion is. And I think every member of this board, before you vote on this resolution, needs to know number one, if there are any legal implications and if there are, what they are, and how it may affect the University.”
Whatever members might think of such a resolution philosophically or politically, Meekins said, they needed to consider potential legal repercussions.
“My duty on this board, my fiduciary duty, is to the University of North Carolina,” Meekins said. “And I don’t want to see any harm come to the University of North Carolina from any kind of resolution, particularly this one. My duty is not to my own ideology, what I’d like to see happen. I have a lot of reasons why I’m against this resolution. But before we even get to that point, I implore each of us to consider that and not vote on this until you’ve talked to your legal team.”
The board elected to approve the resolution over those objections. Though a roll-call vote was not taken, the overwhelming majority of board members seemed to vote in favor.
Board member Marty Kotis has pushed for a similar resolution since joining the trustees from the UNC Board of Governors two years ago. But when the university was still engaged in a lawsuit making its way to the Supreme Court, members were reluctant to insert any additional such language to university policy. That changed with the recent ruling.
Kotis supported Thursday’s resolution, though it contained amendments that went beyond the language he originally suggested.
“You know, I think the punch line to this resolution is to end discrimination, you have to end discrimination,” Kotis said. “And that’s what we’re seeking to do. That’s what the court has ruled. And that’s what we’ve been discussing for the past couple of years. And over the last couple of years, there’s been plenty of opportunity to, to discuss with our attorneys.”
As Newsline has reported, the Supreme Court ruling has led to a clash of interpretations and battles over how far colleges and universities should go in reacting to it.
In a roundtable discussion on the issue earlier this month, David Hinojosa, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, said universities are within their rights — and within the law — to ask students how race has impacted their lives.
In the wake of the Supreme Court decision, however, conservative activists almost immediately began contacting colleges and universities to make demands and threaten further lawsuits. Hinojosa pointed to a letter sent earlier this month by Edward Blum, president of Students for Fair Admissions, to 150 colleges and universities making a series of demands that align with the group’s interpretation of the decision. In its own response letter, Hinojosa’s group called Blum’s letter “an effort to overstate the reach of the decision and stoke fears through implicit and explicit threats of litigation.”
“Something we shouldn’t have been doing”
Board member John Preyer was among several trustees clearly frustrated that the university had defended affirmative action in admissions in the first place. He interrupted comments by UNC-Chapel Hill Chancellor Kevin Guskiewicz Thursday, during the first full board meeting since the high court’s decision, to give a speech about the folly of doing so.
“I think that it’s instructive, as we just are about to start this meeting, to reflect on what’s happened with the Supreme Court case where, for nine years, we’ve spent in the neighborhood of $35 million to lose a high-profile case in which we were found to have been in violation of the 14th Amendment,” Preyer said.
“I just want, I want everybody to think about it, because this is a moment of humility,” Preyer said. “It’s a moment that I know that a lot of people thought that we were fighting a good fight, and that it needed to be fought. But as it turns out, we were actually doing something we shouldn’t have been doing.”
The university should take the lesson, Preyer said, and consider whether it can spend millions on things more beneficial to students like covering the cost of tuition and fees. The board should, in light of the Supreme Court decision, examine several other decisions, priorities and policies, Preyer said.
Full resolution, as passed by the UNC-Chapel Hill Board of Trustees Thursday:
RESOLUTION OF THE BOARD OF TRUSTEES
OF THE UNIVERSITY OF NORTH CAROLINA
CONCERNING CIVIL RIGHTS
WHEREAS, Article I of the Constitution of the State of North Carolina provides: “We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”
WHEREAS, this guarantee of the right of our State’s citizens to “enjoy the fruits of their own labor” is unique to North Carolina and was enacted to protect North Carolinians’ rights to pursue their chosen profession and derive the benefits from their hard work – free from unreasonable interference from the government.
WHEREAS, the “fruits of their own labor” right applies to admissions, hiring and contracting in the State of North Carolina.
WHEREAS, the Constitution of the State of North Carolina states in Article 9, Section 9 that the benefits of The University of North Carolina and other public institutions of higher education, as far as practicable, be extended to the people of the State free of expense.
WHEREAS, the federal Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex or national origin, such that discrimination on the basis of sex and race in hiring, promoting, and firing violates the laws of the United States.
WHEREAS, the Fourteenth Amendment to the United States Constitution provides, in part, that no state can deny to any person within its jurisdiction the equal protection of the laws, and Title IX specifically prohibits discrimination based on sex.
WHEREAS, voters in the State of California passed Proposition 209 in 1996, which mandates that the state cannot discriminate against or grant preferential treatment on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, and public contracting. And in 2020, voters in California overwhelmingly voted down Proposition 16, which would have repealed Proposition 209.
WHEREAS, Section 116-33 of the North Carolina General Statutes requires the Trustees of the University of North Carolina to promote the sound development of the University, helping it serve the State, and the Board of Trustees is responsible for oversight as advisor to the Board of Governors and Chancellor concerning the management and development of the Institution.
WHEREAS, Section 300.8.5 of the UNC Policy Manual seeks to advance diversity and to foster an inclusive environment that engages, respects, and values all members of the University community and to ensure such efforts are carried out in an effective manner. The UNC Policy Manual defines “Diversity” as the ways in which individuals vary, including, but not limited to,
backgrounds, personal characteristics, ideas, beliefs, cultures, and traditions that distinguish one individual or group from another, which may include, but are not limited to, Federal, State, University, and constituent institution protected classes.
WHEREAS, the UNC Policy Manual defines “Inclusion” as the enablement of individuals, including those from underrepresented groups, to fully and equitably have access to, and participate in, the University’s programs, services, facilities, and institutional life.
WHEREAS, the UNC Policy Manual defines “Diversity and Inclusion (D&I)” collectively as the intentional efforts undertaken to create an institutional culture and a working and learning environment that offers acceptance, support, and respect for a diversity of individuals as they pursue their academic, research, and professional ambitions and interests.
WHEREAS, the UNC Policy Manual defines “Equal Opportunity (EO)” as the right of individuals to be considered for admission to, employment by, and promotion within the Institution on the basis of merit, experience, and qualifications, without unlawful or impermissible discrimination with respect to federal, State, University, and constituent institution protected classes.
WHEREAS, the University, through its Chancellor, D&I Officer, or other Chancellor designee, is required by the UNC Policy Manual to provide a report at least annually to the Board of Trustees on D&I-related information, as identified by the President or President’s designee. The Board of Trustees may request or require additional or more frequent information to be reported related to D&I operations, programs, and activities.
WHEREAS, it is the unequivocal policy of the University of North Carolina to prohibit discrimination against businesses on the basis of race, color, national origin, or sex; to promote and encourage full and open competition; and to promote equal access to contracting opportunities among the various contractors and vendors that do business with the University.
NOW, THEREFORE, BE IT RESOLVED by the Board of Trustees of the University of North Carolina, as of this the 27th day of July 2023 that:
The University shall not unlawfully discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin, religion, sexual orientation, gender identity, age, disability, genetic information, or veteran status in its admissions, hiring and contracting; and
The University shall report to the Board on its programs that lawfully discriminate; and
The University shall not “establish through application essays or other means” any regime of or encourage heuristics and/or proxies premised upon race-based preferences in hiring or admissions. If the University considers the personal experience of applicants for admission, each applicant “must be treated based on his or her experiences as an individual – not on the basis of race”; and
This Resolution shall apply only to action taken after the Resolution’s effective date; and
Nothing in this Resolution shall be interpreted to prohibit bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting; and
Nothing in this Resolution shall be interpreted as invalidating any valid court order or judicial consent decree in force as of the effective date of this Resolution; and
Nothing in this Resolution shall be interpreted to prohibit action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State; and
For the purposes of this Resolution, “State” shall include the University, or any other political subdivision or governmental instrumentality of or within the University; and
The remedies available for violations of this Resolution shall be the same, regardless of the injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing North Carolina and U.S. antidiscrimination laws; and
This Resolution shall be self-executing. If any part or parts of this Resolution are found to be in conflict with applicable State or federal law, or the Constitution of the State of North Carolina or the United States Constitution, the Resolution shall be implemented to the maximum extent permitted such that the foregoing violation(s) are avoided. Any portion(s) of this Resolution held invalid shall be severable from the remaining portions of this Resolution without affecting the validity thereof or the remainder of the Resolution as a whole.
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