Fired WSSU professor offers free speech, deference arguments to top NC court

Image from

Listen to this story (8 minutes)

  • Fired Winston-Salem State University professor Alvin Mitchell raises free-speech and separation-of-powers concerns as he challenges his dismissal at North Carolina's Supreme Court.
  • Mitchell hopes the state's high court will overturn a split state Appeals Court ruling upholding WSSU's decision to fire him.
  • The state Supreme Court issued an order in March indicating that justices would take up Mitchell's case to deal with the legal issue of courts' deference to government agencies.

A fired Winston-Salem State University professor cites free-speech and separation-of-powers concerns as he challenges his dismissal at North Carolina’s highest court. It’s a case that has attracted attention from the John Locke Foundation.

“This case presents two issues of fundamental importance to our constitutional system: freedom of speech and the separation of powers,” lawyers representing fired professor Alvin Mitchell wrote Wednesday in a state Supreme Court brief. “How this Court resolves these two issues will guide lower courts across the state for decades to come.”

“Freedom of speech is under attack in universities and schools across America,” Mitchell’s brief continued. “In Ohio, a Christian philosophy professor was issued a written warning threatening suspension and termination for refusing to use a student’s preferred pronouns. In Texas, a math professor was denied a contract extension when he referred to a pamphlet about microaggressions as ‘garbage.’ And in Washington, a teacher faced disciplinary action for wearing a ‘MAGA’ hat to his school’s cultural sensitivity and racial bias training. Each time, the schools were found to have violated the professors’ First Amendment rights.”

“Yet, attacks on free speech continue,” Mitchell’s lawyers wrote. “Just last year, the North Carolina Governor’s School fired Dr. David Phillips for speaking out against the school’s increasing adoption of critical-race theory.”

“With this case, this Court has an opportunity to stem the tide of these violations,” the brief argued. “By holding that Professor Mitchell’s termination violated his free speech rights, this Court can clarify that freedom of speech protections extend to North Carolina’s universities and schools including — if not especially — to viewpoints that administrators might find disfavored.”

Beyond the free-speech issues, Mitchell’s brief focused on concerns surrounding courts’ deference to government agencies’ interpretations of their own rules.

“This case also presents a gross violation of the separation of powers required by the North Carolina Constitution,” Mitchell’s lawyers wrote. “Below, Professor Mitchell argued that his termination violated the procedures contained in regulations promulgated by Winston-Salem State University and the UNC Board of Governors.”

“The University disagreed and provided a different proposed interpretation in its appellate briefing. There had been no official announcements or other publications providing clarity as to the meaning of the rules before that,” the brief continued. “Nevertheless, the Court of Appeals applied the federal Auer deference standard, rubber-stamping the interpretation of the regulations provided by the University’s brief.”

“Such blind deference represents an abrogation of the courts’ responsibility to exercise independent judicial judgment,” Mitchell’s lawyers argued. “Instead, it hands the executive branch the power of both judge and executioner. Our constitutional order does not permit this concentration of power. Under an independent interpretation of the regulations, Professor Mitchell’s termination violated the applicable procedures.”

The state Supreme Court issued a March 22 order indicating that it would take up Mitchell’s case. The order signaled that justices would address a single issue: “Under North Carolina law, when, if ever, should a court defer to an agency’s interpretation of the rules and regulations that the agency has promulgated?”

Attorneys representing Mitchell filed an appeal in May 2023. They asked the high court to reverse a 2-1 state Court of Appeals decision from April 2023. Appellate judges affirmed a 2021 trial court ruling upholding the university’s decision to fire Mitchell.

Mitchell’s lawyers cited three possible reasons for the high court to take the case. Justices issued an order rejecting an appeal based on the claim that Mitchell’s case involved “substantial constitutional questions.” They took no action on a second appeal based on the Appeals Court dissent. That appeal would have focused on alleged violations of Mitchell’s free-speech rights.

Justices granted the third appeal tied to the deference issue.

When seeking the appeal, Mitchell’s lawyers quoted Justice Richard Dietz’s questions about deference during an April 2023 oral argument.

“[W]hy do we defer to the agency’s interpretation?” Dietz asked. “What I’m asking is why, if the agency interpreted those [regulations], would we defer to that over just saying everyone impacted should be able to look at those conditions and decide what they mean, and no one person looking at them should be given any greater deference than anyone else?”

“I’m just wondering doctrinally why that agency deference exists in our case law at all in this context,” Dietz added.

Lawyers in that case “had no answer to these questions,” Mitchell’s lawyers argued.

“This petition lets the Court answer those questions directly. The judiciary’s deference to agency interpretations has significant public interest and involves legal principles of major significance to the jurisprudence of the State,” according to Mitchell’s lawyers.

Mitchell’s appeal contends that state deference law “is in disarray,” deference is “unlawful and unwise,” and the Appeals Court “applied extreme and unwarranted deference.” Mitchell’s lawyers argued that courts should not have deferred to UNC’s interpretation of the rules related to his dismissal.

Locke’s friend-of-the-court brief in the case also focused on administrative deference.

“Locke has always opposed all forms of extreme judicial deference, not just because they are unfair and unconstitutional, but also because they undermine the judiciary’s role in upholding the rule of law and create perverse incentives for legislatures and executive officers and agencies,” wrote Jon Guze, Locke senior fellow in legal studies.

“Relying on vaguely worded enabling statutes, executive branch officers and agencies have promulgated countless legally binding rules of conduct that they, themselves, have then gone on to enforce,” Guze added

“That clearly violates the separation of power between the legislative and executive branches,” he wrote. “Making matters worse, when disputes over the meaning of laws and administrative rules have arisen, the federal courts and most state courts have generally refused to act as independent adjudicators. Instead, citing various judge-made doctrines as justification, they have simply ‘deferred’ to agency interpretations of the relevant enabling statutes and the administrative rules promulgated pursuant to those statutes.”

“That clearly violates the separation of power between the judiciary and the other two
branches of government,” Guze argued.

The Appeals Court, in a 2-1 decision, affirmed the University of North Carolina System’s decision to fire Mitchell in 2019. Mitchell’s dismissal followed “three alleged acts of misconduct” between fall 2015 and fall 2017, according to the majority opinion authored by Judge Toby Hampson.

The university’s Board of Governors upheld Mitchell’s dismissal. A trial judge also supported the decision in July 2021. At the Appeals Court, Hampson and Judge Valerie Zachary voted to affirm the trial court’s ruling.

Judge Hunter Murphy agreed that Mitchell had received due process. He dissented from the majority opinion on the issue of a potential First Amendment violation linked to a letter Mitchell sent to a supervisor.

No date has been set for oral arguments in Mitchell v. The University of NC Board of Governors.