Top NC court rejects fired WSSU professor’s request for clarification

The North Carolina Supreme Court has rejected a request from a fired Winston-Salem State University professor to reconsider his case. The high court’s original decision in the case last month struck a blow against government agency deference in state courts.

In a pair of orders Thursday, the state Supreme Court rejected Alvin Mitchell’s motions for a temporary stay of the court mandate and for clarification or reconsideration of its Oct. 17 ruling. The orders offered no explanation for the decision.

The high court used Mitchell’s case to decree that North Carolina courts will not defer to state agencies’ interpretations of their own rules and regulations.

The decision said nothing about whether Mitchell could win back his tenured post in the state university. Justices upheld much of the state Appeals Court’s ruling. Appellate judges had determined that university officials had followed the proper process when firing the professor.

Mitchell had challenged his dismissal on multiple grounds. He argued that the university failed to follow its own written procedures when considering his case. He also presented a First Amendment argument related to a controversial letter that played a role in his firing.

Mitchell’s lawyers filed a motion earlier Thursday asking the Supreme Court to stay its mandate in the case. That means the case essentially would have remained on hold while the court considered Mitchell’s additional request for the court to “clarify and/or reconsider its opinion.” The court shot down both requests.

“Professor Mitchell respectfully requests clarification as to what impact this Court’s decision to ‘overrule’ the ‘holding’ below had on his case,” his lawyers wrote. “Specifically, this Court ‘overrule[d]’ the ‘holding’ that ‘the Court of Appeals must “defer to the agency’s interpretation of its regulations unless it is plainly erroneous.”’ Later, the opinion states this Court ‘affirm[ed] the judgment of the Court of Appeals as modified by our discussion above.’ However, the opinion never explains the practical impact of this Court overruling the Court of Appeals’ decision while affirming its outcome.”

“[T]he opinion did not explain why — if the Court of Appeals’ reasoning was in error — the Court of Appeals’ decision was still affirmed,” the court filing added. “It did not, as this Court has done in other instances, state that the Court of Appeals’ reasoning was irrelevant to the correct outcome and thus ‘there was no reason for the court’s opinion to apply it.’ Instead, this Court held there was an error and then affirmed, without further explanation.”

“Since this Court does not simply answer ‘abstract or theoretical question[s],’ Professor Mitchell is confident that the overruling of the holding below had some impact on his case,” his lawyers wrote. “However, because the opinion does not explain what that impact was, Professor Mitchell requests clarification on that point.”

Mitchell also asked the court to take an “extraordinary” step to revisit his First Amendment arguments.

“Freedom of speech — particularly in the academic setting — ‘is one of the fundamental cornerstones of individual liberty and one of the great ordinances of our Constitution,’” the professor’s lawyers wrote. “Its importance is so great that an unconstitutional restriction of a university professor’s speech first led this Court to recognize a ‘direct action against the State for its violations of free speech’” in a 1992 precedent case titled Corum v. UNC Board of Governors.

“The Court of Appeals’ decision below devastates that freedom by applying a plainly incorrect standard,” Mitchell’s lawyers argued. “In examining whether Professor Mitchell’s letter addressed a matter of public concern, the Court of Appeals asked whether ‘evidence in th[e] Record’ supported the letter’s factual accuracy as well as the harshness of the language used. Both of these assessments contradict fundamental free speech principles.”

“Without this Court rectifying the holding below, university administrators are going to weaponize this new standard against any voice they disagree with,” the court filing warned. “Suppressing speech merely because an administrator believes that its tone is inappropriate or its contents are not factually accurate will destroy the ‘classroom as peculiarly the marketplace of ideas.’”

Mitchell, who is black, had used racially inflammatory language in a letter to a black colleague. That letter played a role in his dismissal.

The state Supreme Court split, 5-2, in refusing to address Mitchell’s argument that the message was protected First Amendment speech that could not be used as a basis to fire him.

“We allowed discretionary review in this case to clarify the appropriate standard of review when construing the meaning of state rules and regulations,” Justice Richard Dietz wrote for the majority. “As we held in Britt [a 1998 precedent case], a state agency’s interpretation of its own rules or regulations can inform a court’s judgment and aid in ascertaining the meaning of the law. But the agency’s interpretation is never binding.”

“We expressly disavow any interpretive rule requiring courts to defer to a state agency’s interpretation of state rules and regulations, overrule any previous Court of Appeals case law to the contrary, and instruct all lower courts to apply traditional de novo review to the interpretation of state rules and regulations,” Dietz wrote.

A “de novo” review means a state court will not defer to an agency’s conclusions about a case.

A “number” of state Appeals Court decisions “have mistakenly read” a 1994 case called Morell to create a form of deference, Dietz explained.

“[W]e take this opportunity to expressly hold that courts interpreting state administrative regulations must freely substitute their judgment for that of the agency and employ de novo review,” he wrote. “In cases involving a complex or highly technical regulatory program, courts should continue to give due consideration to the views of the agency, as those views may aid ‘in ascertaining the meaning’ of the regulation. But the views of the agency are never binding. We disavow any state law precedent suggesting otherwise and instruct all lower courts to apply traditional de novo review to the interpretation of state administrative regulations.”

Dietz and the court’s majority, all Republican justices, did not address Mitchell’s First Amendment argument. Dietz explained that the court was constrained by the issues raised in a dissent at the state Appeals Court.

The court’s two Democratic justices agreed with their Republican colleagues that the university had followed proper handbook procedures in Mitchell’s case.

Yet a dissent from Justice Anita Earls criticized the Republican majority for its comments about deference. The dissenting Democrats also would have ruled in Mitchell’s favor on the free-speech issue.

“The majority takes this opportunity to broadly proclaim that no Auer/Kisor deference exists in state administrative law and that only ‘due consideration to the views of the agency’ applies for ‘complex or highly technical regulatory program[s],’” Earls wrote. “But such sweeping language goes far beyond our precedent and the narrow issue presented by this appeal.”

Earls accused the majority of deciding to “sidestep” the issue of whether Mitchell’s letter should be treated as protected First Amendment speech.

“His speech is within the ‘academic freedom’ of paramount value not only to the University community, but to all of us in North Carolina and the nation,” Earls wrote. “Professor Mitchell could have chosen less inflammatory and racially charged language, but he did not. Under these circumstances, though, the free exchange of ideas in academic settings ‘may not be shut off in the name alone of conventions of decency.’”

Mitchell’s letter “was protected First Amendment speech and cannot be the basis for his termination from public employment,” Earls argued. She would have sent the case back to the university “to consider whether the remaining grounds offered for his termination are sufficient to support that decision.”

The court heard oral arguments in the case in February. Dietz and Justice Trey Allen signaled at the time their interest in clarifying deference in North Carolina courts.

Deference to government agencies’ interpretation of their own regulations is known as Auer deference, based on the 1997 US Supreme Court precedent in Auer v. Robbins.

The John Locke Foundation, which oversees Carolina Journal, filed a brief in the case supporting Mitchell’s deference arguments.