- A former Winston-Salem State University professor highlights concerns about free speech and administrative deference in his latest court filing at the North Carolina Supreme Court.
- Alvin Mitchell is asking the state's highest court to overturn lower courts' decisions upholding Mitchell's dismissal.
- The John Locke Foundation, North Carolina Chamber, and North Carolina Farm Bureau Federation all have asked the state Supreme Court to use Mitchell's case to re-examine the issue of administrative deference.
A former Winston-Salem State University professor challenging his dismissal in a lawsuit at North Carolina’s highest court emphasizes concerns about free speech and administrative deference in his latest court filing.
The North Carolina Supreme Court will consider WSSU’s decision to fire Alvin Mitchell in 2019. Lower courts have ruled in favor of the university. That included a split 2-1 ruling from the state Appeals Court in April 2023.
It’s a case that has attracted attention from the North Carolina Chamber, North Carolina Farm Bureau Federation, and John Locke Foundation.
“This case presents the Court with the choice between two paths that will define academic freedom and the separation of powers in this State for decades to come,” Mitchell’s lawyers wrote in a brief filed Tuesday.
“On the one side, the University asks this Court to expand executive power. Under its approach, universities can fire professors for expressing viewpoints that faculty or students find offensive, as long as that viewpoint was not expressed in the classroom or an academic journal. This will cripple viewpoint diversity in our public universities, forcing professors to self-censor in conversations with colleagues, students, and administrators,” the brief continued.
After mentioning the concerns about speech, the brief focused on judges’ deference to the university as an agency of state government’s executive branch.
“The University also attempts to seize judicial authority for the executive branch,” Mitchell’s lawyers wrote. “Under its view, the executive branch should play a role in the interpretation of law — an exclusively judicial function. That position places a thumb on the scale in favor of the executive branch, disadvantaging citizens by putting them on an unequal footing in any regulatory lawsuit going forward.”
“Professor Mitchell presents a different path,” his lawyers argued. “Under his approach, the First Amendment protects professors’ conversations, letters, and opposition to administrators’ ideological initiatives. Adopting that approach would ensure that North Carolina’s public universities function as a marketplace of ideas, where truth is discovered through debate and discussion, not dictated by administrative fiat.”
“Professor Mitchell also rejects the University’s attempt to bypass the separation of powers clause,” the court filing continued. “Our Constitution requires that each branch’s power remain separate and distinct, leaving the executive branch no ability to reserve judicial authority for itself. Its protections ensure that citizens have an equal opportunity to persuade the court that their view is correct.”
“The Court of Appeals’ majority adopted the University’s approach, limiting academic freedom and eroding the separation of powers in North Carolina. This Court should reverse that decision,” Mitchell’s lawyers wrote.
The University of North Carolina System defended administrative deference in an August court filing.
“Dr. Mitchell’s termination was consistent with the clear and unambiguous procedures outlined by WSSU’s Faculty Handbook and the University’s Code, which allow chancellors to overrule faculty committees with respect to whether tenured faculty members should be dismissed,” university lawyers argued in a brief. “Even if those procedures were ambiguous, however, it would be appropriate to afford some deference to the University’s consistent and longstanding reading of its regulations and read them to give authority to university chancellors over these matters.”
“Dr. Mitchell maintains that the regulations did not allow for him to be dismissed because a faculty committee concluded that WSSU failed to make out a prima facie case for his dismissal. But the regulations at issue make clear that the committee did not get the final word,” university lawyers explained. “The regulations instead provide that that committee simply made recommendations, which WSSU’s chancellor could decline to accept. The chancellor thus properly exercised his authority under the regulations to terminate Dr. Mitchell’s employment.”
“Even if the regulations at issue here were ambiguous, moreover, it would be appropriate for this Court to afford some deference to the University’s reading of those regulations in the circumstances of this case,” the brief continued. “This Court has long recognized that a state agency’s readings of its own rules are owed some deference if the agency’s reasoning is thorough, valid, and has remained consistent over time.”
“Here, the University’s determination that chancellors have decision-making authority on whether faculty are dismissed is supported by thorough and valid reasoning. It is also consistent with the positions that the University has taken — and our State’s appellate courts have accepted — in many previous cases. Accordingly, if this Court concludes that the regulations at issue here are ambiguous, affording limited, nonbinding deference to the University’s reading of those regulations would be appropriate,” university lawyers wrote.
Administrative deference refers to courts’ willingness to defer to a government agency’s interpretation of a law or its own rules and regulations when the agency faces a legal challenge.
The John Locke Foundation filed a brief in May urging the state Supreme Court to use Mitchell’s case to re-examine the deference issue.
“A movement to reform administrative deference doctrine is currently sweeping the country,” wrote Jon Guze, Locke’s senior fellow in legal studies. “Because the present case provides this court with an opportunity to join and possibly lead that movement, Locke has an interest in ensuring the court is fully informed regarding the movement’s historical background and recent development.”
“Locke has always opposed all forms of 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,” Guze added.
The NC Chamber and NC Farm Bureau’s legal groups filed a joint brief, also known as an amicus brief, in the Mitchell case in May.
“Amici’s members are heavily regulated by numerous state agencies, including, for example, the Department of Agriculture & Consumer Services, the Department of Environmental Quality, and the Department of Revenue. While in many instances Amici’s members work well with these and other agencies, there is always a risk that an agency will interpret a statute or a rule in a way that imposes unlawful regulatory burdens on their members,” the brief argued. “In the event that an Amici member challenges an agency action in court, the application of agency deference unfairly tilts the scales of justice in favor of the agency.”
The Alliance Defending Freedom filed a third friend-of-the-court brief. ADF focused on Mitchell’s free-speech rights.
“Dissenting faculty often suffer unlawful censorship and retaliation because of their protected expression,” ADF lawyers wrote. “University officials frequently rely on pretexts and legal arguments like those advanced here to justify this mistreatment. Thus, ADF and the thousands of students and faculty it represents have a particular interest in this case’s outcome. As this Court’s decision could adversely impact professors’ — and even students’ — free speech rights, ADF submits this brief to ensure that universities do not obtain carte blanche authority to punish faculty speech and to chill free speech where it should be most protected.”
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 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.
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 with his colleagues 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 at the state Supreme Court in Mitchell v. The University of NC Board of Governors.