Locke urges NC Supreme Court to take up fired Winston-Salem State professor’s case

The John Locke Foundation hopes North Carolina’s highest court will take up the case of a fired Winston-Salem State University professor. The case could help the court address an important legal issue called “administrative deference doctrine.”

Locke submitted a friend-of-the-court brief Tuesday in Mitchell v. The University of North Carolina Board of Governors.

A split N.C. Court of Appeals panel ruled 2-1 on April 4 against Alvin Mitchell, the fired WSSU justice studies professor. The dissenting judge in the case raised concerns about violations of Mitchell’s First Amendment rights.

Locke’s brief focuses on an aspect of the case known as “administrative deference doctrine.”

“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.

“A movement to reform administrative deference doctrine is currently sweeping the country,” Guze added. “Because the present case provides this Court with an opportunity to join and possibly lead that movement, Locke has as interest in ensuring the Court is fully informed regarding its historical background and recent development.”

Appeals Court splits

The Appeals Court 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.

In the first case, university officials say Mitchell never provided a student with a final grade for a 2015 class. Mitchell’s supervisors tried to resolve the situation, leading at one point to a “verbal altercation” with Mitchell in which a supervisor called police.

In the final incident, university officials say Mitchell failed to open an online course that he was scheduled to teach in fall 2017.

The second incident prompted the split among appellate judges.

During the 2016-17 academic year, two of Mitchell’s students requested funding from one of his supervisors — Denise Nation — to present research at an event in New Orleans titled the Race, Gender, and Class conference. Nation did not approve the funding. She recommended that the students instead consider a different conference sponsored by the American Society of Criminology.

“One of the students believed that Dr. Nation may have encouraged the students to look into the ASC conference because it was primarily Caucasian,” Hampson wrote.

Mitchell learned about Nation’s decision and sent her a letter. The letter defended the conference and criticized Nation’s response to the students.

“After all these years, it is amazing that you still think that anything white is better,” Mitchell wrote. “I looked up the ASC and nothing but a bunch of white men (some white women) are running it. Keep promoting and praising those white folks who are associated with the ASC.”

“As I told you before, you can graduate from and praise their schools, come up with a
great theory, hangout with them, … wear their European style weaves, walk with their bounce, hire them, present at their conferences, and even publish in their journals. In their eyes you will never be equal to them,” Mitchell added.

He then wrote sentences featuring a series of racial epithets before ending the letter with, “You will never get it. Wake up.”

Nation “believed the letter created a hostile workplace,” according to the Appeals Court opinion. University officials later determined that the letter violated the UNC Code.

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.

“[T]he procedure used to terminate Petitioner’s employment was not unlawful, defective, or in violation of his due process rights,” Hampson wrote.

The Appeals Court majority also rejected Mitchell’s argument that his letter could not have contributed to his dismissal since he was writing about a matter of public concern.

“Petitioner contends, without citation, his letter was ‘an impassioned plea’ and a ‘strongly worded condemnation of racism within academia and Nation’s perceived participation in that racist culture.’ There is no evidence in this Record, however, that Dr. Nation’s decision to deny funding to Petitioner’s students for Petitioner’s chosen conference was racially motivated or a product of racial bias in academia,” Hampson wrote.

“There is, further, also no evidence that Petitioner intended his letter to be an effort to combat racism in academia or to advocate on the part of his students for funding to attend his preferred conference on that basis,” the majority opinion added. “To the contrary, the context, form, and content of Petitioner’s speech … reflects Petitioner’s speech was nothing more than an expression of his personal grievance towards Dr. Nation and his displeasure with her administrative decision not to provide funding for Petitioner’s preferred conference.”

Dissent cites First Amendment

Judge Hunter Murphy agreed with his colleagues that Mitchell had received due process. But Murphy dissented on the issue of the letter, “on the basis that Petitioner’s remarks implicated a matter of public concern.”

“[T]he broader subject of academia’s relationship with race has long been acknowledged as a subject of public concern and remains so, now more than ever,” Murphy wrote in dissent. “Universities in this state and across the country market themselves to, and communicate with, the public based on demographic diversity with respect to — among other things — race.”

“Few topics could be more legitimately said to constitute issues of public concern,” he added.

Mitchell’s letter “reads, simultaneously and inseparably, as a defense of the academic legitimacy of a conference, an expression of dissatisfaction on the state of racial diversity in academia, and a statement of frustration with Dr. Nation, both personally and with any potential unconscious biases,” Murphy wrote.

The dissenting judge would have sent the case back to a trial court to address Mitchell’s First Amendment claims.

Mitchell’s appeal to the state Supreme Court references Murphy’s concern about potential violations of the professor’s free-speech rights. The appeal also raises additional questions.

“When the Board of Governors failed to follow its own procedures for terminating Professor Mitchell, did it violate Professor Mitchell’s rights under the fruits of their labor clause or the law of the land clause in article I, sections 1 and 19 of the North Carolina Constitution, or Professor Mitchell’s rights under the due process clause of the Fourteenth Amendment to the United States Constitution?” Mitchell’s petition asked.

“When the Court of Appeals deferred to the Board of Governors’ interpretation of its regulations, did it violate the separation of powers clause of article I, section 6 of the North Carolina Constitution?” the petition continued.

Locke joins debate

Locke’s brief amplified the issue of administrative deference.

“Despite the separation of powers implied by the United States Constitution and explicitly guaranteed by the North Carolina Constitution, most of the laws governing the conduct of North Carolinians — and Americans in general — consist, not of statutes enacted by their elected representatives in Congress or their state legislature, but of executive orders and rules promulgated by federal and state administrative agencies,” Guze wrote. “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.”

“That clearly violates the separation of power between the legislative and executive branches,” Guze added. “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 ndependent 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,” he wrote.

The approach is administrative deference “is beginning to change,” Guze wrote, with action at both the federal and state level.

Florida, Arizona, and Wisconsin “recently eliminated administrative deference altogether,” Guze wrote. Meanwhile, state Supreme Courts in Arkansas, Delaware, Kansas, Michigan, Mississippi, Utah, Wisconsin, and Wyoming “curtailed or eliminated” administrative deference. A case decided last December in Ohio “makes a rigorous and compelling case against administrative deference.”

“The movement to reform administrative deference doctrine is clearly gaining momentum, and it is not too late for North Carolina to become a leader rather than a follower in that movement,’ Guze concluded. Taking Mitchell’s case “will give this Court an opportunity to clarify the level of deference that should be afforded to administrative agencies, ideally in a way that ensures such deference is never mandatory and that the courts have the ultimate say regarding the meaning of both the statutes that delegate rule-making power to those agencies and the rules those agencies promulgate pursuant to those statutes.”

The N.C. Supreme Court should “seize that opportunity” to address the issue, Guze wrote. Justices could offer lower courts a “clear and well-reasoned rule specifying what level of deference — if any — should be afforded to administrative agencies.”

There is no deadline for the state Supreme Court to decide whether to take Mitchell’s case.