UNC defends deference in state Supreme Court case of fired WSSU professor

The University of North Carolina System defends the legal concept of administrative deference in its latest state Supreme Court filing in the case of a fired Winston-Salem State University professor.

Lower courts have ruled against Professor Alvin Mitchell. He challenges his dismissal from the WSSU faculty. He urges North Carolina’s highest court to reverse decisions from a trial judge and the state Court of Appeals.

The John Locke Foundation, NC Chamber, and NC Farm Bureau have filed briefs supporting Mitchell on one legal issue. The groups have urged the state Supreme Court to use Mitchell’s case to re-examine the issue of courts’ deference to government agencies’ interpretations of their rules.

“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 filed Wednesday. “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.

“A movement to reform administrative deference doctrine is currently sweeping the country,” wrote Jon Guze, Locke’s senior fellow in legal studies, in a friend-of-the-court brief in the Mitchell case filed in May. “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.

Guze’s brief focused on the rise of deference during the 20th century, when progressive scholars, jurists and politicians pushed for a “unified regulatory state in which all governmental power was assigned to wise and beneficent technocrats in the executive branch.”

“The result of this ‘administrative deference’ was that all three functions of government became concentrated in the executive branch,” Guze wrote. “That clearly violates the separation of powers guaranteed by the relevant constitutional provisions. Ironically, it also violates the ancient principle … It is unfair for someone to be a judge in his own affairs.”

“That principle applies to private actors of course, but … it applies to governmental actors as well,” Guze added. “For centuries that right had been considered fundamental under Anglo-American law. However, a tribunal that defers to one of the parties to a dispute can hardly be said to be impartial.”

High courts in at least nine states have issued opinions “restricting or eliminating administrative deference,” Guze explained. The Ohio Supreme Court was the most recent court to take that step in 2022.

“The movement to restrict or eliminate all forms of administrative deference 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 wrote.

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 in the case Wednesday. 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.”

Mitchell cited both free-speech and deference concerns in his own state Supreme Court brief this spring.

“This case presents two issues of fundamental importance to our constitutional system: freedom of speech and the separation of powers,” the fired professor’s lawyers wrote. “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.

“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 the 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.

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.

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.