UNC urges NC Supreme Court to reject fired Winston-Salem State professor’s latest appeal

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  • The University of North Carolina System is asking the N.C. Supreme Court to reject the latest appeal from a fired Winston-Salem State University professor.
  • The John Locke Foundation has urged the state's highest court to take up the case. Locke's brief asks justices to use the case as a means to address the issue of "administrative deference."
  • A split 2-1 N.C. Court of Appeals panel ruled against fired professor Alvin Mitchell in April.

The University of North Carolina System is asking the state’s highest court to dismiss the latest appeal from a fired Winston-Salem State University professor. The John Locke Foundation urged the N.C. Supreme Court earlier this month to hear the professor’s arguments.

A split N.C. Court of Appeals panel ruled 2-1 in April 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.

The latest court filing from UNC’s lawyers counters Mitchell’s arguments.

“Alvin Mitchell has spent the last five years contesting his dismissal from employment as a professor at Winston-Salem State University,” wrote lawyers from the N.C. Department of Justice. “This case involves a routine employee grievance, with Mitchell asserting that the process he received was erroneous and that his dismissal was impermissibly based on his protected speech.”

“Based on the dissent in the Court of Appeals below, Mitchell’s case is before this Court on the fact-specific issue of whether the University could base its termination decision in part on a letter Mitchell sent to his supervisor.”

That “inflammatory” letter accused the supervisor of being “a wanna be white” and included other insults involving racial epithets, according to the court filing. “Around the same time Mitchell sent this letter, he also engaged in several other incidents of neglect and misconduct — including refusing to teach a course mere weeks before the semester began and failing to respond to concerns about a student’s grade.”

“Attempts to resolve these concerns resulted in a heated verbal altercation with his supervisors that ended with the police being called to Mitchell’s classroom,” state Justice Department lawyers wrote. “The Board of Governors looks forward to showing why this disturbing course of conduct appropriately justified Mitchell’s dismissal.”

The professor is asking the N.C. Supreme Court to review his appeal “based on substantial constitutional questions.” “In his petition, Mitchell audaciously attempts to convert this case from a standard-issue employee grievance into a vehicle for resolving foundational issues of agency deference,” according to the university’s brief. “This Court should reject that effort.”

“[A]gency deference is irrelevant to the outcome of this case,” state Justice Department lawyers argued. “As the Court of Appeals rightly held, the plain text of the relevant policies expressly authorized the University’s actions. Deference was neither required nor applied by the Court of Appeals to reach the decision here.”

University lawyers contend that Mitchell cannot proceed with a case based on the state constitution’s “fruits of their own labor” clause. The brief also rejects Mitchell’s due process claims.

“As the Court of Appeals unanimously held, Mitchell’s procedural rights were fully protected,” UNC’s lawyers wrote. “Mitchell received an evidentiary hearing before a committee of faculty members in full compliance with the procedural regulations developed by the University, as well as two appeals to the University’s Board of Trustees and the system’s Board of Governors. And in any event, whether a state agency fully complied with its own regulations in a single employee-grievance action does not raise constitutional questions that are sufficiently substantial to warrant this Court’s review.”

Locke’s May 9 friend-of-the-court brief focused on the administrative deference issue.

“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.”

“[W]hen 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,” Guze wrote. “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.”

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.

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 the controversial letter to his supervisor could not have contributed to his dismissal since he was writing about a matter of public concern.

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.