Silencing Advocacy That Irritates State Leaders

UNC board members want law school’s civil rights center to be barred from lawsuits and suing the state -- which the center has done with success in the past.

February 28, 2017
 
University of North Carolina

The Center for Civil Rights at the University of North Carolina School of Law in Chapel Hill does not disguise its advocacy for minority and low-income people in the state.

Since the late Julius L. Chambers -- the civil rights lawyer noted for winning cases before the Supreme Court and for pursuing lawsuits on school desegregation and job discrimination, even though he was the target of bombings -- founded the center in 2001, it has taken part in federal and state lawsuits on school segregation and finance, housing discrimination, compensation for victims of forced sterilization, and community displacement. It has filed supporting briefs in landmark affirmative action cases before the U.S. Supreme Court. The center has filed administrative complaints with the U.S. Department of Education's Office for Civil Rights over school segregation, helped the NAACP oppose local election changes and staffed an Election Day protection call center.

Now the center’s supporters say it is the target of a proposed UNC system policy change that would prevent academic centers and their employees from filing legal claims, acting as legal counsel or representing others in complaints, motions, lawsuits and other legal actions. Such a policy change would have a devastating impact on academic freedom, as well as on the privately funded center’s work and its ability to prepare students for careers as lawyers, those supporters argue. It could also have significant ramifications for other university centers and functions across the 16-university system, they believe.

Those behind the change retort that it is intended to rein in academic centers that have dragged the university system into advocacy. They want to return North Carolina’s public institutions to a focus on academics, they say.

The proposal has inflamed an already tense atmosphere around public higher education in North Carolina, where many faculty members and students worry that legislators and members of the Board of Governors have taken to meddling in university operations. On Feb. 18 the UNC system’s Faculty Assembly sent a note to the system’s accreditor, the Southern Association of Colleges and Schools Commission on Colleges, complaining of board and legislative actions it said apparently violated accreditation standards.

Actions cited included legislators imposing a plan to drop tuition to $500 per semester at three system campuses and stripping North Carolina’s governor of the ability to appoint some state university campus trustees. They also included the Board of Governors deciding to close three campus research centers, including the UNC Center on Poverty, Work and Opportunity, in 2015 amid complaints the centers were being used to attack Republican politicians. The existence of that center, like the civil rights center, has been defended locally by those championing free speech and expression and advocacy on behalf of the disenfranchised.

The Center for Civil Rights came under scrutiny at the time of the research center closures in 2015. It survived, but several members of the Board of Governors were sharply critical of it at the time. Those members included Steve Long, who said the center has an ideological basis and it should not be allowed to take part in lawsuits against the state or other governments.

Do Lawsuits Violate UNC's Mission?

Long submitted the new proposal to prevent university centers from participating in litigation for discussion at a Feb. 23 committee meeting. The new policy would need a committee vote and a vote from the full Board of Governors to pass. That could not happen before May.

When reached by telephone Monday, Long declined to comment. But a memorandum he submitted to the Board of Governors committee that will review his proposed policy spells out several reasons he is seeking the change. First among them is that initiating lawsuits against governments violates UNC’s mission of teaching, research and service to the state.

“If the state or a local government fails to comply with a legal requirement, it is not UNC’s place to initiate a lawsuit against that government but to advise the government of the legal requirements so they can be met,” Long’s memo reads.

UNC regulations currently limit academic centers’ ability to engage in lobbying. A Board of Governors policy also prevents UNC’s constituent institutions from filing lawsuits in their own names or in the name of the university, Long’s memo said. But centers are not prevented from taking part in litigation in other ways, like providing legal representation for other parties.

Long’s memo continues to say that no oversight body exists to prevent UNC centers from pursuing litigation because of personal interests, that academic center employees work for the government and have no incentive to resolve claims, and that there is risk center employees will become too focused on litigation. It goes on to argue that the centers are not law school clinics providing students with hands-on legal training and that real-world litigation experience is available to law students elsewhere through internships with private law firms, nonprofit organizations, government agencies and law school legal clinics.

Board of Governors member Joe Knott, a Republican, will bring the proposal before the committee. It will return the university system to a focus on education and academics, he said.

“I think the university has a fairly narrow mission, and it is a mission of education,” he said. “We are an academic institution.”

Defenders of the Center for Civil Rights say that stance is at odds with state Republicans’ recent emphasis on jobs and postgraduate employment. Former Governor Pat McCrory was critical of the liberal arts and supportive of measures to base public funding for higher education on postgraduate employment.

Instead, they say, leaders are hostile to the practice of civil rights law.

Law schools across the country have programs, many of which file lawsuits, typically on behalf of those without money to afford lawyers. They involve work in order to prepare students to be ready to practice, said Ted Shaw, a UNC law professor and director of the Center for Civil Rights. Other programs, including medical schools and graduate programs, have students working in order to prepare to practice their professions, he said.

“I’m pretty clear about what I think is underlying all of this,” Shaw said. “I think that there is a particular viewpoint about the practice of civil rights law and civil rights issues. Sadly, North Carolina has, as a state, been having a lot of controversy about those kinds of issues. I’m not interested in demonizing the Legislature or the Board of Governors or anybody, I just hope they reconsider this and realize the importance of this kind of training.”

The center should be allowed to train another generation of civil rights lawyers, Shaw said. He also believes its work benefits North Carolinians of all races and different income levels. He gave as examples times when the center has fought for improved educational quality.

Shaw also rejected the idea that the center is too focused on litigation.

“We don’t make up the matters that people ask us to represent them in or get engaged in,” Shaw said. “They come to us because they experience inequality.”

Gene Nichol is a professor of law at UNC School of Law and the school’s former dean. He also had a hand in starting the civil rights center, and he was the director of the poverty center that the Board of Governors decided to kill in 2015. Back then, he was outspoken in his arguments against closing the poverty center, writing that the process leading up to its closure was a charade triggering censorship and demeaning academic freedom.

Nichol is just as plainspoken in analyzing the proposed policy that would affect the Center for Civil Rights. The move is ideological, he said. He went on to note that the Board of Governors has not proposed any policy that would affect the UNC School of Law’s Center for Banking and Finance, which examines banking policies and regulations.

It makes no sense to prevent a law school from practicing advocacy, Nichol said.

“We are schools that teach advocacy -- that’s a central part of our mission,” he said. “‘Advocacy’ is a slippery term. You can’t define something as being political by whatever a hyperpoliticized member of the Board of Governors says is political. The carelessness of it is remarkable. It’s typical of what’s happening in North Carolina. They’re willing to do destruction of all institutions across the board.”

Mark Dorosin, an adjunct professor of law and managing attorney at the Center for Civil Rights, argued against the idea that the center should be prevented from going to court with state or local governments. The idea that it should be banned from doing so because it is part of the same state does not hold up, he said.

“Different arms of the state sue each other all the time,” Dorosin said. “The cities sue the state. School boards sue counties. The governor sues the Legislature, and vice versa. The idea that the state is this monolith and that there can never be any legal disputes between parts of it just doesn’t make sense.”

Debate Over Full Impact

It’s not entirely clear how deep an impact the policy change would have on the Center for Civil Rights, which has four full-time employees and employs varying numbers of recent law school graduates as fellows. The center, which has an annual budget of approximately $500,000, isn’t run on state funding but relies on grants, foundations and gifts.

Even if the policy passes, it’s possible the center could continue to operate in some capacity. But it would not be the same, said Dorosin.

“I think it would put us out of business regarding the way the center has always operated since it was founded,” Dorosin said. “I don’t know what would be left of a center that couldn’t do direct advocacy and represent communities and families and individuals.”

Meanwhile, Nichol, the former UNC law dean, worries that the proposed policy could affect other UNC law programs, including one that operates like a legal aid office. It’s not yet clear which operations, at the institute or elsewhere, would be endangered, he said. The UNC system has about 240 academic centers and institutes.

“It uses very broad language about representing clients,” Nichol said. “And to be truthful, when they start toying with your curriculum over there, you don’t have any way to know where it’s going to end up.”

The University of North Carolina Chapel Hill wants to learn more about the proposal, according to spokeswoman Joanne Peters.

“Carolina believes in and supports the mission, the work and the legacy of the Center for Civil Rights at the School of Law,” she said in a statement. “We will learn more about this proposal in the coming days.”

Chapel Hill’s Faculty Council is monitoring the situation as well. The executive committee met with the university’s provost to discuss the proposed change on Monday, said council Chairman Bruce Cairns, a professor of surgery and the director of the North Carolina Jaycee Burn Center.

“I think we need to find out more information,” he said before pointing to a law school at North Carolina Central University. “Remember, there are other schools in the system. NC Central University, for example, would be impacted by this as well. This is as much a UNC system issue as it is a UNC Chapel Hill issue.”

Students and Faculty Members Speak Out

The proposal has already generated opposition from faculty members and students. Quisha Mallette, a third-year UNC School of Law student, is working with a group of students to write letters to the Board of Governors and attend upcoming meetings to support the Center for Civil Rights.

Mallette remembers attending a day for admitted students when she was choosing a law school to attend. She heard from one of the lawyers at the Center for Civil Rights and says it was an important factor in her decision to attend UNC.

After she enrolled in class, one of her first pro bono projects was with the center. Then she interned there during her first summer in law school. The center has been an important source of professional experience, she said.

“I’ve had an opportunity to attend meetings they’ve done on campus,” she said. “I’ve gone with them to the North Carolina Court of Appeals. Connecting with them has really shaped my understanding of what it means to practice law and really given me a full appreciation for what my position could be as a future lawyer.”

Mallette has a tough time picturing what working for the center would mean if it could not take part in litigation.

“It seems like it would be limited to adding some information to a report that might live somewhere,” she said.

Faculty members are also mobilizing against the policy change, said Stephen Leonard, a professor of political science at Chapel Hill and the past chairman of the UNC system’s Faculty Assembly. Many are upset because the change appears to have been motivated by political leanings, he said. The North Carolina General Assembly elects members to the Board of Governors, and there are concerns that the Republican-dominted legislative body is trying to pack the UNC system's board amid recent moves to shrink its size.

Given recent history, academic and governance concerns are at stake.

Knott, the board member who plans to introduce the change on academic centers, has in the past opposed legislative overreach in academic institutions, Leonard said. But board members are not always predictable.

“I think he thinks he’s protecting the academic integrity of the law school,” Leonard said. “Quite the contrary. What he’s doing is trying to regulate and control it.”

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