Litigation Ban Advances, and Controversy Escalates

A committee of the University of North Carolina system Board of Governors voted Tuesday to bar a prominent university civil rights center from engaging in litigation, a decision that alarmed both civil rights and academic freedom advocates.

The Committee on Educational Planning, Policies and Programs voted 5 to 1, with one member abstaining, on a proposal that would prohibit all centers and institutes -- though not legal clinics -- under the UNC system from joining in or initiating lawsuits. Chiefly, however, this affects the UNC Chapel Hill School of Law’s Center for Civil Rights, which is reportedly the only center or institution in the UNC system that joins in litigation. The full board is set to vote on the proposal in September.

“Part of what law schools across the country do, and part of what’s being demanded by employers, is experiential education … litigation is an essential part of what some lawyers do,” said Ted Shaw, director of the Center for Civil Rights. “So it begs the question of what the reasoning and ideology is that underlies [the board’s] position.”

“I don’t think that it’s politically motivated,” he said. “I know it is. This is an ideological hit on the Center for Civil Rights. I think everybody knows it.”

The proposal to curb the legal power of the Center for Civil Rights generated controversy in the weeks leading up to Tuesday’s vote. Board members in favor have said that centers and institutes engaging in litigation are straying from their academic mission. They have also argued that it was improper for parts of the state -- in this case, UNC -- to sue other parts of the state. Recently, for example, the Center for Civil Rights got involved in a suit against the Department of Environmental Quality, where plaintiffs are alleging environmental racism.

“The university should not be, in my opinion, hiring full-time lawyers to sue anybody,” board member Steven Long said in the weeks leading up to the vote. The Center for Civil Rights is privately funded and employs two lawyers as part of its five-person staff.

“The center does not employ lawyers who are state funded,” Shaw said. “For some people, facts don’t get in the way.”

Long told Inside Higher Ed that since the lawyers were acting under the UNC banner, they weren't acting independently, regardless of funding.

"If it were a conservative, or moderate, or liberal agenda, I don't care," he said. "The university shouldn't be hiring full-time lawyers to sue third parties, particularly the cities and counties and the state itself."

For Long, the Center for Civil Rights defines civil rights too politically, and its litigation efforts go beyond the scope of its educational mission. He denied accusations that the board's motivation was political, saying it was acting within its bounds. He said that across the country, other centers and institutes similar to the Center for Civil Rights don't engage in litigation, and he said that is evidence that the center is off track.

Shaw brought up a letter written by UNC Chapel Hill Chancellor Carol L. Folt speaking out against board's move, signed by 600 law school deans, faculty members and administrators, as proof that the center was well regarded in legal academe.

A spokesman for the UNC system did not return a request for comment regarding the position of UNC system President Margaret Spellings on the litigation ban.

A representative for Martin Brinkley, the dean of the Chapel Hill law school, said he was unavailable for comment, although in an email he sent law school faculty after the vote he praised their efforts in speaking out against the litigation ban, saying, “This proposal is not in the interests of the university or the state of North Carolina.”

Critics of the proposal pushed back in the weeks leading to the vote, alleging board overreach, political motivations, threats to academic freedom and specific targeting of the Center for Civil Rights. While the move by the board technically would affect every center and institution under the UNC system, the Center for Civil Rights is the only one that participates in lawsuits, and the proposed crackdown on its legal powers might spell the end of the center as a whole. Its activist causes -- involving race, voting rights, housing, education and the environment -- are surely a thorn in the side of the state’s GOP-dominated Legislature, which appoints the board. The board itself has been described as “overwhelmingly Republican” (five of the 28 board members are former legislators), and its political ties are well documented.

Many industry groups -- including the North Carolina Pork Council -- have written to board members to criticize the civil rights center. The pork group, for example, said it objected to criticisms in the center's court filings that argue that some pork farmers are damaging the environment in ways that have a major impact on low-income and minority communities.

Republicans have controlled the board elections since 2011, and the board previously shuttered the UNC Chapel Hill School of Law’s Center on Work, Poverty and Opportunity despite similar outcry about academic freedom and the effects of the closure on the community. Photos from the North Carolina Republican Party featured College Republicans protesting outside the meeting, holding signs that read “Education Not Litigation.”

“It’s a really deliberate refusal to engage with the real facts, with the reality of what the center does,” said Judith Welch Wegner, one of the former deans of the law school. “[Students at the center] are learning how to find facts, how to draft documents; they’re learning what good order arguments are; they’re learning how to work [with] community groups who are poor and other racial and ethnic groups … It shows how unwilling [the board is] to understand how education has changed significantly from whatever they assume it should be.”

“You have to be wondering what’s the real rationale, and I come back to politics, or personal vendettas, or things of that sort,” Wegner said.

Long said that although students might benefit from the center, that's not its primary purpose, which is part of the reason he wants to shutter its legal operations.

"It does not have student education as its primary focus," he said, saying it was focused on causes and advocacy.

Wegner said the board’s proposal is a broadside on academic freedom, since it would affect not only the law school’s curriculum, but also the academic interests of faculty and students across campus who collaborate with the center. As concerns the potential conflicts of interests regarding parts of the state suing each other, Michael A. Olivas, a professor at the University of Houston Law Center, has previously told Inside Higher Ed that, in general, while there are sometimes legitimate concerns, there are also established methods to settle and avoid those without necessarily shuttering a center or its litigation abilities.

Sherryl Kleinman, a professor of sociology at UNC Chapel Hill and member of the American Association of University Professors, also spoke out about the academic freedom concerns raised by the board's proposal.

"Service learning is an essential part of the undergraduate curriculum at UNC Chapel Hill, and of course medical students and graduate students in journalism (among others) are supposed to learn how to do the work they will continue after they graduate. This vote is a threat to academic freedom throughout the UNC system."

Long countered that academic freedom didn't extend to hiring lawyers.

Proposals to shift the Center for Civil Rights to a legal clinic -- so it wouldn’t be affected by the board’s proposal -- have faced doubt from university leaders, since it would be costly and potentially bring future political blowback: the Legislature already cut $500,000 from the law school’s appropriations recently, after initially proposing a $4 million cut.

“The proposed new policy will fundamentally change how the center operates, and a foreseeable result will be its closure, at least in its current structure,” Folt, the UNC chancellor, wrote in a letter to the board last week opposing the move.

The full board votes Sept. 8.