UNC Board Bars Litigation by Law School Center

Move was opposed by civil rights groups and faculty leaders, who see a violation of academic freedom.

September 11, 2017
 
Protest outside the board meeting

CHAPEL HILL, N.C. -- The University of North Carolina system Board of Governors voted 24 to 3, with one abstention, Friday to bar litigation by the UNC Chapel Hill School of Law’s Center for Civil Rights. The proposal voted on is technically a ban on all centers and institutes engaging in litigation, but the only entity that litigates is the Center for Civil Rights.

System President Margaret Spellings, whom the board clashed with in its session the day before, did not speak during the brief debate and has not spoken publicly on her position regarding the center.

Reached by phone last week, Ted Shaw, director of the center, said he wasn’t hopeful going into the vote.

“In my most hopeful dreams, I think maybe they might have been persuaded by all the arguments made in favor of the center,” said Shaw, who was also in attendance for the vote Friday. “They might think of things like Charlottesville, and that [this] is not the time -- if there ever is one -- to cut back on mechanisms to enforce civil rights and fight against discrimination.”

There have been various reasons proposed for curtailing the center's legal abilities -- which will likely shutter the center as a whole. The effort was largely led by board member Steve Long, a lawyer who previously served on the board of the Civitas Institute, a conservative think tank. Long has said that a state university shouldn’t be “hiring full-time lawyers” to sue anybody, much less the state government (the center and its two lawyers are privately funded). He has also said that the center defines civil rights in a way that’s too political, and that its litigation efforts go beyond its academic mission.

For Shaw, the arguments don’t add up, and the board's connections to the conservative state Legislature -- which elects board members -- is all too apparent.

“Law schools across the country engage in and provide experiential learning opportunities for their students,” he said. “Clinical programs [which do not apply to the board’s litigation ban] sue governmental entities every day; state entities sue state entities every day. This notion that the center is doing something that is inappropriate is not a well-founded fact or theory.”

“This is an ideological attack on those who train and provide representation in civil rights matters, full stop.”

Shifting Arguments for Voting Yes

Indeed, Spellings and board chairman Lou Bissette seemed to have a hard time defending the vote in a press conference held afterward, and both admitted that they had no idea whether the center’s litigation served an educational purpose for the students it trained. The admission is significant, since one of the board’s major talking points in the lead-up to the vote was that the center’s litigation represented a straying from its academic mission.

The center was going astray, Bissette said, because it was instigating lawsuits with UNC’s name attached to them. He also said that the university didn’t want to be involved in civil rights litigation, since “litigation is litigation -- people don’t agree [on the issue].”

“I don’t really believe that a UNC entity ought to be filing litigation against other parts of our government,” Bissette said, while saying the center’s work should be done in a legal clinic setting.

When it was pointed out that legal clinics would do the same thing -- litigate with the university’s name attached to them -- Bissette said that litigation was palatable since law clinics run under American Bar Association guidelines. (On the other hand, 600 law school deans, faculty members and administrators signed a letter saying the center was well regarded in legal academe.)

“I don’t know what the differences are,” said Bissette, despite citing those differences as a reason to vote yes on the litigation ban. “But there are differences between how [the center has] been operating and how a law clinic” operates.

Spellings also said that the center -- which was explicitly founded, in part, “to ensure that future generations of attorneys are equipped to continue the ongoing campaign to secure fair and equal opportunities for minority and low-income people,” according to its website -- did not have educational value, unlike a clinic.

“The distinction here is that the primary objective of a law clinic is education,” she said. “That was distinct from what was going on [at the Center for Civil Rights] that the board policy now speaks to.”

When pressed on their assertion that the center didn’t serve an educational purpose, Spellings admitted that she didn’t know whether or not it did.

“It wasn’t in keeping with the guidance of the American Bar Association,” she said. When asked if that substantiated her claim that the center wasn’t serving any educational purpose, she said, “You’ll have to ask them.”

“Were [students at the center] doing the same things that students at law clinics do? I don’t know,” Bissette said. When asked why he didn’t investigate the educational value of the center, Bissette only said he investigated “a lot, and we had a number of hearings and reports. It’s done.”

Board member David Powers said that he voted yes for financial reasons, saying he was uncomfortable with taxpayers having to foot the bill for local or state entities that the Center for Civil Rights sues. That same line of reasoning was used in a letter the board cited in its arguments for the litigation ban, sent by the all-Republican Catawba County Board of Commissioners.

The resolution vote into place, however, prevents the center from engaging in any litigation, even against private parties. Other board members said they supported civil rights, and their yes vote represented a desire to contain litigation to a clinical setting.

That board members claimed to support civil rights just minutes before voting to cripple the Center for Civil Rights was unnerving for some. A man was escorted out of the meeting after he stood up to tell the board their professed support for civil rights was hypocritical, since “there would be no civil rights center” after the vote.

“Don’t you understand?” he asked.

Political Influence

Protesters outside, about 70 in total, gathered to speak out against the vote, and many complained that they weren’t allowed into the meeting. Chants were audible in the boardroom, where much of the seating had been allocated on an RSVP basis. A system spokesman said that a live stream was available for those who couldn’t make it to the first-come, first-serve public seating.

Many conservatives and some business groups have opposed the center because of suits that challenge policies they applaud. But there has been widespread opposition to the move, not only from Shaw, but also the North Carolina NAACP, undergraduate and graduate student body presidents, the dean of the law school, and the UNC Chapel Hill chancellor, as well as American Association of University Professors members, who -- in addition to civil rights concerns -- have voiced concerns about academic freedom and administrative overreach.

“The proposal to ban the UNC Center for Civil Rights from engaging in litigation work will not only impact the center’s ability to uphold its core mission, but also contravene the charge of the University of North Carolina at Chapel Hill to serve the broader community through ‘public service,’” student body leaders wrote in a statement.

Friday’s vote came as the board’s political ties are becoming more apparent. Last month, 15 members sent System President Spellings a letter rebuking her for seeking guidance from Democratic Governor Roy Cooper concerning a Confederate statue on campus, without seeking their input as well. Before that, the board ousted Spellings's predecessor, Tom Ross, in in what many regarded as a politically motivated move.

The board previously voted to shutter the UNC Chapel Hill School of Law’s Center on Work, Poverty and Opportunity, which conducted research that focused on economic justice issues and angered many conservative politicians.

A Bleak Future

Bissette and Spellings said that the vote, which shuttered the center’s litigation abilities, somehow wouldn’t lead to a reduction in civil rights work in the state, since it is technically possible the center could fold into a clinic.

“A year from now, we’re very likely to see the same kind of work occur under the banner of a law clinic,” Spellings said. “Under the rubric of a law clinic, we could certainly have the same kind of activities going on.”

Leaders of the center, however, aren’t nearly as optimistic about its future.

Shaw said that although the center can still operate, its future isn’t necessarily bright. Rolling the center into a legal clinic, for example, so it would be exempt from the litigation ban, would mean fundamentally reorganizing -- and possibly losing -- its curriculum and operations.

Even if the center were reorganized in a way that would allow it to litigate, Shaw said he would just expect another roadblock to be thrown his way. The law school already received a $500,000 funding cut from the state Legislature earlier this year, after initial proposals of a $4 million cut.

"This isn’t about form, this is about substance. If we were able to transform into a clinic -- I don’t think the Legislature would be any happier with the law school if that happens. I believe they would come after us anyway."

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