Threat to strip UNC law school center’s right to litigate draws objections over academic freedom and First Amendment [Updated]

Update 1:15pm: The motion to strip the Center for Civil Rights at the University of North Carolina law school of its ability to litigate cases has passed.

At a meeting taking place now, the University of North Carolina Board of Governors is expected to strip the Center for Civil Rights, a prominent University of North Carolina law school center, of its ability to litigate cases. The move has drawn opposition from the center’s supporters, including law school administrators and faculty, who have raised concerns about the academic freedom and First Amendment rights associated with the program.

The Board, which oversees the state’s college system, will meet today for the first of two votes concerning the future of the Center for Civil Rights at the UNC Chapel Hill School of Law.

Board member Steven B. Long has argued since the spring that current board policy precludes UNC academic centers from independently initiating lawsuits without board approval.

“Filing legal actions against the State or city and county governments is far outside the primarily academic focus of UNC centers,” Long wrote in a memo. “So too is the representation of private parties by full-time university center employees,” he added.

While the proposed policy does not apply to legal clinics at the law school, the Center for Civil Rights is not a clinic. Critics of the plan say that divesting the center of its ability to litigate will effectively close it down.

“There’s no way to perform the [center’s] essential mission without engaging in litigation,” the center’s managing attorney Mark Dorosin told Raleigh’s News & Observer in May, adding that the plan would also severely limit the center’s ability to exercise all options in working with clients.

The privately-funded institution, which, according to its website “is committed to the advancement of civil rights and social justice,” was founded by civil rights attorney Julius Chambers in 2001. The staff is comprised of attorneys and law students who work with lower income and minority clients on cases involving desegregation, fair housing, and environmental justice.

Critics of the center say that the staffed attorneys have not been adequately supervised, and Long noted that “[p]ermitting academic centers to engage in litigation opens the door to center personnel using the litigation to further their personal agendas.” Others have voiced concerns over how the center’s litigation has focused on county governments and local school boards, costing taxpayers money as these entities pay for defense counsel and other legal fees.

UNC School of Law administrators have denounced the plan, saying that restricting the Center’s ability to litigate would impair students’ abilities to fully engage in experiential learning. Faculty members from law schools around the country have voiced similar concerns. Yesterday, UNC Chancellor Carol Folt did as well. A former law dean noted that the Board’s plans could put the school’s American Bar Association accreditation at risk, as the ABA currently requires that law students take on six credit hours of experiential education. Working with the Center’s “field placement” program has counted toward those credit hours. And a report from the Center notes that centers at the University of Texas School of Law and the University of Wisconsin Law School “have been counsel in litigation against state or local governmental entities.”

This is not the first time the Board of Governors has focused on the work of such academic institutions in the UNC system. In 2015, the Board closed the Center on Poverty, Work and Opportunity at UNC-Chapel Hill, along with two others — East Carolina University’s Center for Biodiversity and North Carolina Central University’s Institute for Civic Engagement and Social Change. The move drew ire from multiple groups that asserted the conservative-leaning Board was targeting the more liberal-leaning institutions for their work. FIRE followed the controversy and highlighted how critics of the Board’s actions alleged that the closures violated the right to academic freedom. Though it was not the main focus of discussions in 2015, multiple Board members raised concerns at the time about the Center for Civil Rights, its ideological balance, and its litigation efforts.

Critics have invoked legal arguments in denouncing the Board’s actions. But the case law surrounding such law school institutions is surprisingly limited.

Of course, academic freedom is a legally recognized concept. The Supreme Court of the United States has held that academic freedom is a “special concern of the First Amendment,” finding in the landmark case Keyishian v. Board of Regents (1967) that “[o]ur nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.” Moreover, “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy v. New Hampshire (1957).

Similarly, numerous cases have established the First Amendment rights of lawyers. Law students, however, are not lawyers, and the U.S. Court of Appeals for the Fifth Circuit said as much in one of the few cases dealing with the rights of law students to engage in litigation through law school institutions.

In Southern Christian Leadership Conference v. Louisiana Supreme Court, a law school clinic at Tulane University challenged litigation restrictions imposed by the Louisiana Supreme Court (LSC) on law school clinics in the state. The clinic asserted that the LSC implemented the regulations in response to political pressure after the clinic fought on behalf of low-income residents who opposed plans for a chemical plant in their parish. The plaintiffs asserted that the move violated their protected First Amendment rights and alleged that the LSC’s new rule constituted viewpoint discrimination and retaliation. The Fifth Circuit rejected these arguments, finding the LSC’s need to regulate unlicensed law students in the legal profession compelling. The court also rebuffed the viewpoint discrimination claims.

One could distinguish the facts in the Southern Christian Leadership Conference case from those of the situation at UNC. First, UNC’s Board of Governors is not the state supreme court, and is not tasked with regulating the legal profession in the state. But the Center for Civil Rights is, technically, a research institution privy to the Board’s policies. However, if one were to challenge the Board’s actions on First Amendment grounds, a court would have to consider whether the reasoning for the regulation is compelling. The intention to ensure “academic integrity” is laudable, however, it differs from the LSC’s goals to regulate the legal profession. This is especially pertinent when one considers that the Board’s closure of the other legal centers in 2015 garnered negative attention from the ABA and other legal groups. Finally, as the Center plays a unique role at UNC and in the area, the ban could actually be too broad to adequately address the Board’s concerns with the Center’s work.

Supporters of the Center have also raised concerns with the reasoning behind the Board’s actions that may implicate First Amendment rights and questions of viewpoint and content discrimination. Many have argued that the move is purely political, similar to the politics surrounding the LSC’s regulation of law school clinics in the Southern Christian Leadership Conference case. Indeed, there have been some red flags throughout the process. For example, the Board has targeted the work of these institutions both now and in 2015. Is the blanket ban on litigation being used to address concerns around the work of one legal center, when that center is the only one in the system taking up litigation?  If so, does that reach the level of discriminatory conduct, and does that matter? Even the Fifth Circuit held that the law school clinic’s allegations that the LSC caved to public pressure were not enough to prove that the LSC’s motive was unconstitutional.

Regardless of the outcome of the vote this week, the moves have caused quite a stir. Among the groups criticizing the Board of Governors’ proposed plans is the North Carolina state chapter of the NAACP. “We understand that this attack is not because UNC is not doing its work. It is because you are doing your work,” Rev. William Barber, state president of the NAACP, said at a rally in May. He was referring to the idea that the Board of Governors is trying to limit suits against the state, and noted, “Nobody has to fear a center for civil rights except somebody that’s trying to violate civil rights.” FIRE will continue to watch the vote today and the debate surrounding it with interest.