Fired professor urges NC Supreme Court to address ‘deference’ dispute | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The latest legal filing from a fired Winston-Salem State University professor urges the N.C. Supreme Court to take his case and tackle the issue of "administrative deference." It's the same issue the John Locke Foundation emphasized in a brief supporting professor Alvin Mitchell's case.

    A split N.C. Court of Appeals panel ruled 2-1 in April against Mitchell, who is challenging his dismissal. The University of North Carolina filed paperwork this month asking the state Supreme Court to reject the case.

    "Sometimes the loudest sound is silence," Mitchell's lawyers wrote Wednesday.

    "In its motion to dismiss the constitutional appeal (and in its response to the petition, for that matter), the University doesn't dispute that the deference issue in this appeal is substantial," the brief continued. "The University doesn't dispute that our state's case law is in disarray. It doesn't dispute that the Court of Appeals applied a federal standard that federal courts have since repudiated. It doesn't dispute that deference violates the North Carolina Constitution or that deference encourages agencies to misbehave."

    "Professor Mitchell was a tenured professor, having a contract that limited the University's right to terminate him," the professor's lawyers wrote. "When the University terminated Professor Mitchell without following the limitations on its termination authority, it violated multiple provisions of the federal and state constitutions. It violated the fruits-of-their-labor clause, which this Court recently clarified."


    "The University's same misconduct also violated the law of the land clause in the state constitution and the due process clause in the federal constitution," the brief continued. "Professor Mitchell had a protectable property interest in his employment because he was tenured."

    The Appeals Court made a mistake in offering deference to the university in its handling of Mitchell's case, his lawyers argued.

    "These underlying constitutional violations matter on appeal because the deference issue is a roadblock to vindicating these rights," they wrote. "Deference is not decided in a vacuum; deference fights happen in the context of a disputed claim."

    "Because the Court of Appeals deferred to the University's interpretation of its own rules, it held that the University followed its own procedures," the brief continued. "Based on that deference-induced misinterpretation, the court held that no constitutional violations occurred. That analysis was erroneous from beginning to end."

    "This Court should accept review of the underlying constitutional questions because they straightforwardly follow from the deference issue (which is a substantial constitutional question in its own right)," Mitchell's lawyers wrote.

    The John Locke Foundation's friend-of-the-court brief in the case also focused on administrative deference.

    "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.

    "Relying on vaguely worded enabling statutes, executive branch officers and agencies have promulgated countless legally binding rules of conduct that they, themselves, have then gone on to enforce," Guze added

    "That clearly violates the separation of power between the legislative and executive branches," he wrote. "Making matters worse, when 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. 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," Guze argued.


    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. Judge Hunter Murphy agreed that Mitchell had received due process. He dissented from the majority opinion on the issue of a potential First Amendment violation linked to a letter Mitchell sent to a supervisor.

    There is no deadline for the state Supreme Court to decide whether to take the case.