Split NC Appeals Court affirms professor’s firing, dissent raises First Amendment concerns | 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 N.C. Court of Appeals has affirmed the University of North Carolina System's decision to fire a Winston-Salem State justice studies professor in 2019. But the split 2-1 ruling raised questions about the professor's First Amendment rights.

    The university fired professor Alvin Mitchell after "three alleged acts of misconduct" between fall 2015 and fall 2017, according to the Appeals Court majority opinion authored by Judge Toby Hampson.

    In the first case, university officials say Mitchell never provided a student with a final grade for a 2015 class. Mitchell's supervisors tried to resolve the situation, leading at one point to a "verbal altercation" with Mitchell in which a supervisor called police.

    In the final incident, university officials say Mitchell failed to open an online course that he was scheduled to teach in fall 2017.

    The second incident prompted the split among appellate judges.

    During the 2016-17 academic year, two of Mitchell's students requested funding from one of his supervisors - Denise Nation - to present research at an event in New Orleans titled the Race, Gender, and Class conference. Nation did not approve the funding. She recommended that the students instead consider a different conference sponsored by the American Society of Criminology.

    "One of the students believed that Dr. Nation may have encouraged the students to look into the ASC conference because it was primarily Caucasian," Hampson wrote.

    Mitchell learned about Nation's decision and sent her a letter. The letter defended the conference and criticized Nation's response to the students.

    "After all these years, it is amazing that you still think that anything white is better," Mitchell wrote. "I looked up the ASC and nothing but a bunch of white men (some white women) are running it. Keep promoting and praising those white folks who are associated with the ASC."

    "As I told you before, you can graduate from and praise their schools, come up with a great theory, hangout with them, ... wear their European style weaves, walk with their bounce, hire them, present at their conferences, and even publish in their journals. In their eyes you will never be equal to them," Mitchell added.

    He then wrote sentences featuring a series of racial epithets before ending the letter with, "You will never get it. Wake up."

    Nation "believed the letter created a hostile workplace," according to the Appeals Court opinion. University officials later determined that the letter violated the UNC Code.

    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.

    "[T]he procedure used to terminate Petitioner's employment was not unlawful, defective, or in violation of his due process rights," Hampson wrote.

    The Appeals Court majority also rejected Mitchell's argument that his letter could not have contributed to his dismissal since he was writing about a matter of public concern.

    "Petitioner contends, without citation, his letter was 'an impassioned plea' and a 'strongly worded condemnation of racism within academia and Nation's perceived participation in that racist culture.' There is no evidence in this Record, however, that Dr. Nation's decision to deny funding to Petitioner's students for Petitioner's chosen conference was racially motivated or a product of racial bias in academia," Hampson wrote.

    "There is, further, also no evidence that Petitioner intended his letter to be an effort to combat racism in academia or to advocate on the part of his students for funding to attend his preferred conference on that basis," the majority opinion added. "To the contrary, the context, form, and content of Petitioner's speech ... reflects Petitioner's speech was nothing more than an expression of his personal grievance towards Dr. Nation and his displeasure with her administrative decision not to provide funding for Petitioner's preferred conference."

    Judge Hunter Murphy agreed with his colleagues that Mitchell had received due process. But Murphy dissented on the issue of the letter, "on the basis that Petitioner's remarks implicated a matter of public concern."

    "[T]he broader subject of academia's relationship with race has long been acknowledged as a subject of public concern and remains so, now more than ever," Murphy wrote in dissent. "Universities in this state and across the country market themselves to, and communicate with, the public based on demographic diversity with respect to - among other things - race."

    "Few topics could be more legitimately said to constitute issues of public concern," he added.

    Mitchell's letter "reads, simultaneously and inseparably, as a defense of the academic legitimacy of a conference, an expression of dissatisfaction on the state of racial diversity in academia, and a statement of frustration with Dr. Nation, both personally and with any potential unconscious biases," Murphy wrote.

    The dissenting judge would have sent the case back to a trial court to address Mitchell's First Amendment claims.
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