Why Litigation is Academic Freedom

BY MICHAEL C. BEHRENT

On Defending UNC-Law School’s Civil Rights Center Against a Political Attack

North Carolina has, in recent years, been subject to increased political meddling in its higher education system. After the attack on the University of North Carolina at Chapel Hill’s Poverty Center, the Board of Governors has now trained its sights on a new target: UNC-Law School’s Center for Civil Rights. A proposal currently being circulated by a UNC Board of Governors member seeks to prohibit the Center from engaging in litigation, despite the fact that similar centers do so in law schools across the country. The measure will be considered by the Board’s Educational Policies Committee at a meeting in Asheville, North Carolina, on July 13. The North Carolina conference of the AAUP and other organizations across the state have encouraged the board to reject this proposal.

To help explain the stakes of this assault on the Center for Civil Rights’ important activities, Academe Blog interviewed Judith Welch Wegner, Burton Craige Professor of Law, Emeritus, and former dean of UNC’s law school, who has been closed tied to the center. Below, she explains why defending the center’s right to litigate is a valuable public service and crucial to academic freedom. Professor Wegner was interviewed for Academe Blog by Michael C. Behrent of Appalachian State University, who is also vice president of the North Carolina conference of the AAUP.

Behrent: The Center for Civil Rights has again come under fire from the Board of Governors of the University of North Carolina. What exactly is this center? How did it come about and what is its purpose?

Wegner: The Center for Civil Rights (CCR) was founded by distinguished UNC Law alumnus Julius L. Chambers in 2001. Chambers was among the country’s foremost civil rights lawyers, who established a leading integrated law firm, successfully advocated in civil rights cases before the US Supreme Court, served as Director-Counsel of the NAACP Legal Defense Fund, and returned to his home state to lead NC Central University as its chancellor.  He was a brilliant, visionary advocate for justice, and the center is intended to prepare a new generation of lawyers to follow in his footsteps.

My students and I have engaged with the work of the center in a number of ways.

  • One of the center’s attorneys has often spoken to my first-year property classes about the challenges faced by poor and minority families who lose their farms because of limited access to information about wills and estate planning. Then students have the option of participating in “spring break” pro bono “wills trips” to counsel poor and minority families in the rural parts of the state, giving them an early opportunity to see theory in practice.
  • The center worked on issues of municipal underbounding (instances in which municipal boundaries do not extend to nearby poor and minority areas because state statutes set standards that such communities typically could not meet), a topic I know well due to my teaching and scholarship in municipal law. Thanks to the center’s work to engage with municipal leaders, community members and legislators, those laws have been reformed.
  • Students, colleagues and I have participated in “moot court” practice runs for center attorneys before they appear in the appellate courts. Sometimes more than 50-60 students are in attendance, listening in and learning about cutting edge issues involving housing, education, land use, discovery, and eugenics.
  • The center has also hosted important conferences that bring scholars from a range of disciplines together with policy-makers, leading civil rights advocates, and community activists to discuss timely issues such as voting rights, housing discrimination, and educational policy. Convening conversations like these are exactly what universities should do.

As you can see, the center’s three-fold mission includes policy-analysis, advocacy, and education of future civil rights lawyers. Those three dimensions are inseparable and truly significant particularly in this day and age. For more evidence of ways in which the center has helped communities around the state and prepared students for work in the area of civil rights, readers may wish to view the video of a May 2017 hearing before a subcommittee of the University System’s Board of Governors.

The center receives no state funds, but has received grants from major foundations and partnered with a wide range of organizations. More information on the center’s history and activities can be found at the CCR’s website and the extensive report the CCR drafted in response to the UNC Board of Governors’ questions.

Behrent: Some members of the Board of Governors have contended that university-associated centers should not engage in litigation. Proposed policy statements circulated by some board members appear to reject even litigation being conducted by public university law school clinics (whether or not associated with centers).  Why do we need litigators in public universities? In particular, should lawyers and law students associated with public universities be able to sue state and local governments funded by the state?

 Wegner:  Some readers may not understand the role played by “litigation” within the legal system. In this era, relatively few cases actually go to trial with the associated drama remembered by fans of Perry Mason, The Defenders, Law and Order, or the OJ Simpson saga. Instead, legal disputes arise in instances of disagreement, when those affected believe that their rights have been abridged. In a society such as ours—characterized by growing financial inequity, disparate views about the significance of facts and the nature of truth, and deeply divided political views and loyalties—it is not surprising that disputes arise with some regularity. Good lawyers try to find ways to resolve disputes, often without going to court if they can. At times, however, they need to crystalize and communicate their clients’ claims in order to have an opportunity to gather needed facts through the process of “discovery” and explore competing claims. Thus, they may need to file court documents to trigger standard court procedures and processes, even though the associated matter may never ultimately go to trial.

Law students are educated so that they can pursue any of a wide range of career paths. Some engage in transactional work, but others opt to become litigators. All law schools around the country prepare students for possible work as litigators, teaching them to write documents needed by the courts, understand and use rules of evidence and engage in trial advocacy. All law schools have clinics of various sorts that provide students with contextualized training, for example by representing juvenile defendants, assisting low-income taxpayers in disputes with the IRS, handling immigration and asylum claims, or assisting with landlord-tenant, consumer fraud, special education, or wage disputes. All law schools do this kind of thing and indeed, have been required to add other forms of “experiential learning” by American Bar Association accreditors.

Law schools also place students in “externships” where the students are supervised both by attorneys in a government or nonprofit law office and by a law school faculty member. For example, UNC Law’s externship placements include positions with district attorneys’ offices, the state attorney general, and corporate counsels’ offices, as well as with the Center for Civil Rights. It is important to realize that law schools try to provide their students with a range of options to pursue potential career interests through clinics, externships, and simulation courses. The attacks on the center have been framed as opposing “litigation” by university-affiliated entities, but litigation is taught in clinics and externships all the time. Having a center host an externship program in which students can learn about litigation is not unusual among the nation’s law schools, notwithstanding mistaken claims to the contrary.

One of the related claims being asserted by some members of the Board of Governors focuses on litigation undertaken by the center against local government or state entities. Bear in mind that such litigation does not involve the University itself suing other public entities. Instead, Center-affiliated lawyers, paid by non-state funds, represent private individuals and entities seeking redress for  their civil rights. Civil rights, by their nature, are rights that governments are obliged to respect.  It is perhaps understandable that those taking this view don’t like situations in which government entities have to give redress or pay costs associated with defending their allegedly illegal conduct.  But they would not have to give redress if they had not been found by the courts to have violated civil rights.  Unfortunately, too, it has become common practice for wealthy individuals and corporate entities in the United States to try to bury those who sue them by abusive litigation practices that give rise to high billings to be paid by clients in order to pound their opponents into the ground and force them to give up legal challenges.  Local governments, for example, have insurance policies to cover costs associated with circumstances in which they must pay for damage caused to their citizens.  There is nothing untoward about the center litigating in situations like these.

Behrent: Certain members of the Board of Governors have argued that the center has a political axe to grind. One in particular has asked: “Is it within the university’s mission to represent ‘Moral Monday’ protesters, as they have done?” He also said that the center excludes “different points of view on issues such as voter ID, school vouchers, etc.” and that it has “a clear bias” that does not promote “educational inquiry and discussion.” Is there any truth to this criticism? 

Wegner: The claim that the Center for Civil Rights should avoid expressing a particular point of view is simply another way of claiming that the center should not engage in litigation on behalf of poor and minority clients. These clients are ones who would typically not have alternative options for representation. Limits on the kinds of cases that can be brought by legal aid lawyers, recent cuts in the state budget for legal services for the poor, and threats to funding for the national Legal Services Corporation leave such clients with even fewer options.  

The law school has a diverse range of class offerings that explore all manner of issues from diverse points of view. Indeed, the law school also hosts a Center for Banking and Finance (created at the same time the Center for Civil Rights was created) and a Center for Climate, Energy, Environment, and Economics. Neither of these other centers has been attacked or their activities challenged, nor should they.

The focus of the Center for Civil Rights is on “civil rights” as a subject of inquiry and action. Conferences hosted by the CCR explore diverse viewpoints. But, when clients are represented and litigation is involved, lawyers are bound by ethical duties to represent their clients competently, zealously, and loyally. They are also obligated to avoid conflicts of interest.

Behrent: The AAUP has long been at the forefront of defending academic freedom in American higher education. Is banning the center from engaging in litigation also a violation of academic freedom? How so?

Wegner: I think so, but it’s a complicated question, so let me explain. Law clinics around the country have from time to time been threatened by the prospect of externally imposed constraints when the clinics took on cases that displeased powerful interests. Interested readers may want to review more details as presented in an excellent article published in 2011 by Professor Robert Kuehn and Professor Bridget McCormick.

The article just referenced outlines a typology of interference, including restrictions on case and client selection, funding restrictions, and practice restrictions. The article includes a four-page appendix listing 32 instances of interference as of the date of its publication, involving such wide-ranging law schools as those of the University of Mississippi, Connecticut, Arkansas, Tennessee, Colorado, Oregon, Iowa, Idaho, Rutgers, Michigan, Northwestern, Tulane, Arizona State, St. Mary’s (San Antonio), Rutgers-Newark, Pittsburgh, Denver, Houston, and North Dakota. It references interference stemming from legislatures, governors, lieutenant governors, attorneys general, businesses, alumni, opposing counsel, trustees, state agencies, and district attorneys. Legislatures seemed to be in the lead. This extensive history has resonance in the current moment in North Carolina because some of the same rationales for constraining law professors and law clinic activities advanced in these prior situations are similar to those being advanced here (for example, legislative proposals by the Oregon legislature that professors should not assist in suits against governments, and in Arizona that the Arizona State Law clinic should not assist prisoners in suing the state).

The AAUP and scholars from diverse fields have also explored the theoretical underpinnings of “academic freedom” and its intersection with the First Amendment (which applies to actions of federal, state, and local government but not of private parties). The AAUP’s 1940 statement on academic freedom and tenure treats academic freedom as having particular resonance in three areas of activity by faculty members:  research and publication; classroom teaching; and expression of views as citizens. The application of these tenets to law school clinics are typically grounded in an understanding that clinical programs function both as law offices and as classrooms, and that choices made in these contexts are academic choices that need to be protected from external interference.  In addition, the ethical obligations of supervising attorneys relating to independent judgment and competent representation of clients imposes an overlay of obligations and protection that goes beyond and is independent from application of academic freedom concepts.

It has long been my understanding that the concept of academic freedom is rooted in more than individual faculty members’ claims of necessary independence to seek after and teach the truth as they best understand it. At root, academic freedom imposes a collegial obligation within a community of peers, bound by shared norms of truth-telling and disciplined inquiry, to work collectively to seek after truth and share that truth through research, teaching, and public discourse for the betterment of society. The courts have given deference to this notion of a professional, ethically-committed, and self-policed collegium, because, as members of a learned profession (in whatever discipline), faculty members are obliged to uphold a public trust that protects the truth as we understand it and the opportunity to challenge and explore truth going forward.

Some of what complicates the application of notions of “academic freedom” to activities of the center and those involved in critical supervisory roles there stems from the reality that the center is both connected to the law school’s academic program, and also separately funded and administered. Nonetheless, since the center functions in effect as an affiliated academic program for the law school, academic freedom is implicated because the law faculty has supported its creation and connection with the law school’s academic program in ways that are deeply integrated. Although funded separately, without state resources, the center is viewed by the law faculty as an integral part of the law school’s operation, just as other law school centers are. The center is directed by a distinguished tenured faculty member. Law students receive credit for externships there and recognition for pro bono contributions in that setting.  In effect, although styled as a “Center” the CCR functions as a specialized type of clinical educational program, providing students with the opportunity to learn under the oversight of non-state funded supervising attorneys.

The attack by members of the Board of Governors on the Center for Civil Rights is in effect identical to challenges posed in the past directly against law school clinics in other states, and should be seen as such. The Board of Governors’ only viable jurisdictional claim relates to “centers and institutes,” so that is the focus seeming being brought to bear. However, the policy provisions drafted by the opponents of the center bring within the policy’s sweep operation of law school clinics at public universities in the state (including clinics at UNC-Chapel Hill and NC Central University). Those attacking the legitimacy of the center’s university affiliation are selectively intervening to limit instruction of law students regarding civil rights and effective representation in civil rights cases. There may well be alternative ways to frame legal challenges to these actions, but the clear intent of proponents to limit the center is to impose their judgment on appropriate curriculum and educational activities. That violates the spirit of academic freedom principles with no doubt.

Behrent: Do you think the Board of Governors’ proposal is part of any broader trends we have seen in North Carolina in recent years?

 Wegner: I have little doubt that it is. Let me first address actions by the Board of Governors and the state legislature relating to legal education and legal services. The 2017 state budget, recently vetoed by Governor Cooper, represents a cut of $500,000 in the UNC Law School’s budget (less than the originally proposed cut of $4 million). Some have speculated that this cut is intended to express displeasure about the continuing activities and op-ed opinions of law school professor Gene Nichol, who had established the Center on Poverty and the Center for Civil Rights when he was UNC Law dean (from 1999-2005). The Poverty Center was abolished by the Board of Governors a while ago.  Others have speculated that this cut was intended to put pressure on the law school to eliminate the Center for Civil Rights even before the Board of Governors have taken such action. The recently passed state budget eliminates $1.7 million in funding for legal aid services to the poorest of the poor in North Carolina. The recently adopted state budget also cut $10 million from the budget of the state attorney general’s office, charged with consumer protection.

Appointments to the University System’s Board of Governors have become increasingly partisan and pointed. Recent appointments have added former Republican members of the State Senate to that Board and the Board has in turn added former Board of Governors’ members to Boards of Trustees on the 17 campuses within the University System.

There is also considerable reason for concern about what is happening behind the scenes particularly on this campus.  An earlier post on the AAUP Academe Blog reports the experience of an excellent colleague, history professor Jay Smith, whose course on big time athletics in the academy was cancelled. I believe that opponents of the center are putting considerable pressure on Chancellor Folt to eliminate the Center or its litigation and advocacy role.  Her absence from the May Board of Governors Educational Policy Committee’s Public Forum was notable, particularly given the attendance of North Carolina Central’s Chancellor.

I hope that readers of this blog will write to Chancellor Folt (chancellor@unc.edu) and UNC System President Margaret Spellings (margaret.spellings@northcarolina.edu) to urge their support of the center. It is crucial to make clear to both of these leaders that there are very high stakes here, and that their response to the Board of Governors will draw national attention.  Whether as a matter of law or a matter of policy, the Board of Governors’ proposed limitation of the center’s mission and focus represents a very worrisome intrusion into the realm of faculty decision-making about curriculum and teaching methods.  If there is no effort to draw a line and protect academic freedom in this context, it is easy to see how it will be difficult to draw a line anywhere as political forces continue to put the integrity of our colleges and universities at risk.

Behrent: Are there any checks and balances that might have a bearing on these developments? Can readers do anything to assist?

 Wegner:  Regional accreditation standards are important.  Many faculty members are not familiar with them, but should be. c Some of the standards of the Southern Association of Colleges and Schools (Commission on Colleges) (SACSCOC) seem to be particularly important and could be implicated by the action or inaction of the Board of Governors, Board of Trustees, and Chancellor Folt going forward. c Readers should bear in mind that these are the standards that governor the Chapel Hill campus as a whole, and violations would put the campus’s accreditation under review once again (as it was due to academic/athletic scandals).

1. The institution operates with integrity in all matters. (Integrity)

2. The institution has a governing board of at least five members that is the legal body with specific authority over the institution. … The board is not controlled by a minority of board members or by organizations or interests separate from it. (Governing board) (emphasis added)

2.4 The governing board is free from undue influence from political, religious, or other external bodies and protects the institution from such influence. (External influence) (emphasis added)

4.10 The institution places primary responsibility for the content, quality, and effectiveness of the curriculum with its faculty. (Responsibility for curriculum) (emphasis added)

7.4 The institution ensures adequate procedures for safeguarding and protecting academic freedom. (Academic freedom) (emphasis added).

6.2 The institution structures its graduate curricula (1) to include knowledge of the literature of the discipline and (2) to ensure ongoing student engagement in research and/or appropriate professional practice and training experiences. (Graduate curriculum) (emphasis added).

6.4 The institution defines and publishes requirements for its graduate and post-baccalaureate professional programs. These requirements conform to commonly accepted standards and practices for degree programs. (Post-baccalaureate program requirements) (emphasis added).

Readers of this blog post should review the accreditation standards that govern their institutions so that these standards and complaint procedures can be invoked as needed. The Board of Governors and campus officials (UNC Chapel Hill Board of Trustees and Chancellor) have not yet taken final action on the center, but there is a serious prospect that the standards cited may be violated if members of the Board of Governors who advocate for limiting and in effect eliminating the center as it was conceived continue down their present path and gain the support of their colleagues or of campus leadership. The Raleigh News and Observer has reported that the Executive Director of SACS, Dr. Belle Wheelan, will meet with the Board of Governors on July 14.  I ask everyone who reads this blog, be they faculty, students, alumni, or other interested parties, to express their concerns about ongoing threats to the center prior to that date, so Dr. Wheelan can be fully aware of associated accreditation issues before meeting with the Board of Governors.  Those interested in making their views known to Dr. Wheelan can use the complaint protocol provided on the SACSCOC website (which is here).

Behrent: Why should this proposal matter to North Carolinians and to other readers? What impact does it have, not just on faculty and law students, but the public at large?

 Wegner:  We live in challenging times.  Core understandings about the role of universities, their commitment to truth-seeking, their independence of inquiry, and their freedom from partisan interference are at stake. My whole life has been lived in the context of public education and public service.  t this juncture in history, historic understandings about the role of public universities and the role of universities in seeking truth without compromise due to political considerations seems at risk. North Carolina has a cherished system of public universities that I have long thought would survive until the end of time. We are certainly not the first university or law school under fire and we are not likely to be the last.

Our university here at Chapel Hill was the nation’s first public university.  Its motto is “lux et libertas” (“light and liberty,” reflecting the understanding that learning and liberty are closely intertwined). We are situated in a state whose motto is “esse quam videri” (“to be, not to seem,” suggesting a bedrock commitment to hewing to truth, not “truthiness”).  We have faced difficult challenges, such as rebuilding after the Civil War, and have weathered forms of political interference, including the “Speaker Ban,” where history shows that SACSCOS viewed campus accreditation status to be at risk (on the “Speaker Bam” see this overview, as well as Robert W. Spearman’s recollections about this incident).

I joined the faculty of UNC’s School of Law in 1981, when I was recruited by former Chancellor Bill Aycock who pushed for removing the Speaker Ban. I served as dean for 10 years from 1989-1999. I served as president of the Association of American Law Schools in 1995. I contributed to a major study on necessary reform of legal education for the Carnegie Foundation for the Advancement of Teaching, published in 2007. I chaired the UNC-Chapel Hill faculty from 2003-2006.  I chaired the University System’s Faculty (representing faculty at all 17 campuses) from 2008-2010. I retired in December 2016. My husband and I have concluded that we can no longer live in North Carolina, now a state of hate where partisan forces are threatening the integrity of our cherished public universities.The decline of university leadership, the partisanship of the legislature and governing boards, and the attacks on the Center for Civil Rights all contributed to this decision, one that we did not make lightly.

If I tell you that we are in jeopardy of compromising our integrity and commitment to the state and to the search for truth, please believe me.  And please do something about it.  Write Chancellor Folt, President Spellings, and SACSCOC—again, the emails are: chancellor@unc.edu, margaret.spellings@northcarolina.edu, and questions@sacscoc.org.  Do not be complicit. Stand up for truth and for justice!


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