The speech and academic freedom wars at UNC: A summary of lessons learned from the man at their epicenter

[Editor’s note: NC Policy Watch does not typically publish or link to lengthy articles from academic journals. Today, however, we break with this practice to lift up an important new “must read” from the world of law and public policy. In “Lessons on political speech, academic freedom, and university governance from the new North Carolina” – an article in the most recent edition of the First Amendment Law Review, (see page 46) Prof. Gene Nichol of the University of North Carolina School of Law provides a detailed and compelling account of the battles in which he and other faculty members have found themselves enmeshed in recent years as they have grappled with the regular interference of conservative politicians, advocacy groups and university officials. ]

The following excerpts provide a glimpse of what reader’s will discover by checking out Nichol’s full article.

On the changes that have overtaken North Carolina and UNC:

“If North Carolina was once a beacon of southern moderation, a political earthquake over the last decade–effectively moving all branches of government into Republican hands for the first time in a century–has resulted in what Senator Ralph Hise now correctly boasts to be ‘the most conservative record of any state legislature in the nation.’ The New York Times refers to the altered Tar Heel track record, more bluntly, as North Carolina’s pioneering work in bigotry. And a proud and accomplished university system has appeared, in recent years, to become a partisan political playground. With the governing board recast in strongly ideological terms, a widely admired university president fired because he wasn’t Republican, campus research centers (including, as I will explain, my own) shuttered in steps of political retaliation, perceived acts of faculty and curricular academic suppression occurred, and direct legislative manipulation of the University’s research capacities and agenda followed. Traditions of student access, as well, have been severely eroded–through deep cuts in state funding, both officially mandated and indirectly coerced tuition increases, and notable and unforeseen restrictions on the use of University funds for need-based financial aid. The University of North Carolina no longer seeks to set pathbreaking standards for a bolstered and searching public mission. It seems instead to aim, as quickly as feasible, to abandon any ‘public’ side of its mission.”

On the directive he received to preface certain public comments with a disclaimer that he does not speak for the university:

“It is hard to know where to start. It’s like Lily Tomlin once said, ‘No matter how cynical you become, it’s never enough to keep up.’ Actually, though I am perhaps uncertain about just how to launch, it is clear where I am supposed to begin. My Chancellor and Provost ask that I first explain, to any audience, in explicit and emphatic terms, that ‘I do not speak for the University of North Carolina.’ To be candid, after several years of struggle with University leaders, a board of governors, a governor, and a General Assembly, to me, such a disclaimer hardly seems necessary. I’m barely allowed to speak at the University of North Carolina, much less for it. And since this piece is written for a First Amendment journal, I feel compelled to concede that I know of no free expression theory that would allow a university to demand that one–but only one–of its otherwise unencumbered thousands of faculty members is required to register, orally and in print, that he doesn’t speak for his institution. Still, I have felt modestly honored to be thus singled out. And the rough truce is, on some level, fair enough to me–I don’t speak for the University of North Carolina and, as it deals dishonestly with athletic and academic scandal after scandal, it doesn’t speak for me.”

On the demise of the Poverty Center at UNC that Nichol had headed:

“The chair of the Board of Governors, John Fennebresque, explained, amazingly, that after his benefactors in the General Assembly had slashed Medicaid coverage for a half-million people, enacted the steepest cut to an unemployment compensation program in history, ended the earned income tax credit, raised sales tax burdens on low income citizens, ended legal aid appropriations, and kicked hundreds of thousands of Tar Heels off of food stamps, the privately funded, [2.3 person staff] poverty center had not significantly reduced poverty in North Carolina, requiring its closure. Newspapers, national academic organizations, students, faculty, and accrediting agencies howled. Senator Bob Rucho, who played a major role in appointing the Board of Governors and, oddly, sat in the audience as the Board voted to close the Poverty Center, keeping a close eye on his charges, told the local papers it was necessary to close the Center ‘because Nichol was advocating anti-poverty measures . . . that we’re opposed to.’ Sensible enough. Candid. Rucho may be old school, but at least he’s straightforward. Fennebresque and his colleagues didn’t make censorship any more tolerable by absurdly lying about its occurrence. Republican leaders had said, very explicitly, for almost three years, that unless I stopped publishing articles in The News & Observer and The Charlotte Observer, the Poverty Center would be closed. I didn’t stop writing. In February, 2015, they made good on that persistent promise. They punished me (and the Poverty Center’s students and employees) because I refused to stop publishing clearly constitutionally guaranteed expression. I’ve been teaching constitutional law for forty years and, I’d say with a good deal of confidence, no First Amendment lawyer in the United States thinks that particular set of government interactions is even arguably permissible. Stop writing core, protected, First Amendment speech or we’ll use state power to punish you was the explicit threat. Then they carried out, methodically, precisely, and exactly, what they had said they would do. It’s legal to regulate universities and professors in many ways. But not that one.”

Click here to check out a PDF version of Nichol’s entire article and here to view it on the First Amendment Law Review website.

Republish