Dear University of North Carolina (UNC) Board of Governors (BOG):
I am writing you today for two reasons. First, I wish to congratulate you for having the courage to fire University President Tom Ross and select a new leader for the UNC system. Second, as you endure a barrage of criticism for doing the right thing, I wish to offer you some insight into the true motives of your critics.
Those who are criticizing you for firing Tom Ross are trapped in a logical contradiction. On the one hand, they are claiming that political leftists do not dominate the UNC system. On the other hand, they are claiming that the BOG is beginning to purge the entire UNC system by firing administrators for their leftist views. Logical consistency is not their strong suit. But neither is moral consistency. I wish to focus on the latter weakness by comparing a) your critics’ professed interest in the First Amendment with b) their actual conduct.
When Tom Ross was President of the UNC system, he presided over an unsuccessful legal attempt to strip speeches and opinion columns written by college professors on their own time and in private forums of First Amendment protection. The UNC administration, which was headed by Tom Ross, was seeking the authority to review the content and viewpoint of speeches and opinion columns listed on annual reports and promotion applications. Under the UNC administration’s legal theory, such speeches and columns were “official duties” and had no First Amendment protection. Under this view, an untenured professor could be fired by his administration for the opinions expressed in writings and speeches listed on a tenure application.
UNC spent hundreds of thousands of dollars in federal court defending this anti-free speech position. And they lost. In the process of losing the case, Tom Ross also lost all moral authority to complain that he is now being fired for his political viewpoints. He and his fellow UNC administrators actively attempted to erode the First Amendment rights of professors with unpopular views. Arguably, they should be fired – not for their political views but for their intolerance of the political views of others.
One of your loudest critics, UNC-Wilmington Faculty Senate President Gabriel Lugo, was silent in the face of this effort. Although we have offices in the same building, Lugo never contacted me to offer his support during the aforementioned legal battle.
After I won a unanimous opinion before the 4th Circuit, the university revised its tenure and promotion processes. Lugo then circulated a document to the faculty, which was ostensibly meant to give them guidance on academic freedom issues. It listed several important cases including the one (Garcetti v. Ceballos, 2006) that UNC claimed to have given them the authority to engage in viewpoint discrimination. Before Lugo circulated the document, the 4th Circuit had already ruled unanimously that Garcetti was inapplicable to academic freedom cases. Strangely, in that memo Lugo omitted any reference to the case that clarified the Garcetti issue.
It does not seem likely that Lugo was unaware of my case. It was the biggest federal First Amendment case in UNC system history. In my constitutionally protected opinion, it seems more likely that Lugo was following the lead of UNC counsel and simply pretending that the administration did not lose the power to engage in viewpoint discrimination.
This incident shows just how lawless the Ross administration had become. They actively tried to engage in viewpoint discrimination. When the federal courts said “no” they tried to conceal it. This wasn’t all of Tom Ross’ doing. He had an army of leftist lawyers to assist him. Not to mention an army of unprincipled professors in the faculty assemblies.
There will be another round of protest coming when the BOG finishes shutting down all of the left wing political centers that have been established on various UNC campuses. Gene Nichol might be the worst of the lot but he is certainly not alone. That is why so many will be rushing to his defense claiming that the First Amendment gives a professor a right to his own state-funded political center. This goes along with an unlimited budget to lobby against pending legislation and attack his political enemies.
Of course, the real effect of firing Ross and shutting down these intellectually impoverished political centers is obvious: It will help de-politicize the UNC system. And the faculty knows it. That’s why they keep shouting “politics” in a crowded theater of the absurd (otherwise known as a university).
Make no mistake about it: Your tenured critics consider “political firings” to be contingent, not absolute evils. It’s not about principle. It all depends on whose ox is getting gored.
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