Race-Related Insulting Complaints to Supervisors in Public University and the First Amendment

In Mitchell v. Univ. of N.C. Bd. of Governors, decided April 4 by the North Carolina Court of Appeal, Prof. Alvin Mitchell, "Associate Professor of Justice Studies in the Department of Social Sciences" at Winston-Salem State University, was fired in part based on a letter he sent to Department of Social Sciences co-chair (Dr. Denise Nation). The key facts, from the majority opinion by Judge Toby Hampson, joined in relevant part by Judge Valerie Zachary:

[S]ometime during the 2016-2017 academic year, two students in Petitioner's Research Methods class conducted research to draft a paper. The students learned about a conference in New Orleans—the Race, Gender & Class Conference—where they could present their findings. They approached Dr. Nation to obtain funding to attend the conference, but she did not approve the funding, instead recommending a different conference by the American Society of Criminology (ASC). One of the students believed that Dr. Nation may have encouraged the students to look into the ASC conference because it was primarily Caucasian. When Petitioner learned of the conversation, he wrote a letter to Dr. Nation in response:

Hi Denise, it was brought to my attention that you told a student that the conference I and two of my students are presenting at has no substance or standards, meaning that it is useless and unaccredited, and anyone can present. In addition, you told the student she should try to present at the ASC held in November because it is a better conference and has a lot of substance. You are entitled to your opinion. However, you should not be telling the student things like that, especially with no proof. The Race, Gender & Class conference is locally, regionally, and internationally known and ha[s] scholars from around the world presenting. In addition, the conference has been in existence for over 20 years. Thirdly, this conference does not take anyone. You have to be accepted through their process. It is amazing how you always try to debunk what I do. Yet you complain that I tell students negative things about you. It would have been better to tell the student that you did not want to help fund her instead of telling her falsehoods about the RGC conference and asking her to present on scholarship day. That is not appropriate behavior as a chair.

After all these years, it is amazing that you still think that anything white is better. 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, praise Latessa and other European professors (you need to ask them about their civil rights record), 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. They still look at you as a wanna be white, an international nigger, an international coon, and an international sambo (lol) because you display that kind of behavior. You will never get it. Wake up.

Mitchell argued that his letter was protected from employer retaliation by the First Amendment, but the majority said no; under the Supreme Court's cases related to public employee speech, such speech is unprotected by the First Amendment unless it deals with "a matter of public concern," and the majority thought this didn't qualify:

"Public employment may not be conditioned on criteria that infringes the employees' protected interest in freedom of expression." "An employee may not be discharged for expression of ideas on a matter of public concern." "The expression need not be public but may be made in a private conversation." …

"A matter is of public concern if when fairly considered it relates 'to any matter of political, social, or other concern to the community.'" "The context, form, and content of the employee's speech as revealed by the whole record are used to determine the nature of the speech." "Whether speech is a matter of public concern is a question of law for the courts to decide." "If the speech is upon a matter of public concern, there must be a 'balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" …

Petitioner contends … [that] 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. 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.

To the contrary, the context, form, and content of Petitioner's speech—as revealed by the whole Record—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. That Petitioner did so by invoking his own racist epithets does not convert his letter into one addressing a matter of public concern….[E]ven ignoring Petitioner's racial invectives directed towards Dr. Nation, the letter, taken in context, is nothing more than criticism focused on Petitioner's own work, broader disagreements with Dr. Nation and her criticism of him, and his displeasure with her decision not to provide funding.

Thus, Petitioner's letter to Dr. Nation, in this case, did not implicate a matter of public concern….

Judge Hunter Murphy dissented in relevant part:

At the threshold, I make two notes. First, the 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. 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. Copious amounts of ink have been spilled over what the significance of race in academia should be, what constitutes racism, and how to solve the myriad of problems it poses. The U.S. Department of Education has reported on racial diversity in higher education. The way race is taught in schools has become one of the defining political issues of this decade. Few topics could be more legitimately said to constitute issues of public concern.

Second, the bulk of authoritative caselaw addressing adverse employment action in response to employee speech has attempted to cleanly differentiate speech concerning sociopolitical issues from speech concerning strictly personal or administrative issues…. Petitioner'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.

Admittedly, examining the speech at issue holistically and in context—as we must—the letter's status is not immediately clear on its face. Its first paragraph, while critical of Dr. Nation's conduct toward a student, reads not simply as a rebuke, but an attempt to defend the broader academic legitimacy of the RGC conference by appealing to its level of recognition, longevity, and internal vetting process. And the second paragraph—the only part of the letter discussed by the trial court—was not an isolated set of remarks; rather, it was an elaboration on the first paragraph and an expression of Petitioner's belief that racial bias informed the perception that the RGC was less academically legitimate than other conferences. Petitioner's personal criticisms of Dr. Nation, while undeniably present, were predicated on concern for her impact on the perceived social and academic value of the conference and informed by the social and academic influence she exerted by virtue of her position.

Given the blended nature of the letter, we have been tasked with answering whether the personally offensive character of the letter precludes our holding that it addresses a matter of public concern …. And the answer, as informed by the analysis of the U.S. Supreme Court in Givhan v. W. Consol. Sch. Dist., is no. There, … the Court held that an employee's views on a matter of public concern are protected even when expressed privately. Givhan ("This Court's decisions … do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly."). The remarks by the plaintiff in that case were more than just private; they were, according to the defendant school district, "'insulting,' 'hostile,' 'loud,' and 'arrogant[,]'" yet they were held to address a matter of public concern nonetheless. So too here. {I further note that the remarks at issue in Givhan, much like the remarks here, were most immediately trained on the policies of the school at which the petitioner in that case was employed while also implicating broader social issues. Id. (noting that the "petitioner had made demands on [ ] two occasions" but that "all the complaints in question involved employment policies and practices at the school which petitioner conceived to be racially discriminatory in purpose or effect").}

To be clear, in concluding that Petitioner's letter—especially its second paragraph—addressed a matter of public concern rather than merely being a statement of racial abuse, I am cognizant of its precise framing and context. Petitioner's use of racially-charged rhetoric in the letter was not a statement that Mitchell regarded Dr. Nation as lesser because of her race; rather, it was a statement of Petitioner's perception that other academics saw Dr. Nation as lesser because of her race—a perception presumably informed by his own experience as a Black academic and scholar.

Indeed, the Record indicates that the letter may have been prompted in the first instance by a student's concerns that Dr. Nation had recommended the ASC over the RGC on a racially preferential basis. Our courts are duly attuned to the fact that, in the ordinary case, use of racial slurs and epithets, especially when employed to insult a member of a different racial group, are inflammatory, deeply wounding, and sufficient to constitute constitutionally unprotected "fighting words." However, this is not the ordinary case; and, while I express no opinion on the underlying veracity of Petitioner's remarks, their function was more than simple derogation.

I would reverse the trial court's determination that Petitioner's speech did not address a matter of public concern…. However, as the trial court's tacit determination that Petitioner's speech did not implicate the First Amendment discontinued its analysis before it conducted a balancing test [balancing the value of the speech and its harm to work relationships], I would also remand the case for further proceedings, as that issue has not yet been "raised and passed upon in the trial court." …