Top NC court could clarify deference in case of WSSU professor’s firing

The North Carolina Supreme Court could use the case of a fired Winston-Salem State University professor to clarify state courts’ deference to government agencies in legal disputes involving government regulations.

Two justices signaled an interest in tackling the deference issue during oral arguments Tuesday in the case Mitchell v. UNC Board of Governors.

Judicial deference occurs when courts give special consideration to an executive branch agency’s interpretation of a law or regulation. The US Supreme Court issued a June 2024 decision overturning federal courts’ 40-year-old “Chevron deference” standard.  That standard had required federal judges to defer to government agencies’ interpretation of ambiguous laws during legal disputes.

In the case before North Carolina’s highest court Tuesday, professor Alvin Mitchell challenges WSSU’s decision to fire him in 2019. Mitchell cited both free-speech violations and the process the university used during his dismissal.

WSSU’s chancellor fired Mitchell despite a faculty committee’s recommendation against dismissal. The university and Mitchell disagreed over whether a faculty handbook gave the chancellor the power to make that decision.

A trial judge upheld the university’s decision in 2021. A split Court of Appeals panel also ruled in favor of the university in 2023. The Appeals Court decision cited North Carolina courts’ deference to the university’s interpretation of its rules.

That deference violates the state constitution’s separation of powers, lawyer Nathan Wilson argued Tuesday on Mitchell’s behalf.

“The executive branch is here today to ask this court to allow it to play a role in saying what regulations mean, even though the power to say what law is has been the judicial power since the time of the founding,” Wilson said. “If this court agrees with that request, then the executive branch will be able to place a thumb on the scale in all regulatory interpretive disputes between it and North Carolina citizens going forward.”

Deference to government agencies’ interpretation of their own regulations is known as Auer deference, based on the 1997 US Supreme Court precedent in Auer v. Robbins.

“If we were going to affirm the Court of Appeals, we would be affirming a standard of review that includes probably the most aggressive description of Auer deference that any … state court in North Carolina has ever had,” said Justice Richard Dietz. “It does seem like the issue before us is whether or not, whatever we do in the case, we need to say what the correct standard of review is in this type of case going forward.”

Special Deputy Attorney General Lindsay Smith, representing the state’s public university system, argued that North Carolina’s highest court already has set out an “appropriate statement of deference” in a prior case involving the North Carolina Acupuncture Licensing Board.

“There the court said we give great weight to an agency’s interpretation of a statute it is charged with administering,” Smith said. “However, the agency’s interpretation is not binding.”

A court will consider the agency’s interpretation along with other factors, such as “the thoroughness evident in the consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all of those factors which give it power to persuade,” Smith explained.

“Why isn’t that just saying: If you make a good argument, or you make a better argument, you win?” responded Justice Trey Allen.

An executive agency interpreting a regulation could be exercising a form of legislative or quasi-judicial power, Allen said. “Why shouldn’t we look at those closely to make sure that the executive agency is not infringing on the separation of powers?”

“What does it say to the citizen who comes to court — and usually already has sort of the burden — when the courts say, well, we’re going to assume the government is right?” he asked Smith.

“We can avoid all of the concerns that Justice Allen has expressed — the ones that have been raised with the more aggressive deference standards that federal courts are dealing with, Chevron and Auer and things like that — by just understanding our case law — when we said ‘great deference,’ ‘due consideration,’ ‘great weight,’ and all of these things — to just say be respectful of the agency’s interpretation when it brings that interpretation to court, but ultimately we wield the judicial power,” Dietz said.

“If we say your interpretation is reasonable but there’s a better one, we go with that one, and we don’t defer to some agency interpretation that we don’t think is the right one,” Dietz added.

Along with deference, the high court also could tackle Mitchell’s complaint that the university violated his free-speech rights. One factor in his dismissal was a letter he sent to a supervisor that featured racially inflammatory language. Mitchell and WSSU disagree about whether that language amounts to protected speech.

The John Locke Foundation, NC Chamber, and NC Farm Bureau filed briefs in the case supporting Mitchell’s deference arguments.

There is no deadline for a state Supreme Court ruling in the case.

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