Gene Nichol speaks loudly, just not for UNC

jstancill@newsobserver.comApril 12, 2014 

Gene Nichol, a UNC-Chapel Hill law professor, wrote a column last month in which he urged an end to the “unforgivable war on poor people” in North Carolina.

“It is a rank violation of our history, our ethics, our scriptures and our constitutions,” he wrote in The News & Observer. “We’re a decent people. We aren’t bullies. And we don’t like those who are.”

Printed under the column were his name, his title as the Boyd Tinsley Distinguished Professor and this statement: “He doesn’t speak for UNC.”

Since late October, the disclaimer has appeared whenever Nichol, a provocative and prolific writer, pens a piece for the newspaper’s opinion pages.

According to email records obtained by the N&O, Nichol, a former dean and college president and well-known liberal, has also been asked by his bosses to give them a day or two days’ notice – a “heads up” before his columns appear. And when the subject doesn’t involve poverty, he’s been urged to omit his title as director of the privately funded, university-based Center on Poverty, Work & Opportunity – an organization that has been a lightning rod because its founding was tied to former presidential candidate and disgraced Democrat John Edwards.

The university’s unusual requests followed an Oct. 15 column by Nichol in which he was sharply critical of Republican Gov. Pat McCrory.

The emails show significant angst on the part of university officials who fretted about budget consequences for the university in North Carolina’s highly politicized atmosphere. Though Nichol agreed to the limits, some say they threaten the university’s proud tradition of academic freedom and unfettered expression.

“The attempt to pressure the university to control Gene Nichol’s speech is illegitimate, and frankly, borders on the unconstitutional,” said Rich Rosen, an emeritus professor of law at UNC.

The idea of Nichol having to warn his bosses when he writes a column, Rosen said, is strange. “That doesn’t happen,” he said. “I’ve never heard it happen. I think the very notion that his writing is being treated differently than anybody else’s is chilling. I have mixed feelings about tenure, but this is why you have tenure.”

UNC-Chapel Hill Provost Jim Dean said in an interview that there was no intent to stop the professor from exercising his First Amendment rights.

Regarding the “heads up,” Dean said: “That was really just for us so that we wouldn’t get blindsided. And he agreed to do that.”

Rosen said he doesn’t necessarily blame administrators for being nervous. But he called the disclaimer “silly” and “intentional humiliation” designed to signify official disapproval of Nichol.

“The reason he has to do that,” Rosen said, “is he has angered people in power.”

‘Pat called from Mississippi’

Nichol, 62, holds a distinguished professorship at UNC’s law school, where he teaches courses on constitutional law and federal courts. He was dean of the law school from 1999 to 2005. Nichol, a burly man with a Southern drawl, played football and majored in philosophy at Oklahoma State before earning a law degree at the University of Texas.

He is no stranger to controversy. From 2005 to 2008, he was president of the College of William & Mary in Virginia, where he marched into political minefields. He removed a cross from permanent display in the chapel of the historic Christopher Wren building, citing its use for many secular events at the public campus. He resigned when his contract wasn’t renewed; in doing so, he revealed that the board had offered him substantial money to deny that his ouster was related to ideology.

Last year, Nichol received the prestigious Thomas Jefferson Award from the UNC faculty, who cited his work for the Poverty Center. A monthly op-ed N&O columnist for a decade, he last year authored a yearlong series on poverty called “Seeing the Invisible” for the paper.

The Oct. 15 column was not part of the “Invisible” series. It appeared shortly after the U.S. Justice Department’s decision to sue North Carolina for new election laws that it says are racially discriminatory and in violation of the Voting Rights Act. In the piece, Nichol referred to McCrory as “hapless Pat.” Nichol also wrote that McCrory was “a 21st century successor to Maddox, Wallace and Faubus,” referring to three 1960s-era segregationist governors.

Email records show that Nichol’s column unleashed anger and criticism by Republican supporters of McCrory, including university board members, alumni and others. It also touched off fear and angst among administrators on the UNC-Chapel Hill campus, who had phone calls to discuss the situation.

Here’s a sampling of the reaction:

•  “Gene Nichols (sic) is at it again!! Pat called from Mississippi this morning,” Ed McMahan, a McCrory ally and UNC Board of Governors member, wrote Oct. 15 to the board’s chairman, Peter Hans. He apparently referred to the governor, who was in Biloxi that day for a meeting of the Southern States Energy Board.

•  “Calling the Governor a racist = not helpful” was the subject line of an email in which Hans forwarded Nichol’s column to UNC system President Tom Ross and his chief of staff, Kevin FitzGerald.

•  “There is some over-reacting going on,” Ross wrote to FitzGerald after a flurry of emails.

•  “Of course Professor Nichol has a right to free speech, as do all citizens, but we are getting a lot of blowback today. We have over 3,600 professors, but this one gets a lot of attention,” Dean, the provost, wrote in a response to Jane Shaw, president of the John W. Pope Center for Higher Education Policy, a conservative think tank.

By that afternoon, Dean had called Nichol, according to an email. Nichol responded by explaining that he typically gives a verbal disclaimer when giving speeches.

“I wish this disclaimer had been part of your article,” Dean said in an email to Nichol. “(Chancellor) Carol (Folt) in particular has been under a lot of pressure this afternoon. We always defend your obvious free speech rights, not to mention academic freedom. But some of our constituencies inevitably take your comments as coming from the university.”

Nichol responded that he found that hard to believe. “They mean something else – ‘you work for the university so we’ve got the right to tell you to shut up,’ ” he wrote.

In an interview, McMahan said he probably brought up Nichol’s column with the governor in the course of one of their frequent conversations. McMahan said Nichol’s stances erode public support for the university.

“It bothers me greatly that someone in his position at the university would use the media to criticize public officials, knowing that it’s doing damage to the university,” said McMahan, a former state lawmaker.

Hurting the university?

Three days after Nichol’s column, two conservative think tanks, the Pope Center and Civitas Institute, published a response, saying the professor had gone too far. “It’s hard to imagine a more vicious and false comparison for McCrory,” wrote Civitas’ Francis De Luca and the Pope Center’s Jane Shaw.

“A nasty attack of this sort on a governor might be ignored if Gene Nichol were a fringe figure,” De Luca and Shaw wrote. “But he is not. He is a law professor who receives $205,400 per year from North Carolina taxpayers.”

Nichol’s base salary is $205,400, but he also receives a $7,500 stipend from private funds for directing the privately funded poverty center.

Records also show that in two days after the column, Nichol met with Jack Boger, dean of the law school, to talk about the situation.

On Oct. 21, Boger wrote to the professor, outlining in detail what they had agreed to, including the disclaimer and the “heads up.” Boger wrote that the comparison between McCrory and the segregationist governors “caused great ire and dismay among the Governor’s staff and close supporters.”

The dean wrote that after conversations with administrators, that “there is no present intent” to end Nichol’s tenure as poverty center director.

“Expressions of faculty views can sometimes provoke strong external or internal disagreement that lead unhappy listeners to threaten financial harm or injury,” Boger wrote in an Oct. 21 email to Nichol. “The Chancellor, the Provost, and the Board of Trustees must necessarily be alert, of course, to the prospect of real injury to the University. They do not intend, however, for threats to undermine their broad support of free expression by faculty members.”

Nichol then emailed Boger to ask “if these requests are to be made of every faculty member and center director or if they are limited to my publications because my views are deemed controversial?”

Protecting free speech

Nichol’s next column in October included the “does not speak for UNC” disclaimer.

But that wasn’t good enough for some. Frank Hill, a political strategist and former chief of staff to Republican Sen. Elizabeth Dole, wrote to several UNC-CH trustees on Oct. 28. Because of Nichol’s position, Hill wrote, the professor speaks for the university every time he writes for the newspaper.

“This dog won’t hunt fellas,” Hill wrote. “I am just saying. ... (T)his guy is going to be a major pain in the tookus for those of you who really love UNC and want to see more cooperation with the people who are probably going to be in majority control of the legislature for the next decade. The lines are drawn and they favor Republican control for at least that long in the state of North Carolina.”

Trustee Alston Gardner responded to Hill: “Gene Nichol does not speak for UNC and we are working on making this clear to him. We don’t want to make Gene a martyr or precipitate a lawsuit so we have to be careful in how we handle this. ... The Chancellor and others have spoke(n) to the Governor and I think we have minimized the damage.”

Ten days after Nichol’s column ran, the Civitas Institute filed a public records request with the university, asking for six weeks of Nichol’s email correspondence, calendar entries, phone logs, text messages and a list of electronic devices issued to Nichol by the university.

The request yielded nearly 1,200 pages of documents. In February, Civitas published an article on its website based on the emails, alleging that the Poverty Center had inappropriately held an invitation-only partisan conference on “Poverty, Partnerships and the Public Good.”

“The gross impropriety of using taxpayer-funded resources for political purposes is self-evident,” De Luca wrote. “But it appears that in the latest conference the Poverty Center may also have violated the state’s open meetings law.”

Boger, the law dean, wrote a letter to the N&O defending the conference as a gathering and not a decision-making body subject to the state open meetings law. He pointed out that the Poverty Center had not received public funds for the past four years.

Nichol was reluctant to talk about the political and university pressures. He did express his thanks to Boger, who he said had backed him even though Boger’s letter outlined the disclaimer and “heads up” arrangement.

“Despite this letter, which does raise serious free speech questions, Dean Boger has, over the past year and a half, fought hard to resist pressures both from Raleigh and from higher-placed university officials to stop me from writing for the News & Observer,” Nichol said in an email. “I admire him. Beyond that, I don’t have any comment.”

Since Nichol’s disclaimer first appeared, another UNC professor has asked for the “does not speak for UNC” label to appear with his columns for the N&O.

Rosen, the retired law professor, said the precedent worries faculty, particularly given the university’s resistance to the legislature’s ban on Communist speakers at the university in the 1960s.

“Since the time of the Speaker Ban,” Rosen said, “UNC has been recognized as a great public university for protecting these rights. I think it’s important that UNC stand firm on this.”

Lowry Caudill, chairman of the UNC-CH Board of Trustees, said free speech is “incredibly important” at the university. But so is building political bridges, he added.

“We understand we live in that world,” Caudill said. “What happens here and what happens in Raleigh – there’s connectivity, and we understand that.

“Clearly we have to pay attention to the ripples.”

Stancill: 919-829-4559

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