I recently learned of a proposal before the UNC Board of Governors to bar UNC Law School’s Center for Civil Rights from suing government entities – or anyone else – to enforce civil rights law – or any other type of law. In my modest opinion, such a proposal, although obviously well-intentioned, does not nearly go far enough.
If successful, a lawsuit against a city, county or the state for violating civil rights would require government to obey some judge’s interpretation of what level of protection the law affords the residents of our state. Our duly elected government officials should be able to interpret the law as they see fit. That is why we elected them: to wield absolute power. You cannot wield absolute power if someone else can decide what the law requires.
People who can afford to hire their own lawyers can, of course, bring a lawsuit protecting their civil rights, but such lawsuits are by their very nature rare. First, people who have that sort of money do not suffer civil rights violations as often. Whoever heard of a hog lagoon placed alongside a gated community? Or a eugenics program sterilizing rich people? Or closing polling places or defunding schools in affluent neighborhoods? Doesn’t happen.
So preventing UNC entities from filing these sorts of suits on behalf of ordinary people should reduce the number of lawsuits filed. Respecting people’s civil rights can cost state and local government significant amounts of money, so the savings could be substantial.
But this proposal does not go nearly far enough. While few of us at the law school litigate rights cases, many of us teach about civil and constitutional rights. In so doing are we not also contributing to the very same problem? For example, in my criminal procedure class I teach about our Fourth Amendment and Fifth Amendment rights. Many people don’t know that they do not have to consent to searches when stopped by the police or answer any questions that go beyond presenting your license and registration. In teaching these doctrines am I not encouraging my students to litigate claims against the government when their clients are illegally stopped or questioned?
Or take constitutional law more broadly. Constitutional law by definition includes those rules that bind our duly elected leaders. Voting rights doctrine even presumes to define who is fairly elected. By teaching this subject are we not encouraging costly lawsuits against our leaders that, if successful, might limit their power over the rest of us?
I understand that some may distinguish between prohibiting a law school from litigating in an area and prohibiting a law school from teaching in an area, but really, what is the difference? To distinguish between filing a lawsuit and teaching students about the law upon which such a lawsuit is based is splitting hairs. What is ultimately at stake in both cases is whether we want our government officials to have to comply with the law when they do not want to.
It is true, of course, that students who participate in the activities of our civil rights centers can learn a lot more about how to litigate than students who simply take regular classes. The experience of actually representing real people can also inspire students to protect the rights of those people zealously. But those of us who teach about civil and constitutional rights in the classroom are also guilty of helping future lawyers force the government to obey the law. For that matter, those who teach property, family, environmental, administrative, employment, tax and even corporate law all cover doctrines that limit government power. And we classroom teachers, too, occasionally inspire our students to take those limits on government power seriously. Why are you leaving us out?
Ultimately, it comes down to this. Are we a government of laws or a government of elected leaders who decide when and to whom they want the law to apply? Don’t settle for half measures on this important question. Law professors who teach about the law’s limits on government power should be treated the same as law professors who actually help people enforce those limits in court.
I trust the Board of Governors will act swiftly on my proposal.
Joseph E. Kennedy is a Professor of Law at UNC School of Law where he is guilty of teaching criminal procedure and criminal law. The views expressed are his alone.