This month, a UNC Board of Governors Committee voted to recommend a policy eliminating litigation by the UNC Center for Civil Rights. This controversy has garnered national attention and, like most issues of the day, the news has focused more on personalities and political persuasions than sound governance. But as a friend back in the mountains once said about a local’s surprise endorsement of another candidate, “Once again politics has risen to new heights of hypocrisy.”
The political and personality lines have been clearly drawn. The liberal-leaning Center and its involvement in various civil rights related lawsuits stands on one side of the issue. The conservative leaning UNC Board of Governors, determined to shut down the ability of the Center to file lawsuits against various business and governmental entities around the state, is on the opposite side. Here’s where the hypocrisy comes in.
Let’s say that the Center at issue was “The UNC Center for Economic Liberties” and was funded by various conservative organizations to litigate wasteful government spending and over-regulation. I suspect the current supporters of the Civil Rights Center would be storming the ramparts and calling for shutting down such a nefarious operation. Likewise, I suspect the Board of Governors wouldn’t be quite as interested in the “Center” as they are this one.
In fact, a few years back Art Pope (noted conservative) and I approached both the UNC Law School and N.C. Central School of Law about moving the N.C. Institute for Constitutional Law under the UNC umbrella to educate and litigate issues involving the N.C. Constitution. Most of the start-up money would have come from the Pope Foundation. Not surprisingly, the offer to both schools was “politely” rejected. The thought of having a Pope-funded, purportedly conservative group, litigating within the confines of the university system was about as palatable to leadership and faculty as drinking hemlock.
However, I have to disagree with the BOG advocates who want to shut down the Center for Civil Rights litigation efforts. Frankly, the experience is beneficial to law students, and we need more opportunities for law students to understand and interact with clients and the courts.
That said, there are too many unanswered questions floating around about how the Center is organized and operated. First, the N.C. State Bar has strict rules about what entities can go into court to represent clients. The State Bar allows non-profit corporations, within limits, “to practice law.” The Center, however, isn’t a non-profit. It is an academic unit of the University of North Carolina. I simply don’t think the State Bar rules allow such an entity to, in essence, be a law firm that represents clients in court. Otherwise, what’s to stop any other center or academic unit within the University system from hiring a couple of lawyers and getting into the legal business?
Finally, if the Center (or others similarly created) are going to be allowed to practice law, a far more formalized governance structure needs to be in place, with specific litigation guidelines. The 501(c)(3) Institute that I ran was required by the State Bar to have a Board of Directors comprised of licensed N.C. attorneys who directed the litigation policy. My sense is that the Center’s governance structure is far more free-wheeling than what non-profit legal groups must operate under.
Instead of limiting the Center for Civil Rights, let’s consider expanding litigation Centers if approved by the State Bar – but with more diverse perspectives and with a tighter system of governance. That’s actually the kind of policy the Board of Governors needs to explore.
Orr, a Republican, is a former N.C. Supreme Court justice. Email: greenponds.enterprises