IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA21-639

Filed 04 April 2023

Forsyth County, No. 19 CVS 3758

ALVIN MITCHELL, Petitioner,

v.

THE UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS, 

Respondent.

Appeal by Petitioner from Order entered 26 July 2021 by Judge Martin B. 

McGee in Forsyth County Superior Court. Heard in the Court of Appeals 11 May 

2022.

Allison Tomberlin for petitioner-appellant.

Attorney General Joshua H. Stein, by Assistant Attorney General Zach Padget, 

for respondent-appellee.

HAMPSON, Judge.1

Factual and Procedural Background

Alvin Mitchell (Petitioner) appeals from the trial court’s Order affirming a 

decision of The University of North Carolina Board of Governors (BOG) which, in 

turn, upheld Petitioner’s discharge from employment as a tenured professor at 

1 Judge Murphy contributed substantial authorship of those portions of the Opinion of the Court on 

which we are unanimous. This specifically includes the Factual and Procedural Background and our 

discussion of the alleged procedural errors asserted by Petitioner.
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Winston-Salem State University (WSSU). The Record before us tends to reflect the 

following:

Petitioner was hired by WSSU in July 2006 as an Associate Professor of Justice 

Studies in the Department of Social Sciences and was granted tenure in December 

2008. In July 2015, Dr. Cynthia Villagomez and Dr. Denise Nation became co-chairs 

of the Department of Social Sciences and, thus, Petitioner’s direct supervisors. This 

appeal arises out of Petitioner’s discharge from employment based on three alleged 

acts of misconduct by Petitioner taking place between the Fall of 2015 and the Fall of 

2017 while he was under the supervision of Dr. Villagomez and Dr. Nation.

First, during Petitioner’s Introduction to Corrections course in the Fall 2015 

semester, a student submitted a paper that Petitioner did not feel met the necessary 

requirements. Petitioner provided the student an opportunity to resubmit the paper, 

which led to the student receiving a grade of “incomplete” in the class. Throughout 

2016, the student and his academic success counselor attempted to reach out to 

Petitioner without success. Pursuant to WSSU policy, in December 2016, the 

student’s grade of “incomplete” converted to an F. Dr. Nation and Petitioner’s 

supervising Dean, Dr. Doria K. Stitts, both attempted to resolve the grade issue with 

him over email, but he did not respond. Dr. Nation and Dr. Villagomez approached 

Petitioner to discuss the issue as Petitioner was teaching a class, leading to a verbal 

altercation in which Dr. Villagomez called the police. 

Second, sometime during the 2016-2017 academic year, two students in 
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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 
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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.

Dr. Nation believed the letter created a hostile workplace, and, while she ultimately 

decided to not file a formal complaint with the Equal Employment Opportunity 

Commission, she did report the incident to the Dean and Provost and sent them a 

copy of the letter. 

Third, Petitioner’s Summer 2017 semester Constitutional Law class was 

involuntarily reassigned by Dr. Nation to another professor because of concerns 

regarding the rigor of the course and his failure to provide a syllabus in a previous 

semester. Less than one week before the Fall 2017 semester, Petitioner informed Dr. 

Nation and Dr. Villagomez via email that he did not feel comfortable teaching 

Research Methods II—a course given to him in lieu of Constitutional Law—despite 

having already approved the course on his schedule and having taught it for at least 

six years. Dr. Nation did not allow him to change courses. On 22 August 2017, one 

day after the semester began, Dr. Nation informed Petitioner that he had failed to 

open an online course he was teaching. Petitioner responded by stating “I do not 

know my schedule anymore . . . .” However, Dr. Villagomez reiterated that his 
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schedule had not changed. 

On 31 August 2017, WSSU Interim Provost Carolynn Berry provided 

Petitioner with notice of WSSU’s intent to discharge him pursuant to Section 603 of 

The Code of the Board of Governors of the University of North Carolina (UNC Code) 

for neglect of duty and misconduct. According to the UNC Code, “neglect of duty[] 

includ[es] sustained failure to meet assigned classes or to perform other significant 

faculty professional obligations[,]” and “misconduct . . . includ[es] violations of 

professional ethics, mistreatment of students or other employees, research 

misconduct, financial fraud, criminal, or other illegal, inappropriate or unethical 

conduct.” However, “[t]o justify serious disciplinary action, such misconduct should 

be either (i) sufficiently related to a faculty member’s academic responsibilities as to 

disqualify the individual from effective performance of university duties, or (ii) 

sufficiently serious as to adversely reflect on the individual’s honesty, 

trustworthiness or fitness to be a faculty member.” 

On 10 January 2018, a hearing was held before the Faculty Hearing 

Committee (FHC). Following the presentation of WSSU’s case, the FHC determined 

that WSSU had not made a prima facie case and recommended the Chancellor 

overturn the sanctions. Despite this recommendation, in accordance with the UNC 

Code’s procedure, the Chancellor issued a letter on 30 January 2018 disagreeing with 

the FHC’s determination and sent the matter back to the FHC to conclude the 

hearing. After the Chancellor’s determination, Petitioner informed the FHC he did 
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not wish to present any further evidence. The FHC once again found WSSU had not 

proven its case. However, after reviewing the transcript, the FHC’s recommendation, 

and all of the evidence received by the FHC, the Chancellor issued his decision on 7 

March 2018 and upheld the Provost’s decision to discharge Petitioner. The 

Chancellor determined Petitioner violated the UNC Code via neglect of duty because 

he failed to provide his student with a final grade and failed to open the online course. 

The Chancellor also further determined Petitioner violated the UNC Code via 

misconduct when he sent the letter to Dr. Nation. 

Following the Chancellor’s determination, Petitioner appealed to the WSSU 

Board of Trustees (BOT). The Appeals Committee of the BOT concluded WSSU had 

produced sufficient evidence to uphold Petitioner’s dismissal for neglect of duty and 

misconduct. Petitioner then sought review of the BOT’s decision to the BOG, which 

upheld the BOT’s decision on 23 May 2019. The BOG concluded as follows:

Substantively, based upon a careful consideration of the 

record as a whole, statements submitted by the parties, 

and consideration of all controlling laws and policies, there 

is sufficient evidence in the record to support a 

determination that [Petitioner] failed to adequately resolve 

a grading issue, resulting in the student receiving a failing 

grade for the class and endangering the student’s eligibility 

to receive financial aid, which failure constitutes neglect of 

duty under Section 603(1) of [the UNC Code]. In addition, 

there is sufficient evidence in the record to support the 

determination that [Petitioner] failed to timely open [a]n 

online class that he knew he was scheduled to teach, and 

that he continued to fail to open the class at least six days 

after being directed to do so by his department chairs and 

his [D]ean, which failure constitutes neglect of duty under 
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Section 603(1) of [the UNC Code]. Finally, there is 

sufficient evidence in the record to support the 

determination that [Petitioner] wrote and delivered to his 

direct supervisor [a] personally and professionally 

insulting, racially inflammatory note in which he referred 

to her as a “nigger,” a “coon,” and a “sambo,” which 

constitutes misconduct under Section 603(1) of [the UNC 

Code].

The BOG also found that “[Petitioner] erroneously characterize[d] his letter to Dr. 

Nation as [a] letter written by him in his capacity as a private citizen, on a matter of 

public concern.” 

Petitioner sought judicial review in Superior Court. After a whole record 

review, the trial court affirmed the decision of the BOG. The trial court concluded:

the decision to terminate the Petitioner for (1) his neglect 

of duty for failing to open the online course, (2) his neglect 

of duty for failing to issue a final grade, and (3) misconduct 

for the derogatory and racially charged letter to [Dr. 

Nation] . . . is supported by substantial evidence in the 

record and is not arbitrary, capricious, or an abuse of 

discretion[.] 

. . . . 

the decision to discharge the Petitioner . . . was not in 

violation of any constitutional provisions, in excess of 

statutory authority or jurisdiction of the agency, made 

upon unlawful procedure or affected by other error of law. 

The Petitioner’s discharge related to his letter of March 

2017 was not in violation of his First Amendment rights 

and proper procedures were followed.

The trial court also ruled the process afforded Petitioner at the agency level was 

adequate. Petitioner timely appealed to this Court. 
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Issues

On appeal to this Court, Petitioner raises two primary issues: (I) whether the 

BOG’s decision upholding Petitioner’s discharge from employment was affected by 

unlawful procedures during the proceedings before WSSU’s FHR and Chancellor; and 

(II) whether Petitioner’s discharge from employment was in violation of his First 

Amendment right of free speech where the discharge was based, in part, on the letter 

he sent to Dr. Nation.

Analysis

“Appellate review of a superior court order concerning an agency decision 

requires an examination of the trial court’s order for any errors of law.” Emp. Sec. 

Comm’n of N.C. v. Peace, 128 N.C. App. 1, 6, 493 S.E.2d 466, 470 (1997), aff’d in part, 

rev. dismissed in part, 349 N.C. 315, 507 S.E.2d 272 (1998). Our standard of review 

is defined by statute:

A party to a review proceeding in a superior court may 

appeal to the appellate division from the final judgment of 

the superior court as provided in G.S. 7A-27. The scope of 

review to be applied by the appellate court under this 

section is the same as it is for other civil cases. In cases 

reviewed under G.S. 150B-51(c), the court’s findings of fact 

shall be upheld if supported by substantial evidence.

N.C. Gen. Stat. § 150B-52 (2021). Here, Petitioner “challenges the trial court’s lawbased inquiries, including whether the [BOT’s] decision violated constitutional 

provisions, was made upon unlawful procedure, was in excess of statutory authority, 

or was affected by other error of law[.]” The trial court reviewed these asserted errors 
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under N.C. Gen. Stat. § 150B-51(c) and “the [trial] court’s findings of fact shall be 

upheld if supported by substantial evidence.” Id. 

When conducting our review, the agency is entitled to a presumption of good 

faith.

The agency’s decision is presumed to be made in good faith 

and in accordance with governing law. Therefore, the 

burden is on the party asserting otherwise to overcome 

such presumptions by competent evidence to the contrary 

when making a claim that the decision was affected by 

error of law or procedure.

Richardson v. N.C. Dep’t of Pub. Instruction Licensure Section, 199 N.C. App. 219, 

223-24, 681 S.E.2d 479, 483, disc. rev. denied, 363 N.C. 745, 688 S.E.2d 694 (2009)

(citation omitted). “It is well established that an agency’s construction of its own 

regulations is entitled to substantial deference.” Morrell v. Flaherty, 338 N.C. 230, 

237, 449 S.E.2d 175, 179-80 (1994) (citation and quotation marks omitted). We must 

also generally defer to the agency’s interpretation of its regulations “unless it is 

plainly erroneous.” Id. at 238, 449 S.E.2d at 180.

I. WSSU Hearing Procedures

“To assert a due process claim, [Petitioner] must show that [he was] deprived 

of a protected property interest in employment. If tenured, an employee has a 

protected property right because tenure constitutes a promise of continued 

employment.” Pressman v. Univ. of N.C. at Charlotte, 78 N.C. App. 296, 302, 337 

S.E.2d 644, 648 (1985) (citations omitted). Here, Petitioner was a tenured professor 
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who held a protected property interest in his employment. “Section 603 specifies the 

due process protections to which a tenured faculty member is entitled and contains a 

detailed schedule of steps involving notice and hearings which the university must 

take prior to discharging a tenured faculty member.” Bernold v. Bd. of Governors of 

Univ. of N.C., 200 N.C. App. 295, 299, 683 S.E.2d 428, 431 (2009). Even if the UNC 

Code satisfies the requirements of due process, WSSU must then comply with its own 

procedures. McAdoo v. Univ. of N.C. at Chapel Hill, 225 N.C. App. 50, 68-69, 736 

S.E.2d 811, 824 (2013) (“A state actor violates due process when it fails to follow its 

own rules and procedures.” (citations omitted)). Petitioner puts forward three 

instances in which he believes his due process rights were violated by WSSU’s failure 

to comply with its own procedures: the Chancellor ignoring the prima facie 

determinations made by the FHC; Petitioners own waiver of a full hearing; and the 

trial court’s reliance on what were purportedly the Chancellor’s findings of fact 

instead of the FHC’s.

A. Chancellor Declining to Accept the FHC’s Recommendation

First, Petitioner asserts that the Chancellor could not move forward with his 

dismissal when the FHC determined twice that WSSU had failed to make out a prima 

facie case. We disagree. While the Chancellor is required to consider the 

recommendations of the FHC, the decision to discharge ultimately remains with the 

Chancellor under the UNC Code. The FHC’s decision at the end of the hearing is 

transmitted to the Chancellor as a written recommendation. The Chancellor is 
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expressly allowed to “decline[] to accept a [FHC] recommendation that is favorable to 

the faculty member[.]” According to Petitioner, this renders the due process 

protections outlined in the Faculty Handbook meaningless.2 However, the Faculty 

Handbook contemplates that a record will be made at the FHC hearing which can be 

used on the multiple levels of appeal available to WSSU and faculty members: “[T]he 

purpose of the hearing is to create a record of testimony and documentary evidence 

for review by the parties, the [BOT] and/or [BOG], should the Faculty Member seek 

further review of the discharge or imposition of other serious sanctions.” For a better 

record, “[i]f the Chancellor disagrees with the [FHC’s] determination [of whether a 

prima facie case has been presented], he/she will send it back for a full hearing.” 

Indeed, in this case, the Chancellor expressly sent the matter back to the FHC 

for the FHC to conclude the hearing and provide Petitioner an opportunity to present 

evidence. Petitioner declined. Furthermore, WSSU submits a different 

interpretation of the UNC Code. WSSU, as a government agency, interprets its 

procedure to mean that the Chancellor has the final say if the Chancellor and the 

FHC disagree. “It is well established that an agency’s construction of its own 

regulations is entitled to substantial deference.” Morrell, 338 N.C. at 237, 449 S.E.2d 

at 179-80 (citation and quotation marks omitted). We must also generally defer to 

the agency’s interpretation of its regulations “unless it is plainly erroneous.” Id. at 

2 Mitchell does not argue that the Chancellor did not provide a meaningful review of the FHC’s 

recommendations.
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238, 449 S.E.2d at 180. The agency’s interpretation of the ultimate decision maker 

is not plainly erroneous. The text of the UNC Code aligns with the interpretation 

followed by WSSU: “The [C]hancellor shall issue a final written opinion within 30 

[d]ays after receiving the hearing documents including the transcript of the hearing. 

The [C]hancellor’s decision shall be based on the recommendations and evidence 

received from the FHC including the Transcript of the hearing.” (emphasis added.) 

We find it analytically relevant that the FHC is tasked with providing 

“recommendations,” while the Chancellor issues a “final written opinion” based on

those recommendations. The Chancellor and the FHC clearly have separate roles to 

play in the discipline process; therefore, it was not plainly erroneous for WSSU to 

interpret the role of the Chancellor as the final decision maker in instances of 

disagreement with the FHC.

B. Petitioner’s Decision Not to Present Further Evidence

Second, Petitioner argues that he could not have knowingly, intelligently, and 

voluntarily waived his right to a full hearing because he erroneously believed the 

Chancellor was bound by the FHC’s recommendations. Petitioner was represented 

by counsel at the FHC’s hearing and aware of the purposes of the hearing as described 

in the notice provided to him. Petitioner made his own decision not to present further 

evidence after the prima facie determination was rejected by the Chancellor. He was 

also aware of his ability to present evidence at that point in the hearing; the WSSU 

Faculty Handbook states that “[t]he Faculty Member shall have the right to counsel, 
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to present the testimony of witnesses and other evidence, to confront and crossexamine adverse witnesses and to examine all documents and other adverse 

demonstrative evidence, and to make argument.” Petitioner’s decision not to present 

argument after the prima facie determination was rejected by the Chancellor does 

not make the procedure afforded to him defective or violate his due process rights.

C. Chancellor Acting as a Fact Finder

Third, Petitioner argues that only the FHC was authorized to function as a fact

finder and not the Chancellor. Even presuming, without deciding, Petitioner’s 

argument is correct, Petitioner has presented no evidence that the Chancellor ignored 

the findings of fact reached by the FHC.

The agency’s decision is presumed to be made in good faith 

and in accordance with governing law. Therefore, the 

burden is on the party asserting otherwise to overcome 

such presumptions by competent evidence to the contrary 

when making a claim that the decision was affected by 

error of law or procedure.

Richardson, 199 N.C. App. at 223-24, 681 S.E.2d at 483 (citation omitted). Without 

anything in the Record to support Petitioner’s assertion, he has not overcome the 

presumption that the Chancellor acted in good faith and in accordance with governing 

law when reviewing the recommendations of the FHC, as the Chancellor could have 

reached a different conclusion than the FHC using the same set of facts. Thus, 

regardless of whether it would constitute a violation of due process for the Chancellor 

to have acted in a fact-finding capacity, Petitioner presented no evidence to support 
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that the Chancellor so acted; accordingly, this argument fails.

For all the reasons stated above, Petitioner’s due process rights were not 

violated when the Chancellor rejected the prima facie determination made by the 

FHC; when he chose not to present argument after the prima facie determination; or 

when the Chancellor reached a different conclusion than the FHC after reviewing the 

record and recommendation. Accordingly, the procedure used to terminate 

Petitioner’s employment was not unlawful, defective, or in violation of his due process 

rights.

II. Discharge based on Petitioner’s Letter to Dr. Nation

Petitioner further argues the trial court’s decision upholding the BOG’s final 

decision upholding Petitioner’s discharge—based in part on Petitioner’s letter to Dr. 

Nation—was in error because, Petitioner contends, his letter “touched upon a matter 

of public concern.” As such, he argues that, as a public employee, his discharge 

implicated his First Amendment right to free speech and violated his protected 

interest in freedom of expression. We disagree.

“Public employment may not be conditioned on criteria that infringes the 

employees’ protected interest in freedom of expression.” Pressman, 78 N.C. App. at

300, 337 S.E.2d at 647 (citation omitted). “An employee may not be discharged for 

expression of ideas on a matter of public concern.” Id. (citation omitted). “The 

expression need not be public but may be made in a private conversation.” Id.

(citation omitted). 
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“To make out a claim under the First Amendment, the [public] employee must 

show that his speech is concerning a matter of public concern.” Id. (citing Connick v. 

Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). “A matter is of public 

concern if when fairly considered it relates ‘to any matter of political, social, or other 

concern to the community.’ ” Id. at 300-01, 337 S.E.2d at 647 (quoting Connick, 461 

U.S. at 146, 103 S.Ct. at 1690, 75 L.Ed.2d at 719). “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.” Id. at 301, 337 S.E.2d at 647. “Whether speech is a matter of 

public concern is a question of law for the courts to decide.” Id. at 301, 337 S.E.2d at 

647-48.

“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.’ ” Id. (quoting 

Connick, 461 U.S. at 142, 103 S.Ct. at 1687, 75 L.Ed.2d at 717 (citation and quotation

marks omitted)). “The balancing of interests is a question of law for the courts.” Id.

(citation omitted). 

Here, the BOG determined Petitioner failed to present any evidence that his 

letter to Dr. Nation addressed a matter of public concern. The BOG further noted 

Petitioner “erroneously characterized” his letter as addressing a matter of public 

concern. The trial court affirmed this ruling.
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Indeed, on appeal, Petitioner again cites no record support for his contention. 

Instead, Petitioner contends, without citation, 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. In fact, in Pressman, this Court 

addressed a professor’s statements during a meeting concerning a Dean’s lack of 

administrative competence, including a lack of opportunity for personal growth 

because of a heavy workload, lack of guidance for grading, and the failure to develop 

a master’s program and a recruiting program. Pressman, 78 N.C. App. at 301, 337 

S.E.2d at 648. This Court found the “criticism not based on public-spirited concern 

but more narrowly focused on [the professor’s] own personal work and his personal 
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displeasure with internal policies.” Id. at 301-02, 337 S.E.2d at 648. Thus, the Court 

concluded the professor failed to show his speech was addressing a matter of public 

concern and, thus, did not implicate the professor’s First Amendment protections as 

a public employee. Here, even 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. Therefore, the BOG did not commit any error of law by upholding 

Petitioner’s discharge from employment based, in part, on his letter to Dr. Nation. 

Consequently, the trial court did not err in affirming the BOG.

Conclusion

Accordingly, for the foregoing reasons, we affirm the trial court’s 26 July 2021 

Order.

AFFIRMED.

Judge ZACHARY concurs.

Judge MURPHY concurs in part and dissents in part in separate opinion.
No. COA21-639 – Mitchell v. The Univ. of N.C. Bd. Of Governors

MURPHY, Judge, concurring in part and dissenting in part.

While I agree with the Majority’s analysis as to whether Petitioner was 

afforded adequate process during termination proceedings, I dissent in part from the 

Majority on the basis that Petitioner’s remarks implicated a matter of public concern, 

therefore requiring the trial court to conduct a First Amendment balancing test.

“It is clearly established that a State may not discharge an employee on a basis 

that infringes the employee’s constitutionally protected interest in freedom of 

speech.” Rankin v. McPherson, 483 U.S. 378, 383 (1987). This is true “despite the 

fact that the statements are directed at their [] superiors.” Pickering v. Board of 

Education, 391 U.S. 563, 574 (1968). “The threshold question . . . is whether 

[Petitioner’s] speech may be fairly characterized as constituting speech on a matter 

of public concern.” Id. “The determination of whether speech is protected under the 

First Amendment is a question of law.” Holland v. Harrison, 254 N.C. App. 636, 643 

(2017). 

Controversial speech by a public employee is not a novel issue. In Pressman v. 

University of North Carolina at Charlotte, a nontenured professor was denied 

reappointment after he “attended a faculty meeting where the faculty discussed [the 

university dean’s] lack of administrative competence.” Pressman v. University of 

North Carolina at Charlotte, 78 N.C. App. 296, 298 (1985). The professor expressed 

his concern over a variety of workplace topics at the meeting. Id. Establishing North 

Carolina’s two-pronged test regarding free speech by government employees, we said 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

2

the following:

To make out a claim under the First Amendment, the 

employee must show that his speech is concerning a matter 

of public concern. 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. 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.” The 

balancing of interests is a question of law for the courts.

Id. at 300-01 (quoting Connick v. Myers, 461 U.S. 138 (1983)). We held that the 

professor’s “speech was not upon a matter of public concern.” Id. at 301. Instead, 

“[h]is speech can be more accurately described as an employee grievance concerning 

internal policy.” Id. His “criticism [was] not based on public-spirited concern but 

more narrowly focused on his own personal work and his personal displeasure with 

internal policies.” Id. at 301-02.

Here, Petitioner’s letter to Dr. Nation reads, in whole, as follows:

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 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

3

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 these 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 [i]nternational sambo (lol) because you display that 

kind of behavior. You will never get it. Wake up.

Under Pressman, the question this letter raises is twofold and subject to resolution 

as a matter of law: (1) whether the speech at issue, holistically and in context, 

addresses a matter of public concern and (2) whether the interests of the employee in 

expressing the concern outweigh the employer’s interest in the efficient 

administration of its services. As the extent of the discussion of this constitutional 

issue at trial was a singular statement that Petitioner’s termination “was not in 

violation of any constitutional provisions,” I understand the trial court to have ruled, 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

4

without discussion, that the letter did not address a matter of public concern.

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. See, e.g., Duke University 

Office of the Provost, Duke’s Commitment to Diversity and Inclusion, 

https://provost.duke.edu/initiatives/commitment-to-diversity-and-inclusion (last 

accessed 5 January 2023); Wake Forest University, Diversity & Inclusion, 

https://admissions.wfu.edu/experience-wake-forest/diversity/ (last accessed 5 

January 2023); Harvard University, Diversity and Inclusion, 

https://www.harvard.edu/about/diversity-and-inclusion/ (last accessed 5 January 

2023); Stanford Graduate School of Business, Diversity, Equity & Inclusion, 

https://www.gsb.stanford.edu/experience/diversity-equity-inclusion (last accessed 5 

January 2023); see also Campus Ethnic Diversity: National Universities, U.S. News 

& World Report, https://www.usnews.com/best-colleges/rankings/nationaluniversities/campus-ethnic-diversity (last accessed 5 January 2023). 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. 

See, e.g., Kevin Laland, Racism in academia, and why the ‘little things’ matter, Nature 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

5

(Aug. 25, 2020), https://www.nature.com/articles/d41586-020-02471-6; John 

McWhorter, Words Have Lost Their Common Meaning, The Atlantic (Mar. 31, 2021), 

https://www.theatlantic.com/ideas/archive/2021/03/nation-dividedlanguage/618461/; Yuvraj Joshi, Racial Transition, 98 Wash. U. L. Rev. 1181, 1203-

1208 (2021). The U.S. Department of Education has reported on racial diversity in 

higher education. United States Department of Education, Advancing Diversity and 

Inclusion in Higher Education: Key Data Highlights Focusing on Race and Ethnicity 

and Promising Practices (Nov. 2016), 

https://www2.ed.gov/rschstat/research/pubs/advancing-diversity-inclusion.pdf (last 

accessed 5 January 2023). The way race is taught in schools has become one of the 

defining political issues of this decade. See Lauren Camera, Congressional Democrats 

Target Bans on Teaching About Racism in Schools, U.S. News & World Report (Feb. 

2, 2022, 3:06 p.m.), https://www.usnews.com/news/education-news/articles/2022-02-

02/congressional-democrats-take-aim-at-efforts-to-ban-critical-race-theory (last 

accessed 5 January 2023); Stephen Kearse, GOP Lawmakers Intensify Effort to Ban 

Critical Race Theory in Schools, Pew (June 14, 2021), 

https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/06/14/goplawmakers-intensify-effort-to-ban-critical-race-theory-in-schools. Few topics could 

be more legitimately said to constitute issues of public concern. 

Second, the bulk of authoritative caselaw addressing adverse employment 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

6

action in response to employee speech has attempted to cleanly differentiate speech 

concerning sociopolitical issues from speech concerning strictly personal or

administrative issues. In Connick v. Myers, the U.S. Supreme Court laid out the 

then-recent history of developments in First Amendment jurisprudence concerning 

adverse employment action:

For most of this century, the unchallenged dogma was that 

a public employee had no right to object to conditions 

placed upon the terms of employment—including those 

which restricted the exercise of constitutional rights. The 

classic formulation of this position was Justice Holmes, 

who, when sitting on the Supreme Judicial Court of 

Massachusetts, observed: “A policeman may have a 

constitutional right to talk politics, but he has no 

constitutional right to be a policeman.” For many years, 

Holmes’ epigram expressed this Court’s law.

The Court cast new light on the matter in a series of cases 

arising from the widespread efforts in the 1950s and early 

1960s to require public employees, particularly teachers, to 

swear oaths of loyalty to the state and reveal the groups 

with which they associated. In Wieman v. Updegraff, 344 

U.S. 183[] . . . (1952), the Court held that a State could not 

require its employees to establish their loyalty by 

extracting an oath denying past affiliation with 

Communists. In Cafeteria Workers v. McElroy, 367 U.S. 

886[] . . . (1961), the Court recognized that the government 

could not deny employment because of previous 

membership in a particular party. By the time Sherbert v. 

Verner, 374 U.S. 398[] . . . (1963), was decided, it was 

already “too late in the day to doubt that the liberties of 

religion and expression may be infringed by the denial of 

or placing of conditions upon a benefit or privilege.” It was 

therefore no surprise when in Keyishian v. Board of 

Regents, 385 U.S. 589[] . . . (1967), the Court invalidated 

New York statutes barring employment on the basis of 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

7

membership in “subversive” organizations, observing that 

the theory that public employment which may be denied 

altogether may be subjected to any conditions, regardless 

of how unreasonable, had been uniformly rejected. 

In all of these cases, the precedents in which Pickering [v. 

Board of Education, 391 U.S. 563 (1968),] is rooted, the 

invalidated statutes and actions sought to suppress the 

rights of public employees to participate in public affairs.

The issue was whether government employees could be 

prevented or “chilled” by the fear of discharge from joining 

political parties and other associations that certain public 

officials might find “subversive.” The explanation for the 

Constitution’s special concern with threats to the right of 

citizens to participate in political affairs is no mystery. The 

First Amendment was fashioned to assure unfettered 

interchange of ideas for the bringing about of political and 

social changes desired by the people. Speech concerning 

public affairs is more than self-expression; it is the essence 

of self-government. Accordingly, the Court has frequently 

reaffirmed that speech on public issues occupies the 

highest rung of the hierarchy of First Amendment values, 

and is entitled to special protection.

Pickering . . . followed from this understanding of the First 

Amendment. In Pickering, the Court held impermissible 

under the First Amendment the dismissal of a high school 

teacher for openly criticizing the Board of Education on its 

allocation of school funds between athletics and education 

and its methods of informing taxpayers about the need for 

additional revenue. Pickering’s subject was a matter of 

legitimate public concern upon which free and open debate 

is vital to informed decision-making by the electorate.

Our cases following Pickering also involved safeguarding 

speech on matters of public concern. The controversy 

in Perry v. Sindermann, 408 U.S. 593[] . . . (1972), arose 

from the failure to rehire a teacher in the state college 

system who had testified before committees of the Texas 

legislature and had become involved in public 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

8

disagreement over whether the college should be elevated 

to four-year status—a change opposed by the Regents. 

In Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274[] . 

. . (1977), a public school teacher was not rehired because, 

allegedly, he had relayed to a radio station the substance 

of a memorandum relating to teacher dress and 

appearance that the school principal had circulated to 

various teachers. The memorandum was apparently 

prompted by the view of some in the administration that 

there was a relationship between teacher appearance and 

public support for bond issues, and indeed, the radio 

station promptly announced the adoption of the dress code 

as a news item. Most recently, in Givhan v. Western Line 

Consolidated School District, 439 U.S. 410[] . . . (1979), we 

held that First Amendment protection applies when a 

public employee arranges to communicate privately with 

his employer rather than to express his views publicly.

Although the subject-matter of Mrs. Givhan’s statements 

were not the issue before the Court, it is clear that her 

statements concerning the school district’s allegedly 

racially discriminatory policies involved a matter of public 

concern.

Connick, 461 U.S. at 143-46 (marks and extratextual citations omitted). Pressman, 

which cited Connick in its articulation of the two-pronged test cited above, reached a 

different result than the most recent cases Connick cited, holding that a state 

employee’s speech was simply “an employee grievance concerning internal policy” 

rather than one “based on public-spirited concern” when it concerned a college 

administration’s “lack of opportunity for personal development . . . , lack of guidance 

for grading, failure to develop a masters program, failure to recruit quality students 

and faculty, and inadequate or inappropriate educational direction . . . .” Pressman, 

78 N.C. App. at 298, 301-302. 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

9

While the Majority treats the fact pattern in Pressman and the ensuing holding 

as directly controlling in this case, Petitioner’s letter fits only with great difficulty 

into the framework set out in Connick and Pressman; it 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, see Pressman, 78 N.C. App. at 300-01—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 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

10

whether the personally offensive character of the letter precludes our holding that it 

addresses a matter of public concern under Pressman and Connick. And the answer, 

as informed by the analysis of the U.S. Supreme Court in Givhan v. W. Consol. Sch. 

Dist., 439 U.S. at 411-413, is no. There, as discussed in the above-quoted portion of 

Connick, the Court held that an employee’s views on a matter of public concern are 

protected even when expressed privately. Givhan, 439 U.S. at 414 (“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. Id. at 412. So too here.3

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 

3 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. at 412-13 (marks omitted) (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”).
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

11

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.” See In re Spivey, 345 N.C. 404, 414-15 (1997).

4 

4 Our Supreme Court’s full reasoning in Spivey was as follows:

By another assignment of error, [the] respondent Spivey contends that

his removal from office for his behavior, including the use of the word 

“nigger” and other tasteless language, violates the First Amendment 

to the Constitution of the United States and Article I, Section 14 of the 

Constitution of North Carolina. Spivey argues that he has been 

wrongly removed from office because of the content of his speech. He 

claims that this violated his constitutionally protected right to express 

his viewpoint. We disagree.

Taken in context, the use of the word “nigger” by Spivey squarely falls 

within the category of unprotected speech defined by the Supreme 

Court in Chaplinsky v. New Hampshire, 315 U.S. 568[] . . . (1942). In 

Chaplinsky, the United States Supreme Court wrote

[I]t is well understood that the right of free speech is 

not absolute at all times and under all circumstances. 

There are certain well-defined and narrowly limited 

classes of speech, the prevention and punishment of 

which have never been thought to raise any 

Constitutional problem. These include the lewd and 

obscene, the profane, the libelous, and the insulting or 

“fighting” words—those which by their very utterance 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

12

inflict injury or tend to incite an immediate breach of 

the peace.

Id. at 571-72[] . . . . At the hearing on this matter, there was testimony 

concerning the hurt and anger caused African-Americans when they 

are subjected to racial slurs by white people. We question, however, 

whether such testimony was necessary to the findings of the superior 

court in this case. Rule 201(b) of the North Carolina Rules of Evidence 

provides that a trial court may take judicial notice of a fact if it is not 

subject to reasonable dispute in that it is generally known within the 

territorial jurisdiction of the trial court. N.C.G.S. § 8C-1, Rule 201(b) 

(1992). No fact is more generally known than that a white man who 

calls a black man a “nigger” within his hearing will hurt and anger the 

black man and often provoke him to confront the white man and 

retaliate. The trial court was free to judicially note this fact. 

Additionally, evidence concerning the circumstances surrounding 

Spivey’s verbal outbursts in the bar tends to show that his use of this 

racial epithet in the present case was intended by him to hurt and 

anger Mr. Jacobs and to provoke a confrontation with him. “‘Resort to 

epithets or personal abuse is not in any proper sense communication of 

information or opinion safeguarded by the Constitution.’” Chaplinsky, 

315 U.S. at 572[] . . . (quoting Cantwell v. Connecticut, 310 U.S. 296, 

309-10[] . . . (1940)).

[The] [r]espondent Spivey cites Bond v. Floyd, 385 U.S. 116[] . . . (1996), 

for the proposition that governmental restriction on the ability of 

elected officials to express their views, however objectionable, stifles 

public debate and violates the First Amendment. We conclude that 

nothing in that opinion protects the use of racial invective by a public 

official against a member of the public in a bar. Spivey’s use of the 

word “nigger” and his abusive conduct on the night in question did not 

in any way involve an expression of his viewpoint on any local or 

national policy. In fact, Spivey himself has repeatedly asserted since 

the incident in question that the use of the racial epithet “nigger” does 

not in any way reflect his views about race.

Mr. Spivey’s abusive verbal attack on Mr. Jacobs which gave rise to the 

inquiry removing him from office is not protected speech under the 

First Amendment. Instead, when taken in context, his repeated 

references to Mr. Jacobs as a “nigger” presents a classic case of the use 

of “fighting words” tending to incite an immediate breach of the peace 

which are not protected by either the Constitution of the United States 

or the Constitution of North Carolina. We overrule this assignment of 

error.

In re Spivey, 345 N.C. 404, 414-15 (1997).
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

13

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 under the second prong of Pressman, I

would also remand the case for further proceedings, as that issue has not yet been 

“raised and passed upon in the trial court.” State v. Morrow, 200 N.C. App. 123, 127 

(2009) (emphasis added) (“Appellate courts will not ordinarily pass upon a 

constitutional question unless it affirmatively appears that such question was raised 

and passed upon in the trial court.”); see also Pressman, 78 N.C. App. at 300-01 

(marks and citations omitted) (emphasis added) (“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. The balancing of interests is a question of law for the courts.”). Should 

the trial court have then determined that Petitioner’s interests in making the 

statements in the letter outweighed any countervailing interests of WSSU in 

terminating him, the trial court may have further determined whether any of the 
MITCHELL V. THE UNIV. OF N.C. BD. OF GOVERNORS

MURPHY, J., concurring in part and dissenting in part

14

remaining bases offered by WSSU, independently or in combination, supported 

Petitioner’s termination.

I respectfully dissent in part.