Violating Academic Freedom, Again

By GENE NICHOL

I was unsurprised to read the University of North Carolina Board of Governors is about to require a “foundations of democracy” course, or group of courses, for all system schools. It will, reportedly, mandate the study of the Constitution, the Declaration of Independence, Federalist Papers, Dr. King’s Birmingham letter, and the Gettysburg Address. It has roots, we’re told, in the North Carolina Reach Act, pushed, but not yet enacted, by the General Assembly.

A few weeks ago, former Chancellor Holden Thorp reminded that our governing boards have no “ability to propose a class, propose a degree, or – for God’s sake – propose a school.” But this is the new Carolina.

I was astonished, though, to see that our Republican lawmakers, and their Board servants, want students to read the US Constitution. Since 2010, no legislature in America has piled up a list of constitutional transgressions to match our friends in Raleigh. You’d think the Constitution would, literally, be the last thing they’d draw attention to.

Our leaders suggest the listed documents won’t be the only content allowed in the sessions. Other offerings might be considered. The paragraphs below are my modest suggested addition. The listing is mine, but the words are from judges, state and federal.

In Moore v. Harper (2023), the US Supreme Court rejected the extraordinary assertion by Republican North Carolina General Assembly leaders that their federal districting decisions were not subject to state judicial review. Chief Justice John Roberts chided the lawmakers:

“Since early in our Nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts. We announced our responsibility to review laws that violate the constitution in Marbury v. Madison (1803). All those who have framed written constitutions contemplate them as forming the fundamental and paramount law.”

The Moore decision was presaged by a series of judicial rulings over the preceding decade that invalidated a cascade of constitutional violations by the N.C. General Assembly. Judges held state lawmakers enacted “among the largest racial gerrymanders ever confronted by a federal court.” Those laws constituted a “widespread, serious and long-standing constitutional violation.” A legislature that is insulated by invidious gerrymandering, the judges wrote, “can enact additional legislation to restrict voting rights and cement its unjustified control.”

Another federal court held North Carolina Republicans used “almost surgical precision” to deny the right to vote to African Americans. “Neither this legislature, nor any other legislature in the country, has ever done so much, so fast, to restrict access to the franchise.”

A third federal judge ruled North Carolina’s “Right to Know Act,” which “coerced a doctor to voice a message on behalf of the state,” violated the Constitution. “Having to choose between blindfolding and earmuffing herself or watching and listening to unwanted information” to obtain a medical procedure (abortion) could not be tolerated. Forced speech “to unwilling and incapacitated listeners does not bear a constitutionally necessary connection to the protection of fetal life.”

The North Carolina Supreme Court ruled, in invalidating one of the many legislative attempts to eviscerate the powers of the governor: “A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty and the principle of separation of powers.” [Those rules] “do not allow the General Assembly to take control over the executive and lodge it with itself.”

Finally, another exasperated federal judge concluded the long string of intentional constitutional violations by North Carolina Republican lawmakers, “raises legitimate questions regarding the General Assembly’s capacity or willingness” to comply with fundamental law.

Perhaps a civics lesson is in order. But it might not be the one our deeply partisan Board of Governors and their compliant president want to deliver.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.

From The Progressive Populist, March 1, 2024

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