An old adage among lawyers says: If the law is on your side, argue the law. If the facts are on your side, argue the facts. If neither is on your side, pound the table.
University of North Carolina law professor Gene Nichol seems to be in that camp, for he sure pounds the table a lot in a recent oped in the News & Observer. That is just one giveaway that he has a weak case in arguing against a proposed review of the practices of the UNC Law School’s Center for Civil Rights.
Several members of the UNC Board of Governors (BOG) say the center takes part in one-sided political advocacy and has been backing lawsuits for left-leaning causes.
So a BOG committee will study a proposed [emphases added] ban on litigation by the Center for Civil Rights, news reports indicate. Until that’s resolved, the center has been ordered not to launch any new lawsuits.
Nichol fulminated against this move in the recent oped. But the way he does it is full of telltale signs that his argument is flawed.
The first is that, instead of addressing the current issue, he waxes nostalgic.
“The law school in Chapel Hill is a storied institution,” he begins.
But can’t a storied institution make mistakes? Actually, his whole career as an activist is based on that assumption — that institutions are flawed, and must be corrected.
Nichol then goes into a couple more paragraphs about the links between the center and the late Julius L. Chambers, a civil rights icon. But of course this isn’t about Chambers, the center’s roots or its nobler intentions, but whether it has gone off track.
Only then does Nichol get into his real theme: “Today a couple of political lawyers on the Board of Governors seek to close the Civil Rights Center.”
He implies critics want to shut the center down. As already noted, however, the issue is about a committee studying a proposed ban on litigation by the center. While the issue is being studied, the BOG has bit the pause button on new lawsuits, which the kind of thing any organization will do when some aspect of its work is being reviewed.
Even those board members seeking this inquiry support having the center do research. The question revolves around whether an enterprise at a public university should be moonlighting as a left-wing advocacy group, which is the key question here.
Nichol gives away the game, however, when he calls the criticism “nakedly ideological.” He fumes that the critics would have been much less critical of the center if it had defended conservative views.
As in the famous detective story, however, here’s where the dog doesn’t bark. Why doesn’t Nichol at this point cite a case, one case, in which the Civil Rights Center defended conservative or even middle-of-the road causes? Why doesn’t he offer one example of the center defending someone’s Second Amendment rights, or battling for a small business against government bureaucrats, or fighting to ensure conservative students can express their views on UNC campuses? Why can’t he even hint that the center’s work is non-ideological?
That’s what a lawyer would do: he’d offer a counter-example to show the Civil Rights Center wasn’t ideological; he’d give at least one instance to counter the assumption that the center is in fact a left-wing advocacy group. Just one.
Nichol doesn’t. Which suggests he can’t. Which suggest that the key point is valid: the Civil Rights Center is not so much interested in education as in advocating for left-wing causes in the courts. All this suggests it is the Civil Rights Center which is “nakedly ideological.”
Nichol argues the Civil Rights Center’s litigation gives law students valuable experience, but there are plenty of ways law schools can do that, and we presume the UNC Law School already does.
Having such a center under the aegis of a publicly supported university raises valid questions. Having a committee study the issues – and that’s all that’s happening now – is a legitimate activity.
Pounding the table, shouting, and making irrelevant charges won’t change that.