UNC Is At It Again
Tues., June 22: BOG retaliates against critic + NC Senate wants more tax cuts + a Raleigh recall? + Durham cops try to skip review board + SCOTUS hints at paying NCAA players
+TODAY’S TOP 5
1. The BOG Retaliates Against Critic at UNC Press
The UNC Board of Governors declined to reappoint law professor Eric Muller to the UNC Press Board of Governors—not because he’d done anything untoward or wasn’t qualified, but because he criticized the BOG’s handling of Silent Sam.
Muller spent the last six of those years as chairman, a position to which he was unanimously re-elected this year. Authors, campus leaders and his fellow board members have hailed his leadership, pointing to the way that the board has become diverse in terms of race, gender and geography. Of the board’s 16 elected members, seven are now women and seven are people of color. The board, historically dominated by members from Chapel Hill and N.C. State, now has members from UNC Greensboro, Appalachian State University, North Carolina A&T and N.C. Central University.
But when the UNC Board of Governors’ University Governance Committee met last month, they approved two of the three reappointments submitted to them and refused to consider Muller for reappointment. The committee and its chairman, David Powers, gave no public explanation. …
The move is part of a larger strategy to remove dissenting voices from prominent positions across the UNC System, the source said.
“The thinking is that if the board of governors makes these appointments, they would be stupid to continue appointing people who are going to be critical of decisions they are making for the UNC System as appointees of the North Carolina General Assembly,” the source said. “There was a time when these things were thought of as separate and not connected to the politics. But the way they’re looking at it now, they have no use for anyone who is going to be a critic to be in a prominent position if they can prevent that. It’s just ‘You want to criticise the people who are running this system now and how they’re doing it? You can do that, but you’re not going to do it from inside the tent. There are going to be consequences for that now.’”
An anonymous BOG member told Policy Watch:
“Muller has been on the radar of some of the board of governors members for a couple of years now. There was a lot of anger that there was a prominent UNC law professor talking about the deal with the Sons of Confederate Veterans and saying that it didn’t hold up legally. There were members who really felt like it is not the role of law professors at the university to comment on legal matters involving the university, that they’re supposed to be teaching classes and not making statements to the press about what we do.”
“He has had a target on his back. I don’t personally think it is a smart move to go targeting appointments based on someone’s speech or viewpoint, which is supposed to be protected by the First Amendment. I think it’s asking for another lawsuit if we start getting into that with every board that we have any control over. But we have seen that when it comes to politics, this board is fine facing lawsuits. We may not win them, we may see certain things invalidated like with the deal over Silent Sam, but we’ll go to court.”
Muller released a statement on Twitter yesterday:
Top reply:
Nikole Hannah-Jones knows whereof she speaks, obviously. After their conservative minders raised hell over the 1619 Project, the UNC Board of Trustees refused to grant her tenure.
2. NC Senate Budget Puts Extra Money to More Tax Cuts
Last week, the state discovered that it had $1.7 billion more in its coffers than expected. Governor Cooper quickly pointed out that this extra cash meant the NCGA Republicans could have their tax cuts, and he could have his spending, and they’d all be happy. Yesterday, the NC Senate responded:
More tax cuts.
Senate leaders say they're sticking to the $25.72 billion spending cap they and House leaders agreed on two weeks ago.
The massive tax cut package Senate leaders unveiled June 9 is included in the budget, but with the news of the larger surplus, it's gotten even larger. The proposed budget calls for lowering the individual income tax rate from 5.25 to 3.99 percent over five years, rather than the 4.99 percent proposed earlier. …
Teachers and state employees would see only a 1.5 percent raise for each of the next two years under the Senate proposal. The lone exception is correctional officers, who would receive an average 7 percent raise as part of introducing an experienced-based salary schedule for those workers.
Retired state workers would get no cost-of-living adjustment to their pensions. (WRAL)
Cooper wants to give teachers 10% raises over the next two years.
Berger shrugged off suggestions that the state invest the funds in schools—seeing as a judge warned that he would force lawmakers to act if they didn’t begin funding a $5.6 billion plan to provide students with the constitutionally required sound basic education—saying the schools have plenty, thank you very much.
“Anyone in education who says there's not enough money is certainly not reflecting the influx of dollars that have come to [school districts] directly from the federal government.”
The House is unlikely to sign off on the Senate’s budget as is, and Cooper has signaled a veto if Republicans don’t bend in his direction at least a little.
OTHER STATE NEWS
McCrae Dowless—the operative behind the 2018 election fraud scandal in Congressional District 9—pleaded guilty in federal court to collecting social security benefits while also working on campaigns. The state election charges are still pending.
3. Ex-Raleigh Pols Want a Recall Election
Right after the NIMBY crowd got whipped in 2019, a group called Liveable Raleigh sprung up, led in part by Russ Stephenson (who lost narrowly) and Stef Mendell (who got crushed), castigating MAB and company on social media for offenses real and imagined.
The group dominates the #ralpol Twitter tag, which can give the impression that it has a wide following.
So, when it scheduled an “Emergency Virtual Public Meeting” for Monday night to “discuss in PUBLIC the opportunity to hold a timely City Council election using Raleigh's recall ordinance,” it got a dutiful write-up in the N&O.
But a few minutes after the event was set to begin, it was canceled. Only 13 people said (on Facebook) that they were going, and 11 more said they were interested—after the region’s biggest media outlet publicized it. A mass movement this is not.
That being said, their beef isn’t meritless. The council did decide to extend its own term by more than a year without bothering to consult voters, and the city attorney’s explanation is less than persuasive.
“Given the legal issues related to an October 2021 election and the substantial consequences to the city that would occur if an election was held and later determined to be unconstitutional, the discussion and potential solutions were covered by the attorney-client privilege.”
A recall is possible. They need signatures of 25% of those who voted in the previous election. So for the mayor and the two at-large council members, that’s about 13,600. For the five district council members, the magic number is more like 2,000–3,000, depending on the district.
The election is held within 60 days of the signatures being verified.
Recalls are hard to pull off. But if they make the ballot, they ask voters not to pick between Candidate A and Candidate B. They ask them to register their approval or disapproval of an incumbent. It’s easy to imagine disapproval winning out when the alternative is unknown.
4. Durham Cops Don’t Want to Face Review Board
Last year, four Durham cops drew their guns on two kids—one eight, one 15—playing tag in an apartment complex, patted them down, and handcuffed one. (They’re Black, but you already knew that.) The officers said the older one resembled a description of an armed drug dealer.
One cop was suspended without pay for a day—which, in real talk, means he lost a day’s vacation.
If any of the other officers were disciplined, the DPD didn’t make it public, and because North Carolina has ridiculously opaque laws, I can’t find out through a records request.
Durham’s civilian review board was supposed to conclude its inquiry into how the police department handled the matter last night. But the cops filed for a restraining order, arguing that the board’s chairman, DeWarren Langley, had violated policy by speaking with WRAL about the case.
The allegedly incriminating statements, filed by Officers John Doe 1–4:
“Seeing the video footage and hearing the testimony, it was very concerning,” Langley said after the board met with the boys and their mothers for four hours last Wednesday.
“There are no limits to what type of recommendation we can offer,” he added.
The motion … states that the procedure manual governing review board hearings are to remain confidential and that members aren't to speak publicly about pending cases. The manual also states that the review is limited to determining whether a police department investigation or the findings of an investigation were “deficient because of an abuse of discretion,” according to the motion.
Which is to say, the cops wanted the review board to remember that it’s supposed to be a feckless show pony with no real authority to do diddly squat. State law dictates as much.
Langley said yesterday there was nothing wrong with his comments. A judge agreed and tossed the officers’ request.
Because of this state’s absurd confidentiality laws, whatever discussions the review board had yesterday took place in closed session, away from the public and media. See how revealing this agenda is?
5. SCOTUS Opens the Door to Paying NCAA Athletes
The ruling in NCAA v. Alston et al. was fairly narrow, focused on whether the NCAA could block schools from providing student-athletes with extra educational benefits—free grad school, free computers, paid posteligibility internships, etc.—as part of a recruitment package. The Court unanimously said yes.
The case began as an antitrust lawsuit challenging the NCAA’s ability to block student-athletes from receiving compensation.
As the ruling explains:
Following a bench trial, the district court issued a 50-page opinion that refused to disturb the NCAA’s rules limiting undergraduate athletic scholarships and other compensation related to athletic performance. At the same time, the court found unlawful and thus enjoined certain NCAA rules limiting the education-related benefits schools may make available to student-athletes.
After the Ninth Circuit upheld the district court, the NCAA—but not the student-athletes—appealed to Supreme Court.
The Court considered the NCAA’s argument that it could ban student-athletes from receiving any additional benefits, but not the students’ case that they should be able to seek payment.
The students probably should have appealed as well.
The Court:
The NCAA maintains the courts below should have analyzed its compensation restrictions under an extremely deferential standard because it is a joint venture among members who must collaborate to offer consumers the unique product of intercollegiate athletic competition. Even assuming the NCAA is a joint venture, though, it is a joint venture with monopoly power in the relevant market.
Then, notably, the Court took a shot at the idea that the NCAA should be exempt from antitrust laws:
The NCAA next contends that the Court’s decision in [NCAA v. Board of Regents expressly approved the NCAA’s limits on student-athlete compensation. That is incorrect. The Court in Board of Regents did not analyze the lawfulness of the NCAA’s restrictions on student-athlete compensation. Rather, that case involved an antitrust challenge to the NCAA’s restraints on televising games—an antitrust challenge the Court sustained. Along the way, the Court commented on the NCAA’s critical role in maintaining the revered tradition of amateurism in college sports as one “entirely consistent with the goals of the Sherman Act.” But that sort of passing comment on an issue not presented is not binding, nor is it dispositive here. (Emphasis mine.)
Justice Gorsuch, who wrote for the majority, summed up the decision this way:
Some will think the district court did not go far enough. By permitting colleges and universities to offer enhanced education-related benefits, its decision may encourage scholastic achievement and allow student-athletes a measure of compensation more consistent with the value they bring to their schools. Still, some will see this as a poor substitute for fuller relief. At the same time, others will think the district court went too far by undervaluing the social benefits associated with amateur athletics. For our part, though, we can only agree with the Ninth Circuit: “‘The national debate about amateurism in college sports is important. But our task as appellate judges is not to resolve it. Nor could we. Our task is simply to review the district court judgment through the appropriate lens of antitrust law.’”
In a concurring opinion, however, Justice Kavanaugh was ready to settle the amateurism question once and for all:
The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year. Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing. …
To be sure, the NCAA and its member colleges maintain important traditions that have become part of the fabric of America—game days in Tuscaloosa and South Bend; the packed gyms in Storrs and Durham; the women’s and men’s lacrosse championships on Memorial Day weekend; track and field meets in Eugene; the spring softball and baseball World Series in Oklahoma City and Omaha; the list goes on. But those traditions alone cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated. Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.
The NCAA did its best to claim some semblance of victory, but the tide has obviously turned.
Rutgers professor Michael Carrier: “The NCAA is now fighting with one hand behind their backs. The amateurism defense, on which the NCAA has relied for decades, is now riddled with holes. For any litigation down the road in which student-athletes seek more than they did in this case, the NCAA is going to have a very difficult time.” (WaPo)
The Biden administration backed the student-athletes as well.
As Kavanaugh seemed to acknowledge, it’s less a question of if than when the NCAA’s “amateur” regime falls. Then come the harder questions: How do you preserve Title IX protections when men’s football and basketball generate so much more revenue than women’s sports? How would such a system affect sports that make no money?
OTHER SPORTS NEWS
It was a big day for LGBTQ representation in sports.
Oakland Raiders defensive lineman Carl Naissib became the first active NFL player to come out as gay. Michael Sam was drafted by the Rams but never played in the pros. A handful of other players came out after they retired.
Laurel Hubbard, a 43-year-old weightlifter from New Zealand, will be the first transgender athlete to compete in the Olympics. Her blood showed testosterone levels below the threshold required by the IOC.