Thursday, June 17, 2021

Nikole Hannah-Jones May Have a First Amendment Case (by Nareissa Smith, Esq.)


The Harvard University motto - “Veritas” - means “Truth” in Latin. Morehouse College’s Latin motto, “Et facta est lux,” translates to, “Let there be light.” The frequent appearance of “lux” and “veritas” in college mottos across the nation reminds us that universities are places where students go to be enlightened by truth.

For that to happen, however, faculty must be free to speak truth without repercussions. That’s why the University of North Carolina’s recent decision regarding Nikole Hannah-Jones is so troubling.

Hannah-Jones, a graduate of UNC-Chapel Hill, has covered the stubborn persistence of racial segregation in America, including its public schools. Her efforts have earned her a Pulitzer Prize and a MacArthur “Genius” Grant.

Because of her stellar qualifications, UNC offered Ms. Hannah-Jones the Knight Chair in Race and Investigative Reporting. However, unlike past Knight Chair recipients, the school refused to offer Hannah-Jones tenure. The decision came because of conservative objections to Hannah-Jones’ work with The 1619 Project, an effort to commemorate the arrival of the first enslaved Africans and highlight the role that slavery played in America’s past.

Hannah-Jones is considering a lawsuit against the university. Her attorneys – including some from the NAACP Legal Defense Fund – gave the university until June 4 to offer Hannah-Jones tenure. They have yet to do so. If a lawsuit is filed, it could raise serious First Amendment issues.

The First Amendment forbids federal, state, and local governments from passing laws or taking actions that abridge the freedom of speech. The Supreme Court has noted that both universities and professors have academic freedom rooted in free speech rights. This gives the UNC System the authority to make hiring choices, but it also prevents them from singling out faculty who teach controversial doctrines or subjects.

As a First Amendment scholar, my initial thoughts regarding this case were not favorable to Hannah-Jones. One of the great ironies of First Amendment jurisprudence is that courts are quite willing to protect hate-speech directed against people of color but have historically been less inclined to defend people of color who exercise their free speech rights. However, three things could weigh in Hannah-Jones’ favor.

First, the First Amendment doesn’t like bullies. The First Amendment’s academic freedom cases arose from the McCarthy Era. In the 1950s, academics across the nation were labeled as “subversive” because they advocated communism or refused to say that they did not. The Supreme Court protected the professors and refused to let universities dismiss them. The Constitutional protection for those who teach controversial subjects helps Hannah-Jones.

Second, while courts have decided many cases involving professors with controversial opinions, very few cases involve professors being punished for providing objective facts. While people can debate the merits of various economic systems, philosophical questions, or religious beliefs, it’s harder to debate history. Slavery happened. These may be truths that some Americans would prefer to forget, but inconvenient truths remain true just the same. It would be odd for a court to side against a professor who has done nothing more than tell the truth.

Finally, while court cases usually focus on the school and the faculty, the Supreme Court has written that academic freedom “is of transcendent value to all of us.” Hannah-Jones’ work and scholarship is particularly valuable. Over the past year, the death of George Floyd, the COVID-19 pandemic, the Jan 6 insurrection and other events have placed race front and center in America. It seems unlikely that courts would support a university’s attempt to quash information that is highly relevant to this critical moment in our history.

University professors enlighten their students and the public by helping both groups grapple with difficult facts. UNC-Chapel Hill’s motto - “Lux Libertas” - means “Light and Liberty.” But if the UNC System denies its faculty the liberty to speak the truth, there will be no light and everyone in the state will be poorer for it.

This article originally appeared in the Charlotte Observer on 6/14/21. Read it here.
Nareissa Smith is an attorney, former law professor and freelance writer.

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