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From the June 23 decision in Huckabee v. Meta Platforms, Inc., by Third Circuit Judge Peter Phipps, joined by Judges Arianna Freeman and Emil Bove:

Mike Huckabee … is a Baptist minister, the former Governor of Arkansas, a two-time presidential candidate, a New York Times best-selling author, a nationally syndicated radio and television host, and the current United States Ambassador to Israel.

Between April and June 2024, his name, image, and likeness were used in three different advertisements to endorse cannabinoid, or ‘CBD,’ products on the Facebook social media platform …. One of the advertisements reported that Huckabee was leaving his then-job as a television show host on Trinity Broadcasting Network, a Christian-based television network, to “[p]ursue [a] [g]reater [p]urpose,” which was the promotion of CBD products. In another advertisement, Huckabee appeared to “open[ ] up about his health problems and the miracle that helped him turn his life around,” which was the use of CBD products.

Another advertisement contained a link, which if clicked, opened what appeared to be, but was not, the Fox News website. That linked webpage had an article with Huckabee’s name, image, and likeness reporting that he was leaving his television show due to health issues from an autoimmune disease, and that “[a]s a God-fearing Christian,” he recommended “CBD [as] the future of medicine in America,” since it was “more effective than similar offerings from … ‘Big Pharma’ Companies.” Each of the advertisements was made by a third party without Huckabee’s permission, and Facebook was paid to feature those messages to its users.

The advertisements were a commercial success: after viewing them, “numerous fans” of Huckabee purchased the CBD products. Huckabee learned of the advertisements in or around May 2024, and Facebook removed them from its platform in June 2024. This was not Facebook’s first experience with CBD advertisements that had misused the names, images, or likenesses of other public figures. It had previously hosted similarly unauthorized CBD advertisements depicting media personalities Laura Ingraham, Jeanine Pirro, and Sean Hannity, and news outlets reported on those instances.

Huckabee sued under Arkansas’s Frank Broyles Publicity Rights Protection Act of 2016, which exempts social media platforms from liability so long as they lack “actual or constructive knowledge of the unauthorized commercial use of a person’s name, image, or likeness.” He pointed to these items as sufficient to allege a plausible claim of such knowledge:

• Meta sells advertisements;
• Meta allows advertisers to pay more to popularize those advertisements;
• Huckabee is a nationally recognized celebrity;
• Huckabee “has been a lifelong opponent of marijuana and its derivatives—i.e., CBD”;
• Meta hosted inaccurate CBD advertisements with Huckabee’s unauthorized name, image, or likeness;
• In one of those advertisements, Meta hosted a fake ‘FoxNews.com’ link;
• Meta approved the advertisements;
• Meta has approved CBD advertisements with fake endorsements from other media celebrities since at least 2021; and
• Meta’s approval and maintenance of the Huckabee advertisements was with actual malice or, at least, with reckless disregard to their truthfulness or accuracy.

And the Third Circuit concluded that Huckabee indeed adequately alleged constructive knowledge:

As a baseline, the advertisements are premised on a development that Huckabee, a public figure and “lifelong opponent of marijuana and its derivatives—i.e., CBD,” is now endorsing CBD products. While such a stark change of heart can be convincing, in the context of an advertisement, it also raises questions about the legitimacy of the changed position. Those doubts, by themselves, are not enough to infer that Meta had constructive knowledge of the misuse of Huckabee’s name, image, or likeness.

The original complaint tries to bolster that inference by also alleging that Facebook previously hosted similar, fraudulent CBD advertisements using the name, image, and likeness of other media personalities, and that news outlets reported on those instances. That helps, but even the combined effect of those allegations does not cross the plausibility threshold.

Most critically, however, the original complaint states that one of the advertisements displayed on Facebook’s platform linked to a website falsely purporting to be a Fox News article. That bogus link, when coupled with the unusual association of Huckabee and CBD and the prior fraudulent CBD advertisements on Facebook, suffices for allegations that Meta was plausibly “aware of facts or circumstances” from which the advertisements’ misuse of Huckabee’s name, image, or likeness was “apparent.”

Note that Third Circuit precedent (Anderson v. Tiktok, Inc. (3d Cir. 2024)) takes the view that right of publicity claims are excluded from § 230 protection under that statute’s exclusion for intellectual property claims, so that’s likely why the court reached the Arkansas right of publicity claim.

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Ilya Somin has already covered much of the Trump v. Barbara territory in his posting here on the VC a few days ago [available here], and I agree with everything he writes, including his terse summary: “The 6-3 decision was right, and a contrary ruling would have had horrific results.”

I’ll assume the basic framework of the case is familiar to you all.  If not:  The Citizenship Clause of the 14th Amendment says that anyone “born . . . in the United States and subject to the jurisdiction thereof” is a US citizen. The case turns on the meaning of those five italicized words: “subject to the jurisdiction thereof”. Trump’s Executive Order (#14160 [available here]) says that individuals born here whose mothers are present in the US “unlawfully” are not US citizens.  He asserts that this does not violate the Citizenship Clause because those individuals are not “subject to the jurisdiction of the United States” within the meaning of that phrase – at least, within the meaning of that phrase in 1868, when the Citizenship Clause was added to the Constitution.

Plaintiffs, needless to say, disagree, as does a majority of the Court.

Having now read through the six different opinions,*

*Roberts for the Court, Jackson concurring, Thomas dissenting, Alito dissenting, Gorsuch dissenting, Kavanaugh concurring in the result and partially dissenting. The entire set is available here.

a couple of points struck me as highly unusual and noteworthy.

In particular, Justice Kavanaugh’s separate opinion – concurring (in Part I) in the Court’s judgment (Executive Order 14160 is invalid), dissenting (Part II) on the underlying rationale for that invalidity – is an extremely interesting piece of judicial work, well worth a careful reading.

Justice Kavanaugh votes to invalidate Trump’s Executive Order because, as he says, it “contravene(s) a federal statute.” What statute, you ask? The Immigration and Nationality Act, 8 U.S.C. §1401(a), which “mirrors the text of the Fourteenth Amendment,” providing that “All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

I don’t know about you, but up until the moment that I read Justice Kavanaugh’s opinion, I had not registered that there was a statutory claim in this case in addition to the much-talked-about constitutional claim.  But there it is.

As most of you are aware, the Court has a rule – or, more precisely, a prudential practice – of not reaching constitutional issues in cases that can be disposed of on statutory grounds. Kavanaugh says: that’s what we can and should do here.  Individuals born to mothers here illegally are “subject to the jurisdiction of the US,” at least within the meaning of that phrase as it is used in the statute. The Executive Order is, therefore, invalid because it contravenes that statutory command. Case over.  Whether individuals born to mothers here illegally are “subject to the jurisdiction of the US” within the meaning of the Constitution’s Citizenship Clause is a separate question which the Court need not, and should not, address.

He reaches the conclusion that the Executive Order contravenes the statute this way:

1. In 1898, in the case of US v Wong Kim Ark (169 US 649), SCOTUS construed the phrase “subject to the jurisdiction of” as it was used in the Citizenship Clause of the 14th Amendment. The Court held that the Clause stated “the fundamental rule of citizenship by birth” that prevailed at common law, and excluded from birthright citizenship only persons in certain narrow categories recognized at common law as being “exempt from the jurisdiction of this country”: the “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory” and “children of members of the Indian tribes.” All others born in this country are citizens at birth.
2. The Immigration and Nationality Act (8 USC 1401) was first enacted in 1940, and has been amended several times since.
3. We can presume that Congress was aware of our authoritative construction of “subject to the jurisdiction thereof” in Wong Ark Kim when it enacted the statute.
4. Congress’ use of the identical five word phrase in the statute can be taken to mean that it was incorporating the Court’s construction of that phrase into the statute.
5. And if that’s what “subject to the jurisdiction of” the US means in the statute, Executive Order 14160 directly conflicts with it and must be invalidated.

Nice!

It’s pretty neat and tidy, or so it looks to my eyes; Kavanaugh calls the analysis under that statute “straightforward,” and I think he’s correct.  It’s the right result – the Executive Order is placed in the Trashcan. It leaves the complicated constitutional question for a later case where the Court has to decide it in order to dispose of the case.

And what makes Kavanaugh’s interpretative move even more interesting is that he thinks that Wong Kim Ark was wrongly decided and should be overruled![1]

So his position amounts to saying that we should apply an (incorrect) reading of the constitutional text to the statute because Congressional intent is the touchstone for interpreting federal statutes, and Congress was using our (incorrectly-derived) construction of the phrase when it enacted the statute, and it has never revised it since..

I’m not aware, at least off the top of my head, of another case that presents this kind of inverted decision-making structure. It’s a wonderful illustration of the principle that the exact same words may mean one thing in the 14th Amendment and another thing in a federal statute. Context and history matter. Determining what the statutory phrase means requires that we determine Congress’ view of what it meant in 1940, not what the “public understanding” of that phrase may have been in 1868. Wong Kim Ark‘s construction of the Constitutional phrase, whether correct or incorrect, was surely what Congress intended the words to mean in the 1940 statute.  Congress meant these words to mean what we had (wrongly) said the Constitution says.

And here’s what I think is perhaps the most unusual feature of all:  Not one of the other five opinions pays any attention whatsoever to Kavanaugh’s proposed resolution of this case. They either ignore the existence of this statute altogether, or treat is as completely irrelevant to the analysis of plaintiffs’ claim, giving it only a handful of cursory mentions.[2]

Nobody responds to Kavanaugh’s polnt, or explains, even if only in a brief dismissive footnote, where Kavanaugh gets it wrong, and why they are ignoring this statute and deciding this case on constitutional grounds.

I find that most peculiar.

And insofar as the Court doesn’t explain why it is ignoring the statute, we get to speculate about it.  My guess is that the other Justices are embarrassed by their obvious and rather unseemly over-eagerness to decide the constitutional issue, and they are hoping that if they ignore Kavanaugh’s opinion nobody will notice what they’re doing.  [Other ideas? Please deposit them in the Comments below]

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[1] Justice Kavanaugh (and, by extension, the entire Court) could have stopped there.  The matter can be disposed of entirely on statutory grounds. Case over.

He doesn’t, however, stop there – though at least he has the good grace to (sort of) apologize for going on to reach the constitutional question:

As revealed by the Court’s opinion with its detailed account of history and precedent, and by the weighty and thoughtful dissents, the constitutional issue is far more complicated than the statutory issue. After reading those scholarly opinions, one thing seems evident: The constitutional issue is not straightforward, much as we might want it to be. That is another reason why, in my respectful view, the Court should have decided the case on the narrow and straightforward statutory ground.

In any event, because the Court addresses the Constitution, and because I respectfully disagree with its analysis of that highly consequential issue, I too will briefly address it. [emphasis supplied]

In Part II of his opinion, he joins the dissenters (Thomas, Alito, Gorsuch) in asserting that the constitutional phrase does not mean what the Court said it means in Wong Kim Ark, (i.e., that the Citizenship Clause grants all children born here, other than those in the very narrow exceptional categories, US citizenship). I will be commenting on that part of the Barbara opinions in a separate blog posting.

[2] Roberts’ opinion for the Court mentions it just once, in the first paragraph, merely to note that the statute “uses the same language” as the 14th Amendment. And you can search the opinions yourself for “1401” to see the other references to the statute, if you want to check my claim that all of them are “cursory.”

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The American bald eagle–our nation’s national bird and symbol–is doing well. Populations have been expanding for years, and are now approaching the levels estimated for the founding era.

Many policymakers, pundits and professional environmentalists want to credit the Endangered Species Act for the success of eagle recovery efforts. But try as they might, it is hard to find much evidence that the ESA (as opposed to other conservation laws and recovery efforts) did much good, for reasons I explain in the latest issue of PERC Reports, published by the Property & Environment Research Center in Bozeman, MT.

The biggest factor in the eagle’s recovery was almost certainly the banning of DDT for most uses. But this was done prior to the enactment of the ESA, under a different law (any by the EPA, not the FWS). The eagle also received more targeted protection from other laws. The bald eagle was officially removed from the endangered species list in 2007, and since then populations have continued to soar without the ESA’s protection.

There’s more, but those are reasons to read the article. It concludes:

Americans should be pleased that bald eagle populations continue to expand. The growing number of bald eagles is a conservation success story. But given the act’s longstanding and widespread record of failing to promote species recovery, we should be careful before attributing that success to the Endangered Species Act.

[ And, yes, for those curious, I took the picture that accompanies this post.]

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An excerpt from Openden v. Kennedy, decided Tuesday by Judge Adam Abelson (D. Md.):

In June 2024, the Centers for Medicare and Medicaid Services (CMS) distributed a video internally to its employees as part of a “Coffee With” series. The June 2024 episode was an interview with Ronza Othman, the director of the EEO Compliance Group within CMS’s Office of Equal Opportunity and Civil Rights. In the video, Ms. Othman, who is an attorney who happens to be blind and was holding a white cane, describes her hobbies, the challenges and opportunities of serving in a role like hers, and other aspects of her approach to her job.

Plaintiffs in this case worked for CMS at the time and are Jewish. They have sued the Secretary of the U.S. Department of Health and Human Services in his official capacity (“Defendant” or “HHS”), contending that the video constituted “severe, pervasive, and unwelcome harassment” on the basis of national origin and religion. They do not take issue with the content of the interview but rather with a scarf that Ms. Othman was wearing during the interview that both Plaintiffs and Ms. Othman have described a keffiyeh. Plaintiffs do not take issue with Ms. Othman wearing a keffiyeh as such, but rather focus on an image on it that includes a Palestinian flag, a map, and a hand with two fingers raised. Plaintiffs contend that they perceive the image as “advocating for the murder and slaughter of persons of Jewish heritage and faith, as well as the destruction of Israel.”

HHS vigorously disputes that characterization, or the reasonableness of that perception. But for current purposes the Court need not wade into those disputes because for Plaintiffs’ hostile work environment claim to proceed, they must allege either (1) that Ms. Othman was Plaintiffs’ “supervisor” or (2) that after being put on notice of the allegedly harassing behavior HHS took “‘no prompt and adequate remedial action to correct it.'” Plaintiffs’ allegations do not allege facts that would satisfy either standard.

{Defendant also asserts that at minimum Plaintiffs’ claim based on religious-based discrimination should be dismissed because “Plaintiffs have set forth no facts that would support the conclusion that the alleged harassment occurred because of their religion.” The Court need not and does not reach that argument for partial dismissal because, for the reasons explained herein, the complaint is subject to dismissal on other grounds. As explained below, the Court also need not and does not reach the question of whether the conduct alleged rises to the level of “severe or pervasive” as required to make out a hostile work environment claim.}

Plaintiffs do not contend that Ms. Othman wearing a keffiyeh would have rendered the video offensive. Instead, Plaintiffs’ claim hinges on an image appearing at the two ends of the scarf. ECF No. 1 ¶ 10 (“During the video, Ms. Othman was wearing a keffiyeh which displayed a symbol of violence against Jewish persons.”). It is that image that Plaintiffs claim rendered the interview “severe, pervasive, and unwelcome harassment.” …

The image appears to be of a Palestinian flag, a map of Israel/Palestine (i.e., of Israel including the Palestinian territories), and a hand in front with the flag with two fingers raised. The hand is colored red. The parties vigorously dispute the significance of the hand: Ms. Othman stated that she understood the image to be “a peace sign” and stated that when she purchased it “[t]he shop carried keffiyeh with peace signs in various colors.” Plaintiffs, on the other hand, allege that they perceived it as “a symbol of red hand, which advocates for violence, including murder, against Jewish persons and the denial of the right of Israel to exist.” They allege that a red hand with two fingers raised is not a peace sign but rather “glorifies the murder of Jewish persons for their national origin and religion.”

On June 6, three days after the date that Plaintiffs allege the video was disseminated, Plaintiffs along with other CMS employees circulated an open letter to CMS management. The letter described Ms. Othman as “wearing a scarf bearing the pattern of a keffiyeh depicting a Palestinian flag over the shape of the map of Israel and a red hand that has become symbolically associated with gruesome acts of violence and bloodshed.” The letter went on to acknowledge that CMS policy “is broader than the legal definition of harassment” and prohibits “any comment or conduct that disparages, denigrates, or demonstrates hostility or aversion towards any person (including applicants for employment) that could reasonably be interpreted as harassing, offensive, or inappropriate in the workplace,” including through “dissemination of offensive written or pictorial material.”

Plaintiffs described Ms. Othman’s “choice of attire” as “deeply disturbing, offensive, and appalling” particularly because she was appearing in an official CMS video “while serving in her official capacity as the Director of the EEO Compliance Group.” They also stated that they considered her “choice of attire” as “deter[ring] those who are offended by her actions from safely seeking EEO guidance and counseling.”

In that letter, Plaintiffs acknowledged, “We have recently been informed that the video has been removed, and we appreciate leadership’s prompt action.” They stated, however, that they “strongly feel that accountability requires that additional action be taken,” to “ensure that CMS continues to be a place where all employees feel safe and respected, especially by those whose job it is precisely to do so in the first place.” …

“[T]he existence of unwelcome conduct, based on an employee’s race or sex [or religion or national origin], that is severe or pervasive enough to create a hostile work environment, is not on its own enough to hold an employer liable.” To sue an employer for a hostile work environment, an indispensable element is that the conduct at issue is “imputable to the employer.” The specific standards for that element depend in part on “the status of the alleged harasser,” i.e., whether or not the alleged harasser was a “supervisor” for imputation purposes, a term that has been defined narrowly in the caselaw. Where an alleged harasser was a “supervisor,” the employer “may be vicariously liable for its employees’ creation of a hostile work environment.” Where the harasser was not a supervisor, a different standard applies, and focuses instead on whether the employer had “actual or constructive knowledge of the allegedly harassing conduct,” and took “‘no prompt and adequate remedial action to correct it.'” …

“In Vance [v. Ball State Univ. (2013)], the Supreme Court resolved a circuit split and defined ‘supervisor’ for purposes of imputed liability under Title VII.” It held that a supervisor is an individual who has been empowered “to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'” In adopting that standard, the Supreme Court expressly rejected a competing theory, which had been adopted by some circuits, that “tie[d] supervisor status to the ability to exercise significant direction over another’s daily work.”

Plaintiffs do not allege that Ms. Othman had any authority “to take tangible employment actions against [them],” as required by Vance. Plaintiffs themselves allege that Ms. Othman was an official in the Office of Equal Opportunity and Civil Rights, and none of them allege that they worked in that office or otherwise reported to Ms. Othman….

[I]t does appear reasonable to infer that a person in a position of authority within an agency-wide EEO office, like Ms. Othman, can exercise some authority over the terms of employment of individuals outside her specific office, including, as Plaintiffs articulate, by “investigating and making determinations about violations of the Defendant’s EEO policies” and making “recommendations about potential disciplinary action to resolve potential violations.” And for that reason it may be reasonable for Plaintiffs to expect that a person in Ms. Othman’s position would err on the side of caution in avoiding statements or conduct within the workplace that risk offending others, whether intended as such or not. But even considering those facts and inferences …, none of them render her Plaintiffs’ “supervisor” under the narrow standard set forth in Vance. In Vance, the Supreme Court took pains to emphasize “a clear distinction between supervisors and co-workers,” one that “can usually be readily determined, generally by written documentation.” The Vance Court expressly rejected a standard that “would make the determination of supervisor status depend on highly case-specific evaluation of numerous factors.” Here, Plaintiffs’ acknowledgement that “Ms. Othman could not directly fire, hire, or otherwise take discipline against them,” is dispositive under Vance…

Because Ms. Othman was not Plaintiffs’ “supervisor” within the meaning of Vance, to state a hostile work environment against HHS Plaintiffs must allege that the agency (1) “knew or should have known about the harassment” and (2) upon such notice failed to take “remedial action reasonably calculated to end the harassment.” … Plaintiffs acknowledged that the video was removed within days of being posted …. Plaintiffs do not contend that anything like Ms. Othman’s display of the complained-of image happened again; there is no allegation that the alleged harassment recurred. The absence of any recurrence, combined with the fact that the employer immediately (within a day or two) removed the allegedly offending video, further confirm that Plaintiffs have not alleged facts that would establish that HHS, once it knew or should have known about the harassment, failed to take remedial action reasonably calculated to end the harassment.

Plaintiffs contend that the agency’s response fell short because “no recourse was taken by the Defendant against Ms. Othman” and the agency “refused to apologize” and instead “continued” (at least for an unspecified period of time) “to defend the actions of Ms. Othman.” But “an employer is not required to terminate a [particular] perpetrator except where termination is the only response that would be reasonably calculated to end the harassment.” Here, Plaintiffs have not alleged facts that would establish that taking “recourse” against Ms. Othman personally was the “only response that would be reasonably calculated to end the harassment.” …

Nicole Nardone (D. Md. U.S. Attorney’s Office) represents the government.

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From Chavis v. UNC, decided Tuesday by Chief Judge Catherine Eagles (M.D.N.C.):

Dr. Larry Chavis was a non-tenured professor at the University of North Carolina-Chapel Hill Kenan-Flagler Business School. In 2024, UNC declined to renew his teaching contract. He alleges that decision was based on his race, made in retaliation for his reports of discrimination and outspoken criticism of UNC on diversity issues, and violated his First Amendment rights….

The facts as recited are either undisputed or viewed in the light most favorable to Dr. Chavis, as required at this stage of the proceedings.

Dr. Chavis began working at UNC in 2006 …. During the summer of 2022, Dr. Chavis taught a graduate microeconomics course at UNC. One student in that class left course feedback stating in part:

Even though as a social liberal I agree with 90%+ of [Dr. Chavis’s] personal observations about our society today – I think you would be better served to not share everything that you do during class. If I had wanted a degree in some sort of Native American studies or African American studies I would not have pursued an MBA. While I was not the least bit offended by your observations, I suspect there were some of the class that were.

When Dr. Chavis learned about the comment, he posted an excerpt of it on LinkedIn and stated that it was “just mean and walks right up to and probably crosses a line into being offensive.” There is no evidence to indicate UNC took any action based on the evaluation or Dr. Chavis’s post, and at the end of the 2022-2023 school year, UNC renewed Dr. Chavis’s contract for another year….

As part of meeting with faculty and conducting focus groups, [Business School] Dean Frank met with Dr. Chavis in February 2024 to discuss his thoughts about the business school and his position. In an email sent shortly after that conversation, Dr. Chavis expressed frustration with his lack of career advancement at UNC and explained that he limited his time and interactions at the business school because of his perception that other faculty members “hate [him] for being too truthful and too supportive of equity.”

When Dean Frank did not respond to the email by early April, Dr. Chavis read it aloud to some of his classes. In a follow-up email, Dr. Chavis informed Dean Frank that he had read the previous email to his students and that he planned to post about the email on LinkedIn….

[In Spring 2024], several graduating students told Associate Dean Dr. Shimul Melwani that they had serious concerns about Dr. Chavis’s undergraduate international development class. They reported that the course content did not align with its description in the course catalog; that the course was poorly organized and “essentially was a stream of consciousness conversation” about Dr. Chavis’s personal issues; and that Dr. Chavis humiliated certain students because of, for example, their race and fraternity affiliation. The students who spoke with Dr. Melwani expressed fear that Dr. Chavis would retaliate against them if he knew they had reported their concerns, and several students who spoke with Dr. Lundblad reported the same fear, including that Dr. Chavis would share their course evaluations publicly, as he had done in the past.

Following those complaints, Dr. Lundblad and Associate Dean Dr. Brad Staats decided to record Dr. Chavis’s classes, to see if the student complaints were accurate. After receiving permission from UNC’s human resources department and with no objection from Dean Frank, Drs. Lundblad and Staats arranged to record several of Dr. Chavis’s class sessions; they did not tell Dr. Chavis in advance that these recordings would occur.

In March 2024, Dean Frank asked Dr. Lundblad to initiate a “Teaching Evaluation” of Dr. Chavis. As part of that process, Dr. Chavis learned about the recordings and protested that they violated UNC policy. He also gave a series of interviews about the recordings with local and online news outlets, and posted on social media about articles covering the incident….

In [its report evaluating Dr. Chavis], the responsible school leadership made several findings.

First, Dr. Chavis had changed the course’s content to focus on indigenous issues without approval and without revising his syllabus, course name, or course catalog description.

Second, Dr. Chavis had replaced the course content with discussion of his personal and professional situation and his dissatisfaction with some of UNC’s decisions, which created an environment that required students to discuss his personal circumstances during class and created a fear of retaliation if he disapproved of a student’s contributions. {Specifically, the evaluators found that Dr. Chavis used class time to talk about how he was “wronged by the business school” and to “read from his manuscript on his life;” that he “stated that he was going to ‘burn this b*tch down’ ” if a UNC hiring process went a certain way; that he asked students “to comment on his life and personal circumstances” in a way that felt pressuring to students and made them fear he would retaliate by giving a poor participation score, which accounted for 35% of a student’s grade; and that he told students not to go to the administration if they had complaints about his class but to come to him directly.}

Third, in course evaluations, several students expressed concerns about Dr. Chavis’s course content and teaching methods, though the report noted that there were also many positive evaluations.{In his brief, Dr. Chavis states that the report “[l]eft unmentioned … a larger number of highly positive observations from students.” That is not an accurate account of the record. See [record document] (evaluation stating that “there are a number of positive evaluations from students who appreciate Prof. Chavis'[s] approach and topics.”).

Finally, during in-person teaching observations, Dr. Chavis “covered content inconsistent with” the course description, including “some limited discussion of his personal situation.”

The evaluators concluded that the examination “uncovered several issues regarding content and conduct, including students reporting safety issues and fear of retaliation.” When UNC sent Dr. Chavis the evaluation in May 2024, he disputed many of its findings and posted the evaluation and his response on social media.

Dean Frank reviewed the teaching evaluation and decided not to renew Dr. Chavis’s contract for the coming academic year….

Chavis sued, but the court rejected his claims. Here’s a discussion of Chavis’s claims that the school retaliated against him based on his race-discrimination-related complaints:

Dr. Chavis identifies his protected activity as his interviews with local media outlets and online publications and his postings online in the spring of 2024 criticizing the recording of his classes without his knowledge, which he contends was linked to racial discrimination. He points to the temporal proximity of those public complaints to the decision not to renew his contract as supporting an inference of causation. The defendants dispute both contentions.

Assuming without deciding that Dr. Chavis has made out a prima facie case for retaliation, the defendants have articulated a legitimate, nonretaliatory reason for their actions. All available evidence shows that Dean Frank’s decision not to renew Dr. Chavis’s contract was based on the findings made during the teaching evaluation of his international development class. In her deposition, Dean Frank, the decisionmaker, testified that the “deciding factor” for not renewing Dr. Chavis’s contract was that he “had chosen to teach material that had not gone through the process of being approved, and that [he] was thus teaching content that was not what we were expecting in the program.” {Dr. Chavis himself admits that he did not obtain approval for the changes he made to the syllabus, and he acknowledges that he “began to shift the content of his academic offerings” in 2023 and 2024.} She has also testified that concerns about the physical and psychological safety of UNC’s students motivated her decision.

In sum, her proffered reason for not renewing Dr. Chavis’s contract was “the litany of concerns that were discussed in the Teaching Evaluation.” Those concerns constitute a legitimate, nonretaliatory reason for not renewing his contract….

Multiple students reported that Dr. Chavis was using class time on subjects well outside the syllabus, and classroom observations by other faculty substantiated those reports. Several students credibly reported that his teaching methods caused some students to fear embarrassment and retaliation based on required class participation. An internal evaluation supported the conclusion that Dr. Chavis did not follow UNC’s procedure for changing his course content. Those are valid reasons for not renewing a professor’s contract….

The court concluded, citing similar reasons, that there wasn’t enough evidence supporting Chavis’s race discrimination claim and First Amendment retaliation claim.

Jeremy David Lindsley (N.C. DoJ) represents the university.

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