U.S. House to vote next week on expanding PFAS regulation, backers say

NC Senate leader wants to ban consideration of race in UNC admissions and government contracting

Senate leader Phil Berger said the Senate will propose a state constitutional amendment similar to a California ballot initiative that triggered a decline in underrepresented minority students earning undergraduate and graduate degrees and resulted in fewer public contracts going to minority- and women-owned businesses.

At news conference Wednesday centered on critical race theory in public schools, Berger said the Senate would propose a constitutional amendment similar to what were called civil rights initiatives in California and Michigan.

California in 1996 passed a constitutional ban on affirmative action in school admissions and public contracting. The proposed North Carolina constitutional amendment in Berger’s Medium post is identical to the California amendment language:

“The state shall not discriminate against, or grant preferential treatment to, an individual or group on the basis of race, sex, color ethnicity, or national origin in the operation of public employment, public education or public contracting.”

Berger, a Republican, said the intent was for the proposed amendment to appear on the next primary ballot.

The president of the North Carolina NAACP, in a statement, condemned the proposal.

“The continued frontal assaults on humanity levied by the rogue leader of the Senate is evidence of a man leading from his fears,” said the Rev. Dr. T. Anthony Spearman.  “It is apparent that the more wrenches he can toss into an already broken democratic system the better off he thinks they are. Perhaps this will be the catalyst that will cause the eyes of NC to pop open and exercise their right to vote.”

Gov. Roy Cooper, a Democrat, signed an executive order in 2017 stating a goal of obtaining 10% of state purchases from historically underutilized businesses. The order also established an advisory council on under-utilized businesses.

A 2015 study for the Equal Justice Society found that the California amendment resulted in a minority- and women-owned businesses losing $1 billion to $1.1 billion a year in state and local contracts, in 2015 dollars.

Students for Fair Admissions is suing UNC-Chapel Hill in federal court for  considering race in admissions. UNC-Chapel Hill considers race as one of many factors, according to the university.

Edward Blum, an affirmative-action opponent, started Students for Fair Admissions. It is also suing  Harvard University. The First Circuit Court of Appeals upheld Harvard’s admissions process in a decision last November.

A federal District Court judge held a hearing in the UNC-Chapel Hill case last year.

The NC Justice Center is co-counsel representing alumni of color who have intervened in the lawsuit. NC Policy Watch is a project of the NC Justice Center.

After California passed its ban, applications by Black, American Indian, Chicano, and other Latinos to University of California schools dropped, according to a 2015 study by authors at UC-Riverside and the Civil Rights Project at UCLA.

Most under-represented minority students became at least 40% less likely to be admitted to the more selective UC-Berkeley and UCLA campuses, according to a 2020 study from an economist with the Center for Studies in Higher Education at UC-Berkeley. That started a cascade of under-represented minority student enrollment in less-selective colleges.

“Prop 209 caused a substantial decline in the number of high-earning early-career URM Californians that persists more than 20 years later,” the study concluded.

If North Carolina were to ban consideration of race, admissions of students of color would decline at UNC-Chapel Hill,  said Jack Holtzman, an NC Justice Center attorney.

UNC does not use a quota system, he said.

“No specific seats are reserved. That is long gone. Everybody is reviewed with the same process. It is a matter of whether a university would be allowed to look at the whole student, including whether they have experienced racism,” he said.

Experiencing diversity at the university “is part of the complete education of our students,” he said.

Andrew Brown Jr.’s family seeks $30 million compensation in federal lawsuit

The family of Andrew Brown Jr., a Black Elizabeth City man killed by Pasquotank County sheriff’s deputies in April, is asking for more than $30 million from two sheriffs and seven deputies in a federal lawsuit filed Wednesday.

Lawyers for the Brown family announced the filing of a Brown complaint in the U.S. District Court for the Eastern District of North Carolina at a press conference Wednesday. The suit claims that the defendants, Pasquotank County Sheriff Tommy Wooten II and seven of his deputies deployed to arrest Brown, as well as Dare County Sheriff Doug Doughtie, violated Brown’s constitutional rights when deputies shot him in the back of his head while he was trying to flee. At that time, Brown was steering his vehicle away to avoid the deputies on a mission to serve a search warrant for illegal substances in his residence and vehicles, as well as two arrest warrants for Brown from the Dare County Sheriff’s Office.

The plaintiff’s constitutional claim relies on a 1985 U.S. Supreme Court case Tennessee vs Garner, in which former Justice Byron White wrote, “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.”

As Policy Watch previously reported, District Attorney Andrew Womble refused to charge the deputies, saying that the totality of the circumstance — that Brown could have struck some of the officers — justified their split-second decision to use deadly force.

“Womble said the case was closed, but that’s not how it works in America,” Rev. William Barber, co-chair of the Poor People’s Campaign, said at a press conference Wednesday. “Now it’s the time to put this matter in court under the microscope of the Constitution, and the law, and not just the opinion of one DA.”

Chance Lynch, a member of the Brown family’s legal team, accused Womble of misinterpreting the law and allowing impunity. Lynch said, “It’s clearly established you cannot shoot a driver while they’re driving away from you.” Read more

UNC-Chapel Hill trustees elect new leadership

David Boliek

Despite rumors, status of Chancellor Kevin Guskiewicz is not a topic of discussion at newly configured board’s first meeting 

The UNC-Chapel Hill Board of Trustees elected new leadership on Wednesday, following the appointment of six new members to the body. 

David Boliek will serve as chair of the board, with John Preyer as vice chair, Malcolm Turner as secretary and Clayton Somers as assistant secretary. All officers were elected unanimously. 

“I look forward to working together as a group with this board and this administration,” Boliek said. “…We’re at a place where it’s time to move forward.”

Boliek and Preyer were two of the four trustees to vote against tenure for Nikole Hannah-Jones last month. None of the trustees who voted ‘no’ have publicly explained their votes. 

“Trustee Boliek is a wonderful listener,” trustee Gene Davis, who previously served as vice chair of the board, said. “He asks questions and is truly interested in hearing from others who have different perspectives.”

This is the first time that the board has met with its new members, a group that has made the body slightly more diverse, while likely maintaining its conservative bent.

Boliek also assigned chairs for the board’s three standing committees. Preyer will chair the Budget and Finance Committee, Allie Ray McCullen, the board’s longest-serving member, will chair the External Relations Committee and Rob Bryan, a newcomer and former Republican lawmaker, will chair the University Affairs Committee.

The news comes on the same day that the Faculty Governance Committee plans to hold an emergency meeting over concerns that the school’s Chancellor, Kevin Guskiewicz, will be removed by the UNC System’s Board of Governors. 

“I’m not going to speculate on rumors,” Guskiewicz told Policy Watch on Wednesday. “I’ve got a job to do and I love leading this great university.”

The committee’s chair, Mimi Chapman, called the meeting after hearing rumors that the board, trustees and state lawmakers might pursue Guskiewicz’s removal following his handling of the Nikole Hannah-Jones tenure controversy. The trustees did not mention Guskiewicz’s potential removal during their meeting. 

Although the board of trustees can take a vote of ‘no confidence’ in the chancellor, the board of governors, which oversees all 17 UNC System institutions, is the only body with the authority to fire him.

UNC System President Peter Hans appeared to dispel the rumors in a statement. 

“The university’s mission is teaching, research, and public service, not rumors and politics. I would encourage everyone to take a deep breath, focus on that mission, and not chase conspiracy theories,” he said. 

Although the Faculty Governance Committee has expressed discontent with Guskiewicz in the past, Chapman told the News & Observer she was worried that he might be replaced by someone less fit to fill the position. 

The faculty will meet at 3 p.m. on Wednesday to discuss the issue.

Fourth Circuit ruling: federal laws banning handgun sales to young adults violate Second Amendment

Experts say review of 2-1 decision by full Court of Appeals is a strong possibility

A three-judge panel on the Fourth Circuit Court of Appeals struck down decades-old federal laws and regulations that prohibit retailers from selling handguns to young adults under 21. The ruling, issued Tuesday, was 2-1. Congress previously cited the disproportionately high crime rate among young adults as reason to institute such a ban. Yet judges held that the laws infringed on these youths’ Second Amendment rights.

The suit was brought against the Bureau of Alcohol, Tobacco and Firearms by two young adults from Virginia, Tanner Hirschfeld and Natalia Marshall, who were denied the sales when the licensed dealers performed background checks on them. They sought an injunction and declaratory judgment on the laws that resulted in the denial.

The Gun Control Act of 1968 permits only sales of shotguns or rifles to individuals ages 18 to 20.

In addition to federal law, North Carolina law also includes a minimum age requirement of 21 years old for its own state permit. The state currently runs its pistol permit system separate from the federal background checks — individuals must obtain either a pistol purchase permit or concealed carry permit before sales and transfers of handguns. State law requires the applicant to be at least 21 years old. As Policy Watch previously reported, Republican lawmakers are pushing a bill this year that would repeal the state pistol purchase permit application. The bill passed the House in May despite Democratic opposition. If the state permit system were repealed, handgun sales in North Carolina would be governed by the federal laws currently undergoing court challenges.

“We first find that 18-year-olds possess Second Amendment rights,” Judge Julius Richardson wrote for the majority. “They enjoy almost every other constitutional right, and they were required at the time of the Founding to serve in the militia and furnish their own weapons.”

Richardson said there are flaws in the reasoning of such bans: First, the disproportionality of the pistol-induced crimes does not justify the categorical denial of rights to possess these weapons; Second, the evidence does not establish a link between the purchases from licensed dealers to crimes committed by youth.

Judge James Wynn dissented, contesting that the two judges in the majority were invalidating a “modest and long-established effort to control gun violence.” In his dissent, he wrote, “The majority’s decision to grant the gun lobby a victory in a fight it lost on Capitol Hill more than fifty years ago is not compelled by law. Nor is it consistent with the proper role of the federal judiciary in our democratic system.”

Eric Ruben, a criminal law professor at Southern Methodist University, predicted a full Fourth Circuit revisit of the ruling, otherwise known as an “en banc review,” if the U.S. Department of Justice seeks a rehearing, given the strong dissenting opinion. Ruben added that the Fifth Circuit in Texas reached the opposite conclusion upholding the federal restrictions, rejecting similar claims by the National Rifle Association.  The United States Supreme Court chose not to hear the NRA case in 2014.

Ruben said Judge Richardson’s majority opinion likened the Second Amendment to other constitutional rights, but failed to note the higher stakes associated with the freedom to own guns. He noted a disagreement between the majority and dissenting opinions over how restricted Second Amendment rights are for Americans.

Ruben added that the opinion could have far-reaching implications for state laws regulating assault weapons. “Even though this one just involves the federal restriction on the purchase of handguns, other states have restricted the acquisition of other sorts of firearms for those who are under the age of 21,” Ruben said. “On the reasoning of this case, it’s hard to see how those laws would be constitutional.”