UNC Press now in the crosshairs of Board of Governors, which is refusing to re-appoint professor who criticized handling of Silent Sam monument

By: - June 21, 2021 12:37 pm

After earning his Phi Beta Kappa key from Brown University and serving as Current Topics Editor for the Yale Law and Policy Review while at Yale, Muller clerked for United States District Judge H. Lee Sarokin in Newark, New Jersey from 1987 to 1988. He then practiced in the litigation department of a private law firm in Manhattan from 1988 to 1990, before joining the United States Attorney’s Office in Newark, where he served as an Assistant U.S. Attorney in the Criminal Appeals Division from 1990 to 1994. Exumphoto.com, www.law.unc.edu

Eric Muller has been the chairman of the UNC Press Board for six of the 10 years he’s been a member. However, the UNC Board of Governors recently refused to re-appoint him. Muller has been critical of the UNC System’s handling of sensitive issues of race and history. Exumphoto.com, www.law.unc.edu

Eric Muller served two five-year terms on the UNC Press Board.

In an unprecedented move, the UNC Board of Governors is refusing to re-appoint a respected law professor to the University of North Carolina Press Board of Governors. The reason, say sources directly involved with the process: the professor’s public statements on the legality of the UNC System’s controversial handling of the Silent Sam Confederate monument and UNC-Chapel Hill’s failure to deal appropriately with sensitive issues of race and history.

Eric Muller has served two five-year terms on the board of the UNC Press, which exists to advance “the research, teaching, and public service missions of a great public university by publishing excellent work from leading scholars, writers, and intellectuals and by presenting that work to both academic audiences and general readers.”

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.

A source close to the process provided e-mails related to the decision to Policy Watch and characterized discussions of which they had direct knowledge. They asked that Policy Watch not identify them so that they could describe closed-session discussions at the committee and UNC Board of Governors level.

“By any metric, Muller has done a remarkable job on that board and as chairman of the board,” the UNC System source said. “There is no defensible reason not to reappoint him that is related to the actual work he has done and the work of the UNC Press. But he’s also been outspoken on some sensitive political issues for the Board of Governors, especially on the Silent Sam deal with the Sons of Confederate Veterans, on the renaming of buildings on the UNC Chapel Hill campus.”

“He’s recently been outspoken on the Nikole Hannah-Jones tenure issue in his role on the Faculty Executive Committee at Chapel Hill,” the source said. “The decision was already made to get rid of him by then, but this is the kind of thing they don’t want someone in that UNC Press role speaking out about. Just strip him of that and he’ll either learn to shut up or the next person in that position will think twice about speaking out against them.”

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.’”

Muller has been reluctant to speak on the board’s decision not to reappoint him. But on Monday he provided a written statement to Policy Watch.

“If there is a reason for singling me out in this unprecedented way, the System Board has not shared it with me or with the UNC Press Board,” Muller wrote. “I would hate to think it had something to do with my public commentary in recent years on matters of law, race, and history, such as the law on removal of Confederate monuments, the abortive $2.5 million legal settlement with the Sons of Confederate Veterans, the moratorium on renaming UNC buildings, or the removal of the portrait of slave-trading Judge Thomas Ruffin from the courtroom of our state’s highest court,” Muller wrote. “I would hate to think it had something to do with my focusing public attention on ways in which the law has ignored and harmed the interests of African Americans –and still does. These are matters within my expertise as a legal scholar and historian, the very stuff of the work I do as a university professor.”

“It would be an ominous sign for the values of a leading research university and of a celebrated academic press if our System’s Board of Governors were to single out faculty members for punishment for voicing their views on matters within their expertise and research,” Muller wrote. “Did they do that here? I’d like to hope not. But they knew nothing else about me. They never asked about my service as a Press Board member. They never asked about my leadership as Chair. So it’s hard to imagine a different reason.”

“Completely Illogical”

The UNC Board of Governors approves all appointments to the UNC Press Board of Governors. But until now, the board has followed the recommendations of the campus level nominating committee and the chancellor.

On March 24, UNC Chapel-Hill Chancellor Kevin Guskiewicz sent a letter to UNC System President Peter Hans approving the nominating committee’s recommendation for the  reappointment of Eric Muller, Linda Hanley-Bowdoin and Elizabeth  Engelhardt.

But on May 19 the UNC System office informed Guskiewicz and UNC Press Director John Sherer the University Governance Committee would only consider Engelhardt and Hanley-Bowdoin.

Powers, chair of the committee, said the board wanted to “change the membership on  some of these boards more frequently,” according to a system email obtained by Policy Watch.

David Powers, UNC Board of Governors

That explanation didn’t make sense to UNC Press board members or others directly involved in the appointment process. Muller was being appointed to a third term on the UNC Press board, but so was Hanley-Bowdoin. Englehardt was being appointed to a second full term. The committee expressed no problem with either of their appointments.

“It’s an explanation that makes no sense on its face,” a UNC System source close to the process told Policy Watch. “It is completely illogical. You cannot appoint one person to a third term and not another and then argue people shouldn’t be serving three terms.”

The University Governance Committee asked Guskiewicz to advance another name for the board, but not Muller. Guskiewicz declined to do so, but did not tell the UNC Press board or the director of the UNC press that he’d gotten this request.

The UNC Board of Governors and its committees met on May 26 and 27, approving Hanley-Bowdoin and Engelhardt but not taking up Muller’s appointment. That led Lisa Levenstein, vice chair of the UNC Press board, to write to Powers and UNC System President Peter Hans on June 2 to ask why Muller was not considered and suggest his reappointment be considered at the University Governance Committee’s next meeting.

Hans and Powers didn’t respond personally. Instead, UNC System General Counsel Andrew Tripp wrote a reply on Hans’s behalf in which he declined to “speculate” on the motives for the board approving two of the names forwarded for consideration but not Muller. The UNC System President’s role in the process is simply to forward names to the board of governors, Tripp wrote in an email obtained by Policy Watch.

Sherer, director of the UNC Board, asked for more information on the decision in his regular meeting with Hans but did not receive it.In early June Muller met with Guskiewicz to ask about the circumstances of the decision. Guskiewicz described the chain of events, including the request from Powers and his committee that he forward a name besides Muller’s for consideration. After consulting the board’s by-laws, Guskiewicz said, he declined to do so as they did not allow him to do that.

Policy Watch has requested documents from the UNC System related to Muller’s reappointment and requested interviews with Powers and UNC Board of Governors Chairman Randy Ramsey. As of Monday, Policy Watch has not received the documents it requested or any response from Powers or Ramsey.

“A target on his back”

A member of the UNC Board of Governors spoke with Policy Watch last week on the reappointment issue. They asked not to be identified so that they could speak to internal discussions of the board, including information from closed sessions.

“Muller has been on the radar of some of the board of governors members for a couple of years now,” the  board member said. “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.”

This member said they were not surprised to hear that Muller wasn’t reappointed.

“He has had a target on his back,” the board member said of Muller. “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.”

But the board has been “pretty clever” in the way that they have dealt with withholding appointments, the board member said.

“You saw this with Nikole Hannah-Jones at Chapel Hill and you’re seeing it here,” the board member said. “They didn’t vote down an appointment or refuse to appoint, they just decided not to deal with it at all. They sort of killed it in committee. They didn’t take any action, so they can argue that their hands are clean. They didn’t do anything. It’s non-action. But it amounts to the same thing. It’s not going to happen because they’re not letting it happen. They’re standing in the way of the system and how it usually works.”

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Joe Killian
Joe Killian

Investigative Reporter Joe Killian's work examines government, politics and policy, with a special emphasis on higher education, LGBTQ issues and extremism.