This story originally published online at N.C. Policy Watch. 

A UNC-Chapel Hill investigation into a leaked donor agreement is focusing on professors who have been critical of Walter Hussman, the wealthy Arkansas media magnate whose $25 million pledge to the university’s journalism school led to it being renamed for him.

It also includes the university examining faculty emails without their knowledge, according to sources directly involved in the investigation.

On Wednesday, the Foundation for Individual Rights in Education (FIRE) sent a letter to Chancellor Kevin Guskiewicz warning that the investigation appears to be violating the First Amendment rights of faculty.

Hussman’s behind-the-scenes lobbying against the hiring of acclaimed journalist Nikole Hannah-Jones drew new attention to his influence at the university and was a major factor in Hannah-Jones turning down an eventual tenure offer from the school and instead going to Howard University.

The contract with Hussman, which the university considers confidential, was published by the News & Observer on July 14. The university announced an investigation two days later, seeking to determine how the paper got the document.

So far, say two professors the university has attempted to interview as part of the inquiry, the school appears to be focusing not on those who may have had access to the documents, but professors who have been publicly critical of Hussman’s outsized influence.

Deb Aikat and Daniel Kreiss, both professors at the UNC Hussman School of Journalism and Media, were asked to answer questions about the leak of the document. But both professors say their positions wouldn’t have given them access to the contract and that the university appears to have singled them out because of their criticisms of Hussman. Aikat met with investigators this week. Kreiss declined to do so, he said Wednesday, amid concerns with how it was being handled and by whom.

“I did agree to the meeting,” Kreiss said. “However, over the weekend the more I thought about it and talked to other university leaders, including consulting with a few people who specialize in employment law,  questions that came up over and over again were, under what authority is this inquiry happening? What are my rights and responsibilities and what is the scope?”

Kreiss asked those questions of Katie Nolan, executive director of Strategy, Policy and Special Projects at UNC’s Division of Human Resources and Equal Opportunity and Compliance, who had asked to speak with him as part of the investigation. In an email, Nolan replied that she was “not proceeding under any specific formal policy or process at this time, as leadership does not have enough information at this time to determine whether a policy or process or policy has potentially been violated.”

Nolan had been asked to help in that assessment, she wrote to Kreiss.

“This raised a million red flags to me,” Kreiss said. “There’s no formal policy. There’s no formal process. As I’m sure you can appreciate, I was very wary of walking into a meeting where someone who is a lawyer with people who are far senior to me are going to ask me questions in a meeting with no rules, that doesn’t concern any specific policies they can name and is not taking place according to any university determined process. I felt like that would make me really vulnerable and make other UNC employees potentially very vulnerable, even though I don’t have any privileged knowledge relating to this inquiry.”

That, said both Kreiss and Aikat, appears to the point—to send a message to vocal faculty that speech critical of the university or its major donors makes them de facto suspects.

“There is no reason to believe that anyone on the faculty would have had access to the things they are talking about,” Aikat told Policy Watch Wednesday. “But if you look at the people they have asked to speak to, who they want to ask questions, it is the people who have spoken out on Walter Hussman and the influence that it is obvious he had in the Nikole Hannah-Jones hiring.”

Two sources with direct knowledge of the investigation told Policy Watch that the university has also accessed the emails of faculty they suspect may have knowledge of how the document was leaked to the press and is preparing evidence from those emails with which to confront them in interviews.

“Absent anyone saying there has been specific misconduct by these individuals that is being investigated, that is a total violation,” said one of the sources, who asked not to be identified in order to avoid retaliation for discussing the ongoing investigation. “People use their university emails to discuss private information from students, medical information, private family information with their families. For the university to be accessing these emails without any warning to faculty and without citing any evidence that any of these individuals have done anything or are suspected of doing anything wrong is completely outside of established university procedures and completely unethical.”

In its Wednesday letter to the school’s chancellor, FIRE called the targeting of faculty in the investigation a potential First Amendment violation.

“There is nothing—including in their criticism itself—to indicate that their criticism was based on access to confidential information not already obtained by the media and their own experiences as faculty in the Hussman School,” FIRE wrote in its letter to the chancellor. “Thus, we are concerned that the course of UNC’s investigation as it pertains to faculty members such as Kreiss and Aikat owes its origin to their exercise of protected speech in public criticism of UNC and Walter Hussman, not whether they had access to the agreement.”

“Comments Kreiss and Aikat have made on social media and to reporters are protected by the First Amendment,” the group wrote. “As state employees, professors do not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. Rather, the right of government employees to speak as individuals on matters of public concern is clearly preserved in First Amendment jurisprudence. In fact, courts recognize faculty rights to free expression as uniquely robust in order to preserve academic freedom and the university’s important role as the ‘quintessential marketplace of ideas.’”

The letter continued:

“Precedent is clear that an investigation targeting individuals who have exercised their First Amendment rights can itself violate the First Amendment, even if the investigation concludes in favor of the speakers.  The question is not whether the university ultimately metes out formal punishment, but whether the institution’s actions ‘would chill or silence a person of ordinary firmness from future First Amendment activities[.]’6 An investigation into protected expression may meet this standard.”

Read the full letter from FIRE at N.C. Policy Watch.

The group has requested a reply from the university.

Policy Watch has reached out to the administrators conducting the investigation. They forwarded the request to university spokesperson Joanne Peters Denny, who provided the following statement:

“Many of our employees are entrusted with confidential information, pursuant to various state and federal laws and contractual agreements. When that confidentiality is breached, we take it very seriously.  As the University previously indicated, we are investigating reports of a leak of confidential donor information relating to the agreement between the Hussman family, the University and the (then) School of Media and Journalism. We are unable to comment further at this time.”

The university is wasting its time with such an investigation, Kreiss said Wednesday. It would make more sense to look into the undue influence Hussman wielded during the controversy surrounding the job and tenure offers extended to Hannah-Jones, he said. Last week, that influence was revealed to be even broader than previously believed, when the university released hundreds of pages of documents and emails related to the controversy in reply to outstanding requests under the Freedom of Information Act.

The emails showed Hussman contacting more people than he initially disclosed, more times than he admitted in interviews on the matter, and having far greater access to confidential personnel information related to the hire than is generally given to anyone outside of the actual hiring process.

“They should be looking into that,” Kreiss said.

The university has, so far, announced no such investigation.

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