- [Announcer] UNC system leaders discuss ending DEI programs across the university system.

And the state court of appeals weighs in on the constitutionality of COVID era business closures.

This is State Lines.

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[upbeat music] ♪ - Welcome back to State Lines.

I'm Kelly McCullen.

Joining me today is Mitch Kokai of the John Locke Foundation.

Beside him, The News and Observer, capital Bureau Chief Dawn Vaughn, senior editor of Cardinal and Pine Billy Ball joins us and WPTF Radio host among many other skills.

Our dear friend, Steve Rao, thank you Steve and everyone for being on the panel this morning.

Let's get going.

Lots to talk about.

The North Carolina Court of Appeals ruled this week that it was unconstitutional for state government to force some businesses to stay closed longer than others during the COVID-19 pandemic, three Republican judges in this case have ruled that Governor Roy Cooper can shut down businesses over public health concerns.

But it was unconstitutional in their opinion, to then allow restaurants, but not bars to reopen.

Bar owners had their constitutional right to earn a living infringe by the governor's executive orders back then, the Cooper administration, Dawn says that decision, which was four years ago, not only save lives, it saved jobs and don't forget, hospitals were full during those days leading to some big decisions.

- Right?

Well, they're not gonna say, oh yeah, you're right.

We made a terrible mistake.

'Cause that obviously wouldn't happen.

But I think we all remember the COVID times of every week, every couple weeks, and the restrictions changing so much.

And Governor Cooper and then DHHS secretary Mandy Cohen would talk about this dimmer switch.

We're moving things slightly and bars really got the short end of everything for a long time.

And it's not a surprise that that happened.

And the ruling, there's partisanship on the courts.

That's just how it is, you know?

And so I guess there's more steps to like, whatever the final resolution of this will be.

But I am not really surprised that Republican judges, and in hindsight, you could also look at the bars versus restaurant, and a lot of people went outta business, so, yeah.

- Billy, this goes back to the trial court level.

It could go all the way back up to the state's Supreme Court.

The Court of Appeals was ruling on some mechanical measures where the trial, what's your take on the idea?

This is in court four years later, debating a pandemic that I guess we call it over now or back to normal.

It's bringing back flashbacks.

- Not exactly good flashbacks, but I'm not terribly surprised by the decision.

Like Dawn said, it always, I'm not a lawyer, but it always seemed to be kind of a difficult thing to separate bars from restaurants and how you're gonna treat one differently than the other.

That said, since we've got some hindsight now, I still think that hindsight's gonna look very good for Cooper's decisions over that time.

And I think since we're talking about the context of that time, there were a lot of states, especially southern states, where people were rejecting COVID, treating it like it was a conspiracy.

There was all sorts of misinformation out there about the virus when these decisions were being made.

And Cooper's decisions were more cautious than others.

And I think that the states that were more cautious and thoughtful, like Cooper's administration seemed to be, especially after the vaccine showed up, you start to see some separation in outcomes for those states.

And I think that the governor's office will have a strong argument that what they did save lives.

And if someone else had been in there, we might not have been in the same situation.

- Steve, you know, a lot of state leaders, some personally, some professionally in that era.

It did seem government Republicans and Democrats too pushed the bounds of what people would think would be constitutional protections for earning a living in this case, which is an interesting concept, the right to earn a living.

- Yeah, I mean, I think that it is an interesting issue.

I mean, I still think this court decision, I think that the decision of Governor Cooper, I think did pass a lot of the constitutional muster, though.

They're gonna be looking at what the remedy is for bars.

But I mean, everybody has a right to work.

And I do think I know a lot of bars that even went outta business, but I have to agree with Billy here.

I think the governor, did the right thing and the issue at hand when the court was lack of scientific evidence.

But if you look at the CDC guidelines, which I actually reviewed before the show, it does say that it's high risk when you have a lack of social distancing, particularly during a pandemic, lack of masking, even during the pandemic, I did go to bars and had to get outta the house, claustrophobic.

And you could see people just so close together.

When you drink, you're less in inhibited, you're gonna not mask up.

And it's an increase of risk to get COVID.

And so I knew people that got COVID from the bar.

So I think it's just a balance between being fair and equitable.

But during a pandemic emergency, our governor, I think was doing what he thought he could do to save lives.

And he did.

And I think it was, something I think that we should be grateful for.

But many Republicans disagree.

- Yeah, Mitch this is about paying damages ultimately to bar owners who lost their lives, some lost completely their livelihood over a government edict that was applied to them and not others.

What's the free market response in the time of a public health, if not a crisis, which this was just the uncertainty of what is the right move to make for our society?

- Well, the governor, even the court agreed, had the right to shut the businesses down.

The problem that they had in this case was that the rules for private bars seemed to be different from rules for other bars, including the bars and restaurants for no apparent reason, they didn't have great reasoning.

The reasoning that came out in the court case, as the court noted in the opinion, tended to be newspaper articles and a scientific study that came out months after the decision was made.

Several other things about this case that we haven't mentioned yet that are important.

One, is that this court really did focus in on something that is unique to our constitution, our state constitution, the right to the enjoyment of the fruits of your own labor.

That is something that's played out in the courts in North Carolina in terms of occupational licensing restrictions in the past.

But it really hasn't come out in a case like this.

Another thing that's important to note, this isn't the only case involving Barr.

There's another one that was filed that has already gone through the Court of appeals.

The same judge who wrote this opinion, April Wood, wrote that opinion.

The Cooper Administration has appealed to the State Supreme Court, which hasn't said anything yet.

My guess is the same thing happens with this case.

There'll be appeal up to the state Supreme Court.

And then the other thing to note is that even though this was a victory for the bar owners, it was only a partial victory.

They said in the opinion that the law, the land, the the right to earn the fruits of your own labor, the equal protection of the laws, they win on that.

But they had also characterized this shutdown as an unconstitutional taking, like the use of eminent domain.

And the judges said, no, there's no evidence that there was any kind of taking involved.

So if they're gonna get any money, it's not gonna be like when the DOT takes your land for a road.

- It's also important to note that the law has changed now about how like all of this was done under the state of emergency and the duration of states of emergency and related executive orders, that processes is different now.

It would not be able to be as long and just up to the governor to do that.

So I don't know if the scenario would play out again in the future.

- I've had Senator Phil Berger on here at the end of 2023 for a recap of the year.

He brought up an interesting point about our constitution.

The North Carolina constitution has some very unique parameters and provisions in it that are unique from the US Constitution.

And he says, many people in the popul, myself included, would just think they're kind of the same.

And he goes, uh uh, no, they're not, watch it.

How, look at how that constitution sets up our state government.

And they come back and talk to me about some of these issues.

And I said, fair enough.

- Yeah.

- The University of North Carolina system is ordering changes to DEI programs across its 16 campuses.

The board of governors have voted to end mandates that every UNC system, campus employee, DEI officers, individual campuses, will instead create campus specific diversity and inclusion policies.

DEI employees on these campuses could either receive a new job title and a new job, or their job will be abolished.

It's a choice for the campus.

New policy reinforces that the UNC system is committed to everyone.

We're all welcome and to be treated equally at all campuses.

Billy, a few years ago, DEI was the hottest thing, billions going into it.

And every action in this case seems to have an equal and opposite reaction is the only way you could describe going from full throated to cutthroat - DEI, I tied the outrage over this to a lot of some of, frankly, that manufactured outrage over critical race theory a few years ago.

And I'll say that, yes, DEI, there was money put into this in recent years, but I look at this as a story American history and efforts like this began in earnest out of the Civil Rights movement to open up and cast a wider net in many areas of life.

And that includes higher education.

And I think it was a really important thing.

You look at the history of North Carolina and see the brilliant people who didn't get respected by our great public university system.

It's a great system, but the people who weren't respected because of the color of their skin, and I'll say this, I think that as a white man, I try to think of it like this.

I think one of the most important things we can do, we can know is what we don't know.

And I don't know the experience of someone who doesn't look like me.

I can read about it, I can talk to people about it, but I can't genuinely tell you that.

So I think it's really important that we make sure that other people are at the table who can tell you genuinely about those experiences.

I think it's really important in higher education.

And when we create a look like this, it looks like a board dominated by white men is going to to say that, no, we don't need to worry about casting a wider net, or they're going to say that this is unnecessary.

I think it sends a troublesome signal.

- The UNC system's been known for being progressive under yes, bill Friday and Terry Sanford, but DEI was another layer on top of that.

Is this a step backwards, Steve?

Is it a recalibration of bureaucracy and reflecting of a changing era in American history per Billy?

- Well, following up on what Billy said, I think it is a step back.

I mean, I think diversity is good for our kids.

I'm a parent of a Tar Heel senior, but I think going in a global economy where you're gonna work with people that don't look like you, that are from different races, sexual backgrounds, gender, race, ethnic beliefs, religious beliefs, preparing them for a world that they're gonna live in.

The other thing is understanding the importance of marginalized communities.

There's a difference between equity and equality.

I served on the League of Municipalities task force and race and equity, and I saw a slide once and said, equality is where everyone's in the same baseball game watching it.

But one view might be higher than the other, but equity is taking into account the resource, the discrimination, the bias, the experiences so that we can all be in the room watching at the same level.

And that really, really, I think I really learned a lot from that.

And I think the third thing I would say, which is why it's a real step back, is the economy.

I mean, we are really in a war for talent right now competing with Seattle and Boston.

We want Apple, we want Amazon, we want Google, we want these companies coming in as our chief sales officer who I often, often call Governor Cooper that he's had a lot of success bringing in these businesses.

Whoever becomes next governor will do that.

And I just think of HP two, we lost about $4 billion that had economic impact on the state.

So I think if we're gonna be in the game competing with these company cities for local global talent, we need to have a very diverse DEI programs.

But I think it shouldn't be just in a silo.

I think DEI as a policy should be something that affects all of the university.

And I just get the sense that this might be a little political, which I don't think is a good thing for any of us.

But to answer your question, yes, I think it's a step back.

- Every campus, Mitch, they say they're gonna have their own individualized policies based on the conditions on the campus versus the system office coming.

Now it's the way I understand this policy change, it's not the ratification or the repudiation of DEI or equity and inclusion in a welcoming campus.

I explain it from your perspective.

- Yeah, I mean if DEI meant getting rid of a focus on diversity, then it would be the problem that's been talked about.

But it's not DEI under the terminology that we have has become a racket.

That's why the University Board of Governors comes in and says, look, we're gonna get rid of these DEI officers who are focusing on things like saying that everything that happens, that the disparity is because of white supremacy or privilege.

And instead just coming up with programs that actually help build on diversity, help the folks who are from marginalized communities succeed when they get to campus, put in extra tutoring or particular programs that are gonna make sure that people who arrive, who have less resources than others are going to be able to get the same great education that you want everyone in the university to get.

The problem is that DEI, based on words that are great and are great when they're together, has ended up becoming a racket that had all kinds of things attached to it that didn't need to be attached to it.

If you really wanted to boost diversity and make sure that everyone got the education, they should.

- Don, there's that line, you've heard both sides and you're the reporter as a policy.

This is a change of bureaucracy.

People don't have to lose their jobs.

They can get a new job title and the universities can still, it seems, keep an eye on diversity, equity, and inclusion.

So help me understand this as a policy and as a move by the UNC Board of Governors.

- So, I mean, it's definitely political and I think that the fact that lawmakers were thinking about doing something and still could, but they're gonna let the university make the decision.

Obviously they were telling the university, make this decision or we're gonna make it for you.

- It was a piece of legislation that was.

- So, yeah, but the jobs thing is interesting.

It seems like people, some people probably will lose their jobs.

It's gonna depend on their, whoever is, head of their program and department decide, how are we gonna change this?

How are you going to do more than that?

I think the point of a DEI focused job is that your job is to make sure these things happen.

That you know that the campus, that the programs are more inclusive to everybody.

And if it's just part of someone else's job, maybe you still accomplish the same goal, maybe you don't because you have other stuff to do.

So they could, if they rename it something else in a couple years, people aren't gonna like that acronym, and then they'll get rid of that.

So call it something else.

- That's yeah, and I think what I've noticed is local governments are taking a lead in this, Cary is now has an advisory committee.

They had a task force on DEI, apex, we're looking at it in Morrisville.

I think that it's very important to look at what these jobs are doing.

That's a great point on, I mean, are they doing things to help your cities, your residents, your colleagues understand DEI shouldn't be just a job for the sake of a job, but I think that's a good point.

But I'm noticing cities taking the lead on this as well, local governments.

- Regardless of what they call it or what they call these offices, I think it should be important for the folks who are making these decisions at the university level to say if they believe it, that we're not saying mission accomplished as far as diversity and rectifying years of racial injustice in our education system, in our higher education system, in so many systems.

We're not saying mission accomplished because it sounds like that to a lot of people.

And it sounds like that to a lot of people who are gonna support this decision.

You know, we've come a long way since the civil rights movement, but we haven't come far enough that you can say, this isn't something that we need to make an effort to care about in our education system.

- And that I have to disclaim.

PBS North Carolina is fully with the UNC system and has been for 60 years.

So anytime we talk about a topic involving the UNC system, I wanna let you know they hire me, everybody behind the camera and everything else.

But we still wanna cover the issues fairly and accurately.

We can stay on the UNC system, be it expect students who enter our university system to take civics lessons as part of earning a degree.

High school students here are already taking civics to earn their diplomas, but university system leaders believe campuses could do better.

The Washington Post reported in May, 2023, that 13% of eighth graders, Mitch, were proficient in US history and 22% were proficient in what's known as civics.

And even that's a declining trend.

UNC system professors have gone on the record, many of them to say, this violates the principles of academic freedom to have appointees dictate that civics be taught.

- Well, it's, I think a sign that there's just one more example of our public schools, K12 not doing something that they're supposed to do.

And that's what the folks who are running the university system are seeing is that too few of the students who are coming into their classrooms really know about our system of government and the three branches and federalism and some of the important documents in our history.

If you look at this requirement, it's not saying everyone has to take this same class.

It's saying that students across the UNC system are going to have to engage in some way with some of these key documents that they're gonna have to know, like the declaration and the Constitution, King's letter from the Birmingham Jail, the Emancipation Proclamation, the Gettysburg Address, they're not telling people read "Freedom Road to Serfdom" by Frederick Hayek or "Capitalism and Freedom" by Milton Friedman.

I'd love for them to do that, but that's not the bent that they're on.

They're basically talking about basic documents that every student should know and saying, if you didn't get this in high school, you're gonna get it at UNC.

- Well, I think it's worth noting that history in high school is on, and lower grades is on the chopping block sometimes with something else.

Former Lieutenant Governor Dan Forest, one of his big things was having high school students take finance.

And the idea was, well, let's just drop a history requirement this past year or two years ago, adding, I think it was computer science, they thought, well, let's drop earth science.

And that didn't end up happening.

So there is something at the state government level where they're shoving things out in K12.

So maybe we're seeing that if you start removing things and don't leave the space to learn all of these things in K12, then it's coming up in the university system.

I mean, my degree's in history, so I'm obviously pro all history, civics classes, everything.

So I think the answer of more knowledge about that when you're picking, choosing what documents, some are a given, some, well, couldn't you add this?

And I think like there's more details there.

Maybe things that women also wrote would be a nice thing to include.

- I agree.

I mean, I think that there's nothing wrong as long as you're offering these classes for the right reasons.

Learning about the document, learning about government, learning about civic engagement.

I mean, you look at the political system today, I like our college kids, our future leaders to learn about how to govern, not just campaign, to learn about their institutions of democracy, which I think is really important.

So I think if it's done for that reason, then I think it's fine.

And you know, any kid's gonna wanna learn whatever they wanna learn.

I don't wanna be told what to learn, but universities often have basic curriculum you have to take as a freshman.

I know I did when I was in college.

Think all the universities do, so.

- You know, I went to a public college in Virginia, Virginia Tech, and I remember having to take, history requirement like in your freshman, sophomore year.

- Yeah.

- Really back in my day at least, I learned how to balance my checkbook type and take history lessons in school.

Why can't we get back to that?

Why are nationwide, 20% of kids don't even understand the US government?

I'm sorry, I'm not blaming politicians for that.

- There's a lot.

- Our kids know better than that, don't they?

- I think there's a lot I'm a huge advocate for, for making sure that our kids are learning civics and learning their government.

A lot of what we do at Cardinal Pine tends to be basic things like telling you how to go vote, telling you what avenues government opens up for you, what avenues they've closed off too, and telling you how you can participate.

I think it's, it's hugely important.

And having a good sense of the story of where you're from, the story of your state, your country.

I think it's so important when we make decisions.

I do think, though it won't be fair to just ding public schools, over over this lack there, as I've said this a million times, they're as poorly funded as any state in the nation.

It's like you took the wheels off a car and then blamed the car for not going.

So we need to, if we really want to be serious about investing in civics and history and education in general, let's see it.

Show us where the money is and invest in these things.

Support these ideas and get it out there.

'Cause I think you'll find everyone at the table goes, yes, we need to be teaching civics and we need to be teaching history to our kids.

- One thing to hit me, Mitch, is by adding just one more class as a prerequisite to graduation in a university setting that's several hundred dollars either in debt or out of mom and dad's wallet to pay that tuition.

I mean that's, does that matter?

- Well, it does and it would certainly matter if they said there's gonna be this new class that everyone has to take.

The way this requirement is spelled out though is a lot more amorphous.

It's going to be campus to campus.

How are you going to ensure that students engage in all of these documents and others that are chosen that are important?

Getting to Don's point, it doesn't have to be just the ones that I mentioned and a thing that people should be learning in North Carolina, certainly since we're coming up on the big anniversary, is the Edenton Tea Party, which like the Boston Tea Party was a slam on the over government by Britain, but it was led by women that was entirely put together by women in Edenton.

And it's a great part of North Carolina's history should be taught.

- Alright, well let's go down to pre-K through 12.

There's a statewide debate over childcare centers that cannot sustain their operations without federal COVID error relief funding.

Continuing up through K through 12 Wake County school leaders among other school boards are facing cuts as these federal funds dry up for K through 12.

Pandemic dollars funded one-Time School Project Steve, or Time Limited Jobs to help our kids get through the COVID era.

Now Wake County's facing choices on what to keep as those federal funds will be ending.

It appears jobs like afterschool supervision positions, full-time substitute teachers, and over 100 behavioral health jobs now under scrutiny and under threat from a lack of funding.

Steve, it was pretty obvious these were pandemic era funds, not permanent expansion of government.

You're taking what our local school boards are facing.

It's a big deal.

- It's a big deal.

I mean, and what brought us to this point is we got about the school system of Wake County got 443 million from the pandemic relief when it's said and done and states about 800 billion across the US, the money's drying up.

We never expect this money was gonna be there forever.

But here's why the Wake County school board's in difficult position, you know, a couple, two and a half million is going for like, substitute, well, a couple million for substitute teachers.

Two and a half million is going for before and after school care, largely because of the bus shortage, which I'll talk about in a second.

And of course, you know, different types of funding shortages for behavioral health.

Over a hundred positions.

I think two and a half million for that a few million.

So the problem is that how are you gonna have, care for these kids that depend on it, if you wanna prevent mental health, the substitute teachers there with buses late, there's only, there's 326 open bus positions today, right?

And so, and a lot of this COVID money was used for one time purchases of equipment bonuses, but was also used for these positions in a more full-time basis.

So I think it's a big decision to make.

What I will say, I'll end with this, the states have to step up.

I mean, the governor of Virginia, Glen Jenkins offered 900 million of funding.

Governor of Connecticut is looking at cannabis revenue and gambling revenue in Indiana.

So I think we're gonna have to figure out a way for the states to intervene, give more money so the schools can have an easier time making this decision.

- Bill's a huge influx of cash.

We have about 90 seconds.

Wanna get everyone's opinion.

Huge influx of class three, four years ago.

That's coming due, the bubble is ending.

What does it mean statewide?

I mean, Wake County's just a huge example.

- States across the country, not all of them, but many states used that money as cover in order to cut taxes, to continue to cut taxes.

And with that federal money drying up, we're seeing the need still.

And let me say that I think that they're gonna be people who say why you guys were spending making, paying off recurring expenses with a one-time influx of cash.

I think that doesn't take into account that there were no good decisions during the pandemic.

They just wanted to keep the wheels rolling.

- 10 seconds Dawn, does this get to the state legislative budget level?

How to backfill formal.

- Maybe a little bit.

I think that the, I mean, people knew going in that it was, is non-recurring, but certain positions, if it showed there's a need there, then that's your pitch for making that permanent.

- 10 seconds.

- Yeah, one time.

Money for ongoing expenses always causes problems.

Sometimes you have to make that choice, but sometimes it's tough.

- Thank you panel so much.

We are out of time here.

Thank you for watching.

Email your thoughts and opinions to statelines@pbsnc.org.

I'm Kelly McCullen.

Thank you so much, we'll see you next time.

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