No Binding Agency Deference in North Carolina: Mitchell v. UNC Board of Governors mandates de novo review of state administrative regulations

Introduction

In Mitchell v. University of North Carolina Board of Governors (N.C. Oct. 17, 2025), the Supreme Court of North Carolina resolved a longstanding ambiguity in the State’s administrative law: whether, and to what extent, North Carolina courts must defer to a state agency’s interpretation of its own rules and regulations. The Court held that, under North Carolina law, courts interpret state administrative regulations de novo and are never bound to accept an agency’s construction. Agency views may inform a court’s judgment, especially in technical areas, but they carry only persuasive weight.

The case arose from Winston-Salem State University’s 2017 dismissal of Dr. Alvin Mitchell, a tenured faculty member, based on neglect of duties and a letter to a colleague containing offensive racial slurs. Dr. Mitchell argued, among other things, that the University failed to follow its own rules, and he asserted First Amendment protection for his letter. A divided Court of Appeals affirmed the University’s decision, and in doing so applied a “substantial deference” standard to the agency’s interpretation of its regulations. The Supreme Court granted review to clarify the proper standard and to address a narrow jurisdictional issue stemming from the Court of Appeals dissent.

Summary of the Opinion

Writing for the Court, Justice Dietz announced these core holdings:

• North Carolina courts apply de novo review when interpreting state agencies’ rules and regulations. An agency’s interpretation may be considered but is never binding.
• The Court expressly disavows any interpretive rule that requires deference to a state agency’s interpretation of state rules and regulations and overrules any Court of Appeals decisions to the contrary.
• The Court distinguishes and limits prior state decisions that borrowed federal Auer-style deference (including Morrell v. Flaherty) as inapplicable to state agencies and state regulations.
• As to the remaining issue before the Court—whether the Court of Appeals should have remanded for First Amendment balancing—the Court holds there was no need to remand because that balancing is a pure question of law reviewed de novo. However, given jurisdictional limits in appeals taken on the basis of a dissent (Cryan), the Supreme Court could not itself reach the First Amendment balancing on the merits because the dissent below did not conduct that analysis.
• The judgment of the Court of Appeals is modified to clarify the standard-of-review rule and otherwise affirmed.

Analysis

Precedents Cited and Their Role

• Britt v. N.C. Sheriffs' Educ. & Training Standards Comm'n, 348 N.C. 573 (1998): The Court’s principal North Carolina precedent. It states that when the appellate issue is whether a state agency erred in interpreting a regulatory term, courts may freely substitute their judgment and employ de novo review. Mitchell elevates Britt as the governing state-law rule.
• Gill v. Board of Commissioners, 160 N.C. 176 (1912): Early recognition that administrators’ interpretations can aid courts in ascertaining legal meaning. Mitchell preserves this “some weight” principle as persuasive consideration only.
• Brooks v. McWhirter Grading Co., 303 N.C. 573 (1981): Agency interpretations are not binding on courts. Mitchell restates this as a core feature of North Carolina separation of powers.
• Morrell v. Flaherty, 338 N.C. 230 (1994): Involved federal regulations and imported federal Auer-style deference through a quotation from Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994). Mitchell confines Morrell to its federal-law context and clarifies it does not create a North Carolina deference rule for state regulations.
• Kisor v. Wilkie, 139 S. Ct. 2400 (2019): The U.S. Supreme Court narrowed Auer deference under federal law. Mitchell emphasizes that federal Auer/Kisor doctrine rests on federal statutes and presumptions about congressional intent that have no North Carolina counterpart.
• White v. Ayer, 126 N.C. 570 (1900), and Sound Rivers, Inc. v. DEQ, 385 N.C. 1 (2023): The judiciary’s constitutional duty to construe the law precludes binding deference to executive interpretations.
• Taylor v. Bank of America, 382 N.C. 677 (2022): Clarifies that de novo review concerns the correctness of the disposition, not the completeness of the trial court’s reasoning—a point used to reject remand for additional legal reasoning.
• Corum v. University of North Carolina, 330 N.C. 761 (1992); Connick v. Myers, 461 U.S. 138 (1983): Establish the First Amendment “public concern” threshold and Pickering balancing framework, both treated as legal questions reviewed de novo.
• Cryan v. National Council of YMCAs, 384 N.C. 569 (2023): Limits the Supreme Court’s appellate review, in a dissent-based appeal, to issues specifically set out in the Court of Appeals’ dissent.
• Statutes: North Carolina’s APA directs de novo review of “errors of law” (N.C.G.S. § 150B-51(c)), unlike the federal APA (5 U.S.C. § 706), which federal courts have read to allow agency deference in particular circumstances.

Legal Reasoning

The Court grounds its holding in two pillars: statutory text and constitutional structure.

• Statutory text (N.C. APA): N.C.G.S. § 150B-51(c) requires de novo review for questions of law on judicial review of agency action. That textual command is inconsistent with any doctrine that would require courts to adopt an agency’s reading of its own regulation.
• Constitutional separation of powers: Interpreting law is “the exclusive right of the judiciary” (White). While the General Assembly can empower agencies to promulgate rules, it cannot constitutionally compel courts to defer to executive-branch legal interpretations. De novo review, therefore, is not just a policy choice; it is, as the Court frames it, a “constitutional command.”

Against that backdrop, the Court explains that its earlier discussion in Morrell was rooted in federal law interpreting federal regulations, and quoted federal doctrines (Auer/Thomas Jefferson University) keyed to the federal APA and assumptions about congressional delegation. Those doctrines do not govern state agencies or state regulations. Moreover, Auer itself has been reined in by Kisor, further undermining reliance on Morrell for state-law purposes.

At the same time, Mitchell preserves a “Skidmore-like” concept: courts should afford “due consideration” to agencies’ views—especially in complex or highly technical regulatory programs—because administrators’ experience may be a “legitimate and valuable aid” in ascertaining meaning. But “aid” is not “authority”: agency interpretations are persuasive only and never binding.

Jurisdiction and First Amendment: De novo review does not require remand; Cryan limits what the Supreme Court may reach

The Court next addresses a narrow point generated by the Court of Appeals dissent: whether the case should have been remanded so that the superior court could conduct First Amendment balancing under Connick/Pickering.

• Balancing is a legal question: Both the Court of Appeals majority and dissent recognized that First Amendment balancing is a question of law. Questions of law are reviewed de novo. Thus, when a legal issue is properly preserved, an appellate court need not remand to obtain more analysis from the trial court; it must decide the legal issue itself.
• No factual gaps requiring remand: Appellate courts cannot find facts; if factual disputes remain, remand is appropriate. Here, the Court identified no unresolved factual disputes tied to the First Amendment question.
• Cryan’s limit on Supreme Court review: In a dissent-based appeal, the Supreme Court’s review is confined to the grounds “specifically set out” in the Court of Appeals dissent. The dissent below opined that the speech addressed a matter of public concern but would have remanded for balancing rather than undertaking the balancing itself. Because the dissent did not perform the balancing, the Supreme Court lacked jurisdiction in this appeal to conduct that analysis on the merits, even if it believed de novo review would allow it to do so.

Accordingly, the Supreme Court rejects the dissent’s remand rationale and affirms, as modified, without reaching the First Amendment balancing on the merits.

Procedural backdrop: University termination process

Although the Supreme Court does not delve into the University’s procedures in detail, it leaves undisturbed the Court of Appeals’ conclusion that Winston-Salem State University followed its Handbook and the UNC Code. As Justice Earls’s separate opinion recounts, the Handbook tasks a faculty committee with making a recommendation and vests “final written opinion” authority in the Chancellor after the record is developed. When a faculty committee finds no prima facie case and the Chancellor disagrees, the matter proceeds to a full hearing; after the hearing, the Chancellor issues the final decision, subject to institutional appeals (to the Board of Trustees and the Board of Governors) and judicial review. That structure comports with the plain language of the governing policies.

Impact

What changes immediately for North Carolina courts

• When interpreting state administrative rules or regulations, courts must conduct de novo review—no binding deference to the agency’s view.
• Opinions by agencies—manuals, guidance, enforcement history—may be considered as persuasive materials but cannot control judicial interpretation.
• Court of Appeals decisions that leaned on Morrell to require Auer-like deference to state agencies are overruled to that extent.
• In appeals raising pure questions of law, appellate courts should decide the legal question rather than remanding for more “reasoning” by the trial court (absent unresolved factual issues).

For agencies and rulemaking

• Agencies should expect their interpretations of their own regulations to receive only persuasive weight. The safest way to lock in a construction is through notice-and-comment rulemaking so the text itself says what the agency intends.
• Technical expertise remains relevant. Courts may—and should—consider agency expertise when interpreting complex regulatory schemes. But that expertise will not cure flaws in regulatory text.
• Internal guidance, FAQs, or enforcement letters should be framed as persuasive explanations, not as binding law, and agencies should anticipate judicial scrutiny of the regulation’s plain language.
• Legislative attempts to mandate judicial deference to executive interpretations could face constitutional headwinds under North Carolina’s separation-of-powers doctrine as articulated in Mitchell.

For litigants

• Challengers to agency action should foreground text, structure, and context of the regulation. While citing agency practice can be helpful, it will not be dispositive.
• Build records that include technical background and industry context to aid courts applying de novo review in specialized areas.
• In preserving issues for appeal, recognize that legal questions (like First Amendment balancing) will be decided de novo; do not assume a case will be remanded for the trial court to “go first” on purely legal analysis.
• In dissent-based appeals to the Supreme Court (still applicable to pipeline cases), ensure the dissent below squarely addresses the precise legal questions you want the Supreme Court to review. Under Cryan, the Supreme Court cannot reach beyond what the dissent “specifically set out.”

UNC governance and faculty discipline

• Although not the focus of the Supreme Court’s analysis, the judgment affirms the Court of Appeals’ view that the Chancellor has final decision-making authority after receiving the faculty committee’s recommendation and record, consistent with the UNC Code and WSSU Handbook.
• Faculty committees’ “prima facie” stage determinations are recommendations; if the Chancellor disagrees, the process continues to a full hearing, after which the Chancellor issues the final written decision.

Open questions and future litigation

• Scope beyond agency regulations: Mitchell speaks to “state administrative regulations.” Because the North Carolina APA and separation-of-powers reasoning are not limited to regulations, expect arguments that de novo review governs agency interpretations of statutes as well. Many North Carolina cases already apply de novo review to statutory interpretation; Mitchell strengthens that trend.
• The contours of “due consideration” to agency expertise: How courts calibrate persuasive weight in technical fields will develop case-by-case. Expect citations to Gill/Britt-style reasoning and analogies to federal Skidmore factors (thoroughness, consistency, expertise) even if not expressly adopted.
• First Amendment in academic settings: Because of Cryan, the Supreme Court did not reach the merits. The interplay of academic freedom, “matter of public concern,” and the Pickering balance remains a fertile area for future cases.

Complex Concepts Simplified

• De novo review: Latin for “anew.” The appellate court decides the legal question itself, without deferring to a lower court or agency’s interpretation. It focuses on whether the result was legally correct, not on how extensive the lower decision’s reasoning was.
• Auer/Kisor deference (federal): Under federal law, courts sometimes defer to a federal agency’s reasonable interpretation of its own ambiguous regulation. Kisor narrowed when this applies. North Carolina’s Mitchell decision rejects importing that model to state agencies and state regulations.
• Persuasive weight to agency views: Courts may consider an agency’s specialized knowledge, consistency of interpretation, and practical experience when figuring out what a regulation means. But this is not binding; it is akin to treating the agency like a well-informed amicus.
• “Matter of public concern” and Pickering balancing: For public-employee speech, courts ask first whether the speech addresses issues of political, social, or community concern. If so, courts balance the employee’s interest in commenting against the government’s interest in efficient operations. Both questions are treated as legal questions.
• Appeal based on a dissent (pre-2025 mechanism): In cases reaching the Supreme Court because a Court of Appeals judge dissented, the Supreme Court’s review is limited to the issues expressly identified as the basis for that dissent (Cryan). If the dissent would remand rather than decide an issue, the Supreme Court ordinarily cannot decide that issue on the merits in that procedural posture.

The Separate Opinion: A Narrower Path and a First Amendment Merits Analysis

Justice Earls concurred in the result on the procedural-compliance issue but criticized the majority’s broad pronouncement on agency deference as exceeding the case’s needs. In her view, deference principles matter only if the regulation is ambiguous; here, the policies were plain and the University followed them.

On the First Amendment, she would reach the merits despite Cryan, concluding that Dr. Mitchell’s letter addressed matters of public concern—including racial bias in academia—and, in the context of academic freedom, was protected speech under the Pickering framework. She would reverse and remand for the University to consider whether the remaining grounds (apart from the letter) suffice to support termination. Her opinion underscores:

• The special solicitude for academic speech (Keyishian, Garcetti’s carve-out for scholarship and teaching, and Fourth Circuit cases such as Adams).
• The comparatively high showing a public employer must make to justify discipline when employee speech substantially involves matters of public concern (Connick, Love‑Lane).
• Her disagreement with the majority’s application of Cryan to avoid the First Amendment merits.

Conclusion

Mitchell marks a watershed in North Carolina administrative law. It cements de novo judicial review as the rule for interpreting state agencies’ regulations and rejects any state-law analogue to federal Auer/Kisor deference. The decision rests on both the text of North Carolina’s APA and the State’s constitutional separation of powers: interpreting the law is for courts, not agencies.

The Court also delivers important procedural guidance for appellate practice. First, when a legal issue is preserved, appellate courts should decide it de novo without remanding for additional trial-court “reasoning.” Second, in dissent-based appeals, the Supreme Court’s review is confined to issues expressly articulated as the basis of the Court of Appeals’ dissent.

While the Court did not reach the First Amendment merits due to jurisdictional constraints, the opinions illuminate the analytical terrain—public concern, academic freedom, and Pickering balancing—that will continue to shape disputes over faculty speech at public universities. For agencies statewide, the message is clear: draft with precision, build records that will persuade de novo, and expect courts to make the final call on what your rules mean.