HB2: UNC Walks Fine Line Between Federal And State Authority

May 11, 2016

The leaders of the 17-campus University of North Carolina system say they are not violating federal anti-discrimination protections by following the state’s new bathroom access law, and are seeking legal representation in a lawsuit against federal authorities.

UNC Board of Governors Chair Louis Bissette says the system is "caught in the middle between state and federal law," as it faces a lawsuit from the U.S. Department of Justice that argues the new state law violates the rights of transgender people. But he and UNC System President Margaret Spellings say the university has not changed any of its policies or violated any federal anti-discrimination protections.

"If you’re a citizen and you have a state law and a federal law, and you don’t really know which one is controlling, it’s very frustrating that you don’t know which one to abide by," Bissette said. "Our anti-discrimination policies are in effect, as they have been for years. There's been no change in that, and there will be no change in that."

Bissette spoke to reporters on Tuesday night after an almost three-hour closed door briefing with the board and Spellings about several lawsuits filed in response to controversial House Bill 2 and the resulting possibility that the university could lose billions in federal funding. 

The Justice Department filed a suit in U.S. District Court for the Middle District of North Carolina on Monday seeking to invalidate the law, which it says puts the state—and the public university system—in violation of the U.S. Civil Rights Act of 1964. In response, Republican Gov. Pat McCrory and the Republican leaders of the General Assembly filed parallel lawsuits challenging the Justice Department’s claims.

Spellings, a former secretary of the U.S. Department of Education, has been walking a fine line between the Republican-led General Assembly, which approved House Bill 2 and has authority over the system Board of Governors, and the Justice Department, which has threatened to siphon off federal funding. Attorney General Loretta Lynch on Monday said her agency will not move to cut off funds from the UNC system for now, but is keeping that as an option.

On Tuesday, Spellings said House Bill 2 has no enforcement provisions, and the system is not—as the Justice Department has argued—in violation of Title VII of the Civil Rights Act or Title IX of the Education Amendments of 1972, which prohibit discrimination in the workplace or in schools.

"We can't operate this place without federal funding, and we would not put that at risk," Spellings said. But it's unlikely the Obama administration has "any greater interest in poor and minority students losing financial aid than we do."

In Tuesday’s meeting, the chancellors of North Carolina State University and North Carolina A&T and the dean of the University of North Carolina School Medicine told the board they were concerned they had received questions from students about the new law, and were concerned it could affect the system’s reputation and ability to recruit faculty, Spellings said.

"It's a time of uncertainty. They captured some of that," Spellings said.