The UNC Board of Governors met Tuesday for more than three hours to try to sort out the university system’s next steps on HB2, North Carolina’s sweeping law with a controversial bathroom provision.
Now that state and federal officials have filed lawsuits against each other, university leaders say they are caught in the crossfire. The board met in closed session to consult with its attorney, and members agreed to search for counsel to represent the university in the federal lawsuit.
Board chair Lou Bissette said the board stands behind UNC President Margaret Spellings in the way she’s handled the situation.
“We are committed to resolving the legal issues in the university’s favor as quickly as possible,” Bissette said. “In the meantime, we are going to continue to focus on our primary mission of educating students.”
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The meeting came one day after a flurry of legal action by Gov. Pat McCrory, and legislators, who filed separate lawsuits against the federal government, asking a judge to declare that HB2 isn’t discriminatory. Hours later, U.S. Attorney General Loretta Lynch filed a federal civil rights suit against North Carolina, McCrory, the Department of Public Safety and UNC, saying the law amounted to “state-sponsored discrimination against transgender individuals.”
Spellings wrote to the justice department Monday, saying the university has complied and will comply with federal anti-discrimination laws but that HB2 “remains the law of the State, however, and the University has no independent power to change that legal reality.” She did point out that the law contains no enforcement provisions, and UNC’s 17 campuses have taken no steps to enforce it.
“We hope that the Department of Justice appreciates that the University is in a difficult position,” Spellings wrote.
While the issue will ultimately be decided by the courts, that could take months, and the university still faces the potential loss of federal funding, as suggested Monday by Lynch.
“I think it’s unfolding,” Spellings said Tuesday. “We talked about what those issues might be. The board and I are completely committed and very clear that we can’t operate this place without federal funding, and we would not put that at risk.”
The university received $1.4 billion in federal funds last year, including research grants and financial aid grants to students.
The UNC board heard about impact from the law from N.C. State Chancellor Randy Woodson and N.C. A&T State Chancellor Harold Martin, as well as Dr. Bill Roper, head of UNC Health Care System.
The law requires people in government buildings to use bathrooms that correspond to the sex on their birth certificates. It also prohibits cities and counties from enacting their own anti-discrimination ordinances, and establishes a statewide policy that excludes gender identity and sexual orientation. And it prevents people from filing employment discrimination lawsuits in state court.
There is apparently a range of opinions on the Republican-majority board, as evidenced by emails obtained by The News & Observer. Late last week, board members discussed the issue among themselves and pondered whether to join lawsuits by McCrory and lawmakers. Several expressed concern about the consequences.
We now know how the salami in a sandwich feels. We are in the middle of a fight we did not start between two powerful forces both of which could do the University great harm.
Champ Mitchell, UNC Board of Governors member
“We now know how the salami in a sandwich feels,” Champ Mitchell, a board member, wrote to several members. “We are in the middle of a fight we did not start between two powerful forces both of which could do the University great harm.”
“Obviously we cannot afford to lose federal funding,” Mitchell added. “In addition to having to immediately close a number of campuses with the withholding of Pell (Grant) funds, the loss of NIH and other research grants would mean the exodus of our most distinguished faculty. In fact, I expect other universities are at this moment planning to use this uncertainty to entice our best away.”
Board member Steve Long wrote to Bissette on May 5, after the Department of Justice had said HB2 violates the Civil Rights Act and Title IX.
“Given the aggressiveness of the DOJ in attacking not only the University but all NC institutions receiving federal funding, I don’t believe the State has much choice but to fight DOJ in court,” Long wrote. “I just don’t want you to think, due to our meeting yesterday, that all of us on the BOG are against the idea of bucking the DOJ if the Governor and Legislative leaders go that route.”
Board member Joe Knott agreed. “Before the federal government (or anyone else for that matter) can mandate that in North Carolina a man has access to women’s and girls’ bathrooms and showers; we should litigate the question,” he wrote.
I believe to the extent the courts have interpreted the laws of our country to require a government-mandated assault on morality, modesty, and order, they are mistaken. To the extent they are correct in their interpretation, the laws are immoral and should be changed.
Joe Knott, UNC Board of Governors member
“I believe to the extent the courts have interpreted the laws of our country to require a government-mandated assault on morality, modesty, and order, they are mistaken,” Knott added. “To the extent they are correct in their interpretation, the laws are immoral and should be changed. In the interim, we should argue our position in the courts.”
Board member Harry Smith disagreed with that opinion, writing that Knott did not speak for the board.
Mitchell discussed the pros and cons of siding with state elected leaders against the federal government, or trying to remain neutral.
“Assuming the Governor and legislature file an action such as a declaratory judgment action, joining in it might have some advantages,” Mitchell’s email said. “First, we would be standing firm with the leadership of our state. Second, we would be standing up to what is really a bullying approach by DOJ. Third, we would be a party to the litigation and thus a judgment would be the final determination that we seek.”
But there could be a federal backlash, he reasoned. “All of that would feel good and probably enhance our standing with the state’s leadership,” Mitchell wrote. “It would also greatly irritate the federal administration.”
Mitchell pondered how quickly the federal government could move to strip funding, and whether the university could get an injunction to stop it.
“Joining a case brought by the state’s leadership would create an appearance to many that we are supporting the law rather than merely complying as a matter of duty,” Mitchell wrote. “If DOJ starts an administrative proceeding, which it could do whether or not we join a declaratory judgment suit, this will also heighten anxieties on our campuses.”
The university was not a party in the state lawsuits filed Monday.