Cries of “federal overreach” by Gov. Pat McCrory, legislative leaders and other HB2 backers are eerily reminiscent of the protest by Southern whites from 1954, when the Supreme Court issued the Brown v. Board of Education decision, through the early 1970s, when the Department of Justice enforced the decision in states that continued to allow school districts to separate black and white school children.
Back then, the opposition brought interposition and nullification legislation, declaring that “states’ rights” to defy the federal government are contained in the same Constitution that promises equal protection under the law regardless of some characteristic of personhood, like race or gender. That “federal overreach” theory went like this: States created the federal government and thus surrendered to the federal government only those few powers enumerated in the “compact,” or Constitution. All other powers, including control over public school policies, remained a state possession and as such were protected by the 10th Amendment.
The Supreme Court rejected the theory underlying the interposition arguments in 1958 in Cooper v. Aaron, the case regarding Little Rock, Arkansas’ resistance to implementing federal desegregation orders. In its faceoff with President Eisenhower’s Justice Department, Arkansas insisted until the end that the federal government had “overreached” when it dispatched the National Guard to protect those heroic nine black students from hate in Little Rock. The overreach argument was on the wrong side of history then, and it is on the wrong side today.
And history, as it tends to do, avenges itself.
McCrory’s recent claim that there is no relevance between the struggle for civil rights for African-Americans and the opposition to HB2 reveals a fundamental misunderstanding of both. The public accommodations provisions in Title II of the Civil Rights Act of 1964 were among the most controversial when the bill was proposed. But as the Senate report on that section highlights, it was designed to address the very same injustices HB2 now enshrines in law: “the deprivation of personal dignity that surely accompanies denials of equal access to public accommodations ... the humiliation, the frustration, and the embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public” simply because of who he (or she) is.
Challengers to Title II also claimed federal overreach; those claims were quickly and summarily rejected. Public accommodations became some of the least contested issues under the Civil Rights Act, in part, as Bayard Rustin observed, because it “hit Jim Crow precisely where it was most anachronistic, dispensable and vulnerable.”
So, too, with the challenges to HB2’s noxious pandering to fear, exclusion and intolerance. To paraphrase LGBT pioneer Gertrude Stein, discrimination is discrimination is discrimination. Ironically, while HB2 supporters invoke the same discarded code words and tropes that failed to prop up the legacy of race discrimination, they now find themselves seeking refuge in, of all places, federal court. Apparently they have new faith in those “unelected judges” that they’ve accused of “radical social engineering” and “judicial tyranny.”
Federal enforcement of civil rights protections that we as Americans made the law of the land became necessary to end Jim Crow’s rule in certain states. There is no “overreach” in using that same enforcement to beat back Jim’s hateful cousin, HB2.
Elizabeth Haddix and Mark Dorosin are attorneys at the UNC Center for Civil Rights.