Even before House Speaker Tim Moore made it clear Thursday that a political showdown could be ahead between the state and federal governments over the future of House Bill 2, questions swirled about what might happen if neither side blinks.
As often is the case with legal questions, there is no simple answer.
Vanita Gupta, the department’s top civil rights lawyer, sent letters Wednesday to Gov. Pat McCrory, the UNC system president and the state secretary of public safety saying HB2 violated federal law.
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What laws does DOJ say HB2 violates?
Title IX, which bars discrimination in education based on sex, and Title VII of the Civil Rights Act, which bans employment discrimination, as well as the Violence Against Women Act, which was reauthorized in 2013 and expanded federal protections to gays, lesbians and transgender individuals after much partisan divide and debate.
How could DOJ challenge the law?
While simply violating Title VII would make HB2 illegal under federal law, legal analysts say, to prove that would require a court decision, which could be protracted. In contrast, the federal government has quicker leverage in controlling the flow of money for education programs.
The letter cautions North Carolina that federal education funding could be withheld. During the current school year, state public schools received $861 million. In 2014-2015, the University of North Carolina system got $1.4 billion.
Is there precedent for withholding the funds?
“It’s almost unprecedented for federal funds to be cut off,” said John Dinan, professor of politics and international affairs at Wake Forest University.
Typically, Dinan said, such a letter stands as the start for negotiations between the federal government and the accused offender, and a settlement is worked out that thwarts the withholding of funds.
“This is often the starting of a process, and the process can go various ways,” Dinan said.
Has this kind of conflict happened before?
Yes. One of the recent cases occurred when the federal government sent a similar letter to a suburban Chicago school district where a transgender student wanted full access to the girls’ locker room.
In that case, though, the student filed a complaint with the U.S. Department of Education’s Office for Civil Rights, contending her school was in violation of the Title IX gender equity law.
Initially, the Palatine-based Township High School District 211 denied the student’s request and instead offered a separate room where the student could change clothes. School officials cited privacy concerns.
Federal officials threatened to withhold nearly $6 million in federal funding, and the Illinois school district changed course, allowing the student access to the girls’ locker room.
On Wednesday, a group of parents and students dissatisfied with the decision filed a lawsuit against the Department of Education and the high school district.
The standoff between the state and federal government over HB2, in some ways, is reminiscent to what happened more than a half century ago when many Southern school systems refused to desegregate under the landmark 1954 Brown v. Board of Education court order until after the federal government threatened to cut off education funds.
How quickly could the federal government stop the flow of money?
That remains ambiguous, given the many different paths the issue could take through the courts.
“There’s all kinds of ways it could go,” Dinan said.