Four lawsuits, three judges, two courts – and a load of questions.
The war of words over North Carolina’s House Bill 2 erupted Monday into legal battle that could be fought on multiple fronts. The state and federal government traded lawsuits and fighting words about the state’s so-called “bathroom law” through much of the day.
Two complaints say HB2 is discriminatory and should be struck down. Attorney General Loretta Lynch publicly raised the threat of withholding billions in federal school, highway, housing and law enforcement support to pressure the state to abandon the recently enacted law. Meanwhile, Gov. Pat McCrory and Republican legislative leaders accused the Justice Department, Lynch and the Obama administration of the most extreme federal overreach since Bull Run.
Now what? Here’s the best guesses, based on Observer interviews Tuesday with a group of legal experts.
How many lawsuits are there?
For now, there are four.
▪ Separate complaints by the Justice Department and the American Civil Liberties Union and other groups have been filed in the federal Middle District of North Carolina, based in Greensboro. Both are scheduled to be heard by U.S. District Judge Thomas Schroeder.
▪ The lawsuits by McCrory and legislative leaders Phil Berger and Tim Moore were filed in the Eastern District, housed in Raleigh.
▪ Judge Terrence Boyle has been assigned the governor’s complaint; Judge Louise Flanagan, who’s based in New Bern, is scheduled to hear the legislators’ case.
Will each case go to court?
Unlikely, but not impossible. Two years ago, Judge William Osteen of the Middle District heard a series of challenges to Amendment One, the state’s constitutional ban against same-sex marriage. Yet the ruling that struck down the ban came from a marriage-rights case filed in Charlotte.
On the other hand, the various challenges to voter ID and the state’s other election laws were consolidated and heard by Schroeder.
That’s what Maxine Eichner of the UNC School of Law and Brian Clarke of the Charlotte School of Law expect to happen with the HB2 cases. Eichner says the judges involved will work out the logistics.
Which case will take the lead?
Some experts predict it will either be the ACLU’s complaint or the federal government’s. Both ask or will ask for a preliminary injunction blocking the state from enforcing the law. That involves an expedited schedule. “HB2 is causing real harm to real people,” said Chris Brook, legal director of the state ACLU. “HB2 is actively discriminating against students, state employees and others, so we are committed to acting quickly.”
Where will the final decision be made?
University of Richmond law professor Carl Tobias say it’s possible one of the cases could reach the U.S. Supreme Court. If so, there will be an intermediate stop at the 4th Circuit Court of Appeals in Richmond, Va. “However these cases turn out, I can’t imagine it won’t be appealed to the 4th Circuit,” Eichner says.
The 4th Circuit and North Carolina have recent history. Two years ago, an appeals court ruling in a Virginia marriage case signed the eventual death warrant for Amendment One.
Do we have any inkling on how the 4th Circuit would rule?
Experts say we do. Once again, a Virginia case could have profound impact on a North Carolina law. Last month, a 4th Circuit panel voted 2-1 to allow a transgender high school student to sue his school district for restricting his bathroom access. The majority opinion, written by South Carolina jurist Henry Floyd, upheld the federal government’s right to include gender identity as a protected class in school-related discrimination cases.
Why is that relevant?
McCrory and the other Republican leaders accuse the federal government of a “radical reinterpretation” of the Civil Rights Act to include LGBT protections that have not been confirmed by Congress or the courts. Floyd’s opinion, however, clearly supports the rights of federal agencies to define discrimination as they have. Thus, the state’s arguments of federal overreach could fall on deaf ears in Richmond.
Is the federal threat to withhold billions in aid for schools, etc., for real?
Potentially. The feds have used the option before – cutting off support to 100 school districts in the South in the mid-1960s to force desegregation. Hospitals across the region were forced to cross the color line after they began accepting Medicare money during the same period. While the so-called “nuclear option” has not been used nearly as much since then, the Washington Post reports that the federal Department of Education remains active – opening more than 3,000 investigations last year at colleges and schools over such issues as sexual violence, racial discrimination, and treatment of students with disabilities.
What’s potentially at stake?
Plenty. North Carolina’s public school systems gets some $1.4 billion in federal support every year. Charlotte-Mecklenburg Schools expects more than $136 million in the coming spending year, about 10 percent of its overall budget. Experts say close to $5 billion in federal money now coming to North Carolina could be on the table because of HB2.
What are the odds it will come to that?
Small, Eichner says, because all sides have turned to the courts to settle the standoff. “I expect the state to appeal as far as it can, but after that I expect it to comply.”
Nevertheless, withholding the money “remains in the playbook,” she acknowledges, and that makes it an effective negotiating tool.
Michael Gordon: 704-358-5095, @MikeGordonOBS