As we reported this week, numerous education activists, as well as ACLU of N.C. Legal Director Chris Brook, have publicly questioned whether North Carolina’s share of federal Title IX funding—about $4.5 billion—has been put in jeopardy by the legislature’s controversial House Bill 2.
The decision will likely hinge on an ongoing Virginia court case, but the administration of President Obama and his federal Department of Education has made it clear that it believes the anti-discrimination component of federal education law protects against transgender discrimination too.
However, chalk WRAL up as skeptics. The network’s Mark Binker ran a “fact check” on the claim Thursday. Using a traffic signal, WRAL handed the claim a yellow light, calling it “overstated.”
When we examined McCrory’s claims in defense of the law, your fact checkers pointed out he was trying “to confer a degree of certainty about the law that doesn’t appear to exist.” We have the same problem here, although not to the same degree.
The idea that HB2 posses a certain or immediate threat to funding is specious. Any move to withdraw funding from the state would be part of what is typically a lengthy process and could be derailed by what the Fourth Circuit, or eventually the Supreme Court, says with regard to Title IX policy.
However, there is certainly room to make the argument that HB2 eventually could have an impact on federal funding. The Obama administration’s actions with regard to Title IX and transgender policy in other states save the claims related to HB2 and Title IX from running a red, but they do get a yellow light on our fact checking scale.
Of course, in Binker’s article, multiple opponents of the bill, including Brook, point out that there is ample evidence that the legislation’s stance on transgender-friendly policies could eventually pose problems for the state.
Perhaps the strongest evidence that school funding could be at risk are instances from other states such as Illinois and California, where the federal government threatened action based on Title IX and the treatment of transgender individuals. In both those cases the schools settled before the case went to court.
In South Dakota, Gov. Dennis Daugaard vetoed a bill that would have restricted the bathrooms transgender students could use, specifically citing the possible threat of losing funding as a result of Title IX enforcement.
That said, when Title IX was written in 1972, it did not specifically deal with transgender issues, so it’s unclear if courts will ultimately hold it applies. The Virginia case will be the first major test in court.
“We are not sure at all because there has been no definitive court ruling on this,” said Jane Wettach, a professor with Duke University Law School specializing in education issues. “The administration is charged with interpreting the law, and it’s currently interpreting the law in this way. But the district court judge in the Virginia rejected the Justice Department’s and Department of Education’s view.”
Opponents of House Bill 2 note that a single judge in Virginia does not set precedent for North Carolina.
“That judge’s opinion is not governing law in North Carolina,” Chris Brook, Legal Director of the ACLU of North Carolina. “The federal Department of Education has interpreted Title IX’s prohibition on sex discrimination to include discrimination based on gender identity and gender expression. That interpretation is the governing law in North Carolina today.”
Wettach pointed out that once President Barack Obama leaves office next year, a different administration could reverse the department’s interpretation. That seems likely under a Republican president, given that the RNC has taken a position opposed the the Department of Education’s interpretation, saying the administration has overstepped its authority.
“Neither the Department of Justice nor Department of Education really take away money very quickly or very often,” Wettach said. “The money is certainly not immediately at risk.”
However, she said, if the Fourth Circuit case is eventually decided in the student’s favor, or a Democratic administration replaces Obama’s, North Carolina could be facing pressure to change the policies set forth under House Bill 2.
One thing is clear: We’ll have to wait and see.