Courts & the Law, Governor Roy Cooper, HB2, News

The Week’s Top Five on NC Policy Watch

1. Another look at Cooper’s doggedly impressive start

As the national pundits weigh in on President Trump’s first 100 days in office and the General Assembly careens toward its self-imposed crossover deadline for legislation, it’s worth considering how Governor Roy Cooper has fared in his first 100+ days on the job.

He reached that threshold a couple of weeks ago with little fanfare. There were a few news reports and an interview or two, but most of the political world was still assessing the fallout from the partial repeal of HB2 and monitoring the latest efforts by the General Assembly to take powers away from Cooper that previous governors have held.

The 100-day threshold also felt less noteworthy because of the way Cooper’s term began and what happened before he took the oath of office. [Read more...]

2. A flood of bad ideas
How the General Assembly is spending “crossover week” and what it ought to be doing

The last week of April arrived soggy and gray yesterday in North Carolina. It’s as if the weather gods had taken a sneak peek at the agenda for one of the busiest weeks of the year at the General Assembly and were shedding a steady stream of preemptory tears.

Yes, this is “crossover week” in Raleigh – one of those strange and obscure “inside the Legislative Building” phenomena that are, at once, difficult to fathom and highly impactful on the lives of millions of everyday North Carolinians.

Every other year, state lawmakers self-impose something known as the “crossover deadline.” The basic and not utterly unreasonable rule is that unless a bill is approved by at least one legislative body (either the Senate or the House of Representatives) by the end of this legislative week, it will be ineligible to become law this year. The idea behind “crossover,” of course, is that it provides a culling mechanism that can help a part-time legislature manage the deluge of bills (there have been 1,448 introduced so far in 2017) it needs to wade through. [Read more…]

3. Controversial charter growth bill sails through the state House

Despite criticism from the Republican chair of the State Board of Education, members of the state House of Representatives voted Thursday to clear speedy expansion for some North Carolina charters.

Under House Bill 779, charters would be able to boost their enrollment by up to 30 percent without seeking state approval, provided they have not been identified as low-performing.

The version that emerged on the House floor Thursday night included several modifications from the GOP-led bill, which had called for any charter, regardless of academic performance, to have clearance for expanding enrollment by up to 40 percent. [Read more…]

***Bonus stories from Crossover Week:

4. Republican judge on protesting bill reducing Court of Appeals: ‘There weren’t any other options’

On Monday morning, there was only one way left to save the Court of Appeals and a few hours with which to do it.

Just two days earlier, Democratic Gov. Roy Cooper vetoed House Bill 239, which would reduce the state’s appellate court from 15 judges to 12. It was expected that the Republican-led General Assembly would override that veto as soon as they could, despite a lot of opposition from both sides of the aisle.

“Every argument had been produced to no avail; statistics were provided to [legislators] by a judge from our court; … four chief justices told them this is a bad move, that this is going to hurt the courts, that this was ill-advised; our court had told them that,” said former Judge Douglas McCullough. “There was only one way left. There weren’t any other options.” [Read more…]

5. Investment firm CEO: Partial HB2 repeal was not enough

The political compromise that repealed HB2 was enough for the NCAA and ACC, both of which have returned sporting events to North Carolina.

But is disappointment with the compromise and a flurry of new anti-LGBT proposals from the General Assembly continuing to hurt the state’s reputation? And can it recover?

“I would say it’s definitely not all over with the repeal,” said Matthew Patsky, CEO of Trillium Asset Management.

With more than $2 billion under management, Trillium has offices in Boston, San Francisco, Portland, Oregon and Durham. They were part of a group of investing firms handling more than $2 trillion that warned against the economic impact of HB2 in September of last year. [Read more…]

HB2, News

HB2 appeal seeking transgender protections voluntarily dismissed; litigation in lower court over law still pending

All parties to litigation over House Bill 2 have agreed to dismiss an appeal that sought relief for transgender people from bathroom provisions of the law.

The appeal was filed after a court granted a preliminary injunction in Carcaño v. McCrory preventing the North Carolina university system from enforcing HB2 against the three transgender plaintiffs in the lawsuit. The appeal sought to extend that injunction to prevent discrimination against all transgender people in the state.

However, since HB 142 repealed the bathroom language in HB2, parties to the appeal filed a voluntary motion to dismiss it.

“Among its other provisions, HB2 directed North Carolina public agencies to ‘require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex.’ N.C. Gen. Stat. § 143- 760(b) (2016), repealed by S.L. 2017-4. ‘Biological sex’ was defined as the ‘physical condition of being male or female, which is stated on a person’s birth certificate.’ N.C. Gen. Stat. § 143-760(a)(1) (2016), repealed by S.L. 2017-4.

On March 30, 2017, while this appeal was pending, Governor Cooper signed into law the Act to Reset S.L. 2016-3, which expressly repealed HB2. See S.L. 2017-4 (Exhibit A). As a result, there is no state law barring the use of multiple occupancy bathroom facilities in accordance with gender identity.”

It should be noted that the dismissal does not signify the end of litigation over HB2. A lawsuit over the sweeping anti-LGBT law remains pending in District Court, and lawyers from the ACLU and Lambda Legal has stated it will continue to fight for transgender protections. The organization also plans to seek an amendment to the lawsuit to include the new HB142.

HB142 bars local governments from enacting future anti-discrimination protections until 2020 and states that the General Assembly will dictate future bathroom policies.

“State agencies, boards, offices, departments, institutions, branches of government, including The University of North Carolina and the North Carolina Community College System, and political subdivisions of the State, including local boards of education, are preempted from regulation of access to multiple occupancy restrooms, showers, or changing facilities, except in accordance with an act of the General Assembly,” the bill states.

It’s unclear what the new law currently means for transgender residents access to bathrooms. House Speaker Tim Moore and Senate President Pro Tem Phil Berger did not return emails seeking comment about translation of the new law.

A footnote in the dismissal document states that “Intervenors-Appellees Tim Moore and Phil Berger join in this stipulation only to the extent of stipulating and agreeing that (1) the appeal should be voluntarily dismissed under Federal Rule of Appellate Procedure 42(b) and Local Rule 42; (2) the parties should bear their own costs; and (3) there is therefore no need for the supplemental briefing requested by the Court in its order of April 10, 2017, which they do not intend to submit unless otherwise instructed.”

The dismissal will not prejudice the HB2 lawsuit that is still pending.

Commentary, HB2

Leading sports columnist: NCAA wimps out

Once again this morning, some of the most incisive comments on the saga of North Carolina’s LGBTQ discrimination law can be found on the sports page — in this case the sports page of Raleigh’s News & Observer.

As was reported in the post below, the NCAA relented yesterday on its North Carolina HB2 boycott in response to the weak and inadequate “repeal” of the law that state leaders fashioned a few weeks back. To his great credit, however, columnist Luke DeCock isn’t happy about it. As the veteran journalist observes in “Back to business as usual quickly for NCAA in NC,” the change yesterday was basically a wimp out:

“In politics, as in sports, you don’t always get what you deserve. North Carolina got what it needed from the NCAA on Tuesday, but not what it deserved.

If the NCAA was serious about honoring the commitment it made to LGBT rights back in September when it pulled this year’s events from North Carolina and threatened to exclude the state entirely from this round of bidding, it would have found a way to reward North Carolina for acknowledging the error of its ways while still punishing it for not fully repealing House Bill 2, some interim position designed to encourage the state to be more welcoming to the NCAA’s constituents.

That’s not what happened. North Carolina went right back to most favored nation status with the NCAA over the four-year bid cycle announced Tuesday, landing 26 events encompassing 35 different championships, including the beloved first and second rounds of the men’s basketball tournament in 2020 and 2021. Only three states were awarded more: Pennsylvania, Florida and Indiana. Ohio, California and Texas were just behind.

The NBA, NCAA and ACC were all, to varying degrees, involved in brokering the inadequate compromise known as HB142, a step forward from HB2 but only a partial one, thanks to the unwillingness of the Republican majority to countenance the full, necessary repeal of HB2, and the new deal gave everyone the political cover they needed to get back in business with North Carolina. So they did. Or will shortly, in the case of the NBA.

North Carolina did get slapped around a little bit. The basketball subregionals were either going to be a 3/1 or 2/2 split between North and South Carolina, and Greenville, S.C., won out in 2022 over Charlotte. The state was passed over yet again for a men’s basketball regional, as it has been since 2008.”

After detailing which games will be played where, DeCock closes this way:
“Only seven months after the NCAA took a principled stand on behalf of its LGBT athletes, coaches, administrators and fans, it passed on the opportunity to match the degree of HB2 repeal with decisions that acknowledged progress while still encouraging further change. Instead, it’s back to business as usual, in North Carolina and elsewhere.”
In other words, caring and thinking people have a lot more work to do to bring actual justice and equality to North Carolina. Let’s keep at it.
HB2, News

NCAA to allow championship basketball to return to Raleigh, Greensboro – in 2020

State lawmakers who hoped a repeal compromise of the anti-LGBT law HB2 would be enough to return NCAA championship games to North Carolina got their answer Tuesday.

The NCAA announced that post-season soccer games would return to North Carolina in 2018.

The far more lucrative first and second rounds of Division I men’s basketball will return in 2020.

(Greensboro was tapped as a host site in 2020, with Raleigh hosting the first two rounds of basketball in 2021 at PNC arena.)

The NCAA explained its site selection this way:

Criteria for selecting the host sites included creating what will be an exceptional experience for the student-athletes, along with adherence to NCAA bid specifications. Specifications can include, but are not limited to, providing optimal facilities; ease of travel to the location and ample lodging; and adherence to NCAA principles, which include providing an atmosphere that is safe and respects the dignity of all attendees. The site selections follow the NCAA Board of Governors’ vote to allow consideration of championship bids in North Carolina.

Lawmakers replaced HB2 with House Bill 142 earlier this month, though LGBT advocates called the new law a “sham” as it prevents local governments from passing their own non-discrimination ordinances through 2020.

The Human Rights Campaign and Equality NC have condemned the NCAA’s decision:

“The NCAA has fallen ‘hook, line, and sinker’ for this ‘bait and switch’ sham ‘deal’ doubling down on discrimination,” said JoDee Winterhof, HRC Senior Vice President for Policy and Political Affairs. “Even worse, the NCAA has inexcusably gone back on its promise to ensure all championship games are held in locations that are safe, respectful, and free of discrimination. By rewarding North Carolina with championship games, the NCAA has undermined its credibility and is sending a dangerous message to lawmakers across the country who are targeting LGBTQ people with discriminatory state legislation. In addition to protecting the broader LGBTQ community, the NCAA needs to clearly state how they will be protecting their student athletes, personnel and fans.”

“How can LGBTQ people  — especially members of the transgender community  — be safe and free from discrimination, much less protected against mistreatment or harassment with the sham fake repeal of HB2?” said Equality NC Executive Director Chris Sgro. “The unfortunate reality is they cannot. HB 142 was a cheap political trick that did nothing to alleviate the concerns the NCAA initially outlined when it pulled games from the Tar Heel state last year, and even adds new forms of discrimination to North Carolina’s laws. It is unthinkable that the NCAA would abandon its commitment to LGBTQ fans, players, and administrators by falling for this trick.”

HB2, News

In case you missed it: Federal government files motion to withdraw from HB2 litigation

The U.S. Department of Justice filed a motion Friday to withdraw from litigation over House Bill 2, North Carolina’s sweeping anti-LGBTQ law that was repealed and replaced by legislation that accomplishes similar goals.

The motion was filed “in light of the passage of North Carolina Session Law 2017-4, House Bill 142,” according to the motion.

HB142 is the law legislators passed to repeal HB2, but the law also prohibits local governments and other public entities (like the university system) from enacting transgender equity ordinance and rules without the legislature’s approval. It also makes clear that no local governmental body in the state can “enact or amend any ordinance regulating private employment practices or regulating private accommodations” until 2020.

The ACLU, ACLU of North Carolina, and Lambda Legal been working on Carcaño v. McCrory (now known as Carcaño v. Cooper), a federal challenge to HB2, for more than a year. The organizations will continue the fight in court despite the passage of HB142.

Barack Obama’s administration also fought HB2 in court, alleging the legislation violated multiple federal laws. President Donald Trump’s administration is a different story.

Attorney General Jeff Sessions openly opposes transgender equality and has tried to reverse Obama administration’s protections for LGBTQ individuals.

LGBTQ advocates are not pleased with the the DOJ’s decision.

“Here is yet another instance of the Trump administration and Attorney General Jeff Sessions withdrawing the federal government’s support from transgender individuals, and they are using the fake repeal of HB2 as cover,” said Jon W. Davidson, Legal Director and Eden/Rushing Chair, Lambda Legal. “Sadly, this was not unexpected, now that anti-transgender forces are in charge of the Departments of Justice and Education. Once again, the Trump administration continues to abandon transgender Americans.”

James Esseks, director of the ACLU’s LGBT Project, said that while the DOJ may want to use the “fake repeal” of HB2 as a cover, his organization would continue to fight.

“We’ll continue this fight as long as it takes to truly strike down this disastrous law for good,” he said in a news release.

The North Carolina GOP praised the DOJ’s litigation decision.

“The Trump administration has take a very reasonable and common sense action that is welcomed,” said former governor Pat McCrory in a press release.

NC GOP Executive Director Dallas Woodhouse said Americans were “once again” seeing the Trump administration reign in the “hyper-partisan Obama Justice Deparment,” a trend he hopes continues.