Margaret Spellings Is Caught Between Her State and the Federal Government. Now What?

Since taking the reins as president of the University of North Carolina system, in March, Margaret Spellings has seen her tenure dominated by dealing with House Bill 2, the new state law barring people from using public restrooms that do not correspond to their biological sex. Ms. Spellings has said that the system will comply with the law, which is widely seen as discriminating against transgender people, but that doing so is “in no way an endorsement of this law.”

This week the U.S. Department of Justice informed the system that complying with the state law — as memos written by Ms. Spellings indicated it would — put it in violation of federal civil-rights law. In a letter the Justice Department gave Ms. Spellings and other state leaders, including Gov. Pat McCrory, until Monday to take steps to comply.

In a written statement this week Ms. Spellings said the university took the order “seriously,” and would be “conferring with the governor’s office, legislative leaders, and counsel about next steps and will respond to the department by its May 9 deadline.”

For now Ms. Spellings is caught in the middle of a dispute between the state and the federal government — an unusual position for a higher-education leader and one that few would envy.

“I just have an enormous sympathy for the position she’s been put in,” said James C. Moeser, a former chancellor of the Chapel Hill campus. “I think she wishes the law weren’t there,” said Mr. Moeser, adding that he has not discussed the matter with, or even met, Ms. Spellings. Among the challenges she faces: “The people who hired her and the people who appointed them,” he said, “are the people who wrote that law.”

So what’s the leader of a public-university system to do when caught in that kind of position?

If Kent John Chabotar were in Ms. Spellings’s shoes and thought that the law was “not smart, or illegal” (in fact, he thinks it’s discriminatory and should be repealed), his first move would be talking to the Board of Governors. “There’s no way I’d take a step without checking in with my board and seeing if they could be my heat shield,” said Mr. Chabotar, president emeritus and a professor of political science at Guilford College, a private institution in the state.

While the board has “not been kind to UNC presidents,” Mr. Chabotar said — Ms. Spellings’s predecessor, Thomas W. Ross, was pushed out in what many people viewed as a politically motivated ouster — Ms. Spellings may have “more of a shield.” Like the state’s leaders, including Governor McCrory, she is a Republican (she served as secretary of education under President George W. Bush).

Next, Mr. Chabotar said, he would consult with faculty leaders. Ultimately, “I would do what I thought was right,” he said. “I wouldn’t care about my job.”

Still, he acknowledged, “from the outside, it’s easy to give advice.”

Public universities, of course, have a different relationship to the state than do private ones like Guilford. William E. (Brit) Kirwan knows what it’s like to be in a job like Ms. Spellings’s — he’s chancellor emeritus of the University System of Maryland. “As a state entity, the university has to abide by state law,” he said. “However, when a law is so clearly counter to the values of the university, the leadership should speak out against the law and make it clear they’re adhering to it only because it is the state law.”

The matter has not been tried in court, Mr. Kirwan pointed out. At the moment, the letter from the Justice Department is an opinion, and there’s still a state law on the books. That raises a question of who has controlling authority, he said, so “I’d also want to get some legal advice.” If there were legal grounds to stop following the law, Mr. Kirwan said, those should be seriously considered.

There’s one more thing Mr. Kirwan said he’d contemplate in a situation like the one Ms. Spellings finds herself in: “resigning my position.”

“I often think leaders get too wedded to their positions,” Mr. Kirwan said, “and are not willing to take a stand.”

The constrained position a university leader is in can sometimes be hard for their constituents to understand, said Teresa Valerio Parrot, principal of TVP Communications and an expert in crisis communication. Students and faculty members watching Ms. Spellings’s response to HB2 “want her to make a decision based on how they think and feel about it,” Ms. Parrot said. In reality, though, “she doesn’t have entire control.” That makes explaining what she is doing and why — not to mention the limitations of her power — important.

State leaders can not only oust a university leader who angers them; they can also withhold funds from that leader’s institution, said Donald E. Heller, provost and vice president for academic affairs at the University of San Francisco and a scholar of higher education. But because she doesn’t carry ultimate authority over the system’s universities, Ms. Spellings doesn’t have to be the one to make the call, Mr. Heller said. “She can also turn this to the board,” he said, “and kick it upstairs.”

At least some observers foresaw challenges to HB2 like the one from the Justice Department. In a resolution approved on April 8, the system’s Faculty Assembly, a body that advises the system president, raised concerns that in following the law the university would “risk possible loss of federal funds for noncompliance with Title IX and other federally mandated nondiscrimination requirements,” among other problems.

But Ms. Spellings does have a few things going for her, said Stephen Leonard, chair of the Faculty Assembly. For one, “she’s got terrific advisers and counsel at general administration,” many of them the same people who were in place under Mr. Ross, he said. The other? “I don’t think this is really her problem,” Mr. Leonard said. “This is Governor McCrory’s problem.”

North Carolina’s system and campus leaders are required to follow state law, Mr. Leonard said. It’s up to the governor to decide what to do about the Justice Department’s message. “I think what’s happened here,” he said, “is the Department of Justice has used the university as a lever against the state.”

If Mr. Leonard is correct, will the federal government’s move work? On Thursday the speaker of the state’s House of Representatives, Tim Moore, told news outlets that “we will take no action by Monday.” The governor, however, indicated that the state would in fact have a response by the deadline set by the Justice Department.

Beckie Supiano writes about college affordability, the job market for new graduates, and professional schools, among other things. Follow her on Twitter @becksup, or drop her a line at beckie.supiano@chronicle.com.