North Carolina Attorney General Roy Cooper may be required to reimburse the University of North Carolina system for legal fees it must pay following Cooper’s refusal to represent the university in a federal lawsuit over the state’s controversial House Bill 2.
On May 27, the board voted to request that the General Assembly assess Cooper’s office for all legal fees, should he fail within two months to agree to a formal request from board chairman Lou Bissette for reimbursement.
Bissette, who said he hopes Cooper will heed his letter, voted against the board’s motion to take the matter before state lawmakers if the attorney general fails to do so.
Bissette and system President Margaret Spellings have insisted that the university does not practice discrimination as charged in lawsuits filed by the U.S. Department of Justice and the American Civil Liberties Union of North Carolina. The lawsuits contend that H.B. 2’s provision that students must use the bathroom and changing room facilities of the gender on their birth certificates discriminates against transgender students.
Cooper called the law a “national embarrassment” in late March when he said he would not defend the state in any lawsuits related to H.B. 2.
“As you all know, it’s a political year, and everything is highly politicized,” Bissette said during a press conference following the board’s vote. “I just thought that the letter approach was a more measured approach to requesting the attorney general to assist us in paying for these lawsuits. I did not think that there was a need at this point for the resolution of the board of governors on that particular subject.”
Bissette’s letter addresses Cooper’s refusal to represent UNC.
“Although the attorney general ordinarily represents the university and its officials in litigation, your office has declined to provide legal representation to the university in these matters,” Bissette’s letter states. “As you can appreciate, the university is in need of representation by legal counsel in these matters so that it may continue its operations and focus on its mission of educating students and serving the people of North Carolina.”
“The university will incur unanticipated and potentially significant legal costs as a result of your decision not to provide legal representation through your office, even while the University continues to pay your office for legal services,” Bissette continues. “Accordingly, on behalf of the university, I am requesting your office begin setting aside funds sufficient to pay attorneys’ fees and expenses that the university will incur in defending these matters and work with us to ensure that the expenses are paid in full.”
While a few board members agreed with Bissette that the letter itself was an adequate step, several others expressed concern and indignation over Cooper’s refusal to represent the university, citing the action as costly and irresponsible.
“Attorney General Roy Cooper’s decision to refuse to represent the University in these lawsuits is complete dereliction of duty,” said board member Marty Kotis. “I understand that he’s very busy campaigning [for governor] right now, but he needs to do his damn job. And if he is unwilling to do so, he should simply resign and focus all of his time on the campaign. This is a major financial impact and his actions are going to cost the university millions of dollars.”
The UNC system has hired three attorneys from two different law firms, Jones Day and Wilmer Cutler Pickering Hale and Dorr, both based out of Washington, D.C. Legal fees will be high, and there is currently no way of knowing how long the university will be in the fight, Bissette said.
“If we somehow find a way out of these lawsuits early on, the costs would be less,” Bissette said. “If we’re in them for a long time, [well], you know what the legal fees are today. So the sky would be the limit.”