# Board of Governors of University v. United States Department of Labor > Court of Appeals for the Fourth Circuit · October 26, 1990 · 917 F.2d 812 URL: https://www.frixlaw.com/law-library/cases/8985132 ## Case - **Full name:** BOARD OF GOVERNORS OF the UNIVERSITY OF NORTH CAROLINA University of North Carolina, at Ashe-ville The North Carolina School of the Arts v. UNITED STATES DEPARTMENT OF LABOR Elizabeth H. Dole, Secretary of Labor United States of America, Women's Legal Defense Fund American Association of University Women Equal Rights Advocates Mexican-American Legal Defense and Education Fund Mexican-American Women's National Association National Association of Commissions for Women National Council of La Raza National Council of Negro Women, Incorporated National Institute for Women of Color National Organization for Women Now Legal Defense and Education Fund National Women's Law Center National Women's Political Caucus NC Equity Northwest Women's Law Center Organization of Pan Asian American Women, Incorporated Wider Opportunities for Women Women and Employment, Incorporated Women Employed Women's Law Project YWCA of the USA Equal Employment Advisory Council, Amici Curiae - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** October 26, 1990 - **Citations:** 917 F.2d 812 - **Precedential status:** Published - **Opinion:** Dissent by Widener - **Judges:** Butzner, Chapman, Widener - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8985132 ## Opinion text WIDENER, Circuit Judge, dissenting: I respectfully dissent for two reasons which relate to the same basic proposition. First, as the district court pointed out in its opinion, the executive order under consideration, Executive Order 11246, applies to “the contractor.” As well, 29 U.S.C. § 793 , the Rehabilitation Act and 38 U.S.C. § 2012 , the Vietnam Era Veterans Readjustment Assistance Act, apply to “the party contracting with the United States.” As the district court further points out, and I think correctly, N.C.Gen.Stat. § 116-11(13) provides that the “Board of Governors of the university system may delegate any part of its authority over the affairs of any institution ... to the Chancellor of the institution____” So the requirement of affirmative action is tied by statute and regulation to those contracting with the United States and not to others. And under the North Carolina statute, the authority to contract has been delegated to the separate entities entering into the contracts involved. Whatever the other campuses of UNC may have done, neither UNC Ashe-ville nor The School of the Arts has entered into any contract with the United States within the meaning of this case. *819 Second, and of greater consequence, the regulations of the Office of Federal Contract Compliance Programs of the Department of Labor have obviously envisioned just such a situation as that existing here and provided that [t]he requirements of the affirmative action * clause of any contract or subcontract with a state or local government (or any agency, instrumentality or subdivision thereof) shall not be applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract or subcontract. 41 C.F.R. §§ 60-250.3 (a)(4), 60-741.3(a)(4). Since UNC Asheville and The North Carolina School of the Arts do “not participate in work on or under the contract or subcontract,” under the government’s own regulations, they should not be included within the “requirements of the affirmative action” clauses. The majority holds that the just-quoted regulation does not apply to either UNC Asheville or The School of the Arts because they are “mere components of UNC” rather than an “agency, instrumentality or subdivision of ... [state] government.” I regret that I cannot agree to this distinction. Even if it might reasonably be said that neither UNC Asheville nor The School of the Arts is a “subdivision” of the government of North Carolina, which proposition I suggest is doubtful at best, it cannot be reasonably said, I think, the majority to the contrary, that UNC Asheville is not an “agency” or an “instrumentality” of state government. And the same goes for The School of the Arts. The holding that UNC Asheville and The School of the Arts are “components of UNC” (the state owned and operated university) but are not agencies or instrumentalities of the state government is such a nice distinction that I would not embrace it. I am thus of opinion that the government’s construction of its own regulation is unreasonable. I would affirm the judgment of the district court. The italicized words appear in 41 C.F.R. § 60-1.5 (a)(4) as "equal opportunity.” I don’t think the difference in wording makes any difference either in reasoning or result. I have added italics for ease of discussion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8985132. Public record. Not legal advice.