• September 2, 2015

Virginia Attorney General Tells Public Colleges to Drop Gay-Rights Protections

The attorney general of Virginia, Kenneth T. Cuccinelli II, has sent a letter to the state's public universities and colleges asking them to eliminate campus policies that ban discrimination based on sexual orientation.

Mr. Cuccinelli. a Republican who took office in January, wrote that only the state's General Assembly can extend legal protection to gay state employees, The Washington Post reported on Friday. However, a spokeswoman at the State Council of Higher Education for Virginia said the state's public colleges have historically had the autonomy to make policy decisions like this one. The council makes recommendations to the governor and General Assembly on public-policy issues related to higher education.

In the letter, dated Thursday, Mr. Cuccinelli wrote: "It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including 'sexual orientation,' 'gender identity,' 'gender expression,' or like classification as a protected class within its nondiscrimination policy absent specific authorization from the General Assembly."

In Virginia every public college has a different code outlining its relationship with the state concerning governance. Because the codes are vague, the institutions are generally granted much autonomy, said Kirsten Nelson, the spokeswoman for the higher-education council. Only the governor and the General Assembly can change the codes, and "without changes, it is assumed that it is the will of the General Assembly that the institutions retain control of their governance," Ms. Nelson wrote in an e-mail message to The Chronicle.

Robert M. O'Neil, a former president of the University of Virginia and director of the university's Thomas Jefferson Center for the Protection of Free Expression, said he doesn't think the attorney general's objections are credible. Mr. O'Neil explained that although public institutions do not have explicit authority to extend protection for sexual orientation, "the passage of time and universality of commitment seem to have simply have implied such authority."

The Chronicle contacted several colleges and universities in Virginia that have policies to ban discrimination based on sexual orientation. A spokeswoman at the University of Virginia said that the attorney general's letter was "privileged and confidential" and that questions about it should be addressed to the attorney general. Spokesmen at the College of William and Mary and James Madison University said they were in the process of reviewing the letter, and a spokesman at George Mason University would not comment.

The attorney general's office did not return a call and an e-mail message seeking comment.

Democrats in Virginia's State Senate denounced Mr. Cuccinelli's letter on Friday and called his actions "unconscionable" in a written statement. The state's chapter of the American Civil Liberties Union sent letters to all of the institutions that received Mr. Cuccinelli's letter. The ACLU letter advised colleges that the U.S. Constitution requires the institutions to prohibit discrimination on the basis of sexual orientation.


1. klblk - March 08, 2010 at 05:14 am

Texas must be thanking God for Virginia's taking some of the pressure off in state government/education relations this week.

2. cplantin - March 08, 2010 at 08:03 am

Puts new meaning into the Virginia state motto: "Sic Semper Tyrannis" (Thus Always to Tyrants).

3. honore - March 08, 2010 at 08:05 am

maybe at his next job in Wisconsin, Cuccinelli can propoose the state system drop their tofu dish-to-pass protection policies of wiccan vegans

4. 11132507 - March 08, 2010 at 08:23 am

If we could set the clocks back to the 50's (as Cuccinelli is trying to do), he would have been part of a blockade at a school entrance fighting to keep it all white. Another great step forward by the Republican White Straight Protestant Male Party.

5. virginiasol - March 08, 2010 at 09:01 am

As one in higher ed in Virginia, I'm waiting to see whether the AG and Governor use this as a method to threaten colleges' and universities' funding. We're already facing more sharp cuts based on the State's budget; this would make an excellent threat to cut more on top of that.

6. mmcknight - March 08, 2010 at 10:10 am

This is one reason why my family (two academics with elite degrees) will not consider applying for any jobs in Virginia.

7. msitton - March 08, 2010 at 10:20 am

There is considerable irony that this is happening in the state whose flagship university's founder considered his authorship of the Virginia Statutes of Religious Freedom among his most important accomplishments.

8. klineba - March 08, 2010 at 10:24 am

I sincerely hope that these Virgina institutions do not change their discrimination policies. This is just one more opportunity in the long history of US Higher Education to lead our country in the direction it should be moving, or at the very least and opportunity to engage the public in this dialogue.

9. 11272784 - March 08, 2010 at 10:48 am

It figures that the Attorney General is a Republican. It sounds like he is much more interested in advancing his party's agenda than in serving justice. Virginia needs a new Attorney General.

10. gberkleycoats - March 08, 2010 at 11:06 am

As I also involved in higher education in Virginia, I too believe that this is only the beginning. We are now making the rest of the South look progressive!

11. jchslrc - March 08, 2010 at 11:17 am

People tend to forget that Virginia is historically one of the most sexually repressive states. Forced sterilization of the mentally retarded was legal in Virginia for many years ("Poe v. Lynchburg Training School & Hospital", 1981). Mixed-race marriages were illegal until "Loving v. Virginia" went to the U.S. Supreme Court in 1969. Cuccinelli's letter will be yet another dark page in a dark book.

12. barbzirk - March 08, 2010 at 11:23 am

Can an attorney general be impeached? If not, perhaps we should remind him of the oath he took to protect ALL citizens of the state, not just those he chooses. What a jerk!

13. randya - March 08, 2010 at 11:53 am

all of these comments reveal the "progressive bias" permeating academia. The AG is right... let academia appeal to the state legislature, not act arbitrarily because of a political fad...

14. msitton - March 08, 2010 at 12:06 pm

The human rights referenced here can hardly be characterized as a political fad, any more than seeking to eliminate prior bans on mixed-race marriages and other forms of race and gender based discrimination were fads.

15. drmink - March 08, 2010 at 03:00 pm

This is nothing more than a thinly-veiled attempt to advocate bigotry in the name of religious "freedom".

16. 1021ajr - March 08, 2010 at 03:24 pm

As a graduate of the College of William and Mary and higher education scholar (with a decidedly "progressive bias"), I will be urging W&M President Taylor Reveley and the College's Board of Visitors to oppose the AG's move. Whether or not it makes a difference, it is important for those of us who disagree be heard and that our institutions know we have their backs.

As is the case in nearly every other state, Virginia's support for its public colleges and universities has declined precipitously since 1990. In 2005 the General Assembly passed the Higher Education Restructuring Act whic essentially gave state institutions varying levels of operational autonomy in exchange for meeting certain performance standards. I'm curious to know how that comes into the mix here, if at all.

17. ciceronow - March 08, 2010 at 04:34 pm

Keep big government off of peoples' backs. What business is of the state to tell localities what do do. What would Ronald Reagan say? Hyporites.

18. ciceronow - March 08, 2010 at 04:34 pm

I meant hypocrites.

19. 22259152 - March 08, 2010 at 04:42 pm

I applaud the AG's stance. Rule of law. If you don't like it, change the law. Don't force your perception of human rights unless you can back it up. What are human rights? Where are they defined? What governed people have agreed to those rights? What makes them a right? Just because you say so?

Progressive is as progressive does.

20. flatlander2 - March 08, 2010 at 05:01 pm

I'm sorry 22259152, where is the breakdown in the rule of law? Don't government supervisors make rules for their subordinates? The legislature doesn't have to pass a law to establish the work hours for government employees, do they? So if Virginia universities make respect for gays a standard of behvior in their workplaces, how does that undermine the rule of law?

21. cbres - March 08, 2010 at 05:25 pm

Sorry, Randya, I don't consider my own equality a 'fad.'

22. nebo113 - March 08, 2010 at 07:12 pm

I'd say Cucinella is aiming to be governor.

23. marka - March 08, 2010 at 07:14 pm

Hmm ... "The ACLU letter advised colleges that the U.S. Constitution requires the institutions to prohibit discrimination on the basis of sexual orientation." Of course, as all should know, this is NOT the 'law of the land' at the moment. The ACLU may have arguments that the equal protection clause should now be extended to cover sexual orientation, but the US Constitution does NOT require institutions to prohibit such discrimination, until such time as Congress, or the US Supreme Court, says so. Many of the drafters of that document would be rolling over in their graves at that statement. As to 'rule of law,' I'm not necessarily agreeing that the Virginia AG is correct in his legal analysis, but the 'rule of law' was indeed the reason the California Supreme Court reversed San Francisco's declaration in favor of same-sex marriage, and for Oregon to reject Multnomah County's similar declaration -- it simply was not the province of cities, counties, or any other political subdivisions to proclaim on certain subjects what the 'law' is, in those circumstances. Whether subdivisions can have their own public policies is a matter of state law. I simply don't know what Virginia's state-of-the-law is. That said, there may be many policy reasons why such a ban might be appropriate, but that is different than the legal capacity to make it so.

24. honore - March 09, 2010 at 08:35 am

I guess Mr. Cuccinelli has never read the chapter in Louisiana history where others with names like his were treated to 3rd class social status lower than blacks and regularly hanged for being "darkies". He might also want to read the chapter in Wisconsin history which cites examples of discrimiination and beatings suffered by Italians in Kenosha...how quickly we forget when massah opens the back door and lets us in as "Attorney General". I guess he's another graduate of the Nancy Pelosi school of cultural amnesia. What buffoons.

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