Cuccinelli to colleges: Drop gay protections

Attorney General Ken Cuccinelli sent a letter to Virginia’s public colleges and universities on Thursday that advises them to rescind their policies banning discrimination based on sexual orientation.

Cuccinelli, a Republican from Fairfax County, told the schools that only the General Assembly has the authority to establish legally protected classes of Virginians. The GOP-led House of Delegates has shot down legislation on numerous occasions that sought to add protections against discrimination for gays and lesbians.

Cuccinelli’s confidential letter, obtained Friday by The Daily Progress, says universities may not include “sexual orientation,” “gender identity” or “gender expression” in their nondiscrimination policies.

“I am aware that several Virginia colleges and universities have included ‘sexual orientation’ in their respective policies,” Cuccinelli wrote. “For the reasons stated, any college or university that has done so has acted without proper authority. Such invalid policies create, at a minimum, confusion about the law and, at worst, a litany of instances in which the school’s operation would need to change in order to come into conformance. Accordingly, I would advise the boards of each college to take appropriate actions to bring their policies in conformance with the law and public policy of Virginia.”

The University of Virginia is among the state’s public schools that ban discrimination based on sexual orientation. UVa’s policy states that the university “administers its programs, procedures and practices without regard to age, color, disability, marital status, national or ethnic origin, political affiliation, race, religion, sex (including pregnancy), sexual orientation or veteran status.”

UVa officials would not confirm Friday that they had received advice from Cuccinelli’s office to remove its protections against discrimination for gay and lesbian faculty, students and staff.

“The university received a letter — marked privileged and confidential — from the attorney general,” UVa spokeswoman Carol Wood said. “Any questions about the letter will need to be addressed to the attorney general or his office.”

Chuck James, the chief deputy attorney general, declined to comment on the letter Friday, saying that any legal advice provided by the attorney general to state agencies is protected by attorney-client privilege.

James did say, however, that there is no legal dispute that the authority to extend protections against discrimination to classes of Virginians rests with the General Assembly. Local governments and institutions, such as universities, have only the powers expressly granted to them by the General Assembly under the principle known as the Dillon Rule.

“As a legal matter, it’s been the consistent policy of this office going back to the [Gerald L.] Baliles administration that the General Assembly is the only body able to create classes protected by nondiscrimination policies,” James said.

Charlotte J. Patterson, a psychology professor at UVa who researches the psychology of sexual orientation, testified earlier this week at the General Assembly in favor of a Senate bill that would have banned discrimination based on sexual orientation against employees of state agencies. A House of Delegates subcommittee killed the measure.

Patterson said Cuccinelli’s advice to undo protections for gay and lesbian university employees is “regrettable.”

“Discrimination in employment on the basis of race or gender or sexual orientation is wrong. Virginia Republicans’ action earlier this week to kill an inclusive nondiscrimination bill in the House of Delegates was wrong, and the attorney general’s reported action is regrettable,” she wrote in an e-mail. “I hope that all members of the University of Virginia community will vigorously oppose any attempt to narrow the university’s nondiscrimination policy. Encouraging employment discrimination is never the right thing to do. Every Virginian deserves an equal chance in the workplace.”

Jon Blair, chief executive officer of Equality Virginia, said Cuccinelli’s advice would send the wrong message about Virginia’s colleges and universities.

“It’s clear that Attorney General Cuccinelli doesn’t understand that his radical actions are putting Virginia at risk of losing both top students and faculty and preventing prospective ones from coming here,” he said.

Democrats blasted Cuccinelli’s letter in several releases late Friday.

“This is big government at its worst from a candidate who ran on small government,” Democratic Party of Virginia Chairman C. Richard Cranwell wrote in an e-mail. “Our colleges and universities are more than capable of setting policies that work for them without meddling from Ken Cuccinelli. I think Gover-nor McDonnell would be wise to reign in his attorney general and get him back to doing the work of the people.”

McDonnell’s press secretary, Stacey Johnson, said Cuccinelli’s legal opinion is in line with those of Virginia’s past attorneys general.

“The legal analysis contained in the letter concerning the General Assembly’s sole responsibility for setting state employment policy is consistent with all prior opinions from the Office of the Attorney General over the last 25 years on the subject,” she said in an e-mail to The Daily Progress. “The governor will appoint board members based solely on their ability and on their strong commitment to educational excellence in Virginia. The governor expects that no Virginia college or university, or any other state agency, will engage in discrimination of any kind. The governor will not tolerate discrimination in the administration and his official written employment policy for the Office of the Governor expressly forbids discrimination on any basis other than qualification and merit.”

McDonnell, who was sworn in as governor in January, did not renew an executive order signed by his predecessor, Democrat Timothy M. Kaine, that protected state workers from discrimination based on their sexual orientation.

Three leaders of gay and lesbian student groups at UVa issued a joint statement Friday saying that it appears McDonnell and Cuccinelli are rolling back the clock when it comes to Virginia being a gay-friendly state.

“In a time when steps should be taken to bar discrimination in all forms, embrace diversity and provide equal benefits for all people, we feel like the leadership in Virginia has taken a huge step backwards with these actions,” wrote the students, Jenna Krotke, Seth Kaye and Alex Tatum. “And these actions are being watched closely by those in Virginia and beyond. Such blatant targeting of a minority group has no place in Virginia, or anywhere for that matter.”