Va. attorney general says state’s public colleges lack authority to ban gay discrimination

Va. AG: Colleges can’t ban gay discrimination

RICHMOND, Va. — Virginia’s attorney general has advised the state’s public colleges that they don’t have the authority to ban discrimination based on sexual orientation, saying only the General Assembly has that power.

The letter sent by Attorney General Kenneth Cuccinelli to state college presidents and other officials Thursday drew swift criticism from Democrats and gay rights activists.

Cuccinelli said the legislature has repeatedly refused to exercise its authority. As recently as Tuesday, a subcommittee killed legislation that would have banned job discrimination against gay state employees.

“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,” Cuccinelli wrote.

The Republican advised college governing boards to “take appropriate actions to bring their policies in conformance with the law.”

Jon Blair, chief executive officer of the gay rights group Equality Virginia, said Cuccinelli’s “radical actions are putting Virginia at risk of losing both top students and faculty, and discouraging prospective ones from coming here.”

C. Richard Cranwell, state Democratic Party chairman, said Virginia’s colleges and universities were more than capable of setting policies that work for them “without meddling from Ken Cuccinelli.”

The attorney general said his letter merely stated Virginia law, which prohibits discrimination because of “race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability,” but makes no mention of sexual orientation.

Cuccinelli said the criticism was coming from people who have been frustrated in their attempts to change the law.

“None of them suggest our reading of the law is wrong. It’s people who don’t like the policy speaking up because it’s their opportunity to go on the attack,” he said.

The American Civil Liberties Union of Virginia legal director Rebecca Glenberg said colleges are bound by U.S. Supreme Court decisions not to discriminate on the basis of sexual orientation.

A spokesman for the Family Foundation of Virginia, which has opposed expanding state anti-discrimination policies to protect gays, said the criticism of Cuccinelli’s action is unwarranted.

“My understanding is all he’s done is essentially ask the universities to follow the law,” spokesman Chris Freund said. “It’s a little perplexing to see people respond the way they have.”

Virginia’s last two Democratic governors, Mark Warner and Tim Kaine, signed executive orders barring state agencies from discriminating in hiring, promotions or firing based on sexual orientation. Republican Gov. Bob McDonnell, who took office in January, removed protections based on sexual orientation from his anti-discrimination order.

As attorney general in 2006, McDonnell said Kaine exceeded his constitutional authority by extending protections to gays.