(AP) Va. AG: Colleges can't ban gay discrimination

[TheGoodBits]

Link to article

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.

First our new Gov removing sexual orientation discrimination protection for VA state employees, now this... So we're back to the 1960s here in Virginia?

[NOLASKINSFAN]

He is asking them to follow the law, they do not have the authority to legislate... where is the disconect?

Doesn't the ACLU have better things to do, like defending MANBLA.

[TheGoodBits]

Sounds like you would be right at home here in Virginia these days... :doh:

and to answer your question, I don't think that colleges including sexual orientation protection in their policies is really considered legislating.

[twa]

I don't think that colleges including sexual orientation protection in their policies is really considered legislating.

Wouldn't that be a question for the courts or proper officials to determine?

You know...like the AG or sumthin:silly:

[TheGoodBits]

Wouldn't that be a question for the courts or proper officials to determine?

You know...like the AG or sumthin:silly:

Courts, sure. And according to the ACLU there have been Supreme Court decisions that support such policies.

[NewCliche21]

It may be a law, but I think that court cases regarding these things should be pretty cut-and-dry:

Is the law excluding a right from a group of people based on race, gender, sex, sexual orientation, religion, disability, etc?

If yes, then it is unconstitutional. Gavel.

[DjTj]

This is a pretty interesting stand by the governor and the AG, and I think it will ultimately result in a pretty big case by the ACLU.

Basically, what the AG is saying is that schools don't have the power to prohibit sexual orientation discrimination by its students.

Here's how this could play out:

(1) A religious student group will start a club at a Virginia University, and they will not include a statement about non-discrimination based on sexual orientation. The student group will appeal to Richmond, and the AG will order the university to recognize the group.

(2) At this point, there could be a pretty big showdown between the university administration and the attorney general ... this could end up with a lawsuit by the university arguing for academic freedom, non-discrimination, and other grounds, but the university may be forced to back down since they all work for the state anyways.

(3) If the university administration caves, then the ACLU will find a gay student to join the discriminatory student group. When he is kicked out of the group, the ACLU will file a lawsuit on his behalf, it will go at least to the Virginia Supreme Court ... it will be one big political circus.

[fullnelson9999]

God I hate my state.

[NewCliche21]

God I hate my state.

Don't hate it; change it.

[Veretax]

This is a pretty interesting stand by the governor and the AG, and I think it will ultimately result in a pretty big case by the ACLU.

Basically, what the AG is saying is that schools don't have the power to prohibit sexual orientation discrimination by its students.

Here's how this could play out:

(1) A religious student group will start a club at a Virginia University, and they will not include a statement about non-discrimination based on sexual orientation. The student group will appeal to Richmond, and the AG will order the university to recognize the group.

(2) At this point, there could be a pretty big showdown between the university administration and the attorney general ... this could end up with a lawsuit by the university arguing for academic freedom, non-discrimination, and other grounds, but the university may be forced to back down since they all work for the state anyways.

(3) If the university administration caves, then the ACLU will find a gay student to join the discriminatory student group. When he is kicked out of the group, the ACLU will file a lawsuit on his behalf, it will go at least to the Virginia Supreme Court ... it will be one big political circus.

And that's when the deal becomes not a state issue, but a national one as groups that support Religious Expression get involved. I was involved in a group in College that didn't say they couldn't be a member per say, but would not allow them to serve as an elected officer if they were openly known as being homosexual.

The group actually had to get an attorney to even get recognized, which always makes me wonder, why do people who are gay, want to attend a group (namely a Conservative Bible Believing Christian One) that believes that them being homosexual is a sin/abomination?

I just don't understand why anyone would willingly do that if they knew that in advance.

[fullnelson9999]

Don't hate it; change it.

I would if I could.

I voted for Deeds, but unfortunately the Dems couldnt come up with anyone better, which blows my mind.

How could a state that produced the current head of the Democratic Party not come up with anyone better than Deeds?

Fortunately I go to school in PA, so I dont have to deal with this nonsense, though the people up here arent much different.

[TheGoodBits]

And that's when the deal becomes not a state issue, but a national one as groups that support Religious Expression get involved. I was involved in a group in College that didn't say they couldn't be a member per say, but would not allow them to serve as an elected officer if they were openly known as being homosexual.

The group actually had to get an attorney to even get recognized, which always makes me wonder, why do people who are gay, want to attend a group (namely a Conservative Bible Believing Christian One) that believes that them being homosexual is a sin/abomination?

I just don't understand why anyone would willingly do that if they knew that in advance.

I know plenty of gay Christians in the same denominations and even the same churches as the "it's an immoral choice" crowd. If a gay Christian college student joins a Christian club, and it's leadership has anti-gay views, that student can apparently be kicked out.

[December90]

It may be a law, but I think that court cases regarding these things should be pretty cut-and-dry:

Is the law excluding a right from a group of people based on race, gender, sex, sexual orientation, religion, disability, etc?

If yes, then it is unconstitutional. Gavel.

Did you happen to READ what Ken Cuccinelli said? I doubt it based on your post. He is saying that the law does NOT include protections for sexual perversion. He is merely asking that policy of state institutions match up with the law of the land.

[ACW]

He is saying that the law does NOT include protections for sexual perversion.

Who's talking about sexual perversion?

[JimboDaMan]

The cynical part of me is thrilled by this. These a-holes campaigned as business-oriented moderates. Deeds - despite being much more moderate - ran a bad campaign and people voted for for these guys despite clear warnings of what they truly represented. McDonnell, at age 34, published that legalizing contraception by unmarried people was "illogical" and that law should favor married couples over "cohabitators, homosexuals or fornicators." People knew this and believed his story that it "was simply an academic exercise and clearly does not reflect my views."

None of this should surprise anybody. Yet another example that we get the government we deserve.

[JimboDaMan]

Did you happen to READ what Ken Cuccinelli said? I doubt it based on your post. He is saying that the law does NOT include protections for sexual perversion. He is merely asking that policy of state institutions match up with the law of the land.

Cuccinelli has legal right to define perversion?

[Larry]

Admiring all of the people who seem to believe that there exists a law which prohibits a University from adopting any policies whatsoever.

Could y'all point that law out to me?

Guess they'll have to be getting rid of the rules against pets in the dorm rooms, huh? Same thing about punishing people who cheat on exams. Guess those bans on alcohol on campus are out, too.

Not illegal? Then the school is required to permit it.

According to this law y'all claim exists.

[TheGoodBits]

The following message was sent to University and community leaders by

the Rector of George Mason University:

Statement Concerning Non-Discrimination at George Mason University

Last week the Virginia Attorney General sent a letter concerning the

interpretation of a protected class in university non-discrimination

policies. The letter was sent to President Merten, the Board of

Visitors, and Visitors of all the state's public universities.

I have asked the Administration to assemble the appropriate policies to

ensure that the University remains committed to equal protection under

the law. To that end, the Board of Visitors extends its full and

unconditional support to all members of the University community and

encourages continued focus on diversity and mutual respect that has

become our hallmark.

Ernst Volgenau

Rector

Colleges are standing up for themselves. I'm really curious to see whether this could lead to a lawsuit from a group that wants to discriminate against gays. Could be interesting...

[Xameil]

soooo...is oral sex still illegal in Virginia?

I think you all should be more outraged if it is still illegal

[gbear]

Curious about logic leap here. As I understand it (and please correct me if wrong):

State Says you may not discriminate on grounds A or B or C

School says we will not discriminate based on A or B or C or D

How is saying we will not factor D into our decisions against state law? I thought the state law only said what couldn't be used as grounds for decisions. I would think schools should be fine as long as they are at least as careful as the law demands. It's the first time I've seen the law saying you have to allow discrimination. Keep in mind, using the logic above, D could be anyone of a number of things from homosexuality to red hair to marital status. It just seems an odd logic to follow.

[DjTj]

Curious about logic leap here. As I understand it (and please correct me if wrong):

State Says you may not discriminate on grounds A or B or C

School says we will not discriminate based on A or B or C or D

How is saying we will not factor D into our decisions against state law? I thought the state law only said what couldn't be used as grounds for decisions. I would think schools should be fine as long as they are at least as careful as the law demands. It's the first time I've seen the law saying you have to allow discrimination. Keep in mind, using the logic above, D could be anyone of a number of things from homosexuality to red hair to marital status. It just seems an odd logic to follow.

Because colleges set rules that its employees and students have to follow.

Now, if a professor teaches a class and says that homosexuality is wrong, making a student uncomfortable, the university can't necessarily tell him that his lessons are against university policy.

If a fraternity wants to implement a "no homos" rule, the university can't tell them that they can't discriminate.

The university itself can keep nondiscrimination policies in place for admissions, housing, or whatever, but the state is saying that they can't force that nondiscrimination on others.

edit: this post is incorrect and a further explanation is below.

[gbear]

Odd. I would think the school could say no discrimination at any school function based on D.

So if it is a frat house getting anything from the school, it would have to adhere to school rules. I think of it like the reason we had speeding laws for so many years. Yes, a state could have no speeding laws or set them at 100 mph if they were willing to for go fed money

[Larry]

Because colleges set rules that its employees and students have to follow.

Now, if a professor teaches a class and says that homosexuality is wrong, making a student uncomfortable, the university can't necessarily tell him that his lessons are against university policy.

If a fraternity wants to implement a "no homos" rule, the university can't tell them that they can't discriminate.

The university itself can keep nondiscrimination policies in place for admissions, housing, or whatever, but the state is saying that they can't force that nondiscrimination on others.

Could you point me at the law that says that?

[Rocky21]

soooo...is oral sex still illegal in Virginia?

I think you all should be more outraged if it is still illegal

It is and we are.

It didn't take this Regent University nutter long to show his real colors, did it?

[DjTj]

Odd. I would think the school could say no discrimination at any school function based on D.

So if it is a frat house getting anything from the school, it would have to adhere to school rules. I think of it like the reason we had speeding laws for so many years. Yes, a state could have no speeding laws or set them at 100 mph if they were willing to for go fed money

Actually, I think you're probably right, and the frat house is a bad example.

The university does have a right to create its own policies, but that right cannot conflict with the individual rights of a student or staff member. Where this will happen is in the case of a fundamental right, such as religion or speech.

For example, let's suppose that some students want to start a bible study group where they believe that homosexuality is a sin, and so they want to exclude homosexuals. The university may tell them that they won't fund that group and won't allow them to meet on campus unless they open themselves to homosexual members. The students say they are exercising the right to freedom of religion. In that case, the Virginia Attorney General would step in on the side of the students.

Or maybe a student-run magazine will run an editorial saying that homosexuality is a sin, and the university will try to pull funding from that magazine. The writers will say they are exercising their right to free speech. The Attorney General would also side with the students in that case.

U.Va. actually ran into this exact scenario in the early 90's when a student sought to publish a religious magazine, but the university had a policy against recognizing religious groups. The Supreme Court forced the university to fund the magazine:

http://www.oyez.org/cases/1990-1999/1994/1994_94_329

I could see a similar situation playing out on this issue.