News

Editorial: Cuccinelli v. Virginia’s Public Colleges and Universities

March 9, 2010

On March 4, Virginia Attorney General Ken Cuccinelli wrote a letter to the presidents, rectors and visitors of each of Virginia’s public colleges and universities. Originally reported in the Washington Post, the letter has now been widely circulated. In it, Cuccinelli stated that:

"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 non-discrimination policy, absent specific authorization from the General Assembly."

While Cuccinelli makes an interesting legal argument about express authority, he glances over the implied authority granted to Virginia’s schools. An noted opponent of “activist” judges, Cuccinelli instead becomes an activist attorney general, moving forward on an issue that certainly appears to cause little consternation among the General Assembly—the body whose authority Cuccinelli is apparently protecting. If the General Assembly had considerable concern regarding nondiscrimination, it certainly could have instituted legislation making this interpretation clearer.

As might be imagined, Cuccinelli has received some harsh criticism for this letter and in this case, he deserves every word of it. Senator Mark Herring refers to the letter as “reprehensible,” and he is joined by a number of Cuccinelli’s former colleagues in the VA Senate.

This issue should not come as a surprise from those who have followed the conservative attorney general’s career. What is disappointing is how many of us hoped that he would put his personal social agenda aside in favor of the other pressing responsibilities of the position. It should also be noted that nowhere in the Cuccinelli campaign materials did it mention stripping employment or educational nondiscrimination protection from gays and lesbians.

In a bait-and-switch campaign tactic, Cuccinelli ran on law enforcement not repealing nondiscrimination. The closest he comes to discussing the issue is his support for “traditional marriage.” Certainly a remarkable campaigner, Cuccinelli appears to have avoided mentioning those issues on the political trail that might cost him the vote of independents and moderates.

The worst part of this latest reactionary rant from the Attorney General’s Office is that there is no possible benefit. Even if, and it’s unlikely, the public universities remove the language protection gays and lesbians, the same group that initiated the language is unlikely to start discriminating. On a side note, if the nondiscrimination language is removed, many departments within the university system may be in danger of losing accreditation.

All it does is inflate Cuccinelli’s ego and support his own very limited view on this single issue. Perhaps he is actually looking for a court case to prove his point and mobilize his base for future fundraising. However, this move only hurts those that he was elected to defend.

The real impact of the Cuccinelli letter is its effect on Virginia’s reputation and ability to recruit top talent and employers. Somewhere out there right now, there is a business considering moving to our region. When weighing the pros and cons of relocation to Virginia, some well-meaning executive will begin to think about the people in his office and want to protect them from what appears to be an unmitigated attack from the state government. He will simply move somewhere else.

Editor’s Note: Requests for comment from the Attorney General’s Office were declined under the doctrine of attorney-client privilege.

Loudouni.com Editorial
By: John L. Geddie