Va. official: Colleges can't protect gays

RICHMOND

Virginia's attorney general has advised the state's public colleges to rescind policies that prohibit discrimination based on sexual orientation.

Only the General Assembly can authorize such protection, Kenneth Cuccinelli said in a letter Thursday to state college presidents and other officials, and it has repeatedly refused to do so. As recently as Tuesday, a legislative 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 attorney general advised college governing boards to "take appropriate actions to bring their policies in conformance with the law and public policy of Virginia."

Democrats and gay-rights activists were quick to criticize Cuccinelli's action.

"Our colleges and universities are more than capable of setting policies that work for them without meddling from Ken Cuccinelli," C. Richard Cranwell, state Democratic Party chairman, said Friday.

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."

Cuccinelli said in an interview that his letter merely states what the law is in Virginia. State law 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 is coming from people who have been frustrated in their attempts to change the law.

"I'm not sure any of them have actually read the letter," Cuccinelli said. "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."

The American Civil Liberties Union followed up with its own letter to college presidents.

"We express no opinion of Mr. Cuccinelli's analysis of state law, though we have serious doubts about it," wrote ACLU of Virginia legal director Rebecca Glenberg, who added that if colleges follow Cuccinelli's advice they still 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," said the spokesman, Chris Freund. "It's a little perplexing to see people respond the way they have."

University of Virginia spokeswoman Carol Wood declined to comment on the letter.

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. McDonnell, like Cuccinelli, maintained that only the General Assembly could determine the state's nondiscrimination policy.

Warner, now a U.S. senator, was among the critics of Cuccinelli's advice to the colleges.

"I am puzzled why the attorney general would authorize our public colleges and universities to discriminate," Warner said in a written statement. "A decision on whether to hire, promote or offer admission should be based on whether or not the individual is qualified — period."

Cuccinelli said he sent the letter because his office began getting inquiries that suggested there was confusion on the issue, perhaps because of personnel turnover at the universities. He declined to be more specific about the source of the inquiries.