Attorney General Ken Cuccinelli says Virginia's public colleges and universities cannot prohibit discrimination against gays because the General Assembly has not authorized them to do so.
In a letter Thursday to the presidents, rectors and boards of visitors of Virginia public colleges, Cuccinelli said Virginia law and public policy "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 said the recipients must consider the letter "as the opinion and advice" of the office of the attorney general. He said public colleges or universities that have included sexual orientation in their policies acted without proper authority and that those policies are invalid.
Most of the state's public universities have policies prohibiting discrimination based on sexual orientation. Yesterday they were exploring how to react to Cuccinelli's letter.
J. Tucker Martin, Gov. Bob McDonnell's director of communications, said "the legal analysis . . . is consistent with all prior opinions from the office of the attorney general over the last 25 years on the subject."
But Martin added: "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."
University of Mary Washington Rector Nanalou Sauder said the school's policy "covers some things the attorney general says it can't." She said the board and university administrators will need to discuss what action the university can take.
Virginia Commonwealth University President Michael Rao sent an e-mail to the VCU and VCU Health System communities, noting that the school had received Cuccinelli's request "that the commonwealth's public universities and colleges rescind policies that ban discrimination on the basis of sexual orientation."
"The university's senior leadership team and I are examining the issue closely," he wrote, adding that Provost Stephen D. Gottfredson is planning forums "to provide students, faculty and staff an opportunity to discuss the implications" of Cuccinelli's letter.
College of William and Mary spokesman Brian Whitson said the letter will need to be closely reviewed before the college can determine how to proceed.
"William and Mary has had a long tradition of inclusion and diversity," he said.
The University of Virginia had no comment. Spokeswoman Carol Wood said questions about Cuccinelli's letter should be addressed to the attorney general.
A spokesman for Virginia Tech told The Associated Press that the school's policy banning discrimination based on sexual orientation remains in effect. Any change would have to be approved by the school's board of visitors, he said.
Jon Blair, chief executive officer of Equality Virginia, criticized Cuccinelli's opinion.
"Attorney General Cuccinelli clearly doesn't understand that his radical actions are putting Virginia at risk of losing both top students and faculty, and discouraging prospective ones from coming here," Blair said.
Cuccinelli said the General Assembly has defined protected classes on the basis of race, color, religion, national origin, sex, pregnancy, childbirth, age, marital status or disability, but "on numerous occasions considered and rejected creating a protected class on the basis of sexual orientation."
A House of Delegates subcommittee this week tabled a bill that would have created such a protected class. Because the bill was tabled -- not acted on -- it could be revived by the House General Laws Committee next week.
Cuccinelli cited a 2006 opinion by McDonnell, his predecessor as attorney general. McDonnell determined that an executive order by then-Gov. Timothy M. Kaine barring discrimination based on sexual orientation was unconstitutional because the General Assembly had not authorized it. He also cited opinions by other attorneys general going back to 1982.
Unlike his immediate two predecessors as governor, Mark R. Warner and Kaine, McDonnell did not issue an executive order specifically barring discrimination on the basis of sexual orientation.
Democrats, including Warner, the Democratic Party of Virginia and the Young Democrats of Virginia, condemned Cuccinelli's opinion.
"I am puzzled why the attorney general would authorize our public colleges and universities to discriminate," Warner said in a statement.
"A decision on whether to hire, promote or offer admission should be based on whether or not the individual is qualified -- period."
Warner said he thinks Cuccinelli's advice "will hurt the ability of our colleges and universities to attract the very best faculty, staff and students and damage the commonwealth's reputation for academic excellence and diversity."
In his first weeks as the state's top lawyer, Cuccinelli has not tried to hide his conservative political philosophy.
He filed petitions seeking to block a decision by the Environmental Protection Agency that global warming poses a threat to people.
He also said he would be eager to defend a proposed state law that says Virginians are not required to buy health insurance, against any national health-care law that mandated such coverage.
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