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Virginia attorney general to colleges: End gay protections

By Rosalind S. Helderman
Washington Post Staff Writer
Saturday, March 6, 2010; A01

RICHMOND -- Virginia Attorney General Ken Cuccinelli II has urged the state's public colleges and universities to rescind policies that ban discrimination on the basis of sexual orientation, arguing in a letter sent to each school that their boards of visitors had no legal authority to adopt such statements.

In his most aggressive initiative on conservative social issues since taking office in January, Cuccinelli (R) wrote in the letter sent Thursday that only the General Assembly can extend legal protections to gay state employees, students and others -- a move the legislature has repeatedly declined to take as recently as this week.

The letter demonstrates an increasing split in the region's policies on issues related to sexual orientation. It comes in the same week that the District began issuing marriage licenses for gay couples and a week after Maryland's attorney general announced that his state will recognize same-sex marriages performed in other states.

Cuccinelli's move has dismayed students and faculty members. It suggests that Cuccinelli intends to take a harder line with the state's university system, where liberal academics have long coexisted uneasily with state leaders in Richmond.

"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," he wrote in the letter.

Colleges that have included such language in policies that govern university hiring and admissions -- which include all of Virginia's largest schools -- have done so "without proper authority" and should "take appropriate actions to bring their policies in conformance with the law and public policy of Virginia," Cuccinelli wrote.

Official representatives of several universities, including the University of Virginia, Virginia Tech, the College of William and Mary and George Mason University, reacted cautiously to the letter, declining to comment and indicating that their governing boards would examine the issue.

But some individual college board members and others said Cuccinelli's action would be highly controversial on campuses, where many argue that such policies are necessary to attract top students and faculty.

"What he's saying is reprehensible," said Vincent F. Callahan Jr., a former Republican member of the House of Delegates who serves on George Mason's board of visitors. "I don't know what he's doing, opening up this can of worms."

It is not entirely clear what recourse Cuccinelli would have if the universities do not follow his advice. Claire Guthrie GastaƱaga, general counsel to the gay rights group Equality Virginia and a former deputy attorney general, urged boards to seek a second opinion. "They call it advice for a reason," she said.

Former attorney general Jerry Kilgore (R) agreed it would be difficult for Cuccinelli to enforce his opinion without pursuing court action. But he said college visitors swear an oath to abide by state statute.

"Board members are required to follow the law," Kilgore said. "And he's telling them what the law is."

Cuccinelli's predecessor, Robert F. McDonnell (R), who became governor in January, also held that only the General Assembly could name new classes for legal protections. But he never specifically targeted university policies that seemingly contradicted his position. And in a 2006 letter to Longwood University, his office declined to conclusively tell the Farmville school that it could not include sexual orientation in its policy.

Still, a McDonnell spokesman said Friday that the governor thinks Cuccinelli's stand is consistent with past practice. He said, however, that McDonnell would not discriminate at universities or elsewhere.

"The legal analysis contained in the letter concerning the General Assembly's sole responsibility for setting state employment policy is consistent with all prior opinions from the Office of the Attorney General over the last 25 years on the subject," McDonnell spokesman Tucker Martin said in a statement. "The Governor expects that no Virginia college or university, or any other state agency, will engage in discrimination of any kind."

In the letter, Cuccinelli wrote that he was issuing the opinion to dispel any confusion about his office's position. He said local governments have received similar advice from past attorneys general. Allowing universities to write policies without permission from the General Assembly would invite litigation, he wrote.

According to the letter, the General Assembly has rejected bills to add the words "sexual orientation" to nondiscrimination statutes 25 times since 1997.

Cuccinelli declined to comment on the letter, which was obtained by The Washington Post.

The former Fairfax County senator has signaled that he will be an activist attorney general. This month, he sued the federal Environmental Protection Agency, challenging its ruling that greenhouse gases pose a public health risk by contributing to global warming.

He also advised McDonnell to halt a process begun by former governor Timothy M. Kaine (D) in December that could have resulted in Virginia allowing health benefits for the partners of gay state employees, including at colleges and universities.

"I don't think it's going to surprise anyone that Attorney General Cuccinelli is not going to be a quiet attorney general," said Christopher Freund, a spokesman for the Family Foundation, which has long contended that legal protections based on sexual orientation are unnecessary.

Freund applauded Cuccinelli for the consistency of his advice.

"I find it hard to believe that this would be the final straw in whether or not someone's going to come to Virginia's universities," he said. "They are some of the best universities in the country. I think they can stand on their own without this policy."

But others criticized the move, including students and Democratic lawmakers. "It's going to be a mess -- there's no doubt about that," said Carl Pucci, 21, president of Old Dominion University's student body. "I think you're going to see the whole gamut, from angry letters to protests."

U.S. Sen. Mark Warner (D-Va.) said in a statement that Cuccinelli's advice would "damage the Commonwealth's reputation for academic excellence and diversity."

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