Attorney General Cuccinelli’s recent letter to the Boards of Visitors advising them to remove “sexual orientation” from the list of protected classes they bar from discrimination has brought national attention to the Commonwealth, most of it negative. Regardless of where one stands on the issues of gay marriage, providing benefits to spouses of same sex relationships, or any other similar issues, one thing should be clear – discrimination, in any form, is wrong. It was wrong when blacks were denied the vote, when people like my parents-in-law (who immigrated legally from Cyprus in the 1960s) couldn’t find jobs because of their accents, and when people my father’s age were routinely denied jobs in favor of younger, cheaper, workers. The Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Americans with Disabilities Act all ensure that discrimination in any form based on race, color, religion, national origin, sex, age, and disability status is prohibited in the workplace. It is rare to find anyone, Republican or Democrat, who would advocate repealing these laws.
Virginia has codified its anti-discrimination policies in the Virginia Human Rights Act, VAC § 2.2-3900, et. seq. Our law states that it is the policy of the Commonwealth to “[s]afeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability, in places of public accommodation, including educational institutions and in real estate transactions; in employment; preserve the public safety, health and general welfare; and further the interests, rights and privileges of individuals within the Commonwealth.” Like it’s federal brethren, the VHRA enjoys broad support across party lines.
Where things seem to break down is when the issue turns on sexual orientation. As has been noted, the General Assembly has voted at least 25 times against adding sexual orientation protections to the various discrimination statutes, for whatever reasons. I am happy to note that at least three Northern Virginia Republicans – Dave Albo, Jim LeMunyon and Tom Rust, have supported the most recent effort to have sexual orientation included in the panoply of protections the Commonwealth offers.
I have been a vocal critic of the Attorney General’s letter, primarily because of the policy position that it adopts – namely, that the Boards of Visitors of Virginia publicly funded institutions of higher education are without authority to bar discrimination in their hiring policies or on campus. These are good policies that help ensure that issues of sexuality have no place in the workplace. However, in addition to my opposition to the Attorney General’s policy, I also believe that his legal reasoning rests on shaky ground. Regardless of whether this was a properly constituted Attorney General Opinion (which it does not appear to be), I believe the legal argument fails to take into consideration at least one key argument that undermines its reasoning.
The Attorney General’s primary argument is that the authority granted to the institutions of higher education, while broad, is not broad enough to allow them to bar sexual orientation discrimination, stating “Virginia’s public universities are, at all times, subject to the control of the General Assembly.” In his defense, he cites to the 1899 case of Phillips v. Rector and Visitors of the U. of Virginia, 34 S.E. 66 (VA 1899). In that case, the plaintiff, a contractor, attempted to place a mechanics lien on buildings of the University of Virginia. The Supreme Court held that the buildings of the University of Virginia were public property and immune from mechanics liens unless the General Assembly allowed such liens by statute, which it did not. The court specifically noted “[t]he law expressly provides that the Rector and Visitors of the University of Virginia are at all times subject to the control of the Virginia General Assembly, and should conform to such laws as it might, from time to time, enact for their government.” Phillips, 34 S.E. at 67. While this case is still considered good law, it is important to note that since 1899, the Constitution of Virginia has been recodifed twice (once in 1902 and once in 1971 – which is the version we still use today). It is also important to note that at the time of this case, the University of Virginia was segregated, and as the court notes “all white students of the State of Virginia, over the age of sixteen years, are entitled to receive instruction in the academic department of the University without charge of tuition.” Id. Today’s statewide educational system is far different than it was in 1899, and the law of the Commonwealth is far different as well.
The Attorney General relies on this case as his only case law on this point. And, in the case in point, he is correct when he argues that the Boards of Visitors are subject to control of the General Assembly. However, what he fails to note is that the General Assembly has given the educational institutions the authority to prescribe rules and regulations for the employment of staff and other professionals, to develop rules that govern the conduct of employees, and gives them the authority to fire employees who violate those provisions. Va. Code § 23-9.2:3 is the portion of the Virginia Code that grants certain powers to the governing bodies of educational institutions within the Commonwealth. Va. Code § 23-9.2:3(5) specifically grants the governing bodies the power “[t]o establish rules and regulations for the employment of professors, teachers, instructors and all other employees and provide for their dismissal for failure to abide by such rules and regulations.”
This section of the Code was first adopted in 1970, and has been amended numerous times, most recently in 2008. This section of the Code is a clear grant of authority to the Boards of Visitors to establish their own rules and regulations for employment of employees at their schools. The Attorney General’s argument hinges upon the concept that the Boards of Visitors may not act outside of the authority granted by the General Assembly and since the General Assembly has not barred sexual orientation discrimination, they may not. This argument ignores the fact that the General Assembly has acted – through this statute – to give the Boards of Visitors the power to establish regulations, and they have done so. The Attorney General does not mention Va. Code § 23-9.2:3(5) anywhere in his letter to the Boards of Visitors, despite it being clearly on point and a direct contradiction to his primary argument.
The arguments that the Attorney General points to in regards to localities being barred from expanding the protected classes, namely a number of Attorney General Opinions dating back to 1982, and the arguments many have made regarding the Dillon Rule also ignore this express grant of power from the General Assembly. The Dillon Rule is a rule of statutory construction where state grants of power to localities are construed narrowly, and if there is a question as to whether the General Assembly has granted a specific power to the locality, courts should err in favor of finding no power exists. Even assuming, arguendo, that the Boards of Visitors are analogous to local municipal governments, the Dillon Rule does not apply, as there is an express, direct grant of authority to the Boards to establish their own employment practices.
What is troubling to me is the fact that I, a third year law student, was able to come up with this argument and this reasoning after about two hours worth of reading and research on a Saturday night. Why, then, is there no discussion of these issues in the Attorney General’s letter, which at least must have passed through multiple attorneys’ hands before reaching his desk? And why would the Attorney General characterize opposition to his letter by saying “[n]one 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” when that does not appear to be true? Well, at least one person – me – thinks the Attorney General’s reading of the law is wrong.
But again, there’s more to this than simply bad policy and bad law. There’s bad politics here as well. As I have already noted here and on other blogs, this issue seems to have appeared out of nowhere. We do not know who requested this letter, and the Attorney General’s office has not, to my knowledge, released that information. Nor do I know if there are any potential or active lawsuits against any of our institutions of higher learning alleging a claim of sexual orientation discrimination. At least, I have been unable to find any news stories to that effect. After winning landslide victories in 2009, Republicans are right now poised to make major gains in Congress in November, including potentially taking back two (if not three) Congressional seats from Democrats in Virginia. Now is absolutely not the time to reinforce the negative stereotypes the left enjoys painting of Republicans when it comes to issues of sexual orientation. Regardless of the fears of some, this provision will not lead to a recognition of gay marriage (which has already been banned in the Virginia Constitution), nor will it lead to public benefits for same sex spouses – not while Governor McDonnell is in office. So why bring this up now? This letter flies in the face of the Governor’s own statements that he will brook no discrimination in state agencies on any grounds, and it complicates our legislative efforts at the end of the current General Assembly session. Considering that we do not yet have a budget, it seems to me to be counterproductive to start creating divisive social issues out of thin air – especially when those issues can be used by the Democrats in the Senate to gain concessions in the budget process. The Attorney General’s opinion, further, doesn’t have the force of law, so I cannot find an upside to sending this letter right now. If there is one, I would be welcome to hearing it.
Discrimination is wrong. Period. The Republican party has a long history of supporting the rights of all Americans to be free from discrimination. Abraham Lincoln and the Republican Party freed the slaves. The Civil Rights Act of 1964 passed with overwhelming Republican support – support that, had it not existed, would have made final passage of the act impossible. Our party has long been a party that has advocated for employment systems based on merit, not on race or gender. We should continue that tradition by demonstrating that we support the dream every American has of finding an honest day’s work. Working is not a right, but a workplace free from discrimination should be the right of every American. We sully our traditions and our history when we let petty prejudices get in the way of doing what is right. This letter is bad policy, it is bad politics and it is bad law, and I strongly urge its repudiation.
NOTE: This post was originally posted on Too Conservative on March 3, 2010.