The drama in Richmond this week arose from an Attorney General letter to Virginia’s colleges and universities stating that they could not have adopt anti-discrimination policies broader than what is in the State Code.
As a legal matter, that’s a dubious point. As a political matter, it’s a sure loser.
Senator Donald McEachin (D-Henrico) sponsored a bill earlier this year, SB 66, which would have prohibited state employees from being fired or discriminated against based on their sexual orientation. I co-sponsored the bill. It passed the Senate on a 23-17 vote, i.e. along party lines. In the House, it was defeated.
That’s not new. Similar bills have been defeated before. What was new was the AG’s recent insistence that a principle not mandated by state law (e.g. non-discrimination) cannot be individually applied by state institutions. Historically we give the executive branch the leeway to operate as it sees fit as long as it doesn’t break state law or violate individual rights. Non-discrimination clauses do neither as long as they don’t violate First Amendment rights.
Yesterday the Governor clarified that he will adopt a non-discriminatory policy, whether or not it’s in the State Code. The Governor’s statement effectively overrules the AG, as the Governor runs the executive branch. (note that Governor Kaine and Warner had formal non-discrimination policies adopted by executive order).
The legal points are arcane and, frankly, our campuses don’t suffer discriminatory conduct – with or without a law. The real point is that the AG is again gratuitously starting legal battles that he cannot win.
I served with Ken Cuccinelli in the Senate and I count him as a friend, although I didn’t vote for him in November. I know he can do a lot better than this.