Broadside Opinion

By Kn Cuccinelli, Virginia Attorney General

RICHMOND (March 19, 2010)
Recently, the George Mason University community heard about my recommendation to Virginia’s public colleges and universities regarding the inclusion of sexual orientation in their non-discrimination policy statements. The issue has created some confusion for the public, so as your attorney general, I wanted to take this opportunity to set the record straight.

The attorney general is the attorney for the Commonwealth of Virginia and its agencies. Each day, more than two hundred attorneys and staff work in my office to provide advice and legal counsel to state agencies on issues from transportation to health care and public safety to education. Part of our job is to advise client agencies that inadvertently might be doing something the law does not give them the power to do.

Shortly after becoming attorney general, I received inquiries about whether or not sexual orientation could be included as a protected class in the non-discrimination policies of our state colleges and universities. A subsequent review of the law and of the opinions of at least five of my predecessors — both Democrats and Republicans — demonstrated that any decision regarding the creation of a new protected class belongs exclusively to the General Assembly.

As state institutions, Virginia’s public colleges and universities are governed by boards of visitors vested with broad rights and powers. This broad authority, however, cannot be greater than the authority of the body that granted it — the Virginia General Assembly. That means a public university lacks the power to create a new protected class because that power only rests with the General Assembly.

The General Assembly has considered and defined several protected classes for purposes of non-discrimination laws.

The Virginia Human Rights Act (VHRA) states that it is the policy of the Commonwealth to “safeguard 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.”

In addition to passing the VHRA, the General Assembly has on numerous occasions considered and rejected creating a protected class defined by sexual orientation.
In doing so, it has affirmed that no state agency can reach beyond such clearly established boundaries.

Still, there seemed to be confusion. Because of this confusion, when I was asked by a client to clarify the law, I deemed it my duty as their attorney to advise all of Virginia’s public colleges and universities as to the status of the law and to inform them how to bring their policies in conformance with that law.

I did not advocate for any particular policy position. I also in no way authorized unconstitutional discrimination against any person. I simply informed my clients about the law: The undisputed fact that only the General Assembly may legally create new classes of protected persons in Virginia.

Apart from state agencies lacking the authority to create such a protected class, the inclusion of protected classes that are not approved by the General Assembly invites lawsuits by those who would argue that a university’s non-discrimination statement is actually a contract that mandates particular benefits or privileges to individuals based on such classifications.

Critics of my advice seem to ignore the fact that individuals are already protected from irrational discrimination by a governmental body under the equal protection clause of the Fourteenth Amendment to the United States Constitution. They also ignore the legal accuracy of our advice.

More alarmingly, though, critics seem to endorse the concept that including sexual orientation as a protected class without going through the appropriate legislative procedure justifies ignoring state law and the Constitution of Virginia. In promoting such a reckless course, these people would destroy the very process that ensures all citizens — including them — are protected by law and not by whim.

While issues related to sexual orientation are among the most emotional and controversial, they do not change this fundamental proposition of Virginia law. My now well publicized letter simply stated the current state of Virginia law; it did not advocate any particular legislative position. Should the General Assembly change the law, my advice will be consistent with it.

My advice letter reminds our public colleges and universities that their powers are limited by the Constitution of Virginia and our laws, and that no matter how well-intentioned their efforts, they may not exceed those limits.

Ken Cuccinelli
Virginia Attorney General