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“Sleeping Giant” of Student Protests Awakes in VA — McDonnell (Sort of) Backs Down

March 10th, 2010 No comments

As regular readers of this blog know, I’ve been following the story of how the Virginia Governor, Bob McDonnell, and his Attorney General, Ken Cuccinelli, have been working overtime to set the clock back on anti-gay discrimination. First, McDonnell issued an Executive Order that conspicuously omitted “sexual orientation” from the list of classes that the Executive Branch wouldn’t discriminate against (the former two governors had expressly included the category). Then Cuccinelli took the unprecedented step of writing a needless letter to the state’s universities, informing them that their policies against sexual orientation discrimination were in violation of state law. I responded to the first story here, and the second here.)

I’ve been quite gratified by the response over the past couple of days. Yesterday, Taylor Reveley, the President of William and Mary (my alma mater), issued a pitch-perfect letter in response. After noting that the process of reviewing the AG’s letter had just begun, he went into high dudgeon:

For now, let’s be clear that William & Mary neither discriminates against people nor tolerates discrimination on our campus.  Those of us at W&M insist that members of our campus community be people of integrity who have both the capacity to meet their responsibilities to the university and the willingness to engage others with civility and respect.  We do not insist, however, that members of our community possess any other particular characteristics, whether denominated in race, religion, nationality, sex, gender, sexual orientation, gender identity or expression, or any other of the myriad personal characteristics that differentiate human beings.  We certainly do not discriminate against people on such grounds, or tolerate discrimination against them.  This is the way we live our lives together at William & Mary, because we believe this is the way we should live our lives together. This is not going to change (emphasis added).

Then, today’s Richmond Times-Dispatch reported on the protest against these changes by about 1,000 students at Virginia Commonwealth University. (Here’s a link to the accompanying video, which for some evil reason won’t embed.) I’ll confess that I felt somewhat vindicated after I’d gotten into an argument with another W&M alum over at the school newspaper’s website over whether people would actually care enough to protest. (As Marge Simpson once said when seeking confirmation that gloating was wrong: “See?”) Go, VCU!

McDonnell is now channeling one of those cartoon characters that retreats in a panic by running through a succession of doors, leaving cut-out imprints of himself in each ex-door. Just a few hours ago, he issued something called an “Executive Directive” — not the same thing as an “Executive Order”, although the differences between the two are obscure. But the Directive is pretty good, even if it seems to have opened up a fissure between McDonnell and Cuccinelli. From the Directive:

Employment discrimination of any kind will not be tolerated by this Administration. The Virginia Human Rights Act recognizes the unlawfulness of conduct that violates any Virginia or federal statute or regulation governing discrimination against certain enumerated classes of persons. The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited.

Consistent with state and federal law, and the Virginia and United States Constitutions, I hereby direct that the hiring, promotion, compensation, treatment, discipline, and termination of state employees shall be based on an individual’s job qualifications, merit and performance…. Any cabinet member, agency head, manager, supervisor or employee who discriminates against a state employee or prospective employee in violation of the law or this standard of conduct shall be subject to appropriate disciplinary action, ranging from reprimand to termination.

[C]ivility, fair treatment, and mutual respect shall be the standard of conduct expected in state employment.

McDonnell went as far as he could being true to his long-standing, social conservative convictions; convictions that he downplayed during his campaign. But when Cuccinelli’s letter caused people to take to the streets, the President of one of the state’s flagship schools to write a letter in opposition, and a Board member from another (George Mason) to declare the actions “reprehensible,” McDonnell realizes that what he’d unleashed might stand in the way of his political future, which is commonly thought to be extremely bright (and ambitious). So he’s backed down, bailed out, and run.

And really, I don’t care much about his reasons for doing so. I’m just warmed by the political heat that made this go away — at least for now. If the universities are wise, they’ll issue some generic statement in support of McDonnell’s Directive, declare that their anti-discrimination policies are in conformance with it, and essentially ignore Cuccinelli. And then figure out how to survive in a state that doesn’t financially support what they’re doing.

Virginia AG Dives Head-First into Culture Wars, Hits Cement

March 8th, 2010 1 comment

I might have been writing about William and Mary’s basketball team, which will play for the CAA championship this evening. But instead, I’m constrained to talk about something disturbing involving my alma mater, and the state’s schools more generally.

A few days ago, I reported on the rumor that Virginia’s new Attorney General, Ken Cuccinelli, had commanded the state’s universities to rescind their policies that prohibited discrimination against gays and lesbians. No one would talk.

Well, in an article that reminds us of the continuing vitality of and need for the mainstream media, the Washington Post obtained a copy of the letter and reported the story on Saturday. It does indeed “advise” the state’s schools to withdraw the policies, which he acknowledges are “benign.” This is one of the worst moves by a public official since — never mind, there are too many to choose from.

The letter never should have been written. The law isn’t as clear as Cuccinelli says it is. The cases in which the AG has found that such policies exceed the state’s authority involved municipalities or, in one infamous case, the Governor’s Office (when Gov. McDonnell was AG, he opined that Gov. Kaine had exceeded his authority with an Executive Order extending non-discrimination protection to gays and lesbians). None of them involved a university, and for good reason.

Although the state’s universities are of course “public institutions,” they’re not like municipalities, or state agencies, and everyone knows that. As even Cuccinelli recognizes in the letter, they enjoy a certain necessary amount of autonomy. But that autonomy isn’t only granted to allow the school to carry out its day-to-day functions; it’s also a recognition that universities need a certain freedom to act in order to flourish. Cuccinelli is right to say that they can’t contravene the General Assembly, but supplementing the state’s anti-discrimination policy isn’t the same thing as contravening it. In other words, he puts the burden in entirely the wrong place: If the Commonwealth of Virginia feels that it wants to put itself out there on the issue, it should be required to pass a law specifically stating that universities within the state system may not offer protection based on sexual orientation. (Update: A former governor and AG of Virginia, Gerald Baililes, agrees with me.) Presumably, even the newly red-again state isn’t stupid enough to do that. In the silence, the current list of protected classes should be regarded as a floor, not a ceiling — a floor on which the universities may build further protections, both to affirm their basic commitment to equality and — more practically — to attract the most qualified professors, administrators, staff, and students.

This will quickly turn into a PR nightmare for the state. Most of the members of the universities’ governing boards are staying mum for now, as they figure out what to do. But at least one member of George Mason’s Board of Visitors — a Republican, by the way — called the action “reprehensible.” Senator Mark Warner stated that Cuccinelli’s action will “damage the Commonwealth’s reputation for academic excellence and diversity.” A student at Old Dominion University opined that we’ll see “the gamut” of protests on this one. He’s right, I’d imagine — and hope.

None of this can penetrate the true believers’ thick skulls. One spokesman for the Family Foundation said: “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…They are some of the best universities in the country.”

Well, part of the reason for their excellence is their refusal to accede to paleolithic principles, even if the Commonwealth lags behind. And here’s a counterexample on the “final straw” argument: Me.

When I was down to the final, difficult decision about whether to attend William and Mary or Brown University — a close and difficult call — had this issue come to my attention, I would have chosen Brown. And if William and Mary and the other state universities (where “state university” is defined as a school that gets 14% of its operating budget, and none of its endowment from the state) continues to get slapped around by the state in this way, the entire state will be off my daughters’ list of college possibilities. So, there.

Even McDonnell wisely avoided addressing this issue directly when he was AG. Cuccinelli should have done the same, but apparently he’s determined to take down his own party and to make the state a place of last choice for anyone who cares about basic equality. The opinion isn’t self-executing, though. Let’s see whether the universities’ boards have the cojones to resist.