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