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.
![[Post to Twitter]](http://www.tooconservative.com/wp-content/plugins/tweet-this/icons/tt-twitter.png){kind=icon}
Mar 06th by Brian S
Great analysis, Brian.
Right on Brian! Now welcome to the return of social cleansing.
.
The worst part is that Choochie never brought this up during the election, and somehow it becomes the first thing he gets major press on. A wolf in sheep’s clothing. I hoped not, but I worried that’s what he was.
Let’s see, should we believe the opinion of a third year law student, or the attorney general? Hmmm…
Your analysis is what we call a results-based analysis and that’s not a good analysis. You obviously don’t completely understand Dillon’s Rule and how it is applied. Local governments have been granted the broad police powers by statute and the courts don’t interpret that as granting them the power to do anything.
I don’t like the result of the AG’s opinion either, but it’s the correct opinion. The right way to go about this is to have the legislature clearly give BOVs the authority to adopt the policy.
So Brian, are you saying that a college can’t discriminate against a pedophile? After all, it is a sexual orientation.
Wow, LC. Molesting children is illegal. Consensual sex is not.
That’s not the question, Stewart. There are plenty of people out there who are on the sexual offender registry. They may not be “practicing” pedophiles, but they are there. Should a college be forced to hire one of these people for a job?
LC, I understand where you’re going, but are you suggesting “pedophilia” is, as a classification, equivalent to heterosexual? And, following that line, do you then consider “necrophilia” a sexual orientation?
You have just hit on the central point, Ric. Do I think that pedophilia is equivalent to heterosexual? It doesn’t matter. What does matter is someone just might equate the two. Someone else might also consider necrophilia as equivalent to heterosexual.
That is because “sexual orientation” is NOT QUANTIFIABLE. Every other type of protected class can be easily quantifiable. Age? Race? Religion? Sex? All can be easily classified in a way that everyone can understand. But “sexual orientation”? What does that mean? How many times will we have to deal with lawsuits over the next person who feels that their special little quirk qualifies them to be placed into a “protected” class?
And furthermore if, as Brian says, “discrimination is wrong. Period!!”, then why are we stopping at sexual orientation? Why not weight? Lots of people get discriminated against in job hiring because they are too fat. What about looks? Should we make sure that ugly people get just as many runway model jobs as the hotties?
Where does it stop?
2 thoughts: KC is probably right that our schools cannot make these decisions usurping Virginia law made by General Assembly. ****
2: but was there a more diplomatic way to handle this? also, because i am not a social conservative (but I am a fiscal one!), do the social conservatives have a big, big issue with homosexuality? or just a slightly big issue?
finally, I am not surprised that KC would want to send this letter. I am surprised that his office doesn’t employ someone more politically astute than to let this letter out of the building.
How about that – *there* is my father’s Republican Party. I was concerned that it might be gone for good.
.
Note to LC: I’m going to be gracious and assume that you don’t know any better. A paraphilia is not an orientation.
There is a difference between a sexual orientation and a sexual fetish. And once again, I’m pretty sure that necrophilia is illegal.
LC, the argument that “sexual orientation” is not quantifiable is a red herring. The GA or the schools simply need to define what it is and what it isn’t and that removes the issue.
.
While pedophilia and necrophilia may be considered by some to be a “sexual orientation” (although that’s stretching it), they are also illegal and there are plenty of good public policy reasons for allowing employers to choose not to hire those who engage in or may engage in illegal activity.
.
Where it stops is where ever we, the voters, choose to say it stops. Adding sexual orientation is not going to turn into the slippery slope you’re suggesting.
“LC, the argument that “sexual orientation” is not quantifiable is a red herring.”
*
Indeed, if history is any guide. Consider that some form of gay marriage has been legal in Scandinavian countries for many years, and there has been no demand or effort to expand the scope to animals or corpses, etc.
“LC, the argument that “sexual orientation” is not quantifiable is a red herring. The GA or the schools simply need to define what it is and what it isn’t and that removes the issue.”
.
Really, it is that easy? As a law student, can you not see lawyers making arguements for or against certain activities to be considered part of the definition? We don’t need a definition to classify age. We don’t need a defintion to classify sex. The simple fact that you need a definition to define “sexual orientation” argues against its inclusion as a protected class.
.
“Where it stops is where ever we, the voters, choose to say it stops.”
.
Well, in response to that statement I could argue that we, the voters, have already chosen to say where it stops, and it doesn’t include sexual orientation. It is not in the current list of protected classes. The General Assemby voted down a bill just this session to add it to the list. The Governor has refused to sign an executive order adding sexual orientation as a protected class. And last I checked, this issue has not been one that has been driving people to the polls.
.
So explain to me again why Cuccinelli’s letter is such a HUGE issue?
One thing I think many on this blog are confusing is strict construction of the law, and social policy.
*
KC was strictly construing the existing law, not creating any new policy. He suggested that only the General Assembly can carve out another protected class. I believe he is correct.
*
It is not the “GA OR the schools” who need to “simply” define it: that is the whole point. It is the jurisdiction, alone, of the GA to create this new class, definition, exception, whatever. And it is not so “simple.” It should not be done, school by school, case by case, as these public institutions “feel” — it is already a matter of law. The solution is to change the law, if that is what the electorate wants, and the legislature deems is appropriate.
*
And Brian, to suggest that negative press on the Rachel Maddow blog is a terrible thing, is a little bit much.
Jesse, I reviewed Virginia Code section 15.2, which outlines the powers granted to the local municipalities and counties by the General Assembly. Those powers are broad, but they are also general in some areas and exceedingly specific in other areas. I did not find a grant of authority to the counties or incorporated cities that was similar to § 23-9.2:3(5), the specific grant of authority to the Boards of Visitors to create their own employment policies. The closest I could find was § 15.2-612, which prescribes the rules for the appointment of county officers and appointees by the county manager and says “all appointments shall be based on the ability, training and experience of the appointees which are relevant to the work which they are to perform.” But that doesn’t grant them the same authority that was given to the Board of Visitors. VA Code § 15.2-640 provides a list of employment areas counties may prescribe rules for but they do not include the same broad language in the BOVs grant of authority. Those sections deal with the County Manager form of government, but they are similar to other forms including in 15.2. I still don’t believe that the public universities are analogous to the local governments, but I can see that this is at least a legitimate area for debate.
.
My analysis was not results based. I began my inquiry simply to determine, for myself, whether the AG’s letter was an accurate reading of the law. I pulled the cases he cited and shepardized them, and I read through the Code. If I thought he was correct on the law, I would have said so. I don’t believe he is right and if my understanding of Dillon’s Rule is inaccurate, I would appreciate learning what is wrong with it.
Stewart,
Section 18.2-361 of the Virginia Code makes gay sex illegal in Virginia…. a felony.
Sally, wouldn’t Lawrence v. Texas invalidate that?
No one should be discriminated against, but I am sooooo tired of reading about the gay agenda. KC should focus on fighting the EPA and Obamas healthcare if it ever comes to fruition.
Sally, thank you for the first clarification I’ve seen that makes sense.
Because only the GA (as the legislative branch) can make the legal distinction. Courts cannot do it, nor can the Governor(by himself).
Think about Florida in 2000. The Supreme Court of Florida was overruled by the SCOTUS because the Florida Court engaged in setting the criteria for counting chads (That is the equivalent of dispensing legislation from the judicial bench)…..when it was clearly the legislature’s job to enable any laws (legislation) and the Fla. Court could merely defend it(as the Judicial elements).
Of course, the entire discussion brings into view the issue of why the General Assembly can’t manage to forbid employment discrimination based on sexual orientation (or whatever phrase best describes not discriminating for or against people based on whether they are homosexual or heterosexual). If the concern is that one would insulate convicted criminals (e.g., child molesters) from being barred in the workplace (as some commenters here and elsewhere suggest), there should be a drafting solution to that (non-) problem
Thanks, Brian for taking the time to look at this in some depth. This is the kind of spadework that is often lacking in this medium. I’d hate to see everyone doing it, because it’s a helluva lot more fun to just blow off steam, but the mark of a good blog is that the hosts occasionally will dig into a subject and anchor it with good background information.
As I said in the previous thread on this subject, it’s very clear that Cuccinelli has already gotten bored with being AG and is off and running. A major function of the AG in the Commonwealth is to advise the state and its agencies when they seek guidance on the legality of certain courses of action. This opinion seems to have just dropped out of the blue, and, as a commenter noted above, you’d like to think that there would be some cool-headed career types in the AG’s office who would have enough confidence and job security to protect the AG against this sort of instinct. I suspect we’ll see a lot of this. It’s about Cuccinelli. He can take a half dozen of these high-voltage issues and space them out over a couple of years to build a national reputation through the cable TV entertainment spaces that pass for news these days and position himself either to go for Webb’s Senate seat or for the Governor’s spot.
I really have become totally dissatisfied with the quality of governance that Virginia’s structure provides its citizens. The issues are extremely complicated and demanding. What we get is a conga-line of GA cast-offs working their way through the AG, LG and G positions. I would prefer a two-term (or perhaps even longer) limit for Governor, and an appointed AG would would serve at the Governor’s pleasure. They could abolish the LG spot and provide for someone to take that position temporarily (perhaps the majority leader of the Senate) pending a special election.
Cato, yes, Lawrence v. Texas would invalidate that. The fact that the GA has declined to add sexual orientation is not the same as enacting legislation specifying that the state will not recognize sexual orientation as a protected class in any way. These schools have had these policies for quite a while, as I understand it, and the General Assembly has had the opportunity, if they so chose, to override those policies by enacting a substantive provision that would have barred them from including sexual orientation in their employment policies. They have not done so.
.
As I noted, the AG’s primary argument is that absent an express grant of authority by the GA, the schools can’t set these policies. Yet I have pointed out what is an express grant of authority in the Code, and it’s based on a provision that the AG ignored in his letter. That should be troubling to anyone looking at this from a legal standpoint – at the very least, I would have expected him to explain why this provision was not controlling.
I think we need to go back to where the inquiries mentioned came from, if part of the discussion is press.
If challenges or proposed changes are being put forward in a concerted fashion from the college level, and the authority to create the class comes from the GA, it may not be something his office is initiating to “seek” press on.
The press was inherent in the proposed change to policies.
All it may have taken was the reply to those actions to have made the AG’s reaction a matter for press.
IMO, it’s just a continuation of the dance.
A new bill went down in the GA again, so keep that other front open.
Now that there is an attractive target in the office, maybe we will soon see a lawsuit. If policies are not in full conformance in the absence of legislative action, then the other avenues are make it news, and try for judicial action.
Cato,
Yes, the S Ct has opined on this issue, but the fact remains, this law is still on the books. Is is similar to the law that was in effect in Texas? What was the analysis of the Court–is only consensual sodomy/sex inside a residence ok? There were pretty specific facts in that case and it came down to a privacy right…based on where the activity took place, inside an apartment.
*
The point is: it’s not “simple”–thousands of pages of legal argument have been made on issues like this, and it is for the GA to decide, and the AG must tell public bodies what the existing law is…
LC, we DO need a definition for age – the Age Discrimination in Employment Act defines the protected class as those 40 and over. And while the people may have spoken in regards to including sexual orientation as a protected class covering every employer in the Commonwealth, these schools have had these provisions for a quite a while. What makes this a big deal is the fact that until the AG wrote the letter, it WASN’T a big deal. No one was really paying attention to it. So why do this letter now? We still don’t have a good answer.
.
And, again, the GA has authorized the schools to set their own employment policies as the language (”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.” ) demonstrates, and thus it is within their authority to do what they did. The GA, in effect, granted the schools this jurisdiction. And they can, if they choose, take it away. They have not done that.
Brian, it is troubling to me why you attack a Republican AG for simply doing his job, in a strict sense, and not “expanding” the law to fit any desired social policy that you think is better–
*
The Virginia Human Rights Act specifically delineates the protected classes, and is specifically applicable to these institutions.
**
You have a personal problem with KC/not a legal one.
I supported Cuccinelli and I voted for him. I never said a single word against his candidacy once he was nominated. I disagree with his policy and I believe his reading of the law is wrong. The format of this letter is not in keeping with the standard Attorney General Opinion, and it isn’t listed on the AG’s website under AGOs. The AG is not doing his job when he provides unsolicited legal advice. That’s not his job.
.
I have already outlined my legal argument. This isn’t personal. It’s simply a policy/political/legal disagreement.
I love to see you guys fighting amongst yourselves! LOL
Brian, good for you for having a brain!
Sally, I have to assume that if you had an actual argument, you would be using it. Lawrence v Texas was sweeping, and invalidated all such “insufferably silly” (Justice Thomas’ phrase) state laws. Everybody knows that.
Brian – Here’s where you run into a problem, as I explained on NLS:
A state entity… say, the DMV can’t make up a discrimination policy that’s different from the state. That just doesn’t make sense.
“You want a license? Oh, sorry… only gingers and hooters girls are allowed to get one today. Try back next week, when we re-amend our discrimination policy again.”
Arbitrary discrimination policies across the state would be chaos.
A Voter, read my post. The GA has granted the Boards of Visitors the authority to establish their own employment policies – those policies will be different from those established for other state employees. If the GA decided that the DMV could create its own employment policies, then they could do that. But the GA hasn’t done that. But it HAS done that for these schools.
.
The policies aren’t arbitrary. They simply change based on the jurisdiction. Just like many local laws are different when you cross jurisdictions.
David,
All I said was the law is still on the books, and it may still be a felony in places other than a private residence–
**
Brian, you ignore the Virginia Human Rights Act, applicable to these institutions specifically.
*
And you are assuming a lot when you say he did not get a proper request for an opinion…
You do not know that.
**
For these reasons, it looks like you disagree with him “politcally.” Your arguments on the law are not supported, in my opinion. Your reliance on the Dillon Rule, which is not even mentioned in the opinion, is misplaced.
The Other Side, we’re not fighting amongst ourselves. We’re debating policy. That’s what good government is all about.
.
For the record, I didn’t write this because I want to kowtow to Democrats or somehow please “my liberal friends,” as I’ve been accused of in the past. I wrote this because I firmly believe that if Republicans are going to be able to win in the future, we have got to demonstrate that our party is a big tent, and that there is a place in it for anyone who believes in our ideals – and that bigotry and prejudice have no place in the political process. I’m looking to the future and working to build long-term Republican majorities. The first step is to ensure we do not turn away supporters because of petty prejudice. This is a small step forward in demonstrating that the left’s stereotype of us is wrong.
The specific grant to establish employment practices has to be construed within existing law, ie the Virginia Human Rights Act, which says it applies to these institutions. You can’t cherry pick some laws to read, and then ignore others…
Brian, your argument is a political one, not a legal one. It’s about “winning” not interpreting the existing laws. Intellectual integrity is reading the law as we have it, and doing what the law says, and changing the law if it is wrong.
Brian, question, if the section you cite says “rules and regulations” and goes right into “dismissal for failure to abide by rules and regulations”, is that generally interpreted to include discrimination in hiring, or does it refer to job description and performance by EVERYONE (including hirers and firers)?
I see no reference to hiring, and the only termination reference is for failure to abide by rules.
Does that interpretation grant the authority to set individual discrimination policies, or to set parameters for job responsibilities, and rules in performing them?
from the AG’s letter, it would appear not.
The laws banning non-marital cohabitation are also still on the books. I did not ignore the VHRA – I specifically pointed it out. The VHRA does not, on its face, limit the protected classes to those it outlines. It simply lists those that are protected. It does not specifically preclude other classes. If it did, that would have been the AG’s primary argument, not the one he made.
.
I’m not assuming anything regarding the proper request. I am simply saying that from it’s face, the opinion is not in the same format as the official Attorney General Opinions on the AG’s website, including those he’s issued since January. And he has not identified who made the inquiries. That leads me to question why this is the case – both in terms of format and substance. If he has a reason as to why this letter looks different, I welcome the explanation.
.
My arguments on the law are supported by the Code, and I am not relying on the Dillon Rule, I am explaining why I do not believe it applies in this instance.
No special rights for sodomites!
If you really want a MERIT based society then work to REMOVE special protected classes and restore our fundamental principle of EQUAL treatment under the law.
At the Federal level, the only groups who are now left out of having some form of protected class status are White Men and Transsexuals!
Both Democrats and Republicans should unite to toss out all of these special protections, thereby restoring the freedom to hire and promote based solely on MERIT.
Does all of the above possibly bring into question the legality of LOCO’s recent policy addition to incorporate sexual orientation into to county HR practices? The BOS voted to adopt the proposal of Mr. Stevens Miller to include sexual orientation as protected in any County activity. Does the Dillon rule preclude this? Justa a thought.
Barbara, there are only two cases which construe Va. Code § 23-9.2:3, and both of them dealt with other issues (one regarding illegal alien tuition and one regarding concealed weapons). There has not been a case, at least according to the VA Code Annotated I’m looking at, that has construed the employment line.
.
Based on the plain language of the statute, it appears that the Boards of Visitors have the authority to create a rule or regulation that would prohibit any employee of the schools from discriminating based on sexual orientation, and could terminate employees who violate that provision. The AG’s letter, as I noted, only says that absent action from the GA, the Boards can’t do something the GA hasn’t allowed them to do. But Va. Code § 23-9.2:3(5) appears to give them the power to do what they did.
.
I’m not cherry picking the law here – in fact, I would argue that’s what the AG did by ignoring this provision. This is a legal argument, and since neither my opinion nor the AG’s has the force of law, there’s no winner or loser here.
Paul, white men are protected by Title VII, which bars discrimination based on race, color and sex. If you don’t think men can win a discrimination case, I’d suggest you review Wilson v. Southwest Airlines Co., 517 F.Supp 292 (N.D. Texas 1981), where the court held that Southwest couldn’t discriminate against men in hiring for flight attendants, even though they used attractive female flight attendants as their primary marketing ploy.
.
Someday I too hope we won’t need any of these laws. But, unfortunately, we’re not there yet.
Brian,
Under our Federal Constitution, States have all rights not specifically delegated. Virginia has adopted a specific Human Rights Acts which specifically applies to public institutions of higher learning, and has clearly set out all protected classes. Your legal opinion is at odds with just about everyone in the Virginia Legislature, who has debated this repeatedly, whether to expand the classes, and carve out more protected classes.
*
Of course the schools have to have authority for employment, both hiring and firing. And there will be regulations about pay grades, and experience, and other minutia–but the authority to hire and fire does not give them the authority to amend Virginia’s Human Rights Act, one by one, as they see fit… it is the parameter of the State, and the legislature, in a very technical sense.
“So explain to me again why Cuccinelli’s letter is such a HUGE issue?”
*
It’s not a HUGE issue, it is a issue. One of dozens, perhaps hundreds. It is no surprise that people like Brian are using this as a wedge issue even though most detractors admit it is legally correct.
*
Maybe Brian would like to post something on the idiocy of the Democrats instead of constantly picking on his fellow republicans, even though he technically agrees with them. Gee, you’d think we were a divided party or something – why not exploit it??
The General Assembly has the ability to delegate its authority as it sees fit. In this situation, it has chosen to delegate its authority to establish employment policies for employees of higher education institutions to the Boards of Visitors. It has amended and reenacted VA Code 23-9.2:3 at least 4 times since 2005, and it has never altered the language in subsection (5). If the GA felt that subsection (5) gave the schools too much leeway, they could amend it to restrict that grant of authority. They have not done so.
.
The VHRA sets out all protected classes, and it applies not only to the institutions of higher education but to the entire commonwealth. Further, the language contained in VA Code § 2.2-3902, part of the VHRA, specifically states “[n]othing contained in this chapter shall be deemed to repeal, supersede or expand upon any of the provisions of any other state or federal law relating to discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability.” Given the “repeal, supersede or expand” language and “any other”, it seems clear that the GA believed that VHRA was not the sole source of anti-discrimination language in the Code. So your argument that only the VHRA can govern anti-discrimination laws is contradicted by the plain language of the statute. The VHRA is one law, not the only law, that governs anti-discrimination, and it does not have an impact – either restrictive or expansive – on any other federal or state law dealing with discrimination. While it clearly does not prohibit sexual orientation discrimination, it also does not prohibit barring sexual orientation discrimination either.
.
This isn’t a federalism question. The state clearly has the authority to create protected classes that are not included in federal law. California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin all prohibit sexual orientation discrimination in their state law.
.
The General Assembly can choose to prohibit it if it chooses. It has not done so. But it has granted the Boards of Visitors the authority to establish their own employment rules and regulations. If the GA agrees with the AG, there’s no reason why a bill can’t be drafted and passed that bars the Boards from prohibiting sexual orientation discrimination. There’s still over a week left in this session.
Well said, Brian. I, and a growing number of other VT alumni and students, agree, and support the Virginia Tech Board of Visitor’s current anti-discrimination policy. (Facebook group at http://bit.ly/9OShXb ). You have hit the nail on the head: Discrimination based on prejudice is wrong.
As economic pressures continue to mount on Virginia’s institutions of higher education, Tech – and other universities in the Commonwealth – needs to continue soliciting private support to remain at the top of their game in a competitive world. The kind of pressure being applied by the AG on university BsOV not only distracts from those efforts, but creates additional negative associations for successful, educated graduates. As a result, it’s also bad economics.
LL, c’mon. 99% of my posts on here are attacking Democrats and liberals, the Administration, and their enablers. I’ve put up multiple posts supporting our local candidates, supporting the FCRC and trying to get our folks out to vote. But I’m not (although I’ve been accused of this before) a partisan hack. If I disagree with something we are doing, I will comment on it.
.
As George Patton said, if everyone is thinking alike, someone isn’t thinking.
JTR, one of the issues raised by those who voted against the motion was to seek counsel before acting.
The county attorney cited some of the same cases in the Cuccinelli letter, and called at least one of them “compelling” opnions more than once.
That is why I think the activism isn’t in the issuing of the letter, but in the actions taken that produced the inquiries the letter answers–and we still need to see the inquiries. At least one “legitimate” one has been made public.
Perhaps activist groups are doing bottom-up policy revisions, since GA action has yet to be taken. Now that there has been an official response saying that isn’t how it works, the response is “activism”.
Brian, I am not accusing you of cherry-picking. I was asking if the ability to set job description and rules applies to discrimination and hiring policies, when the bulk of existing opinion seems to be that only action of the GA creates protected classes in hiring and termination practices.
Brian, Suffice it to say I’m not surprised you have an anti-KC post up again. Most of your posts are advocating one republican against another in primaries, then there was that great analysis of Fimian’s web minute. Hey, there is another one out, can’t wait for part II.
I would also note the case of Romer v. Evans, 517 U.S. 620 (1996), which held unconstitutional (as a violation of Due Process) a Colorado state constitutional amendment that would have barred the executive, legislative and judicial branches in Colorado from barring sexual orientation discrimination.
LL, when have I had an anti-KC post up before? Other than my support for Dave Foster during the primary, I have not criticized Cuccinelli.
.
Here’s a list of the stories I’ve written in the past month:
.
It only takes Filler-Corn 24 hours to betray Virginia families on education
.
Great news – Bedell has no challengers
.
2 HOURS LEFT TO VOTE – If you’re in Mason District or the 41st and you haven’t voted, get out there!’
.
36 hours left – get out the vote for Kerry Bolognese and Samantha Rucker
.
Breaking – House ethics panel finds Charlie Rangel “broke House rules”
.
Marshall responds to recent criticism
.
Breaking – Senate passes jobs bill, 70-28
.
Marshall puts both feet in his mouth, McDonnell condemns
.
House of Delegates releases their budget
.
Why do the Democrats always get up on TV before we do?
.
11th District Primary News
.
Governor McDonnell proposes spending cuts and Democratic fearmongering has already begun
.
Anti-gun activists ramping up the hysteria
.
Fimian and the Frederickistas desperate to find a challenger to Anthony Bedell
.
McDonnell gets it right on the LCI
.
So you’ve got a one post by me criticizing Bob Marshall AND me posting his response to the criticism. And you’ve got two posts by me supporting Herrity, a Republican. The rest are all anti-Democratic, supporting the Governor, supporting our budget, supporting gun rights, promoting our candidates and the FCRC. I spend the vast bulk of my time promoting Republicans. And there’s not a single anti-Cuccinelli post in there. In fact, back during the campaign I posted a story called “The Post is scared to death of Ken Cuccinelli” chastising the Washington Post for its ridiculous hyperventilation over Cuccinelli.
.
I know it sticks out in your mind when I criticize someone you like, LL, but it’s just not true that I spend more time “attacking” Republicans than I do Democrats.
Brian, in the Colorado case, had the Colorado government TRIED to enable the barring of sexual discrimination, thus prompting the amendment to ban banning it, that was challenged and declared unconstitutional?
That’s a lot of negatives there–an amendment attempting to bar the government from barring discrimination was delared unconstitutional–what the hell kind of twisted activist dance kicked THAT suit off?
There is much more activism here than the letter.
What prompted the letter?
Brian –
I’m glad to see you take the time to work this through analytically. You are correct that Sec. 23-9.2:3 delegates some degree of authority to the colleges. The question is, how much? I’m not an expert in higher education law, and I don’t know if there has been any litigation about the scope of that provision. I suspect there are few if any reported decisions. But the statute could be read narrowly or broadly, and arguments about the intended scope of the delegation, and whether other provisions of state law can be brought to bear on its meaning, would be critical in a court’s view of the matter. The fact is that the law is often unsettled and unclear.
You have suggested that because the letter is not a formal “Opinion of the AG” that it is somehow improper. But the AG is the lawyer for the universities, and lawyers often give advice that does not rise to the level of an opinion, especially when the law is unsettled or unclear. I’m sure the AG’s office has in the past sent letters to agencies of the Commonwealth expressing views on legal issues that did not rise to the level of a formal opinion.
In any case, as I said in an earlier post, the letter is a line in the sand or a shot across the bow. It is not and does not purport to be a comprehensive legal analysis. Cuccinelli is telling the colleges not to test the water. We can’t assume that a school might not try to grant benefits to same-sex couples (or any number of similar things) just because McDonnell has said he is opposed, nor does McDonnell want to be faced with the issue. In that sense it is smart politics: If they heed his advice they will not do things that create bigger disputes down the road. And if they don’t heed his advice they have to deal with the fact that their own lawyer disagrees with them.
One last point, regarding the Phillips case. The changes in the State Constitution and the nature of the student body really have no bearing on the GA’s authority over the universities, and I’m sure there is ample authority beyond that case to that effect. I think you acknowledge that what the GA grants the colleges the GA can take away. And you correctly point out that they have been granted some authority. The question is how much; we may never really know if the issue never gets to court.
Again, I commend you for taking the time to work the issue through.
I think this entire argument begs the question….why the hell are we still relying on a 19th century ruling by a farmer judge in the midwest to determine how localities are run? Every state with the exception of maybe 6 (including the old dominion) have tossed out the Dillon Rule and elected to have home rule. If the general assembly (or the ag apparently) has nothing better to do than meddle in the business of duly elected county governments (apparently in LOCO case) then maybe they don’t need to be wasting my tax dollars funding their sessions that are apparently too long for them to stick to business of the state and not the business of counties and cities.
same with the university and eoe/discrimination policies.
Brian, I’ve read your post and your comments clarifying your points. You disagree with the policy. That’s fine and, frankly, you don’t really need a legal defense on the matter. You think the politics was ham-handed. Fair enough, that’s your opinion and – again – you certainly don’t need a legal defense for that.
.
However, you’re hanging your assessment that Cuccinelli got the law wrong on the notion that the GA “has granted the Boards of Visitors the authority to establish their own employment rules and regulations.” What you leave out is that they are granted that authority to do so within the law. They cannot create a protected class of just, say, blue-eyed people because that’s not a protected class within the law. They can make whatever rules or regulations they judge required to effect their policy but only within the boundaries set by the law and the GA is the body that sets that law in place.
.
You speak of the GA being able to make clarifying amendments to restrict the schools’ actions if they wanted to but, again, that assumes that the schools are free to do whatever they want so long as it’s not specifically prohibited by law. In Virginia, no state institution is able to do that, not even local governments. They are permitted to do only what the law says they can do and nothing more. Set aside the dislike for the policy and the involuntary wince made at how this looks in the public eye, and this all that AG Cuccinelli said: schools cannot make rules creating protected classes where those classes are not defined as protected under Virginia law. I understand you don’t like the law and you think it should be changed. But that’s not Cuccinelli’s job. His job is to advise the State with regards to their actions being compliant or non-compliant with the law as it exsists right now. That’s all he’s done and that’s what he was elected to do.
.
Want to change the law? Write your Delegate and Senator. Those are the people with the ability to make this change, not the AG’s office.
RK, you planning on putting the link up to the Virginia Constitutional amendment you’re proposing?
Barbara, in Romer, local municipalities had barred sexual orientation discrimination which had caused a lot of controversy. The controversy led to a referendum to amend the Colorado constitution to prohibit the government from barring sexual orientation discrimination. The amendment passed, and the municipalities sued for an injunction to bar enforcement of the amendment. The Colorado Supreme Court granted the injunction and found the constitutional amendment to be a violation of the 14th amendment. The Supreme Court agreed, 6-3. The Court specifically said “[i]f constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
Ric, I disagree with the policy, yes, but I also disagree with the AG’s reading of the law. Yes, they can establish rules and regulations within the law, and as I have read it, there is nothing in the law that precludes them from establishing rules and regulations that forbid their employees from discriminating on the basis of sexual orientation. I would argue the “blue-eyed” basis would be a violation of the race/color prohibition, but I don’t want to fight your hypo. As I noted, the law at this time says the can establish their own employment policies. That is within the grant of authority.
.
The AG doesn’t believe it is. That’s fine, but I would have at least liked to see an argument as to why 23-9.2:3 doesn’t apply. As I noted before, there are only two cases construing that provision and none have construed the subsection(5). At the very least, it would be appropriate for the AG to acknowledge that this area of the law is not clear.
.
I do advocate for a specific change the policy, but I am also critical of the AG’s argument. I would like to see a greater review of the law. Perhaps a Delegate can submit the question for a formal AGO?
So again, bottom-up action.
I think Marshall already did, didn’t he, in regard to the Loudoun policy change?
Barb, so does this letter constitute the answer to Marshall’s query?
Ric, the letter begins mentioning “inquiries” plural, without specifying.
Since Marshall has received press on inquiring, I would imagine he may be one.
I don’t know if the Loudoun County Attorney’s office submitted one, after the discussion of Miller’s motion, but if so, that could make a second legitimate inquiry.
Without releasing the specifics, the discussion continues on who made them, and whether they had standing to do so.
Barbara, I mean in regards to the Boards of Visitors. I don’t see a specific response to Marshall on the AG’s website regarding the Loudoun issue.
Here’s the link to the AG’s opinions on their website: http://www.oag.state.va.us/OPINIONS/index.html#Opinions
Brian, if there have been multiple inquiries by those with standing to make them, and the letter reiterates previous opinions of the OAG, until each specific request for an opinion is posted with the official opinion, this letter is all there is.
If groups without “official” standing to inquire have requested along with those who do, perhaps that explains the broad reference to requests, followed by specific listing of previous opinions.
Obviously this is not the end of the issue.
We’re still seeing new posts on it, and I’m sure the news conferences, press releases, and any protests will go on apace.
Agreed. I hope the AG will provide some light on the questions out there about the letter.
I consider myself a social conservative but can we dispose with focusing on the gays? It’s not that important of a fight, I would much rather see Cooch go after abortion or environmental regulations
2 posts supporting Herrity? HA! The commentary is another thing. Yep, I like KC, but I also don’t see the as a BIG issue. Obviously you disagree from the comment “doesn’t the AG have anything better to do?”. Like he’s sitting around the rest of the time with his thumb up his ass, it’s an attempt to portray and you know it.
What is missing from this discussion is any understanding of why universities ban sexual orientation discrimination. In many cases, the professional accrediting associations, the national organizations which certify and validate the programs, require this. The National Association of Social Workers, for example, can yank the accredidation of any school of social work that does not practice non-discrimination. There are many acrediting associations, in fact almost all, that require sexual orientation non discrimination. Professional schools that are not allowed to promise this, which is what the AG has done, can loose their national accredidation. This hits students directly as their loans and scholarships almost always require that the student attend an accredited school, and are valid only so long as the school is acredited. What the AG has done is leave students with a degree that is questionable and a loan situation that is untenable.
Is it possible that Repubs are discovering that persecuting gays isn’t as politically popular as it used to be ?
It looks like it – but their religious right base has them in a bind – politically they lose either way
Brian,
Have you looked at the higher ed restructuring act, its focus on expanded hr authority for certain schools, and a granting of charters? Seems to build on the case from the code you focused on.
RK:
You are dead wrong on Dillon’s Rule. 39 states use Dillon’s Rule (and that’s for local governments; for state created agencies and boards, I would say that’s it’s a given in 50 states- these boards and agencies are CREATED by the state legislature so, by definition, can only do what the state legislature says that they can do). Read http://www.brookings.edu/reports/2003/01metropolitanpolicy_richardson.aspx
Brian- the last clause of Dillon’s Rule is the most important: if there is any fair, reasonable doubt as to the existence of the power, the power is denied. If this protracted discussion hasn’t established fair, reasonable doubt in your mind, nothing will.
Jesse
It’s obvious Cuccinelli picked a fight here. He wants to be on the national stage, wrapped in the “he’s fighting the gay issue,” flag. This is going to hurt Republicans in the long run.
As a taxpayer, this is not where I want my Attorney General spending his valuable time. Not even close. He needs to get better priorities and fast.
The problem Brian cannot surmount is Dillon. Dillon is not a law or a rule, it is the framework on how to apply and interpret the law. Under Dillon, no creation of the state —no political subunit or charter— has any power except what is explicitly granted by the state.
It is true the state explicitly granted the Boards “To establish rules and regulations for the employment . . . and provide for their dismissal for failure to abide by such rules and regulations.” Brian is stuck defending this in its most expansive meaning, something Dillon does not allow.
[Switching to solid, long litigated 'Dillon ground'] Under Brian’s argument, county Boards can zone property to deliberately hurt political opponents. In reality, Dillon constrains zoning to the minimum necessary for public health, safety or welfare. Those three reasons grant a wide range of action, but clearly —and there are hundreds of cases in this arena— political subunits aren’t granted carte blanche simply because they are charged with land use.
In exactly the same way, the Visitors would have to claim —which they cannot— that protection of ’sexual orientation’ is a necessary part of school operations.
Indeed —just like this current flap— the GA got tired of Supervisor’s Boards whining about their powers in the same way the Visitors currently are; so they passed ‘guidance’ statutes. Apparently that’s what the Visitors want, and ultimately that’s what they will get: a short leash.
Jesse, no one, other than you, is arguing that Dillon’s Rule applies here. As I’ve already stated, it seems pretty clear that there’s a legitimate grant of authority by the General Assembly that allows the Boards to do what they did. And, again, Dillon’s Rule applies to local governments. I don’t think anyone is trying to argue that these universities are local governments.
Brian:
Dillon’s Rule applies even more clearly to statutorily created entities such as BOVs. I don’t think I’m the only one that is arguing that Dillon’s Rule applies here- at a minimum, the Virginia AG and Ric are also (although Ric doesn’t call it by name). Powers granted to BOVs are strictly construed. Nothing else to say.
Just released some comments from moderation, whihc will show up in the order they came in, so if you’re following from the end you may not see those earlier comments at first.
.
I agree with many commenters that this should not be a major priority, even though I am no pusher of the gay agenda.
“discrimination, in any form, is wrong.”
I’m always impressed by self-styled “conservatives” who say asinine things.
I guess our colleges shouldn’t “discriminate,” then, based upon intelligence and stupidity. Or good academic records and bad academic records. Or between well-behaved students and delinquents.
Which brings me to the subject of deviancy. OF COURSE we can “discriminate” based upon behavior. Just as we “discriminate” between liars and the honest. Between murderers and those who respect life.
Your comment just proves one thing: all blanket statements are idiotic.
And yes, the attempt at ironic humor was intentional.
And uh, Stewart, consensual sex outside of marriage IS illegal in the Commonwealth.
Or was, until the Supreme Court decided to re-write the Constitution to protect deviancy.
I don’t know and don’t understand the law. I don’t know and don’t understand whatever is the gay agenda, if there is indeed such a thing.
I am sick and tired of all these group identity protections which as a practical matter become entitlements. It comes down to you have to promote, hire, ignore the malfeasance/non-performance of this person or that because he/she/or anything in between, is black, brown, purple, sleeps with men, women or no one, engages or doesn’t engage in this or that type of sex, is or is not a particular religious persuasion, was once poor, abused, educated or not,….It is crazy. It is out of control.
Meritocracies are being pummeled out of existence. And what is good and positive for the growth of our economy and society is being destroyed. As for whether gays need any more or any less protection than anyone else, I haven’t personally observed much, if any discrimination in thirty plus years in the labor force. Their fear of discrimination is way overblown.
Brian,
I have to come to the conclusion that your desire to focus on this issue is in fact political. AG Cuccinelli is simply doing his job here. You can disagree on his conclusion, but his decision in writing this letter appears to me to be absolutely non-political and based in the fact that he as AG needs to provide such advise when asked and when state institutions are putting themselves at legal risk.
” I wrote this because I firmly believe that if Republicans are going to be able to win in the future, we have got to demonstrate that our party is a big tent, and that there is a place in it for anyone who believes in our ideals – and that bigotry and prejudice have no place in the political process.”
This underscores the political undergirdings of your desire to focus here. Are you saying that somehow AG Cuccinelli’s conclusion is based in “bigotry”? If so, then why are you not also focusing your laser beam of righteousness on the GA where all of this could easily be resolved by passing into law a protected class for “sexual orientation”? If you believe that this is a basic human rights issue, I would think you would be lobbying for this with all your worth. Especially since the Republican controlled HoD voted down such legislation only this year! Where was your outrage then?
The bottom line is illustrated in this:
“While pedophilia and necrophilia may be considered by some to be a “sexual orientation” (although that’s stretching it), they are also illegal and there are plenty of good public policy reasons for allowing employers to choose not to hire those who engage in or may engage in illegal activity.
.
Where it stops is where ever we, the voters, choose to say it stops. Adding sexual orientation is not going to turn into the slippery slope you’re suggesting.”
I disagree. It’s patently unfair and outside the values of American equal justice under the law to arbitrarily say one form of “sexual orientation” should be protected and another not. To do so for homosexuals and not others is tantamount to saying African Americans should be protected, but not Asians. As you said in another comment, the race clause in the statute protects all races from discrimination.
I have yet to find a single argument that quantifies why homosexuals should be considered a protected class separate from say bigamists, or even those that desire to engage in relations with a close relative. There are other equally relevant examples. To say “those acts are illegal” is a strawman. As has been noted here homosexuality was illegal at one time and the law is still on the books. Similarly with cohabitation outside of marriage. Marital status is a valid protected class because there have been plenty of examples of discrimination based on this class and the definition of marriage as a separate class is valid because heterosexual marriage not only is a personal decision between two people, but is based on a basic biological function of the human mammal. I could argue that providing protected status for bigamists is even less of a stretch than for homosexuals based on this same biological function. Bottom line, this idea of protected status for “sexual orientation” is 1. not needed, and 2. opening a can of worms that will most certainly lead to other problems down the road.
By the way I will repeat, all of this is aside from the fact that AG Cuccinelli’s action here appears to me to be non-political. The GA and the Governor’s Mansion are where you should be focusing your pen if you indeed believe these protections are valid and needed.
For God’s sakes, JY are you suggesting that we start prosecuting people for pre-marital sex??? Is that next on the social conservative agenda? I am so disappointed as primarily a fiscal conservative since I see fiscal conservatism being dragged down by this kind of over zealousness. Let’s drop the morality police state stuff and stick to fiscal matters, please.
Interesting comment on accreditation requiring nondiscrimination language that includes sexual orientation etc.
Does the accrediting entity derive its authority federally? By state?
And thus where does their legal right to determine fall in the legal pecking order?
Thanks for the heads up on moderated posts, LI.
What is the statute of limitation on that pre-marital sex thing? I need to know whether to call my attorney.
Rtwng Extrmst: Perhaps you missed it, but the regulation banned discrimination on the basis of “sexual orientation,” not “being a homosexual.” This may be shocking to you, but heterosexuality is a SEXUAL ORIENTATION. The regulation would prevent a gay person in charge of hiring from discriminating against heterosexuals as much as the other way around. Just like a ban on discrimination based on race means white folks are protected from bigoted ethnic minorities, and a ban on gender discrimination protects men from sexist women. These may not be the predominant use of such rules, but they DO work that way.
Barbara Munsey: It’s my impression that accreditation works in a fashion similar to a professional organization recognizing the credentials of its members, like the American Bar Association, the American Medical Association and so on. I don’t believe there’s any “authority” in the sense you’re asking about. Those wishing to have “accreditation” come to a consensus on the requirements to be accredited.
Loudon Insider says that he is “no pusher of the gay agenda”. In other words, he does not support equality. The “gay agenda”, so called, is merely the demand to be treated as equal citizens of the state. Anti-equality people seem to use the phrase as if it describes some nasty conspiracy, but are always unable, when asked, to explain what that conspiracy is. All we’re asking for is equality.
I’ll quote Jason Kuzunski, an American libertarian:
I myself am neither American nor right-wing. I do know a couple of American libertarians, and find I can get on with them fairly well, although I disagree with them on so much. Republicans I find harder to understand. They seem to run not on principles, but on a vague collection of prejudices. But maybe that’s just a poor reading from the other side of the Atlantic.
TRiG.
I sincerely thank Ric James for his excellent points in this discussion.
I’m not a huge Cooch fan (more his personality than his politics), but as I said…the GA gives the Schools latitiude on the issue, and as Ric expertly points out, even then, they have to stay within the States’s allowances.
Ken’s just insuring that the letter of the law is indeed followed.
Mr. James Young, Ravi has two things to say to you and then a third thing to say to you.
One, You are not funny like the comedian.
Two, Where I am from, your kind of humor would be greeted with how you say, the throwing of the warm tomatoes, as in very warm to the touch almost scalding. If you are athletic you could dodge some of them, but finally a few or many would hit the mark.
Three, it is a very good thing that you are not in the comedy business, as right now you would be unemployed, and perhaps forced then to work for a living. Please Mr. James Young, no more attempts at humor for your own good.
Brian,
A basic tenet of our law is that all power belongs to the State, unless specifically delegated. Any power to any institution to create an additional class than those delineated in our Human Rights Act would have to be specifically delegated. The fact that legislation does not “preclude” the creation of this new class you are talking about is irrelevant. Only the classes created by the GA are protected. That is the end of the technical legal analysis. The schools have no right to create additional protected classes (and neither does our BoS.)
*
As I said before, your issue is a political issue, not a legal one. And for whatever reason, you seem to want to make a big deal about it… with two separate posts…
Brian,
As a first-year law student myself, I have to compliment you on this. You indeed did seem to do a better job in two hours than the AG’s legal staff appeared to do in a much longer period. (In fact, it seems pretty clear that they should have found §23-9.2:3(5) in about five minutes.) All that Phillips seems to state is that the universities are instrumentalities of the state and immune from liens. Shoddy legal work, on their part, at best. Manipulative, dissembling reasoning at worst.
How this discussion got sidetracked onto issues of pedophilia and the moot provision (see, quite clearly, Lawrence) in the VA Code that outlaws homosexual acts is befuddling. The GA granted the BOVs the authority to set their own hiring policies; this they did. If the GA wants them to stop their non-discriminatory policies as to sexual orientation, they’ll have to repeal the grant of authority. I have a hard time imagining any court upholding Cuccinelli’s reasoning in any situation. Period.
Jesse,
there is a difference between using the dillon rule in principle, and strict adherence to the dillon rule. states with strict application of the dillon rule are ID, MS, VT, VA, and IN. the others use a ‘liberal’ application of the rule, but these 5 are very strict in their interpretation. that is what i am referring to.
Ric,
critiquing a problem does not mean that i am going to go out and actively attempt to change it, i am merely pointing out an issue that keeps localities like fairfax bound.
Also jesse,
dillon doesnt apply to universities or agencies or the bureaucracy. it applies to municipal governments, which the rule specifically states. the limits of agencies, bureaucracy, and universities are legislated. the point is that the bov’s are set up to run the organization. it is inappropriate for the ag to attempt to micromanage and thus create an issue where one does not exist.
Matt and RK,
You and Brian and are ignoring Virginia’s Human Rights Act, which is the legislation that defines protected classes for all of Virginia’s agencies, municipalities, schools of higher learning (specifically mentioned.) Just because the schools have the authority to set the standards for who they will hire does not mean they can override this Act–which specifically applies to them. No one is micromanaging the schools, just the opposite–the Act in question sets broad categories of protected classes.
Ravi Oli, you are very perceptive. You also have an excellent eye for humor. As well as those you lack it completely.
.
Don’t worry about Mr. Young deciding to take his humor on the road. I doubt he will ever become a professional performer in any venue. He might have to get a union card and that would make his head explode.
RK:
Where did you get your list of states that apply Dillon’s Rule “strictly” and those that apply it “liberally”? I’ve never seen that before and frankly don’t think that such an analysis has ever been done. The rule is the rule, so I don’t see how it can be applied differently. Please give a citation to the study.
And, yes, Dillon’s Rule is used for school boards, BOVs, etc.
Jesse
the va human rights act is not a human resources policy, it is not an admissions policy, it is an act that outlines on what basis the virginia human rights council will make rulings.
The power was delegated under the provisions in Va. Code § 23-9.2:3(5). The fact that the VHRA does not specifically provide for a prohibition on sexual orientation discrimination does not mean that the BOVs cannot establish that as a rule or regulation governing employment, as that was the specific grant of authority given to them by the General Assembly. Nowhere in the VHRA does it state that its provisions preclude prohibiting sexual orientation discrimination. As I noted above, if it were to do that, either directly or by implication, it would be per se violating the 14th Amendment’s Due Process clause, as the Supreme Court held in Romer v. Evans, 517 U.S. 620 (1996).
.
The schools acting here does not override the VHRA. It compliments it.
Jesse,
States apply either home rule, dillons rule, or a mix of the two. there are only 6 states (not 5 as earlier mentioned) that have no home rule at all: AL, ID, IN, MS, VI, VT. 8 states provide for home rule through legislative statute, and the other states provide home rule either by legislation in certain cases or by automatically giving it to localities.
http://www.celdf.org/HomeRule/DoesmyStatehaveHomeRule/tabid/115/Default.aspx
Quaere: If Federal Law provided a protected class – such as the Americans with Disabilities Act providing employment protection for certain classes of “Gender Variant” people (though not most others), and other legislation which provides employment protection for Veterans – and State Law does not provide those protections, as Virginia’s does not – would the Universities be prohibited from having by-laws that comply with Federal Law?
RK:
This is a better reference: http://www.brookings.edu/reports/2003/01metropolitanpolicy_richardson.aspx
You may also wish to read http://collinsinstitute.fsu.edu/files/pdf/seminar-2010-02-25/FINAL%20PAPER-RICHARDSON.pdf
There is also a book by Congressional Quarterly Press, Home Rule in America by Krane, Rigos and Hill. You are mixing metaphors.
Home rule and Dillon’s Rule are not mutually exclusive, nor are they polar opposites. Some states use Dillon’s Rule to interpret home rule grants of authority.
Jesse, I just spent about an hour while my wife watched the Oscars trying to find any cases in which a Virginia court held that the public universities are analogous to municipal governments for the purposes of applying the Dillon Rule. I have not been successful – are you aware of any cases that so apply the Rule? If not in Virginia, in another jurisdiction?
Zoe, no. Federal law would trump the state law in that regard. In addition to some of the oldest Supreme Court precedents, the language of the VHRA makes it clear that it does not supercede or restrict federal law (it couldn’t anyway). If Federal law incorporated protected classes not specifically recognized by the Virginia code, they would be recognized by Virginia courts and enforced, and the AG’s opinion here would be moot.
Brian:
Although Dillon’s Rule does not explicitly apply to state universities, the language of the rule of statutory construction is very similar. See http://www.virginia.edu/president/spch/06/attorneygeneral060321.pdf and the citations therein. The issue in that opinion is similar to the issue here.
Do we really want each unversity to have a different set of protected classes? The Department of Game and Inland Fisheries to have a different set of protected classes than the Virginia Department of Agriculture and Consumer Services? This is an issue for the General Assembly.
Good find Jesse. Footnote 4, especially, is right on point in explaining why the schools have no authority to establish a new category of protected class, when State law already defines protected classes.
george M–thank you for the comment on accreditation–more and more interesting! A private body setting rules that laws must then come around to.
Must be nice!
jesse,
while i am not going to get into a reference war, the dillon rule only applies to municipal governments, as dillion specifically stated during his ruling. there is not a shred of precedent that would support the claim of it applying to universities or agencies of the state. the language being similar is frankly irrelevant.
“Loudmouthed Inciter” asks if I am “suggesting that we start prosecuting people for pre-marital sex?”
Gee, did I advocate repeal of the Fourth Amendment somewhere and simply forgot? Unless I did, you make a nonsensical suggestion. About what I expect, but it’s worth pointing out, nevertheless. People who keep their private lives private have nothing to worry about. Unfortunately, what you don’t seem to understand (or more likely, don’t care about) is that advocates for the radical homosexual agenda don’t want to practice their perversions PRIVATELY, they want public APPROVAL of them. You seem to be willing to grant that. That you do demonstrates that you are no “conservative” of any type, at least in any meaningful sense of the term. Just like Brian.
The number of “conservatives” in James’s universe is an exceedingly small one. So is that particular universe, so it all works out.
Mr. Dan, as they say where I am from, “flattery will get you somewhere”. Ravi tries to see the good in Mr. James Young, but it is very elusive. As far as Mr. James Young getting a Union Card, HA, HA, HA, you make GREAT joke, but Ravi is not confident that he could get such a card. Ever. From anyone. He is like the long-tailed cat in the room full of rocking chairs.
Dillon was a judge in Iowa who applied the rules of statutory construction to reaffirm the long held legal tenet that power remains with the State unless specifically given away. His decision had to do with municipal corporations, which would not apply even to Loudoun County (which is a political subdivision but not a municipal corporation.) As we all know, the Dillon Rule, as it is known, does apply to Loudoun.
Local GOP:
I would love to receive any references that you have that support your position. It would help my Dillon’s Rule research. You can send to my email address to avoid boring the folks on the blog if you wish: jessej@vt.edu
I agree that’s it is irrelevant in a way, however. If it quacks like Dillon’s Rule and waddles like Dillon’s Rule, it really doesn’t matter if you call it Dillon’s Rule or not.
It’s impossible to always keep one’s private life private. If I pick my wife up at work and give her a kiss when she gets in the car, people realize I’m heterosexual. If I’m wearing a wedding ring, they recognize it. This isn’t the 1950s and it is almost impossible for gay and straight people to keep their sexual preference 100% out of the workplace.
.
What do you think is going to happen if we protect sexual orientation in the workplace James? Random men making out with each other on your desk? Come on.
.
According to you, unless I’m parroting everything you believe, I’m not a conservative. This is one of the reasons why I don’t call myself one even though I identify with 85%+ of the tenets most would recognize as being conservative. It’s easier to just say I’m a moderate than have folks like you sitting in judgment on my ideological purity.
local gop is actually the resident local Donkey/Ass parading as the GOP.
Just sayin’. The sumbitch is terrified of guns, and we all know GOP’ers actually don’t have that fear.
Brian,
You are fond of jumping from point A to point C. And of attacking Republicans.
*
Squishy, imprecise, and flawed analysis. Ignoring the legal issue, which is a fundamental constitutional issue.
*
By no definition of the word are you conservative if you do not believe in strict construction of our laws. If you think everything should be expanded, without amending our laws first, then you are one of those double standard people, who think it is ok to do something when it fits their beliefs–no matter the traditional process…
*
What about Congressman Massa? Now that’s a story–says he is being pushed out so they need fewer numbers for health care (his was a nay vote.) He made a crude remark to a staff member at a wedding–
http://www.politico.com/news/stories/0310/34051.html
Mr. Young, I’m curious about this “radical homosexual agenda” of which you speak.
.
Do you really think that it is “radical” that people should be protected from being fired for reasons that have nothing to do with the performance of their job or the economic needs of the organization for which they work? That they should be subject to termination simply because some narrow minded folks view them as “perverts”?
.
As Brian points out, it is nearly impossible for people to never publicly show any affection for those they love. It is completely unreasonable to think they should be required to do so in order to defer to your extreme discomfort with homosexuality.
.
You are wrong about civil rights advocates wanting to require anyone’s public approval of another. No one can change your heart. You don’t like homosexuals. No law can change that. What the law can do is prevent you from doing economic damage to other citizens for no other reason than your bigotry.
[...] I find particularly gratifying. One of the bloggers at Too Conservative, a third-year law student, has schooled Mr. Cuccinelli on the law, and exposed the specifics of his abuse of office in a way that I could not have done. He makes [...]
“The law cannot change people’s hearts – but it can restrain the heartless.” -Dr. Martin Luther King, Jr.
I have a personal problem with Massa based on an event that occurred during his first campaign between him, myself and one of my staffers. I could care less why he’s gone from Congress, I am simply pleased that he is leaving.
I couldn’t care less that Massa is gay. I’d have a lot more respect for him if he would simply admit that he is and stop trying to impugn the character of others as he attempts to keep up the charade. Massa’s performance on the radio in his district over the weekend is a bad joke. There have been incidents dating back to his time in the Navy when he had an “unfortunate misunderstanding” with a bunkmate he had offered to jerk off. When he accuses others of lying or having ulterior motives he is hardly credible.
.
In contrast, California state senator Roy Ashburn simply admitted he was gay in an interview on his hometown radio station this morning. Ashburn is a Republican who consistently voted against gay rights. You can fault him for that. But when the obvious became obvious to all he handled it honestly. He didn’t lie through his teeth and start attacking others like Massa has.
So the problem that the pro-Candace Strothers wing of the LCRC has on social issues is not that Mark Sell and others choose to focus on more than just fiscal conservatism, it’s that they’re not social liberals. Clearly, there is a segment of the LCRC hiding behind fiscal conservatism as the basis for promoting a radical social agenda. I am grateful that the LCRC has new leadership.
A SCOTUS ruling doesn’t change the long-standing, historic, Judeo-Christian objections to homosexuality. The promotion of lax moral standards over the past few decades doesn’t invalidate the history of western civilization.
Lessburger, regardless of the “long-standing, historic, Judeo-Christian objections to homosexuality” it is still wrong to discriminate against someone in their employment for any reason that isn’t based on merit or some other bona fide occupational qualification. Those objections have no place in the workplace. If you don’t want to invite gays into your home or church, so be it. But depriving someone of gainful employment because you don’t care for their lifestyle is morally wrong. I don’t happen to like Cowboys fans, but I’m not going to advocate keeping them from working for the State government.
Has the AG issued an opinion about discriminating against Cowboys fans in employment? Everyone hates Cowboys fans.
.
Perhaps we could conduct a controlled experiment. Someone tell Cuccinelli that discrimination against Cowboys fans is wildly popular with the big government social conservative base and is probably worth lots of votes for him. Then wait and see how long before he issues an unsolicited opinion on the subject.
.
We could run a pool as to how long it takes.
.
We must stop those promoting the radical Cowboys fans agenda!
bpm:
only an idiot would believe that after me repeating over and over and over again that i am pro gun rights that i am ‘afraid’ of guns…i own one…i said that registering a gun doesnt infringe on the right to own a gun…and it doesnt, because the only argument against it was “i shouldnt have to” or ‘what good does it do’. thats not a legal argument and doesnt hold water.
sorry–for come reason my browser keeps putting my email in the wrong box
Brian, you said “it is still wrong to discriminate against someone in their employment for any reason that isn’t based on merit or some other bona fide occupational qualification.”
Really? You can’t discriminate against someone who is sloppy and makes a poor impression? You can’t discriminate against a paroled murderer? You can’t discriminate against someone who is known for engaging in behavior sharply out of step with community standards, such as bestiality or incest? Why have job interviews? Why not just force employers to create an outline of a job’s requirements, and hire the person who has the most relevant qualifications, sight unseen?
I would suggest that it is not the place of government to search out the hearts of employers, trying to discern their intentions in offering or denying positions of employment.
Leesburger, I think being “sloppy and makes a poor impression” is part of the merit based section for a job. As for murderers, I think that can be a BFOQ, depending on the job. As for the rest, how exactly does one find out if someone is engaging in behavior sharply out of step with community standards? Do you ask them? Spy on their personal lives? If it’s legal and it doesn’t affect their job performance, why does it matter what happens outside of the office?
.
This whole argument is one I’ve seen time and time again, and it’s a red herring. No one is saying that employers shouldn’t be able to hire whomever they feel is the best fit for the job, and to keep those people employed. But I think it’s fairly common for most people to expect that if they don’t get the job or they get fired, the reason is based on something work related. Is that too much to ask?
.
I would suggest that it is not the place of employers to search out the hearts of employees, trying to discern whether they are engaging in activities the employer disagrees with when offering or denying positions of employment.
“You can’t discriminate against someone who is sloppy and makes a poor impression??
.
That hardly describes discrimination that isn’t based on merit. Especially if the job entails dealing with the public. Unless the employer thinks that something like, oh, let’s say having black skin makes a poor impression. Or being a homosexual makes a poor impression.
.
“I would suggest that it is not the place of government to search out the hearts of employers, trying to discern their intentions in offering or denying positions of employment.”
.
Nope. But it is the place of government to root out patterns of discrimination based on criteria that are illegal and prosecute the lawbreakers. Dressing up the bigotry in order to conceal the lawbreaking doesn’t earn a free pass either. You don’t get to inflict damage on your fellow citizens because you hate them for some irrational reason.
So should it be a felony “hate crime” for college students, on a prank night, to throw cotton balls at Missouri University’s Black Cultural Center, after they hoisted a pirate flag somewhere else on campus and did other foolish things??
**
Is that a “crime” so reprehensible these two otherwise good students should spend time in jail?
**
What would they have been charged with if they had tp’d a white fraternity house?
A formal polite letter from our attorney general simply saying that our Human Rights Act is limited in the classes that are protected, and that the GA would have to amend it for other classes to be carved out is such controversy!
*
And then things like this are ignored: Massa’s confrontation with Rahm…
http://www.realclearpolitics.com/video/2010/03/08/massa_rahm_emanuel_would_sell_his_own_mother_for_votes.html
And what do you think about Dan Rather’s statement on the chris matthews show today regarding health care–Rather said that Obama is a “nice person, he’s very articulate” … “but he couldn’t sell watermelons if it, you gave him the state troopers to flag down the traffic.”
Read more: http://newsbusters.org/blogs/geoffrey-dickens/2010/03/08/dan-rather-articulate-obama-couldnt-even-sell-watermelons#comments#ixzz0hciSEQ9A
Rather thinks the health care proposal on capitol hill is a Republican proposal…. not Obama’s…
You know what, you are right… “Discrimination is wrong. Period.” So let’s just ditch all moral standards. How about we have polygamists be protected against discrimination too? Maybe child molesters? Let in one brand of fornication and you open the flood gates.
I’m not saying that what the AG did was right. But I think you are wrong if that one sentence is taken too far, which it easily could be.
Hate Crimes Laws should really be rethought all together. After all, can it not be argued that if one commits a crime against another person then they must, in a sense, “hate” them? Why should ANY one group of people have special provisions under the law so that a crime that is committed against them is treated differently than a crime against any other person?
I agree, Sally. I don’t like Hate Crimes statutes. Crimes are crimes, regardless of their motivation, and trying to determine whether someone acted with a “hate” intent seems like a serious waste of judicial resources.
Dan said, “it is the place of government to root out patterns of discrimination based on criteria that are illegal and prosecute the lawbreakers.”
.
So, again, this blog and the viewpoint it supports among those who insist that the LCRC should stick to fiscal issues is really a ruse. It’s not that this wing of the LCRC wants to stick exclusively to fiscal issues, it’s that it wants to promote social policies much more in lock step with the Progressives. Got it. Check.
.
Thank God for new leadership.
Leesburger, LI’s the Loudouner on Too Conservative. I’m in Fairfax, and Vincent is traveling. Don’t assume that my views are LI’s, or Vincent’s. We each have our own opinions and we don’t always agree.
.
I’m not promoting a liberal agenda. Discrimination isn’t a liberal or conservative issue – its an issue that affects every American and I will always err on the side of protecting civil rights. That’s the Republican thing to do.
“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.’”
The answer is simple: you’re not a student at the shithole that is Cuccinelli’s alma mater, George Mason Law.
Loudoun Insider, the arzclown of the “libertarian” wing of the RINOS, “What are you gonna do, JY are you suggesting we start prosecuting people for premarital-sex? I’m so WHIIIIIIIIIINE tired of social conservatives dragging down our precious fiscal conservative agenda WHIIIIIiiiiiIIIIIIINE! Why can’t you social conservatives be just like little ole immoral me and do only what we immoral “fiscal conservatives” say and shut up about social issues where we disagree WHIIIIIIiiiiiiIIIIINE…” Sounds like the type that is gonna run off and cheat on his wife with some gay towel boy at the Countraay Club in the sauna…
No John Doe, the types that run off with the gay boys are those that protest too much. Sounds llike you have some issues of your own to work on – that’s an awfully detailed scene you’re setting there big boy!
Yeah, right. And the types who criticize social conservatives are privately flaming social conservatives who really hate faggots but they don’t do it in public for fear of shame. Or some stupid sh!t like that, right moron?
Who *is* this little boy who missed his nap today? Lol.
Does John Doe have a wide stance?
John, I’ve had plenty to say about the subject, I just don’t get into special scenarios!
Brian,
I actually defended Fairfax County in a title VII class action suit in the early 1980’s, and I can tell you that all discrimination cases are complex and very difficult to prove– most are almost impossible to prove, unless there is a blatant pattern or practice or some test that somehow is proved to be discriminatory (many employment tests were challenged in litigation back in the 80’s).
*
The reality is that employers, even public employers, want to hire people they think will be a team player, and fit in, and that’s why you shower, wear professional attire, and act in a polite manner when you interview… you want whoever is making the decision to think certain things about not only your resume, but you personally.
*
I had a neighbor once, absolutely brilliant, but was fired from a job, and in order to continue to receive unemployment, he had to apply for jobs every so often. He got lots of interviews, but he wanted to collect unemployment, so he went unshaven, dirty clothes with holes in them, uncombed hair– I thought he was depressed, but he just did not want a job yet. He laughed about it to me, when I asked him. He had a fabulous resume, and made a ton of money in his life as an entrepreneur (he is passed on now) and he did not get those jobs because of how he appeared. He was always charming.
*
Appearance, and attitude, and a lot of other things necessarily go into hiring someone. No law will change that, except for possibly quotas–they do force employers to hire certain classes of people. Otherwise these kinds of laws will only force employers to be more careful what they say and to document everything they do. Employers will not tell you why you weren’t hired; they can almost always justify the hiring decision based on any number of factors: subjective writing sample, recommendations, differences in degrees, specific experience…
*
I think picking on Mr. Cuccinelli for the letter he wrote, which was a technical legal opinion, and a correct construction of our existing laws, with a note that if a policy change was desired, that was within the realm of the GA– is much ado about nothing..
Mr. John Doe, there is a saying where I am from that “The man who is most afraid is most often afraid of himself”. It is documented in history that those who howl the loudest about the lifestyles of others are often those that question their own sexuality. It is also well known that many who want to control other’s sex lives were unpopular with the opposite sex in high school and college and into adult life. Ravi does not know you well enough to guess at your issue. But if you are a gay social conservative, Ravi encourages your to come out of the closet and be true to yourself. Most assuredly, you will feel liberation.
Ravi Oli, there is also a saying that those who stand up for the immoral acts of others have their own immoral acts to hide. I do not want to “control other’ sex lives”–I assure you that I could care less what they do in private. But am I gonna kow-tow and let some faggot like you tell me what is and isn’t moral? Nope. Use all the idiotic arguments that you want, but me opposing those who want to claim faggots are moral isn’t gonna change. It would be as if I said that if you oppose social conservativism, then that must PROVE that you deep in your heart are a social conservative. Wow. Great “logic.” Ravi is really a heterosexual, moral Christian because Ravi opposes traditional Christianity morality. Gee, this is easy. Come out of the closet, dipshit, and admit that you are a Christian.
Worth the exposing that RK is actually double-dipping as localgop.
Priceless.
Read John Doe, and then wonder why people are upset about removing protection clauses against homosexuals. JD might be puffing up a bit, but that attitude exists. Some of our neighbors, colleagues and friends have to deal with it, and live with it.
.
Now re-read ole John Doe’s statement and replace faggot with the n-word. This attitude now has become emboldened from within the Virginia Republican Party. Good luck fighting that monster from within.
.
“But am I gonna kow-tow and let some N*gger like you tell me what is and isn’t moral? Nope. Use all the idiotic arguments that you want, but me opposing those who want to claim N*iggers are moral isn’t gonna change.”
.
I am not kidding, deal with it LCRC!
BPM:
if only you knew what else i double dipped as
A few thoughts to throw into the discussion.
1) Interesting that folks are so focused on the Dillon rule which is “judge made” rather than statutory law. Was Dillon an activist judge?
2) The public universities in Virginia have a corporate form as well as being defined in the Code as state institutions. That distinguishes them from local governments and other state agencies. Also, no other state agency has the power to make its own employment rules. And, going back, perhaps the McDonnell opinion on the Governor’s power also should be reviewed … why shouldn’t the designation of the Governor as the Chief Personnel Officer of the Commonwealth be read to give him the authority to set personnel policy?
3) When VMI was single sex, it was so because of an admissions policy set by the Board of Visitors rather than by statute. For many years, this policy was in violation of the General Assembly’s express state policy against sex discrimination embodied in the Human Rights Act. In that case, the Attorney General defended the Board’s policy choice rather than direct its recission as in violation of state policy. If the General Assembly has exclusive authority to decide upon protected classes, and the statutes granting the Boards of Visitors authority to set admissions and employment policies don’t give them the authority to extend protection to a class not specified by the General Assembly, then, shouldn’t the AG have said VMI didn’t have the authority not to protect every class extended protection by the legislature?
4) IF the Boards of Visitors followed the AG’s advice to rescind their policies protecting members of their university communities from discrimination based on sexual orientation, they would be acting contrary to their fiduciary responsibilities as board members since such action would, as pointed out in some of these comments, jeopardize the accreditation of some programs and schools. Schools/programs that lose their accreditation cannot offer federal student aid, which can only be offered at accredited institutions (its a quality control issue/return on investment). And, graduate of unaccredite programs cannot get licensed in many professions because state licensing laws require graduation from an accredited school.
5) Public institutions that abandoned their nondiscrimination policies as the AG has advised would be at a competitive disadvantage relative to other institutions including Liberty University which have policies that prohibit discrimination based on sexual orientation. Liberty has such a policy at least in its law school because it is a condition of law school accreditation by the ABA; as a religious institution, Liberty is allowed by the accreditation standards to make clear that behavior that doesn’t comport with its religious beliefs can and will result in discipline, but orientation alone is not grounds for exclusion.
6) Senate Bill 66 included a definition of “sexual orientation” (even though its a well understood term of art in the legal context) because folks didn’t want to have to listen to bogus arguments about how the bill protected people with paraphilas. Didn’t keep people from arguing that it was undefined because they didn’t think it was necessary to read the bill in order to oppose it.
I am not in any way trying to be disrespectful or snarky with this post. Here’s my hypothetical:
You are a good employee with outstanding performance reviews, etc., and in this economy, you naturally need your job. Your boss calls you into the office and says, “Sorry, but I heard you talking about your wife over lunch. I had no idea you were straight. You’re fired so I can find a gay person to take your place.” Since sexual orientation should not be a protected class, this should be a perfectly legal reason to fire someone, yes?
By the way, if your answer is “well, I wouldn’t wanna work for a gay guy anyways,” please don’t bother responding.
BlackOut, nice try with the anybody who calls homos faggots must also be a raaaacist act. Does such juvenile “logic” work in your regular circles?
Oh, poor babies get discriminated against? So do thieves and pedophiles and polygamists. When you voluntarily choose to engage in acts that are abhorrent to a large segment of society, you should expect to be scorned, ridiculed and condemned. Happens every day to people who wear furs, or who engage in cockfighting, or who are “Bible Thumpers.” Bull fighting is legal in Spain, puppies are a delicacy in parts of the orient, but don’t try either activity here in the U.S.
And you shouldn’t worry your pretty little homosexual head about people with attitudes such as mine being emboldened within the GOP so long as amoral dudes such as Brian S. and Loudoun Insider infest the G.O.P. [Yeah, yeah, they might actually have morals, but if they do, they don't have the balls to actually condemn immorality, so what's the diff?]
Claire and others:
Dillon’s Rule is a rule of statutory construction. When courts have to construe grants of authority and the legislature isn’t clear, they need some rules of thumb to go by. That’s all Dillon’s Rule is. The legislature could mandate a different rule of statutory construction if they wished, but they haven’t done so in Virginia. Note that the state legislatures in North Carolina and West Virginia have repealed Dillon’s Rule by statute, with mixed results (at best) in both states (in other words, the courts in West Virginia and North Carolina haven’t consistently followed the statutes).
Left Leaning (and others):
Virginia, like most states, is an employment at will state. Unless there is a contract, or a statute, constitutional provision or clear public policy says otherwise, an employee in Virginia can be fired for any reason- they have blue eyes, they are bald, the boss had a bad hair day. I don’t think the legislature wants to micro-manage business decisions, so I don’t see the legislature creating lots of new protected classes. Note that the legislature passed a bill protecting smokers from discrimination in the workplace several years ago. Thank goodness that Governor Wilder vetoed the bill.
Jesse
Jesse, yes, Virginia is an at-will employment state. But even at-will employment doesn’t mean “at-will.” If the reasons for the employment action are based on unlawful discrimination under either federal or state law, the employer isn’t free to do what he wants to do. Left leaning’s point is valid, insofar as it goes to create a hypothetical that right now is legal in Virginia but I think the vast majority of people would consider to be wrong. I certainly do.
Claire’s point, also, is a great one and one that directly undermines both the AG’s position, and the position of those who would view the VHRA as superceding all other law, rules or regulations.
Thank you for not just questioning the sanity of this opinion (we’ve all done that) but for providing a well researched and well stated legal opinion about how ridiculous this all is. There were rumors in Democratic circles that Steve Shannon was seen last year by some of the “base” as not liberal enough, which supposedly lost him some support from the more strident lefties. This is what they get for refusing to support a moderate!!!! Hope they feel smug and satisfied.
Brian and others:
You are looking at the policy and the result, not the law. If you are outraged by the result of the AG’s opinion, you certainly have a right to be outraged by the result. However, the bottom line is that you should direct your outrage to the General Assembly, not to the AG. While you are at it, get a law passed that makes old, ugly bald men a protected class. I need it.
Jesse, you are wasting your time talking statutory construction; they only care about the emotions of the issue, not the technical aspects– and they only want to blame KC, instead of trying to get the GA to do its job.
*
I want to know why Brian is not outraged that Congressman Massa is being punished for his alleged sexual preferences? why Brian is not outraged that the White House is using statements to threaten an investigation of Massa, attempting to paint Massa as a gay? the only people who reported Massa were not people who had any statement or gesture made towards them, they just overheard something, between consensual adults? and were offended…So where’s your outrage, Brian?
Jesse, as I stated before, I read the AG’s letter, and started looking at the law first. If I believed the AG’s legal reasoning was correct and still disagreed with the policy, I would have said so. But I do not think his legal reasoning is accurate, and that, combined with both the bad policy and politics, led me to this conclusion.
.
I have found no case, and you have cited no case, in Virginia where the courts have found Dillon’s Rule to apply to public universities. Given the history behind Dillon’s Rule and its purpose for existing, I think it’s a stretch to say that it would cover public universities. I’ve asked you if you have any case law in other states where they’ve held Dillon’s Rule to apply to public universities. While that wouldn’t be controlling authority, it may be persuasive.
.
Right now, there is no way to be sure, with any kind of certainty, how a court would rule in this case. I’ve got my argument, you’ve got yours, and the AG has his. I think mine is stronger, but that’s in the eye of the beholder.
.
Hopefully this issue will be resolved at some point, and then we can move on to your issue.
John Doe,
.
Your posts are very insightful. It’s appropriate you post under the name John Doe, in reality, your voice is that of an unshackled Eugene Delgaudio.
.
As for continuing with you, your hatred is best addressed with laws, prosecutions and in some cases legal violence. All tools for law enforcement. That’s what history tells us.
.
I still want to know how this became such an urgent issue within the first 90 days of taking office. I can think of a thousand things the AG should be focusing on before this.
.
Again, Ken never campaigned on this issue, how is it now a priority. What other hidden agendas is he carrying out or planning on carrying out.
BO, that’s an interesting question. Apparently this is a non-story and something I’m just ginning up to attack the AG over, but it was a big enough deal that he had to send a four page letter out about it to the Universities in the first three months of his tenure.
George M.,
That was my point exactly. To allow homosexuals and heterosexuals the benefit of these protections without including the other myriad of “sexual orientations” is unfair and discriminatory. There is good reason to allow this protection based on marital status as I mentioned, but there is no logical reason to provide such protections to homosexuals and not the other types of sexual orientation stated, because when you get down to it, they all share the same distinction. They are only in that class because they claim to be. Heterosexuals (and thus marital status as defined in VA) is clearly also linked to biological function. Homosexuality, bestiality, pedophilia, necrophilia, bigamy, incest are all on the same rational level when it comes to aeguing for this protection.
RE, your argument is basically “we can’t protect everybody, so we should protect nobody.”
.
I don’t think that’s a very good argument.
.
I also don’t think equating homosexuality with fetishists is a good argument either. It certainly has no basis in psychology. Fetishes are not sexual orientation. They’re a completely different thing altogether, and no one is saying we should defend sexual proclivities in the law.
.
You don’t need to defend zoophilia, pedophilia, necrophilia or any other philias in order to protect sexual orientation. That’s a red herring.
All this perverted sex talk is a bit too much in the morning!
Wow, a four page letter, probably written by one of the Assistant AG’s following the analysis of other AG’s opinions. What a lot of work to put into this! Probably took all of a few hours…. to advise his clients, after the issue came up… unbelievable he would devote SO MUCH time to this issue! What are you talking about??? If his office/staff can’t write the equivalent of many four page letters a day, then they are not working hard enough.
*
Yes, Brian I do think you are trying to make a mountain out of a molehill, and attacking KC unfairly, not doing a good or fair job on the legal analysis, and using your “status” as a law student to brag and somehow legitimize what you are saying which in my opinion is pure political attack, trying to discredit KC, creating wedge issues for Republicans, highlighting issues in an inflammatory way.
*
The fact that BlackOut is supporting you should say something!
Sally, we may be one of the best read political blogs in the state, but that reach is still pretty limited. The WaPo and other MSM are making a far bigger deal of this. I agree with the basicsa of the opinion, but think that this was not a burning issue of importance for the first 90 days of the new administration. It was sure to cause an uproar and has little political upside. The GOP is losing ground big time with the up and coming generations on this issue. There are far more important things to worry about.
LI,
I guess this is where we disagree– I see this as a routine non event, simply stating the law, relying on past AG analysis and opinions on the topic, and protecting clients from wandering into lawsuits the State will be responsible to defend. I don’t think this will affect the elections at all– it is a restatement of prior AG opinions, if you have read Jesse’s comments, you will see that..
*
If anyone, including the schools, have a complaint about the law as he has set it forth, they should address it to the GA, and get the law changed. Lot’s of clients don’t like what their lawyers say to them and claim “there’s gotta be a law” to make this illegal or whatever, but the law is the law… it is what is written, not what we wish it would say or think it should say…
*
There is a lot out there to dig into, big issues, a lot of scandal and corruption–this does not fall into any of those categories for me…
College students are forming massive Facebook pages chastising Chooch and his notions. Thousands of college students, and others are joining the effort. Demonstrations are being planned. They want to fight this.
.
It’s obvious the legal basis of the opinion is up for debate with no clear answers. At this rate, it’s most likely headed for a lengthy litigation process. Regardless of what sally and others say. (Sally has been proven wrong on other issues, no reason to believe this one is different.) So the debate if pursued appears poised to take massive time and effort. There will be consequences.
.
The only certainty here is that the RPV is going to get toasted politically on this. What a great way to court a new generation of party members.
Perhaps that charming John Doe fellow could be dispatched to all the college campuses to explain Cuccinelli’s action to the students. With his pleasant way of expressing himself about the “faggots” and his colorful tales of bullfighting and eating puppies I am sure he would win many converts for the RPV.
.
No doubt these impressionable young people are thirsting for someone like John Doe to “tell it like it is”.
.
I highly recommend the RPV do this right away. It is imperative that this be done prior to the next election so that the greatest benefit can be realized.
BlackOut, then they better sit down and write to their representatives (if they are registered to vote in VA) to do something about passing some new protected classes, after they get down from the barricades and log out of FaceBook.
LI, as with our won local tempest over Miller’s planting of campaign soundbites for his next electoral foray, I still think this is more REaction on the AG’s part than initiated action.
The initiated action was most likel;y, as with Miller, proposed bottom-up policy changes at hyperlocal levels, with subsequent inquiries, and thus the issuing of the letter.
Now those who started the action in the first place have something to point at, and it’s “news”.
Was it news when the latest incarnation of new protected-class bill was going down?
Uhhh, only on the blogs that are now firing up the protests for his “action”—”out of the blue”.
Barbara, that’s debatable. I am aware of the Chooc defense argument. There are two opinions here and neither is clear cut. At the end of the day, guess who is going to loss? Taxpayers for one, for Chooch picking a meaningless fight, which is going to suck time, cash and resources away from real issue. Regardless of which side of the argument someone is on. This is a political move and the chips will fall where they will. Chooch has defined his legacy for better or for worse.
.
Barbara, honestly don’t you think our government should do something to protect people from the hatred John Doe illustrates? That protection exists in the current University policies. The argument that it isn’t needed doesn’t make sense to me. What is the harm of having it in there? And don’t give me the pedophile argument, that is so lame. The policy isn’t hurting anyone other than the John Does of this world.
.
Additionally, the argument that Chooch is trying to protect us from a law suit, that’s hogwash,…I say bring it on. Let’s get some common law on the books that upholds the policy. A challenge to the policy would be a benefit. Especially, since the Supreme Court now seems to be siding with homosexual rights and protections.
.
There are hiring managers out there that operate like John Doe. Without protection John can up and fire any employee just because he finds out the employee is a homosexual. That ain’t right and it has and continues to happen.
Romer v. Evans, 517 U.S. 620 (1996)
Ok, this has been bugging me. Let’s take as a given that there are three classes of sex: male, female, and intersex as a catch-all for those who are neither.
Sexual Orientation refers to to the sex you are, and the sex you are romantically attracted to. There are 24 possible combinations, which can generally be lumped into four categories: ‘heterosexual’, ‘homosexual’, ‘bisexual’ and ‘asexual’.
You can be a heterosexual necrophiliac. You can be a bisexual child molester. You can only be interested in intersex goats. Those secondary qualifications are not the sexual orientation.
BlackOut, did you see the Post article today on the cases the SCOTUS will take up this fall?
The gentleman who won $10M against Fred Phelps, only to have it overturned on appeal, has won the right to be heard on whether Phelps’ right to free speech, however repugnant, trumps the family of a fallen soldier’s right to hold a private funeral with dignity.
The reason the man lost on appeal was because Phelps’ signs made no specific mention of his son as an individual, and they obeyed all permits for demonstrating.
I don’t think we can or should legislate everything down to the minutiae, because it never never ends.
Gender is now different than sex, and gender identity is different than both, apparently, as well as being distinct from sexual orientation.
Not enumerating every possible identity does not “explicitly encourage” discrimination, and continuing to expand enumeration won’t stop people from having thoughts that are ugly, unpleasant.
I’m not going to bash the AG for reiterating the wealth of opinion preceding him that it is the GA’s responsibility.
Neither am I going to bash him for responding to activism, when the place to DIRECT the activism is at the GA if people want to create more classes.
Barbara, a fail to see the impact of your comparison, vague as it is to the issue we are discussing. I do understand how you are defending the AG’s approach but, once again, we’ve not failed our clients. BAROUT again has guaranteed that one of us is always right no matter what the issue.
.
Before I give up on you, you should read the referenced case from Anon. Romer involves equal protection; in 1996 with a six justice majority the Supreme Court ruled that the State of Colorado could not ban its cities from passing laws to protect homosexuals. That’s a pretty heavy fact. Not much of a stretch to be referencing this ruling when it comes to the Loudoun County BOS, or the Commonwealth’s Universities and Colleges.
.
Humm, wonder how the AG, or his staff as you say, missed that one.
.
(As a side note, Jeffrey Toobin writes a great deal about this issue and this case in his very interesting book, “The Nine”. I recommend it, you’ll be fascinated with Toobin’s analysis of abortion and the Bush v Gore case as viewed through the eyes of the SCOTUS. I was.)
p.s. maybe the reason Chooch isn’t taking this issue to the GA, which he could have, is because he wants to throw his weight around and try to intimidate them into compliance of his religious based agenda. Hummm, come to think of it, maybe he does now about Romer and wants to keep attention away from it, which would happen if he used the GA to force the issue.
.
BTW, when is Chooch going to get after renters and landlords? Seems like it would be an extension of his logic to remove any reference to sexual orientation there as well.
Sorry, colleague, I was responding to your comment that the John Does would prevail if additional classes were not created. There will always be John Does and Fred Phelps, and everything from hither to yon. I don’t think we can legislate every specific instance.
————————————-
Is Romer the case Brian referenced a couple hundred comments ago? It was a triple negative, as I recall–didn’t it NOT begin with someone trying to pass gay-friendly legislation, and end up that the CO legislature could NOT make laws banning localities from making laws having to do with gay issues?
—————————————
I didn’t bring up the AG’s staff, that I recall.
———————————————–
And I am fine with BarOut continuing to take all sides of all issues.
In the absence of any action by the GA with plenty of opportunities over the years, it could be argued that previous governors have forced the issue by issuing executive orders.
The reality of this is nothing more than the AG foolishly pursuing outdated discriminatory agendas. Period. Brian, thank you for taking the time to demonstrate why the AG is misinterpreting the law. Like Senator Ashburn, I have no doubt KC will be seen leaving a gay night club with an “unidentified man” in the seat beside him.
BO, I’m quite confident that the AG is aware of Romer. However, he believes that any law that conflicts with his public policy goals is not legitimate law. No matter what the circumstance, he will make up legal reasoning that supports those public policy goals. Ideology will always trump the law for him, the definition of an activist AG. He probably would even welcome a chance to test Lawrence, the taxpayers be damned.
Barbara, as always, I trust you if you say Romer was brought up hundreds of posts before. It was probably after I’d been away for a few days, and was blowing past all those Sally posts, and wasn’t paying attention.
.
Interesting about Romer, Toobin in his book brings up how the case has been spun. Just like you take it, and in his view it illustrates those who continue to fight against equal rights. Toobin is the guy on CNN and other stations when a major legal event is happening. He’s very good. He’s also studied the SCOTUS extensively. I tend to think he knows what he is talking about. Really you should pick the book up, it’s very interesting regardless of your political persuasion.
.
So onto other issues, don’t you think Chooch should take up renter/leasing laws and purge references to sexual orientation? Seems to be very similar based on your viewpoint.
———————————————
David, I think the cats out of the bag on Chooch. He deceitfully represented himself as something else during the election and now that he’s in office he’s going to take full advantage of the opportunity to press his religious agenda. And I bet if you ask him, he’d say this is the way he’s going to be elected Governor. It’s his God’s will.
BlackOut, how are renter/leasing laws similar to state-funded institutions, unless they are for state-owned property?
—————————————
I think it was Brian who referenced the Colorado case, and summarized it.
The government protects renters against discrimination. I’d think if Chooch is looking to pick fights about erasing sexual orientation those laws also need to be purged of any reference to sexual orientation. Don’t you think? I mean if Chooch is going to fight for consistency then he should be fighting for consistency.
BlackOut, the difference may be that I don’t assume he is trying to promote general sexual discrimination, but to note that protected classes for the purpose of state institutions are the result of general assembly action as opposed to individual institutional activism.
God forbid our institutions of higher learning actually learn new things, teach new things and put new ideas into practice. That’s “institutional activism” (please add to glossary). Better that all art depict Jesus, all music glorify God, and all knowledge* originate from the Canonical Scriptures.
.
*some restrictions apply
I’ve only made it through 1/2 the comments so I don’t know if this has come up yet, but my sense is that this didn’t come out of the blue, since the last 2 AGs, including the current governor, have also made noise in this direction. I turned this up while looking into the laws over the weekend
http://www.law.ucla.edu/williamsinstitute/programs/ENDA/Virginia%20Final.pdf
and it suggests to me that this letter was on the agenda to go out the instant a Republican became governor and rescinded the sexual orientation protections issued by Warner & Kaine.
Enjoyed reading the legal analysis, Brian. Food for thought.
Jonathan, where was the noise when yet another bill was going down that would have answered your concerns properly?
The General Assembly has missed literally dozens of opportunities over decades to properly institute the protected classes you seek, yet has failed to do so.
Would that university activism in education explored more viewpoints than it currently does, where so much time is spent on PC and fad causes that little actual education (other than in political manipulation) actually occurs.
No one is arguing basing law on canon law, so why not pass on the attempt to conflate the two.
I would suggest that rather than being a judicially activist AG, he is noting, in the face of judicial and institutional activism, that that ain’t the way to do it.
at the end of the day, the law is at best very vague as to whether or not it truly does limit the ability of state schools to create their own discrimination policies. the case that the AG cites as warrant is one which merely established that state schools are state property, but that is not what is being debated here. no one is arguing that the state does not own the buildings, or that the state does not have a say over their governance. what is being argued is that the law, as it is written now, neither specifically grants nor denies state schools the right to establish their own policies.
*****
That being said, a reasonable person must beg the question to the AG, why now? Why bring this non-issue up now? What triggered it? Who requested the AG’s opinion? Is this an actual solicited opinion, or did the AG feel some political or maybe even personal reason for issuing this opinion? These are important questions that must be answered before the entire story, and the real conclusion, can be ascertained.
sorry if wanting more facts makes me liberal…..
“sorry if wanting more facts makes me liberal…”
.
Well, you know that facts and reality have a decided liberal bias. That is why so many conservatives have such a distaste for them.
.
(It was a joke. Put the machetes away.)
No machetes, Dan.
local gop is right, and the question has yet to be answered–what is this in response to?
The letter does not make it clear.
Until that is answered (and some seem to be acting on conclusions yet to be answered, and rather sweeping ones at that, i.e. stating it is calling for discrimination and the establishment of canon law–over the top, probably useful in its way if the desire is to make noise and not solve the issue of securing specific protected classes, but still not addressing the overall facts or process), it’s all just noise.
Barbara, I have been steering clear of the legal arguments because of my complete lack of legal qualifications. The politics seems a little clearer to me. Attributing motive is always a tricky business. But it isn’t like the AG’s letter or the Governor’s Executive Order occurred in a vacuum.
.
It is not news that Cuccinelli is a social conservative who appeals to a base that has shown no fondness for homosexuals. And although many Republicans last fall disingenuously said that it was completely unfair to consider what a 34 year old McDonnell had written about using government to punish homosexuals in his doctoral thesis as a window to his true views, I think most of us have pretty well formed our political philosophy and worldview by that age. We don’t usually express views in formal writings that are contrary to our actual beliefs.
.
It is not surprising that many would think that the action of these two politicians, taken so early in their terms, is totally in character with their previously expressed hostility toward homosexuals. I don’t know the law, but I know politics. I think they may have miscalculated the politics of this issue. Time will tell.
Dan said it well actually. timing of this is terrible, and the other factors dont make this look too good for the AG.
Perhaps, Dan.
And perhaps those on the other side of the fence, who also focus near-exclusively on social issues while decrying them in others, had a great opportunity for a setup.
What prompted the inquiries?
Who made them?
Why no big push for a bill that would solve the issue (at least for this class)?
Stay tuned for more noise–lol
Barbara, you apparently are unaware of the efforts by Equality Virginia to get that bill passed, most recently by appealing to the governor to live up to his word that he opposes discrimination by sending down yet another bill to codify the previous governor’s Executive Order 1. I just don’t know how else to interpret your assertion of “no big push for a bill.” Either you don’t care enough to find out the facts, or you just say whatever fits your agenda of the moment. Or both. Either way, your contributions on this topic certainly fit the definition of “noise.”
Loudoun gets some air time on The Daily Show (apologies if this was posted upthread and I missed it):
.
http://www.thedailyshow.com/watch/tue-march-9-2010/gaywatch—virginia-edition
David (and Edmund) nice set of posts at Mrs. Stevens Miller’s political blog, from the squealing “happy dance” teaser last week to today’s post about her friend that writes for the Daily Show.
Miller has his issue, but does he have a district yet?
David, I’m sorry, but for a set of activists who claims to dislike social issues, that is really all there is, isn’t there?
I don’t happen to believe that refusing to enumerate every possible permutation of sex, gender, orientation or identity is a call to discriminate, although it makes for an easier one-dimensional argument.
And yes, where was everybody when the bill was on the table? I know you covered it on your own blog, but where else, out in the rest of the community?
It DOES make much better noise to have this go on, I guess, rather than dwell on what is becoming the annual failure of a bill on the subject.
If this were a post about a bill, people would be talking about a bill. This is a post about the AG’s letter to college presidents.
.
Let’s just say it’s very noticeable that you and Sally keep trying so hard to change the subject.
Barbara, one doesn’t have to be a gay activist to be outraged at our Commonwealth’s leadership. Trying to make this somehow David’s fault is very disingenuous. Also, not sure why you need to bring Miller into this as a sidebar. I guess your side of BAROUT is running out of justifications and the ones presented aren’t sticking.
.
And for all those apologists who chastised me when I said Delgaudio and Chooch were turning us into a national laughingstock, please watch the above clips broadcasts throughout the country. Apologizes not expected but accepted.
BlackOut, I’m not attacking David. Disagreement is not attack, just as failure to enumerate is not urging discrimination.
Miller IS in it, because he is the one who brought the issue into our own policies absent enabling legislation on the specific protected class he moved to add, and his wife has published that her friend got in on the Daily Show.
David, let’s get back to the letter.
Is it initiated activism from the AG’s office, as some would like to posit, or was it, as it states, in response to requests?
Who made the requests?
Did they have standing to do so?
This site should be called PC, not TC…..
Thanks for the Daily Show link.
Always nice when Virginia gets national press for being such a swell, welcoming place…. or I guess we can settle for ridicule?
.
There’s no such thing as bad publicity right?
Hold. The. Phone.
.
McDonnell just issued something that appears is NOT an EO, but nevertheless seems to have quite a statement in it:
.
STANDARD OF CONDUCT FOR CABINET MEMBERS, EXECUTIVE BRANCH AGENCY HEADS, MANAGERS, SUPERVISORS AND EMPLOYEES CONCERNING EMPLOYMENT DISCRIMINATION
As the chief executive officer for the Commonwealth of Virginia, I hereby establish a standard of conduct to ensure that all cabinet members, Executive Branch agency heads, managers, supervisors and employees understand and enforce state and federal law prohibiting employment discrimination. 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.
No employee of the Executive Branch shall engage in any discriminatory conduct against another employee. Allegations of any violation of the law or this standard of conduct shall be brought promptly to the attention of the Director of the Department of Human Resource Management for review and corrective action. 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.
I further direct agency heads to ensure that every manager and supervisor in their respective agency is aware of and enforces this standard of conduct. Civility, fair treatment, and mutual respect shall be the standard of conduct expected in state employment. – Robert F. McDonnell, Governor
“Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution.”
.
That seems to me to be quite a statement coming from the new Governor of Virginia.
Email to state employees:
March 10, 2010
Dear Fellow State Employee:
Early in the Administration, the Governor authorized the issuance of an Equal Opportunity in the Workplace Directive to employees of the Office of the Governor that reflects his strong position that employment discrimination for any reason other than merit and ability has no place in state government. While the separation of powers doctrine precludes the Governor from changing the Virginia Human Rights Act via Executive Order, he wants to be clear that discrimination in state employment will not be tolerated. As the chief executive officer for the Commonwealth, the Governor wants to establish a clear standard of conduct ensuring that all cabinet members, agency heads, managers, supervisors and employees of the Executive Branch understand and enforce state and federal law prohibiting employment discrimination. Independent agencies and state supported colleges and universities should likewise adopt a similar standard of conduct. This standard of conduct is set forth in the attached Executive Directive One.
It is the Governor’s Directive that Executive Branch agencies attract and retain the best and the brightest people to state public service, and that all feel welcome and appreciated as they serve the citizens of the Commonwealth. We have a talented state workforce, which is doing excellent work in very tough budget times. We also have outstanding cabinet members and managers, where excellence and fair treatment is the great norm, and discrimination is the extremely rare exception.
On behalf of the Governor, I want to thank you for your cooperation and assistance with implementing this Directive, and for making Virginia state government a welcoming and productive place to fulfill one’s professional calling.
Sincerely,
Martin L. Kent
Chief of Staff
Governor Robert F. McDonnell
There is no federal law or Virginia law barring discrimination in rentals due to sexual orientation. Where are people getting that?
So Jesse, what is your view of the mention of the Equal Protection Clause in the “Directive”?
“what is your view of the mention of the Equal Protection Clause ”
*
I’m not at all sure that it’s settled law. However, I’m sorely lacking in liberal arts education, as anyone who’s ever read one of my posts can attest.
Cato, don’t be coy. It doesn’t suit you.
.
You’re one of the shining lights here. Liberal Arts or no.
.
It’s not settled law, sure, but am I just reading too much into this statement? This statement, or position, is quite extraordinary in my view.
.
It will not be well-received by many on the Christian right (if they hear about it). Pat Robertson might rescind the guy’s diploma.
The mention of the Equal Protection clause in the directive is a correct statement of the law. In my prior post, however, I was referring to law creating sexual preference as a protected class. Some states have such statutes and some local governments (not in Virginia) have such ordinances. That’s it though. The Fair Housing Act protects “familial status”, not sexual preference. “Familial status” seeks mainly to protect single mothers and families with children from discrimination.
I think it is an interesting way of dealing with the technical legal issue/problem which has been blown up into a political issue.
He says he must abide by the VA Human Rights Act, and cannot amend that Act by executive order, due to the separation of powers doctrine. So, Ken is right, to carve out additional protected classes is within the sole purview of the GA.
But he directs all employment decisions to be made on merit, and points out that the US Equal Protection Clause protects all classes..
So, it’s a win win. The hallmark of a great politician!
Isn’t the sexual orientation thing a stretch for 14A?
“don’t be coy”
*
Au contraire. I’m quite arrogant, but nuances escape me as I’m more of a numbers guy. Given the number of
shysterslaywers in this thread, when I ask a question it’s not rhetorical, it’s just me trying to leech their education.Here’s my question – if we can just cover all of these things under the EPC then why did we need the 15th, 19th, and 26th Amendments?
I’ve wondered that as well.
It’s not a stretch, because of Romer – that’s the case we discussed above.
.
I’m very pleased with the Governor’s statement because it’s a repudiation of the letter, but done in such a way that it doesn’t make Cuccinelli look bad.
.
As Sally said, the Governor’s a smart politician and I am proud, yet again, to have supported him.
Where will the uproar go now that all classes of people (as opposed to specifically enumerated ones) are to be treated without discrimination?
Well done, and poor Mr. Miller with his many quotes in the press the day the memo is released.
I did a bit of looking to see where he was with this back when the BoS was putting together their legislative position package for this session of the GA.
http://www.loudoun.gov/Portals/0/docs/Legis/Loudoun%202010%20Legislative%20Program%20Summary.pdf
Did Miller make a motion back in January (when the representatives made their annual trip to Loudoun) to support the expansion of antidiscrimination classes, and if so, and it failed (because the position is not there), why no press then?
That’s when he was adding it to local policy sans enabling legislation, in reaction to the failure to reissue the previous executive order. But did he put forward action to seek support from our delegation on the issue, since that’s where the responsibility lies?
This is eerily similar to his press releases at the eleventh hour of the hiring of the new county administrator complaining that there was insufficient diversity in the pool of candidates (while he was renting to run against Rust), but had himself missed meetings early in that process, and refrained from voting at other points on the way, when he could have made a difference in minority outreach for that position.
Well, at least his wife got it on the Daily Show just in time before the issue was solved.
(p.s. to AFF–I wasn’t aware that the Loudoun of the past ten years prided itself on being welcoming to ANYBODY, particularly if they were planning to move in, drive on the roads, perhaps place a child in school, open a business…)
What is Brian gonna do now that this non-issue fades away because McDonnell wrapped it all up while essentially agreeing with KC?
*
Everyone knows that if John Stewart covers something it really is news. Whew! So thankful we have THAT guy.
Sally, I’m not so sure the Christian right will consider this directive a win. But I will let them speak for themselves. It might be interesting how this will play out — if it plays out at all.
“It’s not a stretch, because of Romer – that’s the case we discussed above.”
*
Thanks. I had kind of skimmed the comments and didn’t bother to do my usual due dilligence. Upon reading the decision it’s clear that the Colorado amendment didn’t meet *any* level of scrutiny according to Kennedy.
*
One further question though; if it was a blanket ruling, what’s your take on why SCOTUS rejected the appeal on Cincinnati’s Ballot Issue 3, upheld twice by the Sixth Circuit? (ballot issue 3 prohibited the city from adopting or enforcing civil rights ordinances based on sexual orientation) Is it because the Civil Rights Act essentially tests for (1) a history of longstanding, widespread discrimination, (2) economic disadvantage, and (3) immutable characteristics, and we’re talking apples and oranges?
Cato, that’s a good question. I’m not familiar with the case – do you happen to know the name of the parties or when it was decided? Romer was 1996, so if it was pre-96, that may be the reason.
Equality Foundation v. City of Cincinnati (I think), and it was rejected in ‘98.
Brian,
VaRight has a good take on this, too.
LL, McDonnell (and Bolling)didn’t “agree” with it, as much as they emphasised the Governor and LT. Governor’s firm position that no form of discrimination is acceptable, which is the way it should have been framed by the AG, when he was offering his opinion. Don’t misunderstand….I agree with what he arrived at, I just think he took the dirty, rain-washed, pothole-filled route to get there.
The Cincinnati case was actually granted cert by the Supremes and the Supremes vacated and remanded to the 6th Cir. to reconsider in light of Romer.
Equality Foundation of Greater Cincinnati, Inc. v. City 518 U.S. 1001, 116 S.Ct. 2519 (1996)
The Sixth Circuit considered it on remand in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati 128 F.3d 289
C.A.6 (Ohio),1997. The Sixth Circuit upheld the ballot measure, then the Supremes denied cert. Here’s a brief summary.
Suit was brought challenging constitutionality of city charter amendment that removed homosexuals, gays, lesbians, and bisexuals from protections of municipal antidiscrimination ordinances and precluded restoring them to protected status. The United States District Court for the Southern District of Ohio, S. Arthur Spiegel, J., 860 F.Supp 417, granted permanent injunction against amendment’s enforcement. City appealed. The Court of Appeals, Krupansky, Circuit Judge, 54 F.3d 261, reversed district court’s decision, vacated injunction, and remanded. The Supreme Court, 518 U.S. 1001, 116 S.Ct. 2519, 135 L.Ed.2d 1044, granted petition for writ of certiorari, vacated judgment of Court of Appeals, and remanded for reconsideration. On remand, the Court of Appeals held that charter amendment was rationally related to city’s valid interest in conserving public costs that accrued from investigating and adjudicating sexual orientation discrimination complaints.
Geez, so LL and others have proclaimed this a dead issue. How convenient to say so, but in reality I think it’s all about money.
.
The Northrup Grumman deal is getting close to a decision and the Gov is being asked a lot of uncomfortable questions from NG about his administrations stance on gay rights. So he had to come out with a statement to try and save the NG opportunity, it had nothing to do with protecting Chooch, or changing his mind.
.
For reference and from another view: http://hamptonroads.com/2010/03/gay-rights-enter-debate-over-northrop-grummans-hq-pick
BO, That this “non-issue” is being exploited by democrats is no surprise:
*
“The missive, penned by openly gay Maryland state Sen. Richard Madaleno Jr., contrasted his state’s “tolerant” policies with what he said were recent actions in Virginia “dismantling the few protections” afforded to gays and lesbians. Northrop Grumman has been praised by gay-rights supporters for its treatment of employees.”
*
This all started with Maryland and Equality Loudoun is piling on, really shocking stuff.
*
Further, John Stewart, VCU students with their panties in a bunch and Facebook pages are hardly reasons to continue this discussion. When special interest groups shake hands with competiting state legislators it is politics as usual. Why I deem this a non-issue is nothing but my personal opinion, which is why I haven’t spent the better part of 4 days parsing KC’s directive and am glad to see McDonnell’s stmt. If Madaleno wants to get in a pissing match against the state of VA because we have conservative Governor and AG, he will certainly garner all kinds of media attention. Imagine that – negative media surrounding conservative leadership, whoodathunk? Oh wait, that’s why you posted that article – thanks.
BPM, So, are you implying KC stated that some form of discrimination are ok? Because that is what his detractors like EL and MD’s Madaleno are implying – that VA’s AG is ok with discrimination.
“There’s no such thing as an executive directive. It’s a press release with fluff around it,” said Del. Robert G. Marshall (R-Prince William).
.
You can always count on Bob. He is spot on in his description. Which can’t please the governor. Marshall’s statement undercuts McDonnell’s attempt to do damage control over Cuccinelli’s political blunder.
.
Loudoun Lady, you may take exception to what you describe as Democrats exploiting it, but you shouldn’t give Cuccinelli a free pass for taking the boneheaded action in the first place. There was no requirement for him to take the action he did. And it would be incredibly naive to think that politics played no part in it.
.
“VCU students with their panties in a bunch and Facebook pages are hardly reasons to continue this discussion.”
.
For someone who had a lot to say about how much we needed to listen to and take seriously the high volume tea people you sure are dismissive of another group of voters who are expressing outrage over government action. So, we are supposed to listen attentively to the tea people but young voters who are upset by this political move on the AG’s part should just be ignored? Could you please tell me the difference in the two situations? Other than that you agree with the tea people because they support Republican positions and that you disagree with these students because they disagree with the action of a Republican AG?
.
This action has economic implications too. Major employers who properly don’t consider sexual orientation as relevant to their employment practices are less likely to relocate to states that have neanderthal policies in these matters. Guys like Ken Cuccinelli and Bob Marshall may not be happy about that, but it is reality.
.
The folks in North Carolina are smiling right now. They have the kindred spirits of Cuccinelli and Marshall in South Carolina driving businesses north. And now they may have Virginia driving them south.
.
I was happy to see McDonnell’s latest directive. It indicates that Bob4Jobs may have woken up to the fact that jobs are more important than pandering to anti-homosexual bigots. In the midst of a serious recession we can’t afford a frivolous indulgence like that.
Uh, North Carolina law doesn’t protect against discrimination based on sexual orientation either. Currently, according to 14 Wm. & Mary J. of Women & L. 659 (Spring 2008), seventeen states and the District of Columbia include sexual orientation as a protected classification in their anti-discrimination policies. These states include California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington, and Wisconsin, as well as the District of Columbia. That leaves 33 states that are just as horrible as Virginia. Let’s attack them as well.
Jesse, you’re right about North Carolina. They recently picked up an upcoming ACC baseball tournament that would have been held in South Carolina, but that had to do with the South Carolina fetish for the Confederate flag. Not discrimination against homosexuals.
.
Historically it has often been economics that has been a major force in ending discrimination. The sane folks just can’t see pissing away money and jobs to appease bigots. I think pointing out the economic implications is important. How much are people willing to pay to indulge the folks who don’t like homosexuals?
Gang, let’s both sides get off the dueling social issues.
What was the AG responding to? It has yet to be clearly determined, and if it was more scattershot bottom-up activism, then the whole thing is basically a set-up—on social issues, so that the people doing the set up can point their finger and say—”social issues!”
I wish the GA would take what McDonnell said and make that the standard, so we never have to go around the barn again on the subject of who is “deliberately being discriminated against” in a never ending ever growing list.
Barbara: W&M at least, and perhaps other universities, have been considering adding “gender identity” to their nondiscrimination clauses. The AG’s letter was probably in response to that.
One case that has so far not been discussed here is Moore v. Virginia Museum of Natural History. I quote from http://bit.ly/cl1rV8 :
“A 2009 case in which an employee of the Virginia Museum of Natural History, a state agency, was forced to resign because of his sexual orientation shortly after receiving a positive evaluation that otherwise would have resulted in a raise. The Executive Director of the Museum expressed concerns that the employee’s sexual orientation would jeopardize donations to the museum. A Virginia appellate court dismissed his sexual orientation employment discrimination claim because of the Virginia Attorney General’s Opinion that the governor’s executive order prohibiting such discrimination order did not create a private right of action.”
And that AG opinion was written by….
.
drumroll please….
.
Our very own…
.
Bob “discrimination will not be tolerated” McDonnell.
.
Since the man who was wrongly dismissed lives in a backward state is it possible for some sort of federal action be filed? A civil rights complaint of some sort?
.
Not being a lawyer I don’t know. We seem to have a wealth of lawyers around here. What can this guy do?
.
Maybe the executive director should be fired. Having a pinhead for a director could definitely have a deleterious effect on donations.
That’s why I’d rather have the kind of statement we currently have, until the GA comes up with something that fits the bill and stops the endless churn.
Jay-jay, what else to the story is there?
I can’t see how someone’s private sexuality would have a legitimate bearing on their job performance, unless they got caught up in something like the issues now with employers and prospective employers going into people’s internet history, and so on.
Straight people have been zapped for what they have posted on MySpace, FaceBook, blogs, etc.
LL… I said that KC was probably correcting a wrong. I implied that he can’t point to a complaint that required his legal opinion. At a time when there are much bigger fish in the frying pan.
Thankfully, he and Marshall got Virginia General Assembly’s final vote on the Senate Amendments to HB10, and they were approved 80-17. Looks like Obama will have to fight that if any part of HealthScare makes it thru the abortion-smitten democrats on the hill.
Barbara, there may be facts about the case that are relevant and that we don’t know. But, while people have indeed been fired for things posted on Facebook and other sites online that better judgement would dictate they never should have posted, I have never heard of anyone losing a job because their online postings indicated they were heterosexual. And if an otherwise noncontroversial online profile or posting indicates that the guy is a homosexual and that is why he was fired it is dead wrong. And the director who fired him should be out of a job.
.
Even if, at the end of the day, the state prevails against this man’s efforts to seek redress for the wrong that was done him, how much will it have cost the state? How much taxpayer money will have been burned because of an arbitrary action by a director who thought it was okay to fire gay people just because he doesn’t like them. And assumed donors all shared his bigotry?
.
That pinhead director needs to be gone.
.
If a manager in a private business mindlessly opened his employer up to that kind of liability he would be sacked. Managers who work for the state who behave that recklessly should be too.
It may very well be that the pinhead director needs to be gone.
But as to heteros who were terminated or not hired for sexual postings, the fact that the postings were sexual may have been paramount, and that they may have appeared to be blatantly hetero was secondary.
Since heteros are used to being the norm, where is the discrimination case for being straight and sexual? There is none, so no avenue for a case other than the right to privacy (if they were posting outside of business hours from a private computer).
Any terminations or failed hirings there could be for other reasons–old fashioned ones like inappropriate or unprofessional behavior.
Discrimination can be very hard to prove, no matter which of the existing (or suggested) classes is at issue.
You have one thing right. Discrimination cases are very hard to prove. Rarely is a person called in and told they are being fired because they are a (fill in the blank).
Dan, so here’s a question that often gets lost in the minutiae: how much does it cost government to attempt to arbitrate this?
Look at this thread.
Noise.
Noise.
Noise.
Maybe if we uniformly went to the basic “no one shall be discriminated against” and “hire on merit and ability” we could dispense with the time, angst and cost of trying to be all to all people.
It all costs to sort it out, doesn’t it?
(and it would no doubt cost to sort out what constitutes merit and ability, too)
(and for some, that MAY be the point! since government jobs are currently job growth, eh?)
LL, you seem to think that I enjoy disagreeing with Republicans. I don’t. I didn’t like writing this post, but I felt that it had to be done. I don’t want to see this party damaging itself over the long term in order to make short term gains that are, in reality, illusory.
Dan – Seriously – you are putting the tea partiers and college students in the same category? I can’t explain how wrong this is on so many levels, but having been a knucklehead college student and knowing quite a few kids in that generation currently, they do indeed get worked up over nothing quite a bit. Some are informed, but to say that the student body at VCU is somehow indicative of the groundswell of indignation over this KC thing is grossly overstating the role of college students everywhere. And yes, I can give KC or you, or Monk or Bob Marshall a free pass all I want. As explained, this is another mountain out of a molehill, however democrats, special interest groups and anti-social conservatives everywhere can and will continue to unite on this. God Speed whiners.
*
Brian, I think you do enjoy the KC and Bob Marshall “bashing” just a little bit. The enjoyment is not overt, but it exists. Just my opinion as a reader.
and in other news….Del Bob Marshall, you claims disabled babys are god’s punishment on women for having an abortion (oh wait, im sorry if thats an attack on republicans), has requested the AG to deliver an opinion on the Loudoun board adding LGBTs to the county discrimination policy. it is utterly absurd that a delegate not even from loudoun is sticking their nose in loudouns business.
Brian should get a hell of a lot of credit for bashing KC and Bob Marshall. They deserve it. A lot of us tried to bring reasonableness to the Republican party. It appears Brian still has patience for the effort and I commend him for it.
.
BTW, Brian is one of many many voices sharing his concern. I laugh as LL tries to pass this off as some uninformed college student rebellion getting worked up over nothing. Or some Democratic contrived assault.
.
Wishful thinking. Wishful thinking.
local gop, I don’t think Marshall’s opinion request will ever see the light of day. Especially now. The obvious political blunder by KC and the heat it brought onto McDonnell and the Commonwealth is something they are aggressively trying to distance themselves from. The outcry is working and is worth it. My opinion but as stupid as KC has been I don’t think he’s going to be allowed to bring this up again. But then again I am not sure what his God is telling him right now.
Black Out, I am honored that you left the local (or national?) party. There were zero LCRC members that supported David Poisson or called him an “honorable man” – and I stand by every one of them. Our unit has had its ups and downs, we’ve weathered a spirited election and I believe we will come out on top in 2010 and 2011, mostly because people like you have left “the party”. Good riddance.
*
I don’t care if Brian shares his “concern” – that’s his perogative. You and local GOP bonding over KC and Bob Marshall is quite another story. Birds of a feather…….
David is an honorable man. (Let’s not go through that again)
.
Remember LL, I vote and others like me also vote. More vote than just your “unit”, so when you go about picking candidates make sure they aren’t the likes of Bob Marshall, and you’ll have a chance of winning the election(s). Pick more candidates like Tag and you’ll be just fine.
yes because dick lack was so honorable…didnt he intentionally mis pronounce poisson on purpose to make it sound like poison? yep, thats honor….
BO, Vote as you wish. Your implication that my “unit” (which isn’t mine) is closed off is ridiculous. We are finally on the right track – albeit without people like you in our party. This makes me happy.
*
Again, if you think David is an honorable man we have very different definitions of honorable.
Local, Why don’t you change your name to BO2, it fits you well.
LL, there’s an army of us out here, open your eyes. Welcome to your nightmare.
.
No doubt we have different definitions of honorable. We found something to agree upon.
BO, Your army? Yes, I am shaking in my boots over BO’s army.
Heck ya LL, we first put Obama in office and then we put McDonnell in office. You just don’t get it, neither party has a majority to win elections, it’s who attracts the independent vote. Oh and also which party doesn’t shoot themselves in the foot.
“has requested the AG to deliver an opinion on the Loudoun board adding LGBTs to the county discrimination policy”
THAT’s what KC SHOULD have opined on in the first place. THAT is the focus of this argument….according to Baliles.
LL,
when you change your name to right wing wack job I will
[...] Tooconservative.com – AG Cuccinelli’s opinion on sexual orientation discrimination – bad p… [...]
No thanks Local, it doesn’t apply.
*
I love being told “how it is” by BlackOut, it’s a real treat!
Interesting article from NYT on yahoo news today:
http://finance.yahoo.com/career-work/article/109063/the-secret-to-having-happy-employees?mod=career-leadership
Doesn’t apply to govt jobs, I know, but I bet some govt managers sometimes wish it could–lol.
To be fair to our 3L blogger, he has astutely noted thedifference between a municipality and a state agency– Dillon’s rule only applies to the former, and not the latter. Anyone who would suggest otherwise should read Davenport v. Little-Bowser, 269 Va. 546, 555; 611 S.E.2d 366, 371 (Va. 2005), in which the Supreme Court of Virginia recognized the “Doctrine of Administrative Deference” in cases where a STATE agency is entitled to any reasonable interpretation of its authority if it relies on ambiguous statutory language to justify its actions: “Courts, in construing statutes, where the statute is obscure or its meaning doubtful, will give great weight to and sometimes follow the interpretation which those whose duty it has been to administer it have placed upon it.” Dillon’s Rule does not give municipalities the benefit of the doubt which state agencies enjoy under the doctrine of administrative deference.
Cuccinelli’s letter makes immaterial reference to municipalities for precedent, and such inadequate legal research makes me question his competence to do the job to which he was elected. If asked to vote for either Ken or our blogger after he passes the bar, I could only vote for the latter, because I would give our current AG an F for his subpar research on this issue.
I appreciate the comments, Heezy.
Brian S, you are right on target. Also, let’s not forget that the “public policy” the AG claims to exist (a policy handily created by earlier AG opinions — not, by the way, the type of thing that courts recognize a creating public policy) is almost identical to the Colorado constitutional amendment that the Supreme Court found unconstitutional in Romer v. Evans. It is beyond shocking that Cucc claims his opinion to be “just an expression of the law.” Sorry, Cucc — more like your radical attempt to turn state universities (most of whom receive a very small minority of their operating budget from the state, at this point) into something less than a municipality.