Sexual orientation, Virginia universities, and the new AG

Great Debates
1

So the new Republican Attorney General in Virginia is kicking up a stir. He’s informed the various state universities that they cannot legally include sexual orientation in their list of prohibited discriminations, because the Virginia General Assembly has not authorized them to do so.

The Washington Post inveighs against this action in an editorial today.

What interests me is that this complaint carefully does not address the legal issue. That is, it complains about the result, but it does not contend that the result is actually legally wrong.

I don’t know much about state agency law, but I know that Virginia is a strict Dilion’s Rule state, and no local municipal governments may create any ordinance that the General Assembly doesn’t give them specific power to create. So on that basis alone, it seems to me that Cuccinelli’s reasoning is valid.

In any event, it seems petty and specious to attack Cuccinelli for this decision. If he’s wrong on the law, that’s fine: attack his opinion. But if he’s right on the law, the proper target for attack is the General Assembly.

To be fair, the Post editorial does not exempt them:

But this seems almost an afterthought.

So I offer this as a case study for what I see as a major flaw of the Left. Faced with a legal situation that produces undesirable results, the favored tactic seldom seems to be to amend the law; instead, the attack is pressed against the officials that are enforcing or interpreting the law, an end-run around the law, if you will.

Now, I certainly agree that Ken Cuccinelli is no friend of the gay rights movement, and I suspect he’s not at all displeased about this opportunity. But he’s also the Attorney General, and if the law said, “…and sexual orientation…” I am quite confident he wouldn’t be writing letters to universities telling them they could ignore that phrase.

2

“So I offer this as a case study for what I see as a major flaw of the Left. Faced with a legal situation that produces undesirable results, the favored tactic seldom seems to be to amend the law; instead, the attack is pressed against the officials that are enforcing or interpreting the law, an end-run around the law, if you will.”

Who, in this case, is “the left”? The WaPo? They’re a newspaper. It’s their job to editorialize, not create legislation.

At any rate, that’s not really a debatable proposition. How are we to evaluate what the “favored tactic” of “the left” is? Got some statistics to back up that claim? I’d be surprised if any exist…

3

In which emanation from what penumbra did Cooch find a cite prohibiting state universities from exercising this discretion?

Until he answers that question, he’s clearly pulling stuff out of his ass.

(Your implied attempt to infer such a prohibition from an omission is specious on its face. State law also includes a specific list of discriminations that state universities are supposed to apply – e.g. charging out-of-state students extra – ergo, this line of reasoning leads to an irresolvable paradox when applied to any category not found in either listing.)

4

How is anyone trying to make an “end run around the law?”

The Daily Show did a segment on this last night, by the way. It’s disingenuous for the Cooch to say he’s doing the will of the Virginia Assembly. He’s telling them what to do, they’re not telling him.

This asshole campaigned on a promise to maintain those anti-disrimination policies, by the way, even though he had previously stated that homosexuality is a violation of “natural law,” and should be illegal.

The question of whether Universities require permission from the Virgina Assmebly to refrain from discriminatiion is also an open one. It’s not a fact just because the Cooch says it’s a fact. That’s his own tendentious interprettation, not a matter of settled law. This will likely have to be decided in the courts. This douche doesn’t just get to make new law by fiat.

5

Dillon’s Rule. The Dillon Rule is a rule of statutory construction that was first recognized in Virginia in City of Winchester v. Redmond, 93 Va. 711 (1896). In Virginia, you don’t “infer” from an omission. The Rule says that an omission is fatal.

6

True of most editorials, irregardless of political orientation. The public doesn’t particularly want to read, and thus the paper doesn’t want to publish, an article citing precedents and legal codes regarding political policy. They want to read a bunch of moralizing, us vs. them, won’t someone think of the children, chest pounding. And so thats what gets into papers, even if an analysis of the legal position would make more logical sense.

As to the governors actual argument, it seems pretty weak. If I’m reading it right, he’s saying the University can’t adopt a policy against something the State hasn’t already declared illegal. But that’s silly, if something is already illegal, then there isn’t much point in enacting a policy against it, and universities have plenty of policies against things that aren’t illegal (you won’t get arrested for cheating on a test, for example). His letter actually notes that Virginia Universities have a wide ability to set their own policies, and drawing the line at discrimination against sexual-practicies seems to be based a lot more on the Governors priorities then on any reading of the law.

7

No, I just figured I’d drop the thread here and let the SDMB’s Left prove my point.

8

The comment that Virginia is a strict Dilion’s Rule state might not gel too well with the WaPo’s comment that “colleges and universities traditionally have been given broad leeway to set policy.” If that is colleges/universities outside of Virginia, then obviously it isn’t at issue. But if the piece is talking about the Commonwealth’s universities, and if they have been traditionally given leeway that municipalities have not in this general arena (and I accept those are two very big ifs based on a single WaPo quote), then the reasoning might not be quite as valid.

It’s possible the Commonwealth has, by practice, created what is essentially an exemption for its state university system. What’s also possible is that were it to be shown that the Comonwealth allows the universities discretion in other similar areas, but only on the extention of protection to homosexuals does it act to prevent such discretion, there might be a federal equal protection problem as the Commonwealth would be required to show it wasn’t acting simply out of animus towards gays and lesbians.

9

Disagreeing with your interpretation of the law isn’t the same as trying to “make an end run” around the law. Basically every post in this thread has been people giving reasons why they think the Governor’s interpretation is wrong, not just ignoring his interpretation.

10

Well, again I’ll mention Dillon’s Rule, and I’ll give an example of how it plays out.

In Virginia, state law prohibits operating a motor vehicle without a valid state inspection sticker. In Prince William County, local officials adopted an ordinance that forbid operating or parking on a public street a motor vehicle without a valid state inspection sticker.

For years Prince William (and every other county and city in the state) issued parking tickets to cars which violated that ordinance.

Then one enterprising fellow, last year, protested his ticket. He said that Prince William County had every right to pass an ordinance forbidding operation of a motor vehicle without a valid state inspection sticker, but they couldn’t forbid parking one. No state law said anything about it, one way or the other, but, he pointed out, Virginia is a strict Dillion’s Rule state, which meant that only the General Assembly may create such rules.

And the appeals court agreed, and voided his ticket.

11

And I think that Prince William County pointed to the fact that every single city, town, and county in Virginia had an ordinance similar to theirs, and that there was an exception created by practice. They lost.

12

No, I agree with this point. Attacking the legal reasoning is fair enough. My point was the editorial did NOT do that.

Actually, apart from villa’s “created exception” post, no one has said WHY the interpretation is wrong… just that they think it’s wrong.

13

You are certainly welcome to try that straegy before the VSC in this case, but it’s false for you to say that it’s settled law that Universities don’t have a right to set their own, internal discrimination policy without permission from the State assembly, especially when they’ve already bee doing it for years.

What Cooch is trying is a tactic, a stunt. He’;s not “enforcing the law,” he’s trying to impose a personal interpretation of the law. Eventually, the Virginia Supreme Court will toss his interpretation in the trash, and I will resurrect this thread to laugh at you.

14

Which is different to pointing to the state granting Prince William County the leeway to do comparable things over an extended period of time.

15

I don’t know Viriginia law, so I did a bit of checking, and found this site, which discusses the legal issues. It’s written by a 3L, so take it for what it is worth, but it seems to be on point.

Rather than just paraphrase, I’ll let it speak for itself:

"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."

As to the Dillon rule: “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.”

Now, I haven’t the time to actually research it myself, but it seems a pretty tenable argument that Cuccinelli is wrong, at least as to employment issues. There may be other grants of power from the GA that do the same for student discipline, etc. I don’t know. Butif the analysis is incorrect, perhaps Bricker can enlighten me further.

I would find it quite unlikely that there are not two tenable arguments about the legal issues, and I fully expect more information to come forward about his interpretation.

Given that previous AG’s never seemed to have this problem with the Universities and the questionable legal issues, I find Brickers’ assertion that Cucinelli is standing up for the law to be … troubling. There are arguments on both sides, and Cucinelli chose his side; the side of bigotry and big brother. As has Bricker apparently.

16

Is it clearly on point, though? Are the anti-discrimination policies that are being discussed here those regarding the employment of professors etc, or do they apply to the university’s treatment of gay and lesbian students generally?

Overall, I think this might run into federal law problems under Romer. Romer seemed to say (based on memory) that a state may not specifically exempt a group from protection under anti-discrimination laws (which seems to be what Virginia is doing) without something better than mere animus.

17

Since I do not know the technicalities of the law, Virginia’s or otherwise, a question:

Are employees hired/students enrolled after sexual orientation was added to the anti-discrimination code grandfathered in or does Cuccinelli’s instruction to disregard sexual orientation in anti-discrimination trump that? In other words, if a professor was fired for being openly gay, would s/he have recourse if they were hired before Cuccinelli the Federal Mark of the Beast Number OpposingLaw Giver came to power?

18

Ah, then you agree that the omission of sexual orientation from the list of discriminations which state universities are directed and required to engage in prohibits them from engaging in that specific discrimination.

19

Your point is that SDMB leftists are particularly skilled at ferreting out and dismantling your logical fallacies? OK, mission accomplished…

20

Maybe, but as both the Governors and the editorial both mention, Universities aren’t townships, the former have a legal right to set their own policies, and apparently they have been free to do so in this area until now. As DtC says, its at best an open question.

Presumably a non-discrimination policy at a university is primarily meant to prohibit University staff (or students doing university business like setting up clubs) from trying to keep out “undesirables”. Saying that the University can’t prohibit its own staff from discriminating when making decisions about University classes and projects seems bizarre.

I actually disagree with this too. It was a four paragraph article, and I’d say that the last two paragraphs both at least touched on the legal arguments.

Not true, I said I thought the University had the ability to set its own discrimination policy because of the law regarding its abilty to set its own policies the governor mentioned in his letter. Steve MB said he thought the Governors interpretation must be specious since it led to a paradox, DtC said he thought the question was open. Every response up to that point at least made some attempt to touch on the legal issues