# Sexual orientation, Virginia universities, and the new AG **URL:** \ **Category:** Great Debates\ **Created:** [March 10, 2010, 7:03pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008 "2010-03-10T19:03:39Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 11, 2010, 4:16pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/61 "2010-03-11T16:16:17Z")
Roll your eyes all you want but it’s a reasonable and legally valid question. You’re saying that universities MUST allow the harrassment of gay students and if they intervene, they’re criminals. This strikes me as absolute bullshit. What, specifically, do they have to allow to be compliant? If a student follows another student around campus yelling, “faggot faggot, faggot,” would a unversity be committing a crime to intervene to prevent that, or to displine the student engaging in harrassment? If not, then what kind of discrimination would they not be allowed to punish or intervene in. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 11, 2010, 4:19pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/62 "2010-03-11T16:19:17Z")
> [@villa](#): > > Second, and more likely IMHO, the fact that discretion has been granted in the past (including, so it seems, to grant protected status to veterans), but is being refused now is a pretty strong indicator that the state is acting out of animus towards homosexuals. Which leaves it open to federal challenge. Selective enforcement causes problems Yeah, Dillon aside (which is clearly specious anyway), VA still has to be compliant with the 14th Amendment. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 11, 2010, 4:35pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/63 "2010-03-11T16:35:21Z")
This may all be moot now: > [@](#): > > Virginia Governor Bob McDonnell has directed state agencies not to discriminate against gay people in the area of employment, the AP reported. > > McDonnell’s directive overrides Virginia Attorney General Ken Cuccinelli II’s recent letter to public colleges and universities calling such protections illegal. > > SOURCE: [McDonnell Reverses Course, Issues Gay Protections Directive | On Top Magazine | LGBT News & Entertainment](http://ontopmag.com/article.aspx?id=5410&MediaType=1&Category=26) ETA: Here’s a WaPo article on the same thing if you want a more major media source: [http://www.washingtonpost.com/wp-dyn/content/article/2010/03/10/AR2010031003900.html](http://www.washingtonpost.com/wp-dyn/content/article/2010/03/10/AR2010031003900.html) ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [March 11, 2010, 4:51pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/64 "2010-03-11T16:51:30Z")
> [@villa](#): > > Second, and more likely IMHO, the fact that discretion has been granted in the past (including, so it seems, to grant protected status to veterans), but is being refused now is a pretty strong indicator that the state is acting out of animus towards homosexuals. Which leaves it open to federal challenge. Selective enforcement causes problems The problem here is that federal law prohibits discrimination against certain categories of veteran (likely the impetus behind the inclusion of this category in the university statement) but does not currently recognize sexual orientation as a protected class. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 11, 2010, 5:08pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/65 "2010-03-11T17:08:57Z")
> [@Whack-a-Mole](#): > > This may all be moot now: > > ETA: Here’s a WaPo article on the same thing if you want a more major media source: [http://www.washingtonpost.com/wp-dyn/content/article/2010/03/10/AR2010031003900.html](http://www.washingtonpost.com/wp-dyn/content/article/2010/03/10/AR2010031003900.html) Yes, except that the AG’s opinion didn’t relate to employment in the first place. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 11, 2010, 5:09pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/66 "2010-03-11T17:09:58Z")
> [@Diogenes\_the\_Cynic](#): > > Yeah, Dillon aside (which is clearly specious anyway), VA still has to be compliant with the 14th Amendment. And the Fourteenth Amendment doesn’t recognize sexual orientation as a protected class. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 11, 2010, 5:21pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/67 "2010-03-11T17:21:21Z")
> [@Bricker](#): > > No, I just figured I’d drop the thread here and let the SDMB’s Left prove my point. I believe this practice is called _trolling_. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 11, 2010, 5:21pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/68 "2010-03-11T17:21:43Z")
First, it appears that **Bricker** acknowledges **villa** ’s point and then neatly sidesteps it, arguing from analogy to local governments. Nor does he address the 1970 enabling statute at all. Second, if Cuccinelli’s point is valid, then a Bakke-style suit from any non-veteran applicant denied admission to any commonwealth-funded institution of higher education would be a slam dunk – the Attorney General has said in wirting that absent state statutory authority, a state university, college, or institute is without power to adopt such rules. And it would apply as strongly to veterans’ preference as to sexual orientation. Third, are Virginia’s courts all creatures of the State Constitution? Because I see no statutory authority for them to have adopted Dillon’s Rule – so they are _ultra vires_ in doing so without a legislative grant of authority. (Yeah, it’s a paradox: if Dillon’s Rule is valid, then they are without authority to apply it; if it isn’t, then they are, but since it’s invalid…) ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 11, 2010, 5:24pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/69 "2010-03-11T17:24:54Z")
> [@Bricker](#): > > And the Fourteenth Amendment doesn’t recognize sexual orientation as a protected class. The Fourteenth Amendment doesn’t recognize race, creed, sex, or national origin as a protected class, either. People who pay attention to the text of the law will note the absence of any such shopping list from the Amendment. Rather, this is “judge-made law” at its finest. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 11, 2010, 5:29pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/70 "2010-03-11T17:29:23Z")
> [@Bricker](#): > > Yes, except that the AG’s opinion didn’t relate to employment in the first place. It’s only your opinion that this is the case. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 11, 2010, 5:29pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/71 "2010-03-11T17:29:25Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I believe this practice is called _trolling_. No, it’s not. I wish I could come up with a word, suitably pithy, to describe the intellectual gaps that must exist to cause any disagreeable notions to be labeled as ‘trolling,’ and the wrongly-named notions themselves as well. But I’m not that creative. (“Fauxlling,” maybe?) Trolling is: > [@](#): > > In Internet slang, a troll is someone who posts inflammatory, extraneous, or off-topic messages in an online community, such as an online discussion forum, chat room or blog, with the primary intent of provoking other users into an emotional response[1] or of otherwise disrupting normal on-topic discussion.[2] Here, I made a claim about the usual behavior of leftists, and, when asked to prove it, asserted that the responses to this very thread would provide the evidence needed. I grant you that such a statement may be inflammatory, primarily to those leftists uncomfortable with facing the facts, but it is neither extraneous nor off-topic, since the topic was precisely that. Repeat after me: _Just because I don’t like it doesn’t mean it’s trolling. Just because I don’t like it doesn’t mean it’s trolling. Just because I don’t like it doesn’t mean it’s trolling._ You’ll get there. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 11, 2010, 5:33pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/72 "2010-03-11T17:33:24Z")
> [@Bricker](#): > > And the Fourteenth Amendment doesn’t recognize sexual orientation as a protected class. It doesn’t recognize ANYTHING as a protected class. It just says that all protections have to be applied equally to all citizens. On preview, I see **Poly** already pointed this out. I’m amazed you actually thought this was going to be an effective argument.Surely you know what the 14th Amendment actually says. Did you think that we would not? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 11, 2010, 5:35pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/73 "2010-03-11T17:35:02Z")
> [@Mr.Moto](#): > > The problem here is that federal law prohibits discrimination against certain categories of veteran (likely the impetus behind the inclusion of this category in the university statement) but does not currently recognize sexual orientation as a protected class. Not relevant. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 11, 2010, 5:36pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/74 "2010-03-11T17:36:14Z")
> [@Bricker](#): > > Yes, except that the AG’s opinion didn’t relate to employment in the first place. Not trying to be difficult but not seeing how this is so. Seems to me the AG’s own statement allows that the Universities are granted implied powers especially with regard to student safety and discipline. So, if the university deems harassment of any type to be unacceptable then how can the AG say they cannot stop harassment based on sexual orientation? If the University says student groups cannot discriminate based on sexual orientation then it is an internal matter. Their school, their rules. They could make a rule saying “no walking on the grass” I presume without an act of the Virginia legislature making that a law. So, as a legal matter seems the only thing left is actual hiring practices and the AG letter seems to encompass those. Odd for the Governor to clarify this and issue an official statement on the matter if the AG letter had nothing to do with it. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 11, 2010, 5:43pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/75 "2010-03-11T17:43:50Z")
What is an example of student behavior that is (1) not protected by the First Amendment and (2) violative of a principal of non-discrimination against sexual orientation but not violative of more general rules against harassment, etc.? Seems like an empty category to me. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 11, 2010, 5:45pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/76 "2010-03-11T17:45:30Z")
> [@Diogenes\_the\_Cynic](#): > > It doesn’t recognize ANYTHING as a protected class. It just says that all protections have to be applied equally to all citizens. > > On preview, I see **Poly** already pointed this out. I’m amazed you actually thought this was going to be an effective argument.Surely you know what the 14th Amendment actually says. Did you think that we would not? Good lord. The Fourteenth Amendment says what the Supreme Courts says it says. They say that it means that if the government wishes to distinguish, in law, between different racial classes, then the government better be able to show that their law can survive _strict scrutiny_. They say that if the government wishes to distinguish, in law, between different genders, then the government better be able to show that their law can survive _intermediate scrutiny_. And they say that sexual orientation doesn’t get either of those heightened review standards. I am well aware that the text of the Fourteenth Amendment doesn’t say any of that. Nonetheless, that’s what the law says, and it’s (presumably) grounded in the Fourteenth Amendment. So when I say, “The Fourteenth Amendment doesn’t recognize sexual orientation as a protected class,” I am correct in two ways. Literally, it does not, and its application in law does not. And when you point out that it also doesn’t mention race, while you are literally correct, you’re not correct about its operation in law. So my observation is both nitpickingly, hyper-technically true and highly relevant to the issue at hand. Yours is nitpickingly, hyper-technically true. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 11, 2010, 5:46pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/77 "2010-03-11T17:46:30Z")
> [@Whack-a-Mole](#): > > Odd for the Governor to clarify this and issue an official statement on the matter if the AG letter had nothing to do with it. It’s not odd, because everyone and his sister seems up in arms over the non-existent hiring aspects. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 11, 2010, 5:47pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/78 "2010-03-11T17:47:20Z")
> [@Bricker](#): > > No, it’s not. > > I wish I could come up with a word, suitably pithy, to describe the intellectual gaps that must exist to cause any disagreeable notions to be labeled as ‘trolling,’ and the wrongly-named notions themselves as well. > > But I’m not that creative. (“Fauxlling,” maybe?) Since I’ve never called you a troll before, and indeed defended you against several such charges, perhaps you could extend yourself to come up with a better term. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 11, 2010, 5:52pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/79 "2010-03-11T17:52:25Z")
> [@Bricker](#): > > Good lord. > > The Fourteenth Amendment says what the Supreme Courts says it says. They say that it means that if the government wishes to distinguish, in law, between different racial classes, then the government better be able to show that their law can survive _strict scrutiny_. They say that if the government wishes to distinguish, in law, between different genders, then the government better be able to show that their law can survive _intermediate scrutiny_. And they say that sexual orientation doesn’t get either of those heightened review standards. > > I am well aware that the text of the Fourteenth Amendment doesn’t say any of that. Nonetheless, that’s what the law says, and it’s (presumably) grounded in the Fourteenth Amendment. > > So when I say, “The Fourteenth Amendment doesn’t recognize sexual orientation as a protected class,” I am correct in two ways. Literally, it does not, and its application in law does not. > > And when you point out that it also doesn’t mention race, while you are literally correct, you’re not correct about its operation in law. > > So my observation is both nitpickingly, hyper-technically true and highly relevant to the issue at hand. > > Yours is nitpickingly, hyper-technically true. I can also recognize a Chewbacca Defense when I see one. No federal court would find that it’s permissable for a university (or a state) to create classes which it is permissable to harrass. Under your specious objection, states would be allowed decide that gay people aren’t even entitled to trials. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 11, 2010, 5:56pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/80 "2010-03-11T17:56:17Z")
> [@Bricker](#): > > It’s not odd, because everyone and his sister seems up in arms over the non-existent hiring aspects. Ok…if I have missed this I apologize and point me back upthread. If not can you explain to me: 1. Can Virginia Universities make policies regarding student conduct without an ok from the government (as long as they do not actually violate an existing law)? 2. Must all rules that apply to students only be rules that are codified in Virginia law (the AG’s own statement seems to suggest this is not the case)? If a university wants to rope off an area and say “no walking on the grass” can they do that? Can they say “no harassment of any sort” or only “no harassment of legally protected groups as specified by the Virginia legislature”? 3. If the university applies rules on its student body that include no discrimination (of any sort) in school events or clubs or classes how does that violate Virginia law? [Previous page](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008.md?page=3) [Next page](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008.md?page=5)