# 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:** 5
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 11, 2010, 6:00pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/81 "2010-03-11T18:00:40Z")
> [@Bricker](#): > > 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. Indeed. But would you not agree, **Bricker** , that differential treatment of homosexuals has to be justified by rational basis review at the very least? And, that _Romer_, a case concerned with the prevention of sexual orientation being added as a protected group, is somewhat relevant here? And that in _Romer_ the Supreme Court (with a similar make up to that of the Court today) held that the discriminatory actions did not pass rational basis review because they were motivated by nothing more than animus towards the group concerned? Given that, don’t you see how it might be at least tangentially relevant that the Commonwealth has permitted universities discretion in this arena as regards to other groups, but only withdraws that discretion when homosexuals are concerned? That this might be an indication of the motivation being animus towards homosexuals? ---
**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, 6:01pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/82 "2010-03-11T18:01:20Z")
I think you are mistaken, **Diogenes** - nobody is supposing that it would be permissible to harass. To the extent that greater punishments kick in when that harassment takes a discriminatory or bigoted tone - that may not be permitted in this instance since the state does not recognize sexual orientation as a protected class. ---
**Author:** ![Caffeine.addict](https://avatars.discourse-cdn.com/v4/letter/c/f475e1/32.png) [@Caffeine.addict](https://boards.straightdope.com/u/Caffeine.addict)\ **Post date:** [March 11, 2010, 6:04pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/83 "2010-03-11T18:04:16Z")
I have very little knowledge of local government law other than what I recall from studying for the bar so I’d love to hear from someone a little more versed than me in these issues. Does Dillon’s Rule apply to someone other than local goverments or municipal corporations? I’ve seen references to local governments and I’ve seen references to municipal corporations, however, I haven’t seen any references to Dillon’s Rule applying to universities. However, even if it does, did the statutes setting up and regulating the universities give them the authority to regulate such behavior. Ultimately I think that this will be left to the Virginia Supreme Court to decide. I also suspect that they will look for an opportunity to punt this decision like they did in Arlington v. White. ---
**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, 6:13pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/84 "2010-03-11T18:13:10Z")
> [@Mr.Moto](#): > > I think you are mistaken, **Diogenes** - nobody is supposing that it would be permissible to harass. To the extent that greater punishments kick in when that harassment takes a discriminatory or bigoted tone - that may not be permitted in this instance since the state does not recognize sexual orientation as a protected class. What current student disciplinary policies grade degrees of punishment for harrassment on the class of the victim? ---
**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, 6:13pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/85 "2010-03-11T18:13:26Z")
> [@Polycarp](#): > > 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. The enabling language, in Va Code § 23-9.2, says: > [@](#): > > A. In addition to the powers now enjoyed by it, the board of visitors or other governing body of every educational institution shall have the power: > . > . > . > 2. To establish rules and regulations for the conduct of students while attending such institution. > . > . > . > 5. To 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. So what does that grant of authority mean? In the Prince William County case I mentioned earlier, local governments have a similar grant of authority. Va Code § 46.2-1300 _et seq_ provides that local governments may adopt traffic ordinances and may “… repeal, amend, or modify such ordinances and may erect appropriate signs or markers on the highway showing the general regulations applicable to the operation of vehicles on such highways.” Yes despite that wide grant of authority, the law in Virgina is that they may NOT add “parking” to the state law’s prohibition about operating with an expired state inspection tag. Some discussion of the Rule: > [@](#): > > Eberth also contends that County Code §13-322 violates the Dillon Rule by prohibiting uninspected cars from “parking” on public highways, whereas Code §§46.2-1157 and 46.2-1163 prohibit only the “operation” of uninspected vehicles on public highways. The County responds that the County Code does not conflict with Code §§46.2-1157 and -1163, but complements them. We agree with Eberth on this issue as well. > > Although “operate” is not separately defined statutorily, Code §46.2-100 defines an “operator” as any “person who either (i) drives or is in actual or physical control of a motor vehicle on a highway, or (ii) is exercising control over or steering a vehicle being towed by a motor vehicle.” This definition is appropriate for the purpose of determining whether one “operates” a vehicle. See Nicolls v. Commonwealth, 212 Va. 257, 259, 184 S.E.2d 9, 11 (1971) (interpreting Code §46.1-1(17), now codified in §46.2-100)). “Park” is similarly undefined statutorily, but the generally accepted definition of “park” is “the leaving of a vehicle in an accessible location.” Webster’s Third New International Dictionary 1642 (1993). > > Based upon these definitions, “operate” and “park” have substantially different meanings, and therefore ought not be used interchangeably. In this case, the County has prohibited the “parking” of an uninspected motor vehicle on a public highway, whereas the General Assembly has merely prohibited the “operation” of such vehicle on a public highway. We can find no statutory authority authorizing the County to take such action and the County offers none, thus there is a clear conflict between County Code §13-322 and Code §46.2-1163. > [@](#): > > 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. I have no idea, since the AG did not focus on that factor in his letter. Is there some other factor in Virginia law that authorizes veterans’ status? > [@](#): > > 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…) Fascinating. But it’s a question that we in Virginia have settled since the 19th century. ---
**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, 6:17pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/86 "2010-03-11T18:17:15Z")
> [@Diogenes\_the\_Cynic](#): > > 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. Nor is that being done here. If UVA wanted to make it a more punishable offense to harrass left-handed students, in view of their decided minority amongst the population, this same rule would forbid it. That would not then mean that it was open season on lefties. ---
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [March 11, 2010, 6:17pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/87 "2010-03-11T18:17:17Z")
> [@Marley23](#): > > **Bricker** , playing devil’s advocate and asking questions is fine, but stirring people up is not encouraged. Please make sure you stay on the right side of the line here. > If this is to continue, take it to another forum. To read this correctly, only **Bricker** is being modded? ---
**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, 6:21pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/88 "2010-03-11T18:21:18Z")
> [@Bricker](#): > > Nor is that being done here. > > If UVA wanted to make it a more punishable offense to harrass left-handed students, in view of their decided minority amongst the population, this same rule would forbid it. > > That would not then mean that it was open season on lefties. What current university policies make harrassment of gay students more punishable than harrassment of guys with mullets? ---
**Author:** ![ricksummon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ricksummon/32/3333_2.png) [@ricksummon](https://boards.straightdope.com/u/ricksummon)\ **Post date:** [March 11, 2010, 6:24pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/89 "2010-03-11T18:24:59Z")
> [@Bricker](#): > > 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. You call it a flaw, but the [Chaotic Good](http://tvtropes.org/pmwiki/pmwiki.php/Main/ChaoticGood) would call it a feature. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 11, 2010, 6:51pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/90 "2010-03-11T18:51:55Z")
> [@Bricker](#): > > Resisting a personal potshot at me in every post is harder for you than kicking a heroin habit is for the typical junkie, isn’t it? Your reading of Cucinelli remains unsubstantiated by the plain language (_cough_ textualist_cough_), and flies in the face of the very cases you use to defend it (the other cases didn’t just deal with student discipline, but with the entirety of the anti-discrimination policies). You put a false reading into the letter (one that not a single other person, even Cooch himself has advocated) and now are trying to dodge and weave your way around it. His letter dealt with the entirety of the universities’ anti-discrimination policies, not just in relation to the students discipline, but also hiring and tenure policies. You’re wrong. ---
**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, 7:23pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/91 "2010-03-11T19:23:16Z")
> [@Hamlet](#): > > You’re wrong. It may be true. From the beginning, I read this as a statement on student discipline issues. There’s no question that this view is in the minority, given the reactions of everyone around. I contend it’s correct, as to the issue of student disciplinary policies. That’s the extent of my claim. THAT is not wrong. (That is, I may well be wrong about what was meant; I am NOT wrong about saying that’s what I thought. I was there the whole time - I know what I thought). ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 11, 2010, 7:31pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/92 "2010-03-11T19:31:20Z")
To be honest, I read it as student discipline related only. I don’t think it will hold up there, either. ---
**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, 7:34pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/93 "2010-03-11T19:34:39Z")
> [@Hamlet](#): > > You put a false reading into the letter (one that not a single other person, even Cooch himself has advocated) . . . > [@villa](#): > > To be honest, I read it as student discipline related only. I don’t think it will hold up there, either. So, at least one other person. Whew. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [March 11, 2010, 7:39pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/94 "2010-03-11T19:39:41Z")
> [@Kearsen](#): > > To read this correctly, only **Bricker** is being modded? Only **Bricker** is perceived as treading tippy-toe to the trolling boundary. I don’t believe he’s trolling, personally. I do believe he’s performing his customary blind-respect-for-the-law-as-written-and-interpreted-by-a-sufferer-of-OCD schtick, which I also believe is sincere. It’s incredibly irritating and makes him look like an android who doesn’t possess a functioning conscience, but it’s sincere. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 11, 2010, 7:40pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/95 "2010-03-11T19:40:08Z")
> [@Bricker](#): > > It may be true. > > From the beginning, I read this as a statement on student discipline issues. There’s no question that this view is in the minority, given the reactions of everyone around. > > I contend it’s correct, as to the issue of student disciplinary policies. > > That’s the extent of my claim. > > THAT is not wrong. (That is, I may well be wrong about what was meant; I am NOT wrong about saying that’s what I thought. I was there the whole time - I know what I thought). What you thought (that Cucinelli’s letter dealt only with student disciplinary policies) was so outside of a textualist reading of the letter, so far off from how everybody else in the entire State of Virginia (excepting villa :)) read the letter, and so unsupported by the cases, that I presupposed that you wouldn’t be so incredibly wrong. I should have said that, as a textualist, you SHOULD have recognized how far off your reading was, rather than potentially ascribing an illicit motive. But to move the debate on beyond whether the letter applies only to student discipline, can we agree that both sides of the issue (whether or not the Universities have the power to enact and/or follow anti-discrimination on the basis of sexual orientation policies) is a debateable position with tenable arguments on both sides? ---
**Author:** ![Caffeine.addict](https://avatars.discourse-cdn.com/v4/letter/c/f475e1/32.png) [@Caffeine.addict](https://boards.straightdope.com/u/Caffeine.addict)\ **Post date:** [March 11, 2010, 7:52pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/96 "2010-03-11T19:52:06Z")
Bricker, I still think that the Prince William case is distinguishable on the basis that it applies to the municipal governments in relation to the states. I did a half assed search and didn’t see any cases not involving either a City or a County with respect to Dillon’s Rule. Regardless, I don’t think that the issue is black and white. The AG’s opinion is just an opinion. At best, it is persuasive authority, but it isn’t binding. Until this gets in front of a Circuit Court judge and then the Virginia Supreme Court, it won’t be any thing other than a legal opinion. ---
**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, 7:57pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/97 "2010-03-11T19:57:13Z")
> [@Caffeine.addict](#): > > Bricker, I still think that the Prince William case is distinguishable on the basis that it applies to the municipal governments in relation to the states. I did a half assed search and didn’t see any cases not involving either a City or a County with respect to Dillon’s Rule. > > Regardless, I don’t think that the issue is black and white. The AG’s opinion is just an opinion. At best, it is persuasive authority, but it isn’t binding. Until this gets in front of a Circuit Court judge and then the Virginia Supreme Court, it won’t be any thing other than a legal opinion. I agree with both points. Clearly the AG cannot create controlling caselaw, and clearly there is no case on point one way or the other with respect to universities. What I started this thread to say, though, was the rebuttal like yours is very appropriate, and rebuttal like the Post’s not so much. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [March 11, 2010, 7:57pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/98 "2010-03-11T19:57:42Z")
> [@Bricker](#): > > Repeat after me: \*Just because I don’t like it doesn’t mean it’s trolling. Repeat after me: _The fact that I posted something with the purpose and intention of drawing hostile responses **does** mean it’s trolling. The fact that I posted something with the purpose and intention of drawing hostile responses **does** mean it’s trolling. The fact that I posted something with the purpose and intention of drawing hostile responses **does** mean it’s trolling…_ ---
**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, 7:59pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/99 "2010-03-11T19:59:38Z")
> [@jayjay](#): > > Only **Bricker** is perceived as treading tippy-toe to the trolling boundary. I don’t believe he’s trolling, personally. I do believe he’s performing his customary blind-respect-for-the-law-as-written-and-interpreted-by-a-sufferer-of-OCD schtick, which I also believe is sincere. It’s incredibly irritating and makes him look like an android who doesn’t possess a functioning conscience, but it’s sincere. And in turn, I am astounded at the legions of people who seem to think to themselves, “Bugger what the law says; my conscience will be my guide!” If you’re a legislator, that’s great: write the new laws with your conscience as your guide. As a enforcer or interpreter of the law, though, your job is to effect the consciences of those legislators, not your own. ---
**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, 8:02pm UTC](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008/100 "2010-03-11T20:02:03Z")
> [@Caffeine.addict](#): > > Bricker, I still think that the Prince William case is distinguishable on the basis that it applies to the municipal governments in relation to the states. I did a half assed search and didn’t see any cases not involving either a City or a County with respect to Dillon’s Rule. > > Regardless, I don’t think that the issue is black and white. The AG’s opinion is just an opinion. At best, it is persuasive authority, but it isn’t binding. Until this gets in front of a Circuit Court judge and then the Virginia Supreme Court, it won’t be any thing other than a legal opinion. Dillon’s rule aside, it pretty much is a slam dunk that state universities are owned by the state - their independence is circumscribed in important ways everywhere. [Previous page](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008.md?page=4) [Next page](https://boards.straightdope.com/t/sexual-orientation-virginia-universities-and-the-new-ag/532008.md?page=6)