"Virginia public colleges and universities can and should make policies banning discrimination based on sexual orientation and gender identity, because the law supports it, and because policies of inclusion make for safer and more productive schools."
(New York, NY March 8, 2010) - Today, Lambda Legal sent an open letter to Virginia Attorney General Ken Cuccinelli II in response to his written opinion instructing the state's public colleges and universities that they do not have the legal authority to ban discrimination on the basis of sexual orientation or gender identity.
"We want to set the record straight. Attorney General Cuccinelli is trying to read discrimination into the law, but his opinion is flawed," said Greg Nevins, Supervising Senior Staff Attorney in Lambda Legal's Southern Regional Office in Atlanta. "Virginia's public colleges and universities can and should make policies banning discrimination based on sexual orientation and gender identity, because the law supports it, and because policies of inclusion make for safer and more productive schools."
On March 4, Virginia Attorney General Ken Cuccinelli sent a letter to the state's colleges and universities asking them to rescind their policies that ban discrimination on the basis of sexual orientation and gender identity, asserting that the schools do not have the legal authority to enact such policies.
Lambda Legal explained in its letter to Cuccinelli that "Virginia's universities are authorized to decide what categories of discrimination they will oppose, based on both their specific statutory authority to regulate admission, advancement, conduct, and employees; as well as all universities' general authority to enact policies furthering their educational mission, so long as such policies do not undermine a specific provision of existing law." Cuccinelli's opinion itself "recognized the relevance of judicial precedent, but then proceeded to cite an absence of any Virginia Supreme Court authority holding 'sexual orientation as a protected class,' while ignoring the fact that the United States Supreme Court and many other federal and state courts have held that state action against people based on their sexual orientation violates the Equal Protection Clause unless it is, at minimum, rationally related to a legitimate state objective."
In this letter and in ongoing work with the Consortium of Higher Education Lesbian Gay Bisexual Transgender Resource Professionals, Lambda Legal continues to advocate for equality for students and employees on campuses across the country. Attorney General Cuccinelli’s opinion is out of step with the law of Virginia and the rest of the United States.