THE AG'S LETTER: Current Law Sets Agencies' Boundaries

I firmly believe that the commonwealth's colleges and universities comprise the best public university system in the nation. A proud product of that system, I feel that the controversy over my recent statement of Virginia law as it relates to nondiscrimination policies at our state institutions of higher learning deserves to be addressed.

While it is understandable that some are angry or confused about that statement of law, it is important to recognize it for what it was and remains. It is my permanently and long-held belief that government should not single out anyone for negative treatment.

Each day, more than 200 dedicated attorneys and staff work in the Office of the Attorney General to provide guidance, advice, and counsel to agencies impacting every aspect of the life of Virginians, from transportation to health care to public safety to education. Part of that job is advising state agencies that might be inadvertently taking actions not authorized by the law of the commonwealth. Much like local governments that are subject to the so-called Dillon Rule, public colleges and universities have only the powers granted to them by the General Assembly.

Over the past six weeks, I received a number of inquiries about the inclusion of sexual orientation as a specially protected class in the nondiscrimination polices of our colleges and universities. A review of the law and the opinions of no less than five of my predecessors -- Democrats and Republicans alike -- demonstrated that any decision regarding the creation of a specially protected class belongs exclusively to the General Assembly. A public university simply lacks the power to create a new specially protected class under Virginia law.

While our colleges and universities are governed by Boards of Visitors with broad rights and powers, those powers are not unlimited. Virginia's public universities are, at all times, subject to the control of the General Assembly. They have no authority greater than that which has been granted them by the General Assembly. As the attorney for the public colleges and universities, and for the commonwealth as a whole, I provided legal advice reflecting the law as it is.

As a legal matter, this statement of Virginia law has not been seriously challenged. While issues related to sexual orientation are among the most emotional and controversial, they do not change this fundamental proposition of Virginia law. My now well-publicized letter simply stated the current state of Virginia law; it did not advocate for any particular legislative position. Should the General Assembly change the law, my advice will be consistent with it.

The General Assembly has considered and defined the protected classes for purposes of nondiscrimination statutes. It has specifically defined unlawful discrimination at educational institutions. The Virginia Human Rights Act states that it is the policy of the commonwealth to "safeguard 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." In addition to this affirmative statement, the General Assembly has on numerous occasions, including this session, considered and rejected creating a protected class defined by sexual orientation. No state agency can reach beyond such clearly established boundaries.

Nothing I have said or written authorizes unconstitutional discrimination against any person. My letter in no way addresses the legislative issue of including sexual orientation in non-discrimination policies. I believe that our colleges and universities do not illegally discriminate against any class of persons. Likewise, I do not believe they can or will after my restatement of Virginia law.

The people of the commonwealth, through their elected representatives, determine Virginia's laws. I cannot bend the law to fit a particular outcome, no matter what a person or group might wish, myself included. I have simply stated what is and is not currently permissible under the laws of Virginia. That is my job as attorney general.

Ken Cuccinelli is Virginia's attorney general. Contact him at (804) 786-2071, or find out more at the AG's Web site, www.vaag.com.