Juvenile justice board retains anti-bias rules

The Virginia Board of Juvenile Justice on Wednesday left intact proposed policies that specifically protect the rights of gay and lesbian youths.

Gov. Bob McDonnell's office, on the advice of Attorney General Ken Cuccinelli's office, wanted the proposed provisions struck because only the General Assembly can create a protected class.

At its June 8 meeting, the juvenile justice board voted to keep the ban against discrimination in its proposed regulations and asked for reports to be presented at Wednesday's meeting on the ramifications of keeping the ban.

There was little in the way of new information at the meeting, however, and the implications of the board's 4-1 vote Wednesday are unclear.

Lawyers with the ACLU of Virginia and Equality Virginia asked the board to confirm its prohibition on discriminating against juveniles in the system based on their sexual orientation.

Rebecca Glenberg, legal director for the ACLU of Virginia, said this week that while such youths are protected from discrimination by the Constitution, "it's always better to have a policy in place that everyone understands."

Claire Guthrie Gastañaga, counsel for Equality Virginia, told the board Wednesday that "including specific protections against such discrimination in the regulations makes it clear that this board understands its constitutional duty."

The board chairwoman, Barbara J. Myers, offered a compromise in which the board would pass a resolution endorsing McDonnell's directive aimed at protecting state employees from discrimination.

Among other things, McDonnell's directive states that "discrimination based on factors such as one's sexual orientation ... violates the Equal Protection Clause of the United States Constitution." Myers' resolution would request the department's staff to follow the directive in caring for the juveniles.

"We want to provide the best care possible for the kids ... and we want to follow the law," Myers said.

But board member Aida L. Pacheco said she wanted to keep the original language. "It's just the right thing to do, and I just can't go back on that," she said.

The board's counsel, Lara K. Jacobs, an assistant attorney general, said, "Even if the language stays in, it doesn't change anybody's rights. ... You're trying to create a right that has not been granted by the General Assembly." That, she said, "is just outside of the board's authority."

Said Pacheco: "We're not trying to create a right — we're trying to prevent discrimination."

In the end, the board voted in favor of Justin M. Wilson's motion to leave the language in the board's proposed regulations, some of which take effect Friday and others at a later date.

Myers was the only dissenter. "The vote has been taken, but it probably won't be the end of the story," she said.

In another matter taken up Wednesday, the board was told that the department's new custody classification system for more than 800 residents of juvenile correctional centers was an operational matter for the staff and not a policy matter for the board.

At its June 8 meeting, board members expressed concern they had not been informed about the new policy and asked the staff to hold off on implementing it.

However, at Wednesday's meeting, Jacobs said the board can question or criticize the way staff carries out policy. She explained that any dispute between the board and staff would be resolved by the governor's office or at the Cabinet level.

Some advocacy groups are concerned about the new system, which they contend places too much emphasis on the youths' offenses and not enough on the progress made by the youths while in custody.

The department says the changes are under way to improve safety and security for the youths and the staff.

Kahan S. Dhillon Jr., a board member, said, "I think this is a very substantial issue and one we should all take seriously." However, he said, "I think our hands are tied as a board."