Virginia Attorney General Ken Cuccinelli recently slapped second-year University of Virginia student Seth Kaye in the face. Not literally, but Kaye said that was how he felt when he awoke to an e-mail outlining a letter Cuccinelli sent to the state’s public colleges on March 4.
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The letter said that Virginia public colleges lack the legal authority to protect their gay students and employees from discrimination, and advised all colleges to “bring their policies in conformance with the law and public policy of Virginia.” Kaye, president of the student group Queer & Allied Activism at UVA, was floored by what he read.
“The symbolism of [discrimination protection] goes a long way,” he said. “Having a policy on the books sends a message to everyone, gay or straight, that, ‘We’re an inclusive place.’”
Cuccinelli’s letter ignited a backlash from gay advocacy groups throughout Virginia. It even compelled Governor Bob McDonnell on March 10 to issue an executive directive that condemned discrimination of state employees based on sexual orientation.
However, an executive directive is more of a symbolic letter, and does not carry the force of law the way an executive order does. In February, McDonnell opted not to include sexual orientation in an executive order involving workplace discrimination protection, unlike his two predecessors, Mark Warner and Tim Kaine.
Still, Kaye noted that by evoking the Constitution’s Equal Protection Clause, the governor’s directive “set the proper tone.”
UVA President John Casteen was also encouraged by the governor’s statement. In UVA’s first official response to Cuccinelli’s words—nearly a week after they were written—Casteen said March 10 that McDonnell’s “eloquence and clarity set it apart from many policy statements.” The president acknowledged that he was personally “alarmed” by Cuccinelli’s letter since it “cuts to the core of our common claims to the most fundamental kinds of personal security under the rule of law.”
Edward Strickler, an organizer of the university’s LGBT advocacy group UVA Pride, says discussion of Cuccinelli’s letter “is about people who are experiencing disorientation in their lives.”
Edward Strickler, Jr., one of the head organizers of UVA Pride and the programs coordinator at UVA’s Institute of Law, Psychiatry, & Public Policy, said the letter had created “fear and anxiety” surrounding job security.
“This is not an abstract legal battle about who’s got the best law,” Strickler said. “This is about people who are experiencing disorientation in their lives.”
Despite the tumbleweed-worthy quiet on grounds because of spring break, the meeting drew roughly 30 participants to Thornton Hall. The overriding question: What prompted the attorney general to write a letter that so directly dismissed sexual orientation protection?
“He did seem to be hand-picking one particular phrase,” said Ellen Bass, another lead organizer of UVA Pride and a professor within UVA’s Department of Systems and Information Engineering.
C-VILLE asked Cuccinelli directly why he wrote the letter.
“The attorney general’s office is a very reactive office,” he said, “and we were responding to inquiries from several different directions at once in the higher ed system about [non-discrimination policy]. Honestly, we don’t know why they came in so close in time to one another, but they did, and when that happens, we tend to think that issuing some general advice to all our similarly situated clients makes sense so that everyone’s on the same page legally speaking.”
The letter was merely a reminder to universities that they have no more authority than what the state legislature grants them, Cuccinelli said.
“No one has contested the accuracy of the legal advice,” he said. “And my first job as attorney general is to give accurate legal advice, regardless of the circumstances or whether it’s popular or whether I even like it. All we did was identify the current status of the law, which hasn’t changed for decades. We gave the same advice as five AGs before us, including three Democrats, and consistent with one Virginia Supreme Court ruling.”
Cuccinelli’s vague explanation as to why the letter was needed has fueled conjecture that it was a political missive. The attorney general denied such claims, noting that his office did not publicize the letter.
“We issued confidential legal advice to our clients, and one or more of our clients chose to release the advice,” he said.
For her part, Bass felt that more clarity into who asked the attorney general for advice would have limited speculation.
“When I looked at the letter,” she said, “it wasn’t clear to me who asked the question, what the question was and why it caused him to create this advice. That whole trail is sketchy to me, and it shouldn’t be. It should be super clear because he’s a legislative official answering people’s questions and helping them to apply the law.”
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