Saturday, March 6, 2010

Virginia Attorney General Wants State Colleges and University to Rescind GLBT-Inclusive Policies

Virginia Attorney General Ken Cucinelli, II appears determined to move the state backwards. Cucinelli has sent a letter to all of the public colleges and universities in Virginia urging them to rescind policies that prohibit discrimination on the basis of sexual orientation and gender identity.

Cucinelli argues that only the Virginia legislature can implement these policies, which it has not done. The issue, however, is probably one that a court would have two decide, if school officials reject Cucinelli's demand.

In 1996 decision Romer v. Evans, the Supreme Court invalidated a Colorado constitutional amendment that rescinded and banned the implementation of laws and policies that protected gays and lesbians from discrimination. Cucinelli's demand letter arguably violates the principle articulated in Romer. That decision, however, does not decide which state entity in Virginia has the authority to implement nondiscriminatory policies. So, there are some issues that require a deeper analysis.

Nonetheless, two things are definitely clear. First, revoking the policies would negatively impact the schools' national reputations and probably cause them to lose some of the brightest and most talented students and professors. Second, some accrediting bodies (e.g., the Association of American Law Schools) require that member schools implement nondiscrimination policies that include sexual orientation as a protected category. Thus, it is unclear whether the schools can repeal the policies and maintain good academic standing.

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