PJ Media

A few days ago Ken Cuccinelli, Virginia’s new conservative Republican attorney general, “advised the state’s public colleges that they don’t have the authority to ban discrimination based on sexual orientation, saying only the General Assembly has that power,” producing a stampede of criticism not only from the usual suspects but also others who are not reflexively anti-Republican.

On March 9th, the Washington Post reported:

More than 3,000 people joined the Facebook page We Don’t Want Discrimination In Our State Universities And Colleges! Nearly 1,000 people joined another, started by activists at the College of William and Mary. The University of Virginia group Queer & Allied Activism urged students to protest on Cuccinelli’s Facebook page and on Twitter.

Students at Virginia Commonwealth University, one of the few in the state not on break, planned a rally for noon Wednesday, with several hundred students committed. At Christopher Newport University, student Republican and Democratic leaders will discuss their next steps at a bipartisan meeting Friday.

“I’ve never gotten so many e-mails from students wanting to do something,” said Brandon Carroll, 21, president of the student government at Virginia Tech. He said any erosion in gay rights at state universities is “going to make us lose top students. It’s going to make us lose top faculty.”

And, the Post reports, not just students were agitated:

A growing number of industry leaders have also lined up against the directive from Cuccinelli (R), some portraying it as a threat to the quality and competitiveness of Virginia’s higher-education system. …

Leaders of academia attacked the state directive on several fronts. The head of the Virginia conference of the American Association of University Professors wrote in a letter to the governor that any discrimination not grounded in qualification or merit “is abhorrent to the values of higher education.”

Public universities generally are afforded autonomy by state governments in writing policy, said Peter McPherson, president of the Association of Public and Land-grant Universities. Virginia state code, however, is “somewhat vague” on who makes the rules, said Kirsten Nelson, spokeswoman for the State Council of Higher Education for Virginia. …

Robert M. O’Neil, former president of U-Va. and now director of the school’s Thomas Jefferson Center for the Protection of Free Expression, said in an e-mail, “it is far from clear that the Attorney General would be expected to or even empowered to turn back the clock on such a vital issue of public importance,” noting that the state’s higher-education community is “unanimous in its commitment to equality.”

What a royal, stupid, unnecessary mess, as John Farrell noted in U.S. News & World Report:

When the Republicans in Virginia staged a comeback last fall, they did so by persuading independent voters that the GOP had given up its desire to police our bedrooms, and would focus instead on pragmatic solutions for serious issues, like the dearth of jobs, the cost of education and the surplus of traffic. Here was the model for a Republican resurgence in 2010, the wise guys in Washington said.

But the paint wasn’t dry in the office of Attorney General Ken Cuccinelli II before he jumped at the chance to indulge in gay-bashing. He dashed off a letter to the state’s colleges and universities, telling them to rescind their policies that ban discrimination on the basis of sexual orientation.

Now, some may regard this as a minor point and others may regard it as irrelevant, but before saying more I should point out that Cuccinelli’s legal argument may in fact be correct. It is not at all clear that Virginia’s public colleges do have the legal authority to go beyond state law in banning various forms of discrimination.

According to the Washington Post:

[s]ome lawmakers called Cuccinelli’s stand consistent with legal opinions offered by past attorneys general, who have advised local governments that they do not have the legal right to add sexual orientation to their policies without authorization from the General Assembly.

But legalities aside, even if Cuccinelli is correct on the law, that doesn’t mean he should have charged ahead provoking a public firestorm on a controversial social issue, especially after the Republican ticket headed by newly elected Gov. Bob McDonnell had studiously avoided social issues in the campaign. If Cuccinelli had revealed an intention to tell colleges they could not prohibit discrimination against gays there’s a chance neither he nor even Gov. McDonnell would have been elected.

Let me now make this issue personal. Not only did I support Cuccinelli, but on more than one occasion (especially one at a fundraiser for him that he will recall) I urged him to do something that he may regard as similar to what he has done: pledge during the campaign that as attorney general he would do whatever he could to rescind racial preference policies in Virginia. (I gave the same advice to Bob McDonnell.)

Cuccinelli pointedly refused, provoking me to send the following email to three conservative friends on Sept. 26, 2009:

You three are no doubt much more experienced than I at being disappointed by Republican politicians, so I thought I would share with you our sad experience last night at a fundraiser for Ken Cuccinelli, running as you know for Va. AG.

You probably also know that he’s VERY conservative — uncompromisingly pro-life, against Kelo even before Kelo was decided, a thorn in the side of the go-along to get-along Republican old boys in the state senate, etc., etc. He gave impressive, even moving remarks to the supportive gathering in the imposing McMansion of the sponsor … about the importance of sticking up for the Constitution “as written,” about First Principles (which he seemed to capitalize even in speech) and how compromising them was not only unprincipled but bad for the party and hence for the country. Etc., etc.

All in all, very impressive, as is his record. Which made my disappointment more severe: in conversation, he refused to stand up for the “without regard” principle. I’ve drafted a blog post, which I attach below, but I probably won’t post it out of concern that maybe there was an expectation that the gathering would be private. No one said “off the record,” but I still feel a bit funny about it. … Anyway, this now makes you a select  (and small) audience. What a bummer. If we can’t get Republicans as professedly principled as Cuccinelli to stand up for treating everyone without regard to race, maybe we should just pack up and go home. (Oh, wait. I am home….)

I didn’t post it, but I see no reason not to do so now, a bit late:

Depressing Words From An Appealing Candidate [DRAFT 9/26/09]

Helene (the Discriminating Wife) and I went to a fundraiser tonight for Ken Cuccinelli, the Republican candidate for attorney general in our statewide election this November. …

In many ways it is hard to imagine a more appealing candidate. A conservative (actually, very conservative) state senator who has been re-elected twice in a very liberal, Democratic district in Northern Virginia (the only remaining Republican in the delegation from Northern Virginia), he has a strong record standing up not only for conservative policies (which has often made him unpopular with other Republican office-holders) but even conservative principles, from which he makes it a point of pride not to back down.

Indeed, his remarks tonight were infused with dedication to those principles and how it is not only unprincipled but bad politics for Republicans to compromise them in misguided efforts to woo interest groups or, for whatever reason, to appear more “moderate.”

I was impressed, which probably increased my disappointment with his firm refusal to stand up for the “without regard” principle. In conversation, I gave him what I thought, and still think, a brilliant (if I do say so myself) suggestion: ask his Democratic opponent in one of their next debates whether or not he agrees that all Americans should be treated by their governments without regard to race, creed, or color. This would, of course, put his opponent (and, in fact, any Democrat) on the spot: if he agreed, he would be admitting his opposition to affirmative action; if he disagreed, he would be offending the overwhelming majority of voters who still revere that principle.

Cuccinelli, however, although he agrees with the principle, and would say so if asked (and even as a state senator, offended the higher education establishment by trying to get it to reveal data on admissions preferences), would not go, as they say, “pro-active” with it. “I want to get elected,” he said, “and there are too many people who equate colorblindness with opposing civil rights.” He was not swayed by my pointing to survey data, with which he professed familiarity, confirming that a substantial majority supports colorblindess, nor could I shame him by saying Republicans should not let Democrats continue to get away with sliming the “without regard” principle.

Disappointing. Especially now, when large numbers of people are fed up with being called racist for the offense of criticizing Obama’s health care policy and would like a politician to stand up for them.

Cuccinelli’s unwillingness to stand up for the “without regard” principle of colorblind non-discrimination during the campaign followed by his eagerness to proceed now with an equally undisclosed social agenda, one that at least appears to condone discrimination, makes his campaign silence seem duplicitous.

What? You’re not shocked that a politician was duplicitous? Then you probably also won’t be shocked at the hypocrisy, for lack of a better word, of Cuccinelli’s most outspoken critics. Do those 3,000 students and others who proclaim in Facebook that WE DON’T WANT DISCRIMINATION IN OUR STATE UNIVERSITIES AND COLLEGES! object to the racial preference policies that are pervasive in Virginia, as elsewhere? Isn’t a policy that favors some and disfavors others based on their race discriminatory?

And what of the Virginia Conference of the AAUP, which proclaimed in its letter to Governor McDonnell that “discrimination on grounds irrelevant to qualifications and merit is abhorrent to the values of higher education and to the Commonwealth of Virginia.”

Really? If so, where are its equally principled letters and statements opposing racial and ethnic preferences? Does it not regard racial and ethnic discrimination as “abhorrent”? Apparently not, since the AAUP strongly supports affirmative action and was “troubled” when Michigan voters passed a constitutional amendment prohibiting their state from discriminating against, or giving preferential treatment to, individuals or groups based on their race, gender, color, ethnicity, or national origin.

And the only way former UVa president Robert M. O’Neil can be correct in his assertion that the state’s higher education community is “unanimous in its commitment to equality” is if the version of “equality” they support does not preclude treating some people better and others worse because of their race or ethnicity.

If Cuccinelli were smart, a possibility considerably dimmed by his recent maneuver, he would turn his lemon into lemonade by inviting a wide open dialog across the commonwealth on the meaning of equality and the sorts of discrimination it precludes. As part of that dialog, he could ask whether any public colleges in Virginia are treating gays the way they treat other selected minority groups, i.e., with preferential treatment, an issue I’ve discussed on PJM here and here.

UPDATE

“Attempting to douse a political firestorm set when his attorney general decreed” that Virginia colleges lacked the authority to ban discrimination against gays, Gov. Bob McDonnell moved quickly on Monday to countermand AG Cuccinelli’s order. “It has caused too much fear and too much uncertainty in the business community and the higher-education establishment and among young people in the commonwealth,” McDonnell told reporters, “and I simply won’t stand for that.” (Especially, cynics might note, while the state is trying to attract gay-friendly Northrop Grumman to Fairfax County.)

The McDonnell decree is not an executive order and does not establish new law, but according to Prof. A.E. Dick Howard of the UVa law school it does give employees additional recourse under existing law. At best, it’s a stopgap measure, since the pressure will increase for a new state law, causing further tension among factions of Virginia Republicans. As Steve Waters, a Republican operative allied with party conservatives, pointedly put it, “there is trouble in the Republican house when the attorney general seems to side with the grassroots of the Republican Party and the governor and lieutenant governor seem to be straying away.”

UPATE II

“You know you’re not having a good week,” the Richmond Times Dispatch reported Sunday (March 14), “when Comedy Central’s The Daily Show lampoons Virginia’s anti-discrimination policy that excludes sexual orientation.” Jon Stewart, a graduate of William and Mary, called that segment, “Gaywatch, Virginia Edition.”

As unfortunate as this kerfuffle has been (the headline of the Times Dispatch’s article is “Bias Dispute Knocks McDonnell Off Stride”), much of he criticism of Cuccinelli is little more than partisan hyperbole. In an op-ed on March 15, he gave a cogent explanation of his position:

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. …

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.

Not a bad argument at all. In retrospect, however, it would have been better if the AG had kept it to himself for a while, or consulted more widely before acting.