McDonnell’s order clarifies discrimination
March 16, 2010
After almost two weeks of debate, the College of William and Mary has received approval from the state of Virginia to include “sexual orientation” and “gender identity and expression” in its anti-discrimination policy.
Two weeks ago the College received a letter from Virginia Attorney General Ken Cuccinelli advising all public universities to strike similar additions from their respective policies. According to Cuccinelli, only the General Assembly can define unlawful discrimination at educational institutions.
Cuccinelli’s letter was met with some resistance from several public universities, including the College. College President Taylor Reveley issued a public statement last week saying the College would review the Cuccinelli’s advice.
“For now, let’s be clear that William and Mary neither discriminates against people nor tolerates discrimination on our campus,” Reveley said. “Those of us at [the College] insist that members of our campus community be people of integrity … We do not insist, however, that members of our community possess any other particular characteristics, whether denominated in race, religion, nationality, sex, gender, sexual orientation, gender identity or expression, or any other of the myriad personal characteristics that differentiate human beings … This is not going to change.”
Several days after the statement was released, Virginia Gov. Bob McDonnell issued an executive directive supporting the opinion that discrimination be based only on merit.
“Discrimination based on factors such as one’s sexual orientation … violates the Equal Protection Clause of the United States Constitution,” McDonnell said. “Therefore, discrimination against classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited … I hereby direct that the hiring, promotion, compensation, treatment, discipline and termination of state employees shall be based on an individual’s job qualifications, merit and performance.”
Reveley said the governor’s statement was reassuring.
“We never believed that the commonwealth of Virginia wanted discrimination on its campuses,” he said.
The issue does not appear to be completely resolved, as no official changes have been made to Virginia law, a stipulation that still concerns students who support policy clarification.
Student activists Casey Sears ’11 and Cassie Adair ’11 have challenged both the attorney general and the government on the lack of state-wide protection for sexual minorities.
“We need to counteract people saying we have won, because we clearly have not,” Sears said.
Adair agreed, saying the issue was far from resolved.
“One of the things we’re trying to do is make sure that everyone understands that there are no state protections, that it’s egregious that there are no state protections, and that legislation needs to be passed in order to [protect them],” she said. “So we really have to pressure our legislators to pass overarching protections.”
Sears and Adair said they were also concerned about how the lack of a protection clause for sexual minorities will affect Virginia’s economy.
“This is a really huge economic issue as well,” Sears said. “One of the big things that Bob McDonell ran on was the ‘Bob’s for Jobs’ thing. By taking away anti-discriminatory language throughout the state, we make the state a somewhat hostile place for LGBT employees.”
Adair said the issue is further reaching than expected.
“It doesn’t just affect the LGBT community,” she said. “It really affects all corporations who already have gay employees and don’t want to come here because their employees would have fewer protections in Virginia.”
Sears and Adair have attempted to gather support for legislative change through Facebook, a web-comic and online video blogs. They have also organized protests at several other Virginia universities, as well as a demonstration at the College scheduled for March 18 at 2 p.m. at the Crim Dell Meadow.
Cuccinelli responded Sunday to the governor’s directive in another letter in which he restated his original position.
“While our colleges and universities are governed by boards of visitors with broad rights and powers, those powers are not unlimited,” he said. “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 … [which] 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.”
The Virginia GA recently voted down an amendment to extend benefits for state employees to same-sex partners.
Cuccinelli also sought to separate emotion from legality and acknowledged the sensitive nature of discrimination.
“While issues related to sexual orientation are among the most emotional and controversial, they do not change this fundamental proposition of Virginia law,” he said. “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.”
Until further decisions are made by the state government, the College will move ahead with plans to adjust the language of its anti-discrimination policy.
“As for the policy itself, there still needs to be a good deal of consultation with both the Faculty Assembly and the Board of Visitors before we come up with the final language,” College spokesman Brian Whitson said. “We want to make sure we get this right.”
There is no set deadline for the new policy to go into effect.