March 10, 2010

Virginia Gov. Bob McDonnell has directed state agencies not to discriminate against gays, essentially overriding the state attorney general's advice to colleges about their anti-discrimination policies.

McDonnell's directive Wednesday came amid a public uproar over Attorney General Kenneth Cuccinelli's letter last week telling public colleges they lack the authority to prohibit discrimination based on sexual orientation. Cuccinelli told colleges to rescind or change any anti-discrimination policies that include protection for gays.

The Republican attorney general's letter was denounced by gay-rights groups and Democrats. In the letter, Cuccinelli said colleges can't include gays in their anti-discrimination policies without General Assembly authorization.

Members of the local gay community say there are still many issues facing them in Virginia, but are pleased with Gov. McDonnell’s strong stance and quick action.

“I was a little surprised actually that it happened as fast as it did. We in the gay community were gearing up for a lengthy battle, so I'm a little surprised and very happy that it's come to pass this way,” said gay rights activist Andre Hakes.

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Statement by President Casteen: Gov. McDonnell's Executive Directive Clarifies Nondiscrimination Policy

March 10, 2010 — University of Virginia President John T. Casteen III issued the following statement Wednesday evening in response to Gov. Bob McDonnell's Executive Directive One.

To All Students, Faculty Members, and Staff:

I am including a copy of Governor McDonnell's Executive Directive One, which was issued this afternoon. You may receive this document directly from the Governor later tonight. This directive prohibits discrimination against any person (including students and employees) within the public colleges and universities, and grounds this prohibition in Constitutional protections that belong to all of us. Please read the document carefully, and note particularly these sentences in the second paragraph:

"The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one's sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited."

Because the public colleges and universities are Executive Branch agencies, this directive applies to the University of Virginia. The Governor's citation of the 14th Amendment (the Equal Protection Clause) moves this issue to the highest level of law in the United States.

Impasses of the kind that the Governor's Executive Directive resolves occur from time to time. They are not commonplace, but of course neither is the combination of wisdom and bravery embedded in the Governor's directive. As impasses are resolved, it is not unusual for the Governor and other state officials to provide implementation guidance. The Governor and others who have worked on these issues throughout the week need to devote their time now to the State's budget crisis and to other matters that must be addressed as the General Assembly wraps up this session's work.

This directive's eloquence and clarity set it apart from many policy statements that come from all sorts of sources. Perhaps needless to say, I am personally grateful to the Governor for it. This had become an uncommonly troubling issue, one that cuts to the core of our common claims to the most fundamental kinds of personal security under the rule of law. Discussion will undoubtedly continue, as it should in a free society that thrives on open discourse. But as rightly alarmed as many of us and I myself were by last week's Attorney General's letter, I was struck through the week by the wisdom and dignity of the discussion that occurred. Let us hope that the subsequent discussion will rise to the level of the model struck in the directive.

I am profoundly grateful to Governor McDonnell, to others who have helped to reason through this matter, and of course to you for the civility and decency with which you have pondered these issues. And thank you for the notes of advice that have come this week.

Best wishes,
John Casteen