Discrimination, Virginia’s Colleges, and the Attorney General’s Letter
The Attorney General of Virginia, in his infinite wisdom, has issued a letter to all of the Commonwealth’s universities and colleges informing them that their policies against discrimination on the basis of sexual orientation must be abandoned. As a proud member of the faculty of Virginia’s oldest public university and first law school, I’m interested. At the outset, let me say that I am not an unalloyed fan of antidiscrimination laws, and I am certainly willing to be persuaded by the sorts of libertarian arguments against such laws that have been put forward by Richard Epstein. Discount my opinion accordingly. I also can’t claim to be an expert in the law of higher education or even in the particular authorities cited by the Attorney General. That said, I don’t find the AG’s legal reasoning at all persuasive.
The crux of his claim is that under Virginia law there is no public policy against discrimination on the basis of sexual orientation. Accordingly, he claims that in the absence of specific authorization by the General Assembly Virginia’s colleges and universities are prohibited from making rules on the subject. On the first point, I think that the AG actually has a fair argument. Sexual orientation is not included in the state’s antidiscrimination laws and several authorities have suggested that counties and municipalities lack the authority to pass such statutes on their own. This is all well and good as far as it goes, but all of the authorities cited by the AG go to the question of government entities regulating discrimination by non-government entities.
This, however, all strikes me as rather beside the point when it comes to the antidiscrimination policies at issue. When The College of William & Mary prohibits discrimination on the basis of sexual orientation (or religion or ethnicity or anything else) it is not trying to advance the state’s public policy with regard to discrimination. Indeed, it is not purporting to regulate discrimination by others at all. The College’s policy, for example, has no effect on the ability of a private business in Williamsburg to discriminate. Such questions are – rightly – left to the General Assembly. Rather, The College’s policy is directed at its own operations. As the AG’s letter acknowledges the General Assembly has explicitly granted to the Commonwealth’s colleges and universities the right to promulgate regulations governing their affairs. Furthermore, Virginia’s courts have held that the Commonwealth’s schools have such power inherently as an incidence of their existence. To be sure, the General Assembly could pass a statute prohibiting Virginia’s colleges and universities from promulgating particular kinds of antidiscrimination policies. The state’s elected representatives, however, have declined to pass such a law.
In his letter, the AG noted that our previous governor tried by executive order to declare that the public policy of the Commonwealth of Virginia opposes discrimination on the basis of sexual orientation. Our previous AG – and current governor – issued an opinion stating that the governor lacked the unilateral power to declare such changes in public policy, rather any such policy had to emerge from the legislation adopted by the General Assembly. I don’t know the details of that particular controversy, but in broad outlines this conclusion strikes me as sensible. An executive official cannot unilaterally declare what public policy does or does not require as a matter of law. The same is true when the executive official is the Attorney General.
Again, admitting that this is not my area of expertise and that I’ve done no extensive research on the question, the AG’s legal position just doesn’t strike me as plausible.