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.

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15 Responses

  1. Jack says:

    Might it also be relevant that while the public policy of Virginia does not prohibit sexual orientation discrimination, it also does not require or promote sexual orientation discrimination? That is, if the public policy of the state were to, say, eradicate a particular species, a state agency would violate public policy by protecting that species. But if the state policy was neither protection nor eradication, then no public policy of the commonwealth would be undermined by a policy of a unit.

  2. Nate Oman says:

    I agree. I would go farther, however. I think that the issue of public policy is a red herring here. The Assembly and the Virginia courts give colleges and universities broad discretion in their internal affairs. The public policy argument seems to suggest that somehow conduct that fails to advance some goal rising to the level of public policy is ultra vires. This makes no sense to me. Public policy might act as a constraint on university policy making in cases of conflict but it doesn’t define the scope of that policy making.

    It will be interesting to see what, if anything, comes of this.

  3. Ken says:

    This subject was posted by economist Tyler Cowen on the blog Marginal Revolution a few days ago. The string of comments was interesting, and it left an open question that seems very crucial, and that needs an expert legal answer. Can an individual institution, absent legislation by the government, establish a possible cause for a tort?

    I posited that, as Professor Oman stated here, the legislature sets state-wide policies, and then each University sets individual “policies” which are, in reality, the “Procedures Manual” for how the institution runs itself.

    I think that there are many “policies” set by Universities, as well as other institutions like hospitals, libraries, museums, etc., that are do not establish a grounds for a tort, but merely establish a standard for behavior by their own employees.

    In the subject situation, for example, if William and Mary establishes a “non-descrimination on the basis of sexual orientation” policy, then in effect they are saying “our employees will not be permitted to discriminate against any student (or other employee) on that basis, and if they do, then they will be subject to discipline, and their discriminatory actions will be summarily overturned.”

    That sounds like a pretty good policy.

    Jay J, however, raised this very relevant question, which I bring here for expert review:

    “But when you say that if W&M established a non-discrimination policy that what they are essentially doing is regulating their own behavior, I have to wonder if that’s all they’re doing.

    “I suppose I don’t know enough to say for sure, but aren’t institutions obligated to abide by their non-discrimination policies, and if they don’t, they open themselves up for lawsuits?”

  4. Nate Oman says:

    Ken: I’ll have to take a look at the Tyler Cowen post but I am not sure that I see how tort comes into it. If The College announces a policy, for example, stating that it does not discriminate on the basis of religion and it then fires me because I am a Mormon, when I sue them I am not suing in tort. Rather, I am suing for what amounts to breach of contract or perhaps promissory estoppel. There is nothing especially exotic about the idea that institutions may bind themselves by committing to others that they will follow particular policies. This happens in litigation against companies for non-compliance with various sorts of internal policies all the time.

  5. Jay J says:

    Nate Oman,

    Ken pointed the way over here, so I came. Looks like an interesting blog.

    So, what if universities started making extravagant promises, let’s say in blanket form, that caused them to be in breach of contract, and therefore open to liability. Would the state be constrained in terms of not being able to tell the universities to get rid of the extravagant promises, because such promises are the province of particular institutions?

  6. Ken says:

    Nate–I mentioned potential tort claims, not because of the institution’s relationship with its employees, but rather, because a published “policy” might impact non-employees.

    Consider, for example, a gay student who enrolls in the university based, in part, on the university having proclaimed that it will not discriminate against gay students. Subsequently, several of the professors at the university act in vicious and clearly discriminatory manner toward the student, causing emotional distress. Further, a survey shows that those professors give consistently lower grades to gay students than to other students, thereby (presumably) having possibility of important financial impacts on the student’s later career.

    This seems to me to be a tort situation. And if the announcement of the policy was a major factor in luring the student to attend the university (in preference to others), then it seems maybe the university, by announcing a non-legislated “policy,” may have created a potential tort cause where none previously existed.

    Am I way off base here?

  7. Nate Oman says:

    I think so. It seems to me that the cause of action against the university under the policy sounds in contract rather than tort, although there might be some sort of tort liability based on a separate theory, depending on the viciousness of the professors’ actions. Note, the fact that the claim under the policy sounds in contract rather than tort might limit the extent of recovery, although in certain kinds of bad faith breach of contract actions courts will sometimes relax limitations on forseeability and even award damages that look fairly punitive, e.g. lender liability cases like KMC v. Irving Trust. Also, as a practical matter it is important to remember that the real bit in these policies generally comes through their application in the universities’ internal grievance and complaint procedures, rather than in state courts.

  8. Kevin C. Walsh says:

    Nate – Thanks for your post. I’ve been looking for legal analysis of the AG’s letter, like your post supplies, rather than speculative criticisms of his motives, which is all too abundant elsewhere.

    I’m not sure why the distinction you make matters if the question is who gets to define who gets protected by a state institution’s non-discrimination rules. The precedents that you distinguish come after what seems to be the key analysis in the AG’s letter. I took that analysis to be aimed at establishing something along the lines of the General Assembly having occupied the field of defining protected classes at state educational institutions. The letter states that the General Assembly “has specifically defined unlawful discrimination at educational institutions,” and “no state agency can reach beyond the boundaries established by the General Assembly.”

    I can understand why one might view the Human Rights Act as a floor only, but I can also understand why one might view this as an area in which all “arms of the State” should have uniform obligations to third parties. On this latter point, the AG’s letter states a concern that expanding the classes protected by institutional non-discrimination policies “invites creative litigants to deem a university’s benign non-discrimination statement to mandate, by contract, particular benefits or privileges to individuals based on such classifications.” Whether one views this possibility as good or bad, it certainly strikes me as plausible to conclude that a state institution would need explicit statutory authority to add a protected class to a state institution’s non-discrimination policy.

    I hesitate to wade in further without knowing more about the surrounding law. Nevertheless, the pressure point in the AG’s analysis seems to be the letter’s reliance on the Virginia Human Rights Act as setting forth an exclusive list of classifications for use in non-discrimination policies at state educational institutions. The Act is not limited to state institutions. As the portion quoted in the letter reveals, the Act’s coverage reaches more broadly, to “places of public accommodation, including educational institutions . . . .” With respect to places of public accommodation that are not “arms of the state” or “state institutions,” it would seem more sensible to treat the Act as setting forth a floor rather than an exclusive listing of classifications. If that is right, then why should the Act be understood differently with respect to state institutions? One answer is that policies of state institutions are policies of the state, and uniformity regarding obligations of the state to third parties is desirable. But that hardly seems to add up to legislative intent to foreclose policy pluralism above the Act’s floor. Without knowing more about the background law in this area, it is difficult to know where this leads for a bottom-line conclusion. Any thoughts?

    In any event, the substance and tenor of the comments here are a welcome addition to the bulk of commentary out there, which – judging from the pages of the Times-Dispatch at least – criticizes the AG’s motives after bracketing the correctness of the legal analysis, as if the question of legal correctness did not matter when criticizing the content of legal advice. Thanks.

  9. Nate Oman says:

    Kevin: Good to see you here. If I understand you correctly, for you the issue boils down to two claims:

    1. The state might wish to limit universities discretion as a way of protecting the public fisc from liability inconsiderably created by university administrators.

    2. The Virginia Human Rights Act already defines the scope of protected classifications in Virginia higher education and colleges and universities lack the authority to expand those classifications.

    As to the first issue, my understanding (and again I don’t claim to have looked closely at this) is that both state statutes and state common law grant to universities broad discretion, discretion that they have the ability to use in all sorts of ways to expand their liability. Given this fact, in the absence of some compelling reason to suppose that classifications regarding the protected status of homosexuals are different, I see no reason why such questions don’t fall within the ambit of university’s discretion.

    This gets to the second issue, as the AG claims that the Virginia Human Rights Act and related case law provides such a reason. It seems to me, however that the Act is directed toward the regulation of public accommodations. It explicitly includes educational institutions (both public and private, I would add) within the definition of accommodations, but it seems a stretch to view it as expressing some particular public policy with regard to education. Furthermore, university codes aren’t amending the Human Rights Act. I’m assuming, for example, that the sorts of remedies that they offer are likely to be very different than the remedies offered by the Act. They also, obviously, have a much narrower scope.

  10. Kevin C. Walsh says:

    Nate — Given sovereign immunity and the web of laws governing monetary liability of state institutions under state law, I am in no position to comment on possible effects on the public fisc.

    As I see it, the issue comes down to the claims that: (i) the General Assembly “has specifically defined unlawful discrimination at educational institutions” by identifying certain protected classes or classifications; and (ii) lacking explicit legislative authorization, “no state agency” can add to these classifications, because to do so would be to “reach beyond the boundaries established by the General Assembly.”

    (i) seems correct.

    The correctness of (ii) turns on whether the classes and classifications set forth in the Human Rights Act are viewed as a comprehensive, exclusive listing, or rather as a floor.

    The AG adopts the comprehensive, exclusive listing interpretation with respect to state agencies, including public universities. That interpretation is plausible, because policies of state institutions are policies of the state, and uniformity regarding obligations of the state to third parties is desirable. I disagree with the part of the original post that says that “[w]hen 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.” The reason I disagree is that when a state institution makes policy, the resulting policy is the policy of a state institution and, in that sense, policy of the state.

    I recognize that policy uniformity on all matters among all state institutions is not the highest or the only desideratum. The question, though, is whether on this matter, i.e., the identification of a class protected against discrimination by a state institution, the AG is wrong to find in the Act legislative intent to foreclose additions by state institutions other than pursuant to explicit legislative authorization. On this question, the precedents cited in the AG letter seem to incline the analysis in the AG’s favor. (I say “seem to” because I have not read the full text of the opinions and am relying on the descriptions in the AG’s letter.) Those opinions establish that localities “have no authority to expand their non-discrimination policies.” One can distinguish localities from public educational institutions in many ways, but what distinction explains why public educational institutions can expand the scope of protected classifications while localities cannot? I am now going far beyond my ken, but invocation of some implied powers does not seem to be enough. Compare, e.g., Va. Code § 15.2-1102 (general grant of power to municipalities) with Va. Code § 23-44 (powers and duties of board of College of William and Mary). There may be important differences with respect to the scope of implied powers, but without knowing of any in particular, I am not in a position to fault the AG’s reliance on precedents relating to localities, particularly given the absence of precedents establishing the power of other state institutions to add protected classifications.

    All that said, I think it is a close and difficult question. Interpreting the Act as a floor for non-state “places of public accommodation” seems more sensible than interpreting the Act as setting forth a comprehensive, exclusive listing. And, if that is so, then one could argue (as I take you to be arguing) that the comprehensive, exclusive listing interpretation is wrong with respect to policies of public universities, which for this purpose are more like private universities than they are like localities or other political subdivisions.

  11. Nate Oman says:

    Let me see if I can boil my position down:

    I don’t think that an anti-discrimination policy by a university makes discrimination unlawful. Rather, I think that it constitutes the institution making a choice about the direction of its own behavior. To the extent that it binds other persons it does so purely as a matter of contract. Accordingly, I don’t think that precedents regarding the limitations on state agencies’ authority to declare the scope of unlawful discrimination are relevant. Were The College of William & Mary to declare that it had the authority to make discrimination by educational institutions on the basis of sexual orientation illegal, the AG’s position would make sense. The precedents that he cites suggest that such a claim on The College’s part would exceed the scope of its authority. This, however, is not what The College is doing with its policy. Rather, it is announcing that it, itself, will not discriminate on the basis of sexual orientation and that it will sanction its agents if they engage in such discrimination on its behalf. The sanctions that it imposes, however, are within the ambit of the contractual relationship between The College and its agents. Hence, the policy applies not because it is a legislative enactment with the force of law, but because The College has the autonomy to choose it’s own conduct and contract on the terms that it sees fit.

  12. Kevin C. Walsh says:

    Thanks for the distillation. But doesn’t The College’s non-discrimination policy govern interactions that The College has not only with its agents, but also with third parties (such as job recruiters)? It seems more like a general policy about sanctionable discrimination rather than just internal guidance about an institution’s own conduct.

    I’m sure there are better analogies (some of which may point in the other direction), but that one that your position brings to mind is Crosby v. National Foreign Trade Council, in which the Court held that a Massachusetts law barring state entities from buying goods or services from companies doing business with Burma was preempted. As I understand your position, Crosby should have come out the other way if Massachusetts had accomplished the same objective through some sort of state purchasing policy rather than a statute, right?

  13. Nate Oman says:

    What a bizarre melodrama. McDonnell’s order is a more or less 180 degree turn politically from his position as AG, although as a legal matter he seems to be making a slightly different argument. Of course, what we have here are dueling executive opinions about the status of pre-existing law. I’m not sure that either of them bind the colleges and universities in anyway.

  14. Nate Oman says:

    Kevin: I don’t think that the policies have any teeth vis-a-vis third parties other than the sanction of the The College refusing to do business with them. Again, the relationship is ultimately contractual. As for Crosby, I’ve no opinion…