With the opinion released by the Virginia Attorney General Cuccinelli , directing public colleges and universities to rescind all LGBT-inclusive nondiscrimination policies, Virginia is in a position to set a precedent for other conservative states to roll back protections for its LGBT public college and university employees. Cuccinelli argues that the institutions' Board of Visitors do not have the right to set these policies for their institutions, because they are creating a "suspect class" that isn't recognized by the larger state.
Colleges that have included such language in their policies -- which include all of Virginia's leading schools -- have done so "without proper authority" and should "take appropriate actions to bring their policies in conformance with the law and public policy of Virginia," Cuccinelli wrote.
I am not a legal scholar, but his legal analysis in the letter cites a lot of legal precedents. Cuccinelli notes that cities and counties in the state, along with the Governor's Office, have all been apprised over the last 25 years that LGBT-inclusive nondiscrimination policies are not appropriate given Virginia State Human Rights laws. It does assume that city and county entities as basically the same as colleges and universities, and it seems to me that this is the assumption that could be challenged in court. This assumption is pretty problematic, to me, and it was also problematic to a conservative Virginia law student, who offers an argument rooted in Virginia law, and it has implications for many different kinds of policy issues beyond antidiscrimination policies.
A quick review of responses to the letter shows that none of the critics, including the ACLU, is willing to argue that his legal reasoning is flawed. Instead, they condemn the larger issue of revoking protections for certain groups and basically encouraging discrimination.Students, members of Boards of Visitors, and faculty are appalled at the letter and the message it sends, and I would argue rightly so. But I would also argue that the current state of affairs leads us to two options: (1) Organize to pass state legislation protecting LGBT employees (bills that have failed to pass heretofore in the Republican-controlled assembly) or (2) move "state institutions" out of the purview of the state--removing institution employees from the rolls of state employees--and into the realm of "state affiliated" or "state related" institutions.
I am starting to wonder if the second option is where most public institutions, especially the research institutions, are headed. State funding for public institutions has declined over the last 20 years, and many institutions are having to find other sources of revenue. This national trend was found in Virginia as well; in a 2009 report, the State Council of Higher Education for Virginia found:
Between 1992 and 2010, general fund appropriations to public higher education in Virginia fell from 14% to 11% of total state appropriations. More specifically, on a per student basis or full-time equivalent (FTE), general fund appropriations to in-state students declined by 18% at the four-year institutions and by 9% at the VCCS from 1992 to 2010 (in constant dollars). ... Virginia ranked 40th for state and local appropriations [to higher education].Instead of relying on public dollars, these "state" institutions have had to rely on tuition increases and, for research institutions, research dollars to cover their costs. Yet, even as institutions move away from depending on the state for financial support, they still are compelled to follow state laws and classify their employees as state employees. Why is this? And why do state leaders in states that have declining financial support seem even more likely to want to exercise more control over the actions of their public institutions of higher education?
According to the National Conference of State Legislatures, 13 states classify college/university employees as state employees, covering them under state health insurance plans and requiring them to follow state employee policies. In some states, university and college employees greatly outnumber other state employees. Keeping the college and university employees classified as state employees benefits the state--it creates a bigger pool for health insurance, for example--but this example in Virginia clearly shows that it may hamper the ability of colleges and universities to create their own policies and programs.
And where is the line drawn regarding state control of its institutions of higher education? What policies should legislators get to dictate for state colleges and universities? Would it be appropriate for the legislature to pass laws requiring institutions only to hire instructors from Ivy League schools? To adopt specific textbooks? To ban the teaching of certain ideas? To withhold funding for schools that provide birth control pills in their student health centers? The balance between universities and the legislature already is tenuous, influenced by the sharing or withholding of state funds, and it is problematic to have the state government dictating colleges' and universities' policies for their employees.
I have worked in three different states for large, public institutions, and each one has promised to protect me from employment-related discrimination based on sexual orientation--a promise I find very important as an out lesbian employee. This move in Virginia would make me far less likely to take a job in that state, and it may prompt academics to leave the state for employment elsewhere. This aggressive move to limit the rights of Virginia colleges and universities to make policies for their employees may reap a larger whirlwind as state institutions consider new ways of defining themselves and their own futures.