No big deal, except symbolically

The Commonwealth of Virginia’s new Attorney General, Ken Cuccinelli, has created a stir by advising the state’s public colleges and universities that they have no authority to adopt policies that ban discrimination on the basis of sexual orientation. He has called on these institutions to rescind such policies.
Cuccinelli, a strong social conservative, concludes that only the state legislature can extend legal protections to gay state employees and students. Virginia’s legislature, the General Assemby, has repeatedly (and again just recently) declined to take this step.
Cuccinelli’s position is, I think, correct as a matter of law. Indeed, though it denounces the decision, the Washington Post editorial board concedes that, for 25 years, Cuccinelli’s predecessors — Republican and Democrat — have “come to a similar conclusion concerning cities and counties that wished to extend protections to gay and lesbian residents.” If the elected representatives of local governments lack this power, I’m at a loss to understand how university bureaucrats possess it.
The Post says that “colleges and universities traditionally have been given broad leeway to set policy.” But this only begs the question; it isn’t really an argument.
The Post also says that colleges and universities “have been havens for inclusive policies that often go hand-in-hand with academic freedom.” This invocation of buzz-words also begs the question, even as it raises a new one: if colleges and universities are “havens” of non-discrimination, do they really need formal policies to prevent discrimination against gays?
Cuccinelli isn’t saying that Virginia’s colleges and universities must discriminate against gays, and Gov. McDonnell has said he doesn’t want them to. If a given college is enlightened enough to write up a formal anti-discrimination policy, it is enlightened enough not to permit discrimination against gays to inform its decisionmaking in the absence of such a written policy. So the issue here isn’t really “legalized discrimination,” as the Post’s editors claim.
What practical difference (from the point of view of real gay rights, as opposed to symbols and public relations) does Cuccinelli’s legal adivce carry, assuming that colleges and universities follow it? I may be missing something, but the only important difference I see is that the absence of a formal prohibition against discrimination cuts off potential litigation.
That’s no great loss. Discrimination claims by gays against universities that are “havens for inclusive policies” are overwhelmingly likely to be frivolous. In any event, university administrators should not be drafting policies that may create suits over actions the legislature has refused to deem illegal.
Virginia’s colleges and universities would like to keep their anti-discrimination policies in place for ideological reasons and to make their schools more attractive to top applicants and professors. But even if revoking these polcies might tangibly hurt these schools, it’s up to the legislature to weigh this potential consequence.

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