University stands committed to nondiscrimination as ‘sexual orientation’ letter riles students and employees

The above picture is a snapshot of the letter from Attorney General Ken Cuccinelli that sparked massive uproar, online and off, due to its legal opinion that state universities remove language from their nondiscrimination policies that protect 'sexual orientation,' in order to comply with state law as determined by the General Assembly.

Students took to the Internet and social networks in a whirlwind of uproar this past week after a recent legal opinion from the state’s attorney general to state university leadership was leaked to local and national press.

The letter, authored under ‘Attorney-Client privileged communication’ by recently elected Attorney General Ken Cuccinelli (R), advised universities to remove ‘sexual orientation,’ ‘gender identity’ and ‘gender expression’ from the language of protected classes in their nondiscrimination policies in order to fit in accordance with Virginia state law.

The inclusion of such language, “absent specific authorization from the General Assembly,” according to Cuccinelli, a George Mason University and Mason Law School alum, is unconstitutional. The opinion comes on the grounds that while state universities have broad authority – particularly within the area of student safety and discipline – a public institution has “no authority greater than that of the body that created it and from whom they derive their expressed and implied authority.”

University officials over the past week have repeatedly reassured students and faculty of their “unwavering commitment,” as stated by Rector Ernst Volgenau, to Mason’s embracement of diversity.

The Context: Legal Debate Over Nondiscrimination Criteria

Current state law as determined by the General Assembly prohibits discrimination because of "race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability," but makes no mention of sexual orientation. The legislature has rejected bills adding the classification to its statutes on more than 25 occasions since 1997, including instances most recently as last Tuesday when a bill was left to die in subcommittee.

Cuccinelli’s legal opinion, as he lays out in the letter, agrees with what he says is the stance of the legislature. He additionally illustrates through the letter that he believes it falls in line with prior opinions of the Attorney General, many of whom were Republican.

Cuccinelli notably cited one Democrat, former Attorney General L. Baliles, who in a 1982 opinion said localities such as Fairfax County could not expand legal protections beyond state discrimination law. Baliles, who now serves as the executive director of the Miller Center of Public Affairs at the University of Virginia, recently issued a legal response stating he believes Cuccinelli erred in his legal interpretation of the powers of state universities by inappropriately assigning the same powers given by the state to localities to those given to Boards of Visitors to govern colleges.

Lambda Legal, “the nation’s oldest and largest legal organization dedicated to achieving the recognition of the civil rights of lesbian, gay, bisexual and transgender (‘LGBT’) community,” has written a similar legal response.

Before the legal responses to Cuccinelli’s letter went public, Governor Bob McDonnell (R) issued Executive Directive One, directing state employees not to discriminate on the basis of sexual orientation. The directive, however, is only a policy statement from the executive office. It does not hold the legal power of an executive order, and has no bearing as state law.

Va. Students Respond with Vigor

Though some universities, including Mason, are still on their spring breaks, Virginia college students have been anything but silent. More than 1,000 people demonstrated Wednesday at Virginia Commonwealth University in opposition to Cuccinelli’s letter.

A video of demonstration compiled VCU's The Commonwealth Times  is posted below.

Much of the uproar, however, has been seen online. Twitter searches returned large results when the press first got wind of the letter, but Facebook has harbored the most intensity and anger.

Negative posts have bombarded Attorney General Ken Cuccinelli’s fan page, with a seemingly large majority coming from college students.

“Hey, Ken! I go to [Old Dominion University] and our president just sent all of us an email saying the we will never discriminate against our staff and students, no matter what their sexuality,” said one post. “Basically, he was telling us that he took your letter and put it where it belonged...the garbage.”

“…I personally will take notice and provide civil resistance each time you [Attorney General Ken Cuccinelli] attempt to force me into a mold which my lifestyle, my surroundings, and the general state of the country and the world will not allot for,” said another posting.

“You do not have my vote, sir. Nor have you ever had it,” it said.

The attacks don’t stop there. Upwards of 25 groups have additionally been made riling against Cuccinelli and/or his stance, all with names similar to “Students Against Ken Cuccinelli” or “Ken Cuccinelli is Bad for Virginia,” and with membership counts as high the approximately 2,250 of “VCU says ‘NO’ to Ken Cuccinelli's Discriminatory Letter.”

The group targeting Mason students, “George Mason University says ‘No’ to Ken Cuccinelli's Discriminatory Letter,” in comparison to schools of similar size has one of the smallest membership counts, resting at approximately 200.

Employees of the university’s Switchboard, however, claim calls looking for Equity and Diversity Services have been more than steady.

Mason Administration Reacts Amid Uncertainty

While students protest and law officials argue the legal correctness of Cuccinelli’s opinion, legitimate concern has risen as to where this puts the specific nondiscrimination policy at Mason in the future. University Policy (1201) does include sexual orientation as a protected class as part of the univeristy’s “institutional commitment to nondiscrimination.”

Administration support of the policy as it stands seems strong. Rector Volgenau sent a message to all Mason students, faculty and staff earlier this week emphasizing the Board of Visitors’ commitment to the issue and the embracement of diversity “which has become [the university’s] hallmark.” Vice President of University Life Sandra Scherrens sent out a similar message to University Life staff, emphasizing the Core Value “Embrace Our Differences,” and calling for reaffirmation of the office’s core values with its daily interactions with students.

“This is a time to be compassionate,” Scherrens said in the statement. “This is a time to listen; to be sensitive, and most importantly, to be a calming influence in a time of uncertainty.”

According to a joint-statement in response to a Connect2Mason inquiry by Assistant to the President and Director of Equity and Diversity Services Corey Jackson, Provost Peter Stearns and Senior Vice President Maurice Scherrens, the Board of Visitors will be reviewing policies to make sure that they adhere to the current standard of institutional commitment to nondiscrimination.

“George Mason University embraces diversity, and we have a rich history of inclusion supported by our comprehensive policies of nondiscrimination,” the statement additionally said. “The University community, including the LGBTQ community, can be assured of our unwavering commitment to nondiscrimination.”

Associate Director for LGBTQ Resources Richard Chollar says he feels the honest support of university administration, though admits uncertainty with the greater legal situation.

“I am reassured that people of all sexual orientations will continue to be protected from discrimination at Mason,” said Chollar. “…It's much less clear how lawsuits would be handled in courts and/or at the state level.”

“What would happen to lawsuits about sexual orientation?” Chollar said. “It's just not [yet] clear.”

The joint-statement from Jackson, Stearns and Scherrens had a similar conclusion.

“The determination of whether the claimant had the legal grounds for a law suit would be a question that could only be answered by the courts.”

Attorney General Cuccinelli provided Connect2Mason with the following comment, specifically addressed to university students:

“The controversy over my recent statement of Virginia law as it relates to non-discrimination policies at our state institutions of higher learning deserves to be addressed. To be clear: no one should be made to feel like a second-class citizen.

While it is understandable that some are angry or confused about my statement, it is important to recognize it for what it was and remains. My now well-publicized letter simply stated the current state of Virginia law; it did not advocate for any particular legislative position. Should the General Assembly change the law, my advice will be consistent with it.

It is my permanently and long held belief that government should not single out anyone for negative treatment.”

------------------------------------------------------------------------------------------------------------
[Editor's Note] Associate Director for LGBTQ Resources Richard Chollar offered the following advice amid any uncertainty:

For students who wonder where to go, who to seek help from or if they witness or experience discrimination, please know [there are] several options available:

-Filing a Hate/Bias Incident Report, available at many offices including the Office of Diversity Programs and Services (703-993-2700) as well as online;
-Speaking to us at LGBTQ Resources Office (703-993-2702);
and/or
-Contacting Mason's Office of Equity and Diversity Services (703-993-8730), or at http://equity.gmu.edu