1. The Session’s Surprise Issue
Was gay and lesbian rights. Who would have thought at the beginning of January that this would have been the issue dominating media coverage in the last week of the session? But the Cuccinelli Letter, McDonnell’s response and Democratic insistence that the GOP go further in prohibiting discrimination received as much attention as the budget did during the last 10 days. GLBT advocates did not get all that they wanted, but the bottom line is that they may have obtained more public expressions of support in the last 10 days than at time in recent Virginia history.
2. McDonnell’s Balancing Act
Governor McDonnell described his action this week on the GLBT non-discrimination controversy as a “balancing act.” His Executive Directive explicitly mentioned that the the Equal Protection Clause of the 14th Amendment prohibited discrimination on the basis of sexual orientation. But McDonnell did not join Democrats in advocating that prohibiting discrimination on the basis of sexual orientation be explicitly written into Virginia law. McDonnell clearly worked hard to defuse a matter that was threatening to dominate national perceptions about the Commonwealth and drew a major distinction between himself and the Attorney General. His move was widely applauded in elite circles. It’ll take some time to see whether it receives the same reception among party activists.
3. Cuccinelli and McDonnell
The evolution of this relationship will make life interesting for political observers in Virginia for the next 46 months. Who is going to define what conservatism really means in Virginia? Who will attract more national attention? And what will the GOP activist base say about issues where the two statewide leaders differ? Lieutenant Governor Bolling may, in fact, be the most interested observer of all. He cast his vote this week in favor of McDonnell and I suspect he won’t be changing it anytime soon.
4. Baliles Makes a Statement
Former Democratic Governor Jerry Baliles has not been in the middle of many political controversies since leaving office 20 years. So he (and Bill Broaddus) must have been quite surprised to find their opinions as Attorney General quoted by Ken Cuccinelli aa justifying the removal of sexual orientation from the list of categories in college and university non-discrimination policies. The former Governor made it clear that he wasn’t especially thrilled with the current AG’s interpretive referents. Baliles’ response argued that colleges are different than local governments, have more autonomy in their charters, and are not subject to Dillon Rule restrictions on their policies.
5. The Cuccinelli Letter and Legal Counsels for Public Universities
One item that has not received much attention in the debate about the legality and appropriateness of the public universities’ non-discrimination policies is the role and function of the universities’ legal counsels. As far as I gather, the legal counsels for all Virginia public colleges and universities are appointed by the Attorney General and serve as Assistant Attorney Generals. They advise the Board and the President on all pertinent legal matters. What role did the Assistant Attorney Generals at the colleges and universities play in vetting and approving the policies that the AG’s office itself says are not legal and permissible? Did these Assistant Attorney Generals consult with the AG’s offfice at any time while these policies were under consideration? Should they have? I don’t have the answer to these questions, but given the confusion that has now arisen on more than one occasion about legal counsels at public universities, it is probably not a bad time to clarify their roles.
6. Donald McEachin
Has emerged as a media go-to person in the Senate on a range of issues dealing with civil rights, the safety net and education funding. He has often got under the skin of the the Governor’s office this session, but the Democrats have needed someone to draw sharp contrasts with the GOP and speak assertively after last year’s election debacle. McEachin has been relentless in pushing the non-discrimination issue. If he get himself closer to where the money is allocated, he has the potential to become a genuine force in the chamber and a power broker in the Richmond region.
7. GLBT Non-Discrimination and Virginia Economic Development Efforts
This was the probably the most important connection that was drawn by GLBT activists and their supporters during the entire debate over non-discrimination on the basis of sexual orientation. They recognized that, on this issue, the business community has been generally far more progressive than the government. In general, business simply wants to attract the best talent. This is especially true of many of the high tech businesses that the administration is courting to relocate or expand operations in Virginia. A highly divisive, nationally visible fight about the legality of nondiscrimination policies has a real potential for damaging this effort. The GLBT community and its supporters were perceptive in raising the matter. Governor McDonnell was smart to recognize the potential liability.
Baliles was a great governor. For my full opinion, look here:
http://grovetonsvirginia.wordpress.com/
Baliles’ response begs the question. What should be the rule of statutory construction when interpreting grants of authority to universities? Universities have the power to do whatever they want unless the General Assembly explicitly prohibits it? I don’t think so. Also, should university BOVs really have more presumptive authority than democratically elected local government legislative bodies??????
Jesse:
You ask two very good questions. Let me put forth my opinion on both.
Can universities do whatever they want? Clearly not or several of them would accept far more out of state students (to get the extra money). Public universities in Virginia have a charter granted by the General Assembly which gives them certain authority. They can exercise their own judgement within the authority granted by their charters. Mr. Baliles believes that the charters provide sufficient autonomy for the universities to add “sexual preference” to the list of areas where discrimination is forbidden. Of course, what the General Assembly gives it can also take away. Only a change to the Virginia constitution would memorialize de-centralization of power in a lasting way.
Should universities have more presumptive authority than democratically elected local government legislative bodies? I certainly don’t think so but that’s the way Virginia rolls. The Virginia Constitution allows for city charters. So, a city could have a charter like a university. However, counties cannot have charters. So, any delegation of authority to counties is done on an item-by-item basis and can easily be reversed. For example, both Arlington and Fairfax Counties tried to forbid discrimination based on “sexual orientation” and we rebuffed by the government in Richmond. The sheer arrogance of the government in Richmond is perhaps only matched by the ineptitude of that same government. While the budget sinks and unemployment in many parts of Virginia soars, our General Assembly spends its time debating a prohibition against microchip implantation into people and taking Arlington and Fairfax to court in order to prevent them from extending basic civil rights to their citizens.
The Virginia Constitution has undergone 8 major re-writings. The last re-writing was voted into law in 1970. I believe its time for another revamping of the Virginia Constitution. This time, we will relieve the government in Richmond of some (much?) of their power. Instead, we will vest some of those powers in the localities.
Groveton:
I have to respectively disagree on several points. The charter issue is a red herring. As you note, cities have charters in Virginia. Some counties have charters also. Can cities and counties with charters do anything they want? No. Dillon’s Rule still applies to grants of authority under charters.
Universities having more presumptiveauthority than local governments is NOT “the way Virginia rolls”. Dillon’s Rule applies to grants of authority to local governments and universities. The AG’s opinion is very unextraordinary legally. This is a political/emotional issue with the law being ignored.
Giving more autonomy to local governmnts would be a disaster, particularly from a land use perspective. Virginia has some of the most exclusionary localities in the country as it is. Imagine if local governments in the state had more autonomy!
The more the GA abdicates its responsibility to manage land use, transportation, taxation and so forth, the more autonomy should be granted to localities. The GA cannot transfer to localities the responsibility for taxation the way they have been doing for years and yet withhold from localities the authority to do the job that the GA is refusing to do.
It is also my understanding that the Code of Virginia grants Boards of Visitors wide latitude to run university operations, specifically including personnel appointments and in the case of UVa, for example, “generally, in respect to the government and management of the University, make such regulations as they may deem expedient, not being contrary to law” (§ 23-76). Virginia is a Dillon state, but as far as universities go, that does not sound like Dillon to me.
Finally, why would an administration claiming to be all about jobs and economic development so gratuitously interfere with one of the state’s biggest and most important success stories — its state-supported institutions of higher learning?
Stop the theocracy.
Mechenvy:
You make a good point about taxation and other responsibilities and how much authority the GA SHOULD grant to local governments.
However, as far as wide latititude to run university operations, the Code grants local governments wide latitude to run their operations also. Dillon’s Rule is a rule of statutory construction, so is not related to whether the GA grants wide latitude or not. Local governments can’t create new protected classes and universities shouldn’t either. I think this is all a tempest in a teapot.