For Immediate Release
Society of American Law Teachers (SALT) Criticizes Virginia Attorney General for Advising Public Colleges and Universities to Remove Sexual Orientation From Their Non-Discrimination Policies
WASHINGTON - The
Society of American Law Teachers (SALT) rebukes the Attorney General of
Virginia for recent statements advising the Commonwealth's public
colleges and universities to remove "sexual orientation,"
"gender identity," "gender expression" or like
characteristics from their non-discrimination policies. Attorney General
Cuccinelli's letter is an affront to the ideals of equal protection under
the law, established legal precedent recognizing constitutional protections
against discrimination based on sexual orientation, and well-established
principles of academic freedom. SALT calls on
the Virginia General Assembly to condemn the Attorney General's statement
and to affirm the authority colleges and universities have to maintain their
current non-discrimination policies.
of state law or policy, public universities are required to prohibit discrimination
based on sexual orientation under the federal Constitution. In Romer
v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558
(2003), the United States Supreme Court held that discriminatory laws based on
sheer animus toward lesbian and gay persons violate the Equal Protection Clause
of the Fourteenth Amendment. Consistent with these principles, courts
have repeatedly held that public employers may not discriminate on the basis of
sexual orientation. Quinn v. Nassau County Police Dept., 53
F. Supp. 2d 347 (E.D.N.Y. 1999) (harassment of police officer because his
sexual orientation violated Equal Protection Clause); Weaver v. Nebo
School Dist., 29 F. Supp. 2d 1279 (D. Ut. 1998) (termination of high school
teacher's position as volleyball coach because of sexual orientation
violated equal protection); Miguel v. Davis, 51 P.3d 89 (Wash. Ct.
App. 2002) (state employer's differential treatment of employees because
of sexual orientation violated right to equal protection); Glover v.
Williamsburg Local School Dist. Bd. Of Educ., 20 F. Supp. 2d 1160
(S.D. Ohio 1998) (firing teacher because of his sexual orientation violated
Equal Protection Clause). Similarly, courts have held that public schools
may not discriminate against students based on sexual orientation. Flores
v. Morgan Hill Unified School Dist., 324 F.3d 1130 (9th Cir. 2003); Nabozny
v. Podlesny, 92 F.3d 446 (7th Cir. 1996); O.H. v. Oakland Unified School
Dist., 2000 WL 33376299 (N.D. Cal. 2000).
Attorney General's statement undermines the broad autonomy granted
schools to define and meet their educational mission. A school's
non-discrimination policy plays a vital role in meeting its pedagogical
goals. Schools that adopt such policies do so
based on the deeply held view that an environment conducive to teaching and
learning is not possible if harmful, irrational discrimination is supported or
condoned by the school. Such anti-discrimination policies give substance
to the pedagogical message that bigotry and intolerance will not be permitted
on campus and demonstrate that the school will not discriminate or abet others
keeping with these core educational goals, there is a broad consensus in higher
education that university non-discrimination policies apply to sexual
orientation. All other major state universities in the South adhere to
this understanding. All of Virginia's major state universities
presently include sexual orientation in their non-discrimination
policies. In addition to the universities themselves, there are a myriad
of academic professional associations that have such policies in place.
Some, like the Association of American Law Schools (AALS), an organization of
member law schools representing almost all U.S. law schools, require that their
members have in place a non-discrimination policy that includes sexual
orientation (with a narrow exception for religiously-based institutions).
If Virginia's well regarded law schools removed sexual orientation from
their non-discrimination policies, they might be denied continued AALS
membership. By taking such action, Virginia's universities would be
in danger of harming their academic reputations and the quality of their
faculty, staff, and student bodies.
attorney general has reached out to affirmatively invite discrimination and
harassment of LGBT students, faculty, and staff, and to foster an educational
atmosphere of hate and intolerance. It is far from clear that he has the
authority either to issue or enforce his directive. Public universities
generally are afforded a great deal of autonomy by state governments.
Certainly state legislative bodies do not design university curriculum, hire
faculty or staff, or make specific admissions decisions. The attorney
general's actions constitute an unwarranted intrusion into the governance
of state universities that strikes at the core of academic freedom and the
important goal of promoting a free exchange of ideas.
attorney general should not be allowed to turn back the clock on principles of
equality, diversity, and academic freedom.
Since 1974, SALT has been an independent organization of law teachers, deans, law librarians, and legal education professionals working to make the profession more inclusive, to enhance the quality of legal education, and to extend the power of legal representation to under-served individuals and communities.