The Collegiate Times in Blacksburg has this report, which claims that there is no justification for the Board of Visitor's elimination of policies protecting against discrimination based on sexual orientation.
Rightly or wrongly, the BOV's move has some foundation in Virginia law. Attorney General opinions have consistently held that public bodies in Virginia have no authority under Virginia law to promulgate rules against discrimination based on sexual orientation. In November 2002, Attorney General Kilgore ruled in this opinion that the Fairfax County school system has no authority to amend its discrimination policy to include sexual orientation. In 1986, Attorney General Baliles concluded that the City of Alexandria did not have authority to prohibit discrimination on the basis of sexual orientation in the city's employment practices and in the award of government contracts. In 1993, Attorney General Rosenthal opined that that Arlington County could not prohibit discrimination based on sexual orientation, except to the same extent it is prohibited under general law. Also in 2002, Attorney General Kilgore ruled that a statutory amendment would be required to authorize the Fairfax County Human Rights commission to prohibit discrimination based on sexual orientation.
These decisions are grounded in the strict Dillon rule tradition in Virginia, which lays the powers of government at the feet of the legislature. The Attorneys General have never concluded that the legislature could not allow protections for sexual orientation, but that it has not, and without that authority Virginia's government agencies and institutions are powerless to act.
The Tech article quotes one expert as saying, however, that "university policies routinely go over and above the laws approved by Virginia’s General Assembly," citing as examples that "universities have policies prohibiting cheating, allowing grades to be issued and causing students to be suspended for poor academic performance, he said, all rules that go beyond the laws set by the government." Those are not very good examples - most academic policies probably are based on some statutory authority, I suspect, such as this statute describing generally the powers of the Tech Board of Visitors.
The problem of the Dillon rule is not limited to human rights problems - Judge Jones of the W.D. Va. applied the Dillon rule of strict construction in concluding here last December that the City of Bristol had no authority to operate a cable television system. "When doubtful, the question of whether a municipality has a particular power must be answered in the negative," Judge Jones explained. The bottom line is that the only safe course for any government agency in Virginia to do something new is to obtain explicit legislative authority.
The Tech article goes on to describe the financial effects of the policy change:
"The removal of sexual orientation from the anti-discrimination policy is already having a negative impact on contributions to the university, said Tom Brobson, Tech’s associate director of corporate relations — one of the university’s chief fundraisers.
The administration has been inundated with letters from alumni outraged at the board’s action, many who are threatening to withhold donations unless sexual orientation is put back into the policy, Brobson said.
Among the withheld donations have been several major gifts of about $100,000, he said. Some donors have even demanded their contributions be given back.
'These alumni are concerned about the state and the future of the university,' Brobson said.
Also, several major corporations that have traditionally given generously to Tech have expressed displeasure, possibly causing corporate giving to be hindered as well, he said."
As the paper noted in a separate article, the Board may reconsider its controversial decisions at a special meeting to be convened on Sunday.