VA Attorney General: Colleges have no authority to renounce bigotry

The proudly homophobic new Attorney General of Virginia, Kenneth Cuccinelli, didn’t waste much time in trying to force Virginia’s public colleges and universities to eliminate the protections against discrimination that they’ve extended to sexual orientation. The Washington Post has obtained a letter dated March 4, 2010 that he sent to every public institution of higher learning. In it, Cuccinelli advises them that they lack the authority to foreswear such bigotry without explicit approval from the state’s General Assembly and from him. Since the Assembly has considered and rejected attempts to extend anti-discrimination protections for sexual orientation to all state employees, says Cuccinelli, by adopting their own policies the colleges and universities are flying in the face of the Assembly’s deliberate acceptance of bigotry against homosexuals.

Cuccinelli is a real piece of work. Here is the Virginia Pilot’s assessment of his candidacy last October:

He sponsored a bill to waive unemployment compensation costs for companies that fire workers for not speaking English on the job. The measure would have affected only legal workers because illegal immigrants don’t qualify for unemployment benefits.

Cuccinelli’s views on reproductive rights don’t align with those of most Virginians. He favors legislation that would grant legal rights to fetuses at conception. He has sponsored bills requiring strict regulations that would put most abortion clinics out of business. He voted against a bill stating that contraception is not abortion.

He declined to commit to a nondiscrimination policy against gays and lesbians observed by former Attorney General Bob McDonnell: “ My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. ... They don’t comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be polite) behavior that is not healthy to an individual and in aggregate is not healthy to society.”

To put it politely, Cuccinelli’s election would bring embarrassment to Virginia, instability to the state’s law firm and untold harm to the long list of people who don’t fit his personal definition of morality.

Cuccinelli’s letter is available here (PDF). It is a fiercely determined attempt to bend the state college administrations to his will. Cuccinelli admits hastily that their Boards of Visitors “have the authority to make needful rules and regulations”, but proceeds to ignore that power in his discussion of why they should overturn their anti-discrimination policies. They “are, at all times, subject to the control of the General Assembly.” Hence, Cuccinelli argues, if the Assembly hasn’t ordered them to renounce discrimination against homosexuals then they’re actually overstepping the limits of their authority to regulate themselves if they do renounce it.

Besides, Cuccinelli asks, what would happen if homosexuals take these anti-discrimination policies seriously and get all uppity and legal on you when you do discriminate against them?

If you think that this right wing nut’s argument is preposterous, then you aren’t alone. The opening of his letter is revealing. Cuccinelli is very coy about what inspired him to raise this issue in the first place. He refers vaguely to “several inquiries” that “have been made” (by whom?) into the colleges’ authority to develop their own non-discrimination policies, and to “more questions” that arose (from?) about the application of his office’s advice. So, he says, the current letter is being sent out to “ensure that no confusion exists” about, well, what he wants the colleges to do.

In other words, Cuccinelli decided it was high time to meddle. He's an angry sort of man and he should succeed in stirring up more anger before he's finished.

Questions about the Ricci ruling

Does anybody seriously believe that New Haven's mayor, or the CSB he appointed, would have taken a stand against certifying the firefighter exam results if minorities had performed disproportionately well on it? That New Haven politicians would have argued, for example, that oral examination boards constituted so as ensure that minorities made up 2/3 of each board created a disparate impact against white applicants?

If not, then it makes a mockery of the city's professed concern that Title VII's provision on disparate impact required it to throw out the results.

The judgment handed down today by SCOTUS' conservative bloc in Ricci v. DeStefano actually was a remarkably liberal ruling. It's altogether too rare for the Scalia wing to stand up for the common man who's been kicked in the teeth arbitrarily by the powerful.

In this case, it was the Ginsburg wing of the Court that proved to be reactionary. The firefighters who did well on the exam, she said, "understandably attract the court's sympathy"... but nevertheless the Court ought to tell them to bend over again just because it can. The reason it can is that the grandiosely flawed (and unevenly enforced) law on disparate impact permits the Court, if it chooses, to join in treating job applicants as fodder in ideological jousts.

For what it's worth, I suspect that if New Haven had tossed out exam results in which minorities performed disproportionately well, the two blocs of the Supreme Court would have taken the opposite views of Title VII than the ones they adopted here.

crossposted from unbossed.com

Another wrinkle in Bush/DOJ Attorneys' scandal: employment discrimination

At The Atlantic Murray Waas discusses the controversial firing of Daniel Bogden, one of the 9 US Attorneys sacked by the Bush administration in 2006 apparently for political reasons. No justification has ever been identified publicly for firing Bogden, a career government lawyer who was highly respected. Waas highlights one aspect of the firing, without however noting its legal significance.

Attorney General Alberto Gonzales' deputy, Paul McNulty, repeatedly raised objections to firing Bogden with Gonzales' chief of staff, Kyle Sampson. At one DOJ meeting, McNulty argued that they should take into account Bogden's family. When told that Bogden is a bachelor, however, McNulty dropped his objection to firing him.

Waas does not note that federal law prohibits employment discrimination based on marital status. Thus Bogden appears to have a solid legal case for demanding reinstatement to his former job as US Attorney for Nevada.

Here is the relevant section of Waas' article:

But if Dan Bogden was unable to learn from the report why he was fired, he was able to find out something else about the circumstances of his firing: If he had had a wife and kids at home, he might not have lost his job at all.

As it turns out, McNulty had expressed qualms to other Justice Department officials about getting rid of Bogden, Just prior to Bogden’s firing, according to the DOJ report,McNulty emailed Sampson to say, “I am a little skittish about Bogden. He has been with DOJ since 1990 and at age 50 has never had a job outside government…. I’ll admit [I] haven’t looked at his district’s performance. Sorry to be raising this again/now… It is just on my mind last night and this morning.”

Indeed, Bogden’s entire life had been devoted to public service. Upon graduating from law school in 1982, he had become a member of the United States Air Force Judge Advocate General’s Office, where he remained for five years. Then, from 1987 until 1990, he served as a prosecutor for the Washoe County District Attorney’s Office in Reno, Nevada. In 1990, he became an assistant U.S. attorney in Nevada and, in 2001, he was named to the top job.

Shortly after McNulty conveyed his qualms to Sampson via email, McNulty reiterated the concerns in a meeting. He “came into my office,” Sampson told investigators . “I’m concerned about Bogden,” MCNulty told Sampson and a few other senior DOJ officials in the room. “… he’s 50, hasn’t had a job in [the] private sector, and what about his family.”

According to Sampson’s account, another senior official corrected McNulty: “He’s a bachelor,” the official said, “He’s single.”

As Sampson recalled to investigators, McNulty responded, “Okay never mind.” McNulty, Sampson said, “then got up and left my office.”

When questioned by investigators, McNulty did not disagree with Sampson’s basic version of events. Having learned that Dan Bogden was a bachelor, McNulty recalled, “I guess I don't have any objection [anymore] to going forward.”

Here is the relevant part of the Justice Dept. report on the firing of the US Attorneys, which Waas draws upon:

McNulty continued to be concerned about Bogden’s removal. On December 5, 2006, 2 days before the plan to remove the U.S. Attorneys was to be executed, McNulty sent an e-mail to Sampson stating:

I’m still a little skittish about Bogden. He has been with DOJ since 1990 and, at age 50, has never had a job outside government . . . . I’ll admit [I] have not looked at his district’s performance. Sorry to be raising this again/now; it was just on my mind last night and this morning.

After McNulty sent this e-mail, he met with Sampson to discuss his concerns about removing Bogden. Elston or Mercer may also have been present at the meeting. Sampson testified that “his best guess” was that the meeting lasted “about 90 seconds.” When asked what occurred during those 90 seconds Sampson stated:

My recollection is that Mr. McNulty and those other people came into my office, and I said, “I got your e-mail.” And he said, “I’m just concerned about Bogden” – you know, essentially what he says in the e-mail, about that he’s 50, hasn’t had a job in [the] private sector, and what about his family. And I think Mike Elston or Bill Mercer said, “He’s a bachelor. He’s single.” And Mr. McNulty said, “Okay. Never mind,” and then got up and left my office.

Elston denied that he ever told McNulty that Bogden was single, and stated that he never knew Bogden’s marital status. Mercer, who was the Principal Associate Deputy Attorney General at the time, also denied telling McNulty at this meeting that Bogden was single.135

According to McNulty, he told Sampson that he was “worried about [Bogden’s] wife and kids. I was worried it might have an impact on his family . . . .” McNulty said that Sampson told him that Bogden “didn’t have a family, he was single.” McNulty said he then replied “I guess I don’t have any objection to going forward.”

Wonder why nobody wanted to take credit afterwards for introducing the (non-)issue of Bogden's bachelorhood into the deliberations about his firing?