Virginia Governor Bob McDonnell has suggested the state will not move against public colleges and universities that do not rescind anti-discrimination policies based on sexual orientation, the Richmond Times-Dispatch reported.

The governor issued his statement after Virginia Attorney General Ken Cuccinelli II, a Republican, called such measures illegal in a letter written to the schools.

“It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college of university from including 'sexual orientation,' 'gender identity,' 'gender expression,' or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly,” Cuccinelli said in his letter.

And he advised the schools should “take appropriate actions to bring their policies in conformance with the law and public policy of Virginia.”

While McDonnell's office called Cuccinelli's advice “consistent with all prior opinions from the office of the attorney general over the last 25 years on the subject,” spokesman J. Tucker Martin added, “The governor will appoint board members based solely on their ability and on their strong commitment to educational excellence in Virginia. The governor expects that no Virginia college or University, or any other state agency, will engage in discrimination of any kind.”

State college and university board members are appointed by the governor.

The issue of gay protections has been a hot topic at the Virginia Statehouse since Republican Governor Bob McDonnell assumed office. As one of his first acts as governor, McDonnell omitted such protections for state workers. McDonnell's February 5 executive order replaced policies by Virginia's last two Democratic governors which included employment protections for gay and lesbian workers.

Lawmakers attempted to restore the protections with three slightly-varied measures, but members of a Republican-controlled House subcommittee killed the bills. Last month, Democratic senators, with the aid of one Republican, Senator Fred Quayle, approved a bill that would have protected gay state employees from discrimination, but the bill was quashed in the House.

All of Virginia's leading schools provide such protections.

Equality Virginia, the state's largest gay advocate, called on public schools to ignore Cuccinelli's letter.

“They call it legal advice for a reason,” Claire Guthrie Gastanaga, general counsel for the group, said in a statement. “I urge the university boards to get a second opinion before they take action that will adversely affect their ability to attract and retain the best and the brightest students.”

In a letter sent to all public universities and colleges, the ACLU of Virginia countered that gay men and lesbians are protected against governmental discrimination by the U.S. Constitution.

“Regardless of state law or policy, not only should universities prohibit discrimination on the basis of sexual orientation, but they are required to do so under the U.S. Constitution,” Kent Willis, executive director of the group, said in a statement.

In the letter, written by Rebecca K. Glenberg, the group's legal director, the ACLU of Virginia says that the Supreme Court “held that discriminatory laws based on sheer animus toward lesbian and gay persons violate the Equal Protection Clause of the Fourteenth Amendment” in Romer V. Evans.

“If Ken Cuccinelli is trying to say that the U.S. Constitution doesn't apply in Virginia, his first significant act as attorney general is a giant step backwards and a huge embarrassment for the state,” Willis added.