- The Washington Times - Thursday, March 20, 2003

The political divide between Virginia Gov. Mark Warner and state Attorney General Jerry W. Kilgore is growing wider by the day as the two party leaders are on opposite sides of Virginia Tech's race-blind admissions policy.
"To tell the Board of Visitors to ignore the advice of the attorney general was very troubling," Mr. Kilgore, a Republican, said yesterday in an interview with The Washington Times.
"I was asked to give legal advice to the Board of Visitors [of several state colleges and universities] about the legality of preference programs," he said. "Colleges and universities should not use them. There are other ways to look for diversity … To base admission solely on race or gender is wrong. The key word there is 'solely.'"
Last week, Virginia Tech's Board of Visitors unanimously voted to end affirmative action in its admission process. The vote was taken at the end of the meeting. It was not advertised on the meeting's agenda, nor was it discussed in public.
The vote stemmed from an April 22, 2002, memo written by Mr. Kilgore to help clarify for colleges and universities the legality of affirmative-action programs.
The memo was based on rulings and opinions from the 4th Circuit Court of Appeals and Mr. Kilgore's interpretations of the rulings. As the state's top attorney, Mr. Kilgore is responsible for enforcing the laws and issuing opinions when state agencies ask for legal advice.
Mr. Warner, a Democrat, last week said he was opposed to the new guidelines and advised colleges to ignore Mr. Kilgore's memo.
"I see no reason why any board member at any Virginia college or university should feel compelled to act on these issues until we receive more definitive guidance from the Supreme Court," Mr. Warner said in the statement. "I expect Virginia Tech's Board to revisit this decision later this year, after the [Supreme] Court has issued a ruling."
Mr. Kilgore immediately countered with a statement saying the policy was fair and constitutional. "[It] is surprising there are people who object to the notion that we should treat each student equally and fairly," he said. "Further, the proposition that some students are incapable of succeeding without preferential treatment is an insult to Virginia's diverse pool of college applicants."
Mr. Warner's press secretary, Ellen Qualls, said yesterday the governor stands by his comments and that recent documents from other members of the attorney general's staff validate his points.
"He [the governor] is not telling them [Va. Tech] what to do," Miss Qualls said. "It is possible that Virginia Tech's policies needed to be revisited, but they did not need to be dropped outright."
David E. Johnson, deputy attorney general for health, education and social services, wrote a letter March 8 to college rectors, stating that Mr. Kilgore's memo and subsequent comments "did not state that the resolution adopted by the Virginia Tech Board of Visitors was required by the law of the Fourth Circuit; rather, the Attorney General's position is that the decision by the Board is consistent with the law."
Mr. Warner's latest comments contradict remarks he made in an editorial published in the Virginian-Pilot newspaper of Norfolk. In it, Mr. Warner wrote that the boards of visitors of colleges and universities should not blindly follow the advice of the executive branch.
"Virginia Secretary of Education [Wilbert] Bryant's announcement last week that college boards of visitors are expected to be rubber stamps for Gov. [James] Gilmore's political agenda is dangerous," he wrote in the Sept. 17, 1999, editorial.
Miss Qualls said his editorial did not contradict his latest comments, which she said were not political.
"The question is whose political agenda is at work here. Governor Warner [last week] was merely commenting on previous court precedent which allowed for narrowly defined preferential treatment and questioned why Virginia Tech would move to challenge that ruling prior to any decision from the Supreme Court and in a secret unadvertised process," she said.
Mr. Warner earned his law degree at Harvard University, but he spent all of his pre-political career in the business arena.
In Richmond, members of the Democratic Legislative Black Caucus attacked the decision as a politically motivated effort orchestrated by Republicans to destroy diversity at state-supported colleges.

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