Virginia Democrats notch win in war over university board picks

FAIRFAX, Va. (CN) — A Virginia judge granted a preliminary injunction to a group of Democratic state senators barring the recognition of eight people appointed by Republican Governor Glenn Youngkin to serve on state university governing boards.

“Article V, § 11 of the Virginia Constitution ‘protects the confirmation power of the legislature.’ That protection is meaningless if it cannot, in appropriate cases, be enforced by the courts,” Fairfax County Circuit Court Judge Jonathan Frieden wrote. “This is such a case.”

Eight members of the Senate Committee on Privileges and Elections and state Senate President pro tempore Louise Lucas, sued the rectors of three Virginia universities, arguing that the boards’ recognition of eight appointees who’ve yet to receive approval from the General Assembly violates the state constitution.

“The governor respectfully disagrees with the court’s opinion and looks forward to the attorney general’s appeal to the Supreme Court,” Youngkin spokesperson Peter Finocchio said in a statement.

Among the contested appointees is Ken Cuccinelli, appointed to the UVA Board of Visitors. Cuccinelli served as the deputy secretary of Homeland Security during President Donald Trump’s first term, in addition to serving as Virginia’s attorney general from 2010 to 2014. Cuccinelli also wrote a chapter of the Heritage Foundation’s Project 2025, the 920-page document that advocates for hardline conservative actions like limiting abortion access, defunding public media and removing protections for LGBTQ+ individuals.

“This decision is a win for democracy in the commonwealth,” state Senator Mamie Locke said in a statement. “Governor Youngkin’s attempt to hijack our public universities for political gain is not just unacceptable, it’s unconstitutional.”

The Virginia Constitution delegates authority to the legislature to establish, maintain and operate universities. It explicitly states that the university governing boards are under the control of the General Assembly.

Youngkin appointed the eight disputed members to serve on the governing boards of George Mason University, the University of Virginia and the Virginia Military Institute this past spring. The Senate Committee on Privileges and Elections voted 8-4 against reporting the confirming resolution to the Senate floor in June.

Senate Majority Leader Scott Surovel sent a letter to the chairpersons of the governing boards of 15 Virginia universities, alerting them to the vote and instructing the disputed appointees to cease all activities in a member capacity.

Republican Attorney General Jason Miyares then sent his own letter disputing Surovel’s position and urging the boards to retain the disputed appointments, arguing only the General Assembly as a whole could reject the appointments. Miyares claimed there were still avenues to confirm the appointments, including reconsideration, discharge or a House-originated resolution.

“Although we are disappointed in the ruling, we were prepared for this possibility. This case is straightforward. The Constitution is clear that it is the General Assembly, not a fraction of a Senate Committee, that is authorized to act,” Miyares spokesperson and senior adviser Shaun Kenney said in a statement.

The plaintiffs seek a court declaration that the General Assembly refused to confirm the disputed appointees by the committee vote, thereby immediately terminating the eligibility of the disputed appointees to serve on their respective boards.

Miyares and Youngkin argued that sovereign immunity bars the claims, that the matter before the court is a political question in which the court should play no role, that the senators lack standing and that they have failed to establish any of the findings necessary to enter a preliminary injunction.

Sovereign immunity shields governing board members from liability for their official acts. Frieden ruled that immunity didn’t apply because the subject constitutional provision is self-executing, meaning no legislation is needed to make it operative.

Frieden similarly rejected the executive branch’s assertion that the case required the court to delve into politics. Frieden instead said the question before the court is whether the actions taken by the committee meet the definition of a refusal.

“When it is alleged that gubernatorial appointees rejected by the General Assembly are improperly continuing in their appointed offices contrary to a constitutional prohibition, the courts must be able to adjudicate that dispute,” Frieden wrote. “Otherwise, in the hypothetical situation in which both houses of the General Assembly voted affirmatively to refuse an appointee’s confirmation to the governing board of a Virginia public university and then adjourned sine die, the appointee could simply continue to serve on the theory that the power to remove him rests solely with the governor.”

Frieden also found the senators have standing to sue. Standing requires plaintiffs to demonstrate an injury that is traceable to the defendants and is redressable in court.

“According to plaintiffs, by continuing to recognize the disputed appointees as members of their respective boards, on the advice of the attorney general, defendants are effectively nullifying the plaintiffs’ committee votes,” Frieden wrote.

Miyares said he plans to appeal to the Supreme Court of Virginia.

“This ruling is a victory for the rule of law, for the Senate’s constitutional role, and for the people of Virginia,” Senate Privileges and Elections Committee chair Aaron Rouse said in a statement. “It also sends a clear message that attempts to impose political control over our public universities, whether from Richmond or Washington, will not go unchecked.”