The Leadership Conference on Civil and Human Rights

Volume 8 no. 4

On Wednesday, January 17, 1996 the Supreme Court heard the oral argument in United States v. Commonwealth of Virginia, (No. 94-1941), which challenges the constitutionality of gender-based exclusion in publicly funded institutions of higher learning. The issues in this case are whether publicly funded, single-sex institutions of higher learning violate the Equal Protection Clause of the Fourteenth Amendment, and "whether a State that provides a rigorous military-style, public educational program for men can remedy the denial of the same opportunity to women by offering them a different type of single-sex, educational program deemed more suited to the typical woman." The applicable constitutional provision in this case is the Equal Protection Clause of the Fourteenth Amendment which states, "[no] State shall . . . deny to any person within its jurisdiction the equal protection of the laws".

BACKGROUND

The Virginia Military Institute founded in 1839 maintains a male-only admissions policy and employs what it calls the adversative method that "requires that the student discipline himself, to endure pain, physical and psychological." Another goal of the adversative method is "to cause students to question their past convictions, values and experiences and thereby to prepare them to accept the values and behavior taught by VMI." The method is known for its extensive physical training program and its intensive mental challenges. The United States filed suit challenging the constitutionality of the male-only admissions policy and the absence of a comparable program for women.

The district court found that Virginia's single-sex educational program in general was justifiable, but questioned the absence of a similar program for women. The Fourth Circuit Court of Appeals affirmed the lower court decision holding that VMI had effectively justified its single-sex program; but held that VMI lacked adequate justification for the absence of a comparable program for women. The case was sent back to the district court with instruction to create an acceptable remedy. Subsequently, the state of Virginia created the Virginia's Women's Institution for Leadership (VWIL), a single-sex college program for women, at the private, all-female, Mary Baldwin College. Following the creation of VWIL, the lower court approved the constitutionality of Virginia's higher education system of single-sex institutions. The courts below held that VWIL and VMI comply with the Equal Protection Clause of the Constitution on the grounds that "the differences between the two institutions are justified pedagogically and are not based on stereotyping."

SUMMARY OF ARGUMENTS PRESENTED

In briefs filed before the Court, the United States contends that the State of Virginia's creation of VWIL is "a constitutionally inadequate remedy" that maintains VMI's male-only admissions policy and offers women a "separate, different, and unequal" alternative. The United States additionally contends that the only adequate remedy is to terminate VMI's male-only admissions policyzs it deprives women of the VMI educational experience, the alumni support base, and the "prestige of a VMI degree". The United States also maintains that the appropriate standard of review is strict scrutiny, on the basis that "differences in treatment based on sex are inherently suspect". Currently, gender classifications are subject to an intermediate level of scrutiny. Changing the level to strict scrutiny would mean that gender classifications must meet a narrowly tailored, compelling state interest. Finally, the United States asserts that the validity of the VMI standard should be judged by the standard set in Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982), which prohibits any state from discriminating on the basis of gender in the enrollment process of an institution of higher education without an "exceedingly persuasive justification."

In response to the petitioners challenge, the State of Virginia claims that single-sex educational programs afford "substantial pedagogical advantages to many young men and women". Virginia further claims that both VMI and VWIL advance "important and legitimate state objectives" and offer male and female college students a "comparable" educational opportunity. The State of Virginia asserts that VWIL's design is based on "observable psychological and sociological norms" not stereotypes. The State of Virginia additionally asserts that the petitioners's proposal to apply strict scrutiny lacks justification and was not presented before the lower courts.

ORAL ARGUMENT

The Supreme Court heard the oral argument on Wednesday, January 17, 1996. Paul Bender, Deputy Solicitor General of the Justice Department, began by speaking of the importance of a VMI education and the essence of the adversative method: "During the 150 years or more of VMI's existence, it has developed what everyone concedes is a unique adversative method of education...[that] was developed in an all-male context, and... is stereotypically a male form of education. It emphasizes adversity, it emphasizes competition, it emphasizes standing up to stress, it emphasizes the development of strong character in the face adversity, of self-reliance, of self-confidence."

Bender was asked to explicate his "understanding of [the district court and court of appeals decisions] as to the extent to which the adversative method would be altered and affected by admission of women."

Bender claimed that there was no general agreement on what would have to be changed by the admission of women in physical terms. He said, however, "there is...general agreement that for privacy reasons, if women were admitted to VMI there would have to be an opportunity for women and men to go to the toilet, to shower...without being seen by members of the opposite sex." He continued that some asserted that the adversative method would have to be changed, but said "that is something that I don't think is true. You can only reach that conclusion that a change would have to be in the adversative method by accepting certain stereotypical characters of men and women."

In response to a question of his definition of a stereotype, Bender asserted: "It means what the experts really said, which is not that all women can't [survive the VMI adversative method], but that most women can't . . ., and we are willing to accept the finding that most women can't do this. . . the question is whether, because most women can't do it, . . . the state is constitutionally entitled to exclude all women".

In his comparison of gender stereotypes to racial ones, Bender told the court that "just as in the area of race, an institution would not be able to remain uniracial by saying, if you let black people into VMI, white students would not feel comfortable in applying the adversative method to them, or the other way around, if you let white students into an all-black institution that has an adversative method, black people will not feel comfortable in applying the adversative method to them. . ."

On the question of strict scrutiny, Bender attempted to justify the petitioner's desire for the Court to view the case with heightened scrutiny. Bender stated, "our submission here is that the kind of discrimination that occurs in this case, which is offering a distinctly different opportunity to men and women based on gender alone, should be subject to strict scrutiny."

Bender contended that, "the current system precludes women from getting "the distinctive honor of receiving a degree from VMI" which "has developed a reputation for producing tough leaders." Bender further contended that "it is inappropriate to say to a particular woman who says I want [VMI] training, 'you can't have it solely because you're a woman.'"

Theodore Olson, on behalf of the state of Virginia, began his argument by asserting that the issue is whether the states can support single-sex education. Olson posited that the existence of one single-sex program does not automatically mean that a program is necessary for the other gender. For example, if test scores prove that male children are performing 50% below females in math, then there is a need to create a program for the gender category that needs assistance. Olson maintained that in such a situation, funds would be wasted by creating a math program for the gender category that performs well in math.

When challenged to show how VMI's combination of a single-sex education and the adversative method is valuable to the State interest. Olson explained: "as this Court has said, the most important function that a State can perform is educating its young citizens. Now, as a matter of educating young citizens and performing that important governmental function, single-sex education should be an important part of that..."

He continued that the State of Virginia asserts that the adversative method which emphasizes "physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values" is essential to the VMI educational experience. However, he asserted, experts don't think it would be as effective for women.

A decision from the Supreme Court is expected by the end of this term.