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Volume 8 no. 5-6 SUPREME COURT RULES IN VMI CASE
As they waved signs that read "Men of Quality Respect Women's Equality" and "Better Late than Never", women of all ages congregated on the steps of the United States Supreme Court on June 26, 1996 to celebrate the Supreme Court's 7-1 ruling in United States v. Virginia (No. 94-1941) which held that the male-only admissions policy at the Virginia Military Institute violates the equal protection clause of the Fourteenth amendment and that Virginia's creation of Virginia's Women's Institution for Leader ship(VWIL) at Mary Baldwin, a private, all-female college, was an inadequate attempt to remedy the Constitutional violation. Justice Thomas did not participate because his son attends VMI.
BACKGROUND
As reported in the last Civil Rights Monitor (Vol. 8 No.4), 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." This method is known for its extensive physical training and its mental challenges. The United States filed suit challenging the constitutionality of the male-only admissions policy (particularly in the ab sence of a comparable program for women). The district court found Virginia's single sex-program in general justifiable, but questioned the absence of a comparable program for women. The Fourth Circuit Court of Appeals affirmed the lower court decision regarding the justification for Virginia's single-sex program; it held that VMI lacked adequate justification for the absence of a comparable program for women. The case was remanded to the lower court for an acceptable remedy. Subsequently, the stated created the Virginia Women's Institution for Leadership (VWIL). The lower court and the Fourth Circuit Court of Appeals held that the creation of VWIL was an acceptable remedy and in compliance 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." The U.S. Government appealed to the Supreme Court.
OPINIONS
In deciding U.S. v VMI the Court examined the standards and applied the prescribed remedies established in Mississippi University for Women v. Hogan 458 U.S. 455, 462-463(1982), Reed v. Reed, 404 U.S. 71, 73 (1971), Milliken v Bradley 433 U.S. 267, 28 0 (1977) and Louisiana v. U.S., 380 U.S. 145, 154 (1965).
In Mississippi University for Women, 458 U.S. at 724 (1982) the Supreme Court established the necessary requirements to justify "gender-based government action". The Court placed the burden of justification entirely on the State by holding that "parti es who seek to defend gender-based government action must demonstrate an 'exceedingly persuasive justification' for that action." In Reed v Reed (1971)the Supreme Court held unconstitutional Idaho's Code which stated that among "several persons claiming and equally entitled to administer [a decedent's estate], males must be preferred to females." In this case a woman claimed that she had been denied equal protection of the laws by the state of Idaho. This decision reinforced a woman's right to equal prot ection of the laws guaranteed by the Fourteenth amendment of the Constitution.
The Court sought guidance from Milliken (1977) and Louisiana (1965) when reviewing the appropriate remedy for gender discrimination. According to Milliken, an appropriate remedy is one that "closely fit[s] the constitutional violation; it must be sha ped to place persons unconstitutionally denied an opportunity or advantage in 'the position they would have occupied in the absence of [discrimination]'". The Court in Louisiana v. U.S. (1965) ruled that the appropriate remedy for any "unconstitutional e xclusion" must "eliminate [so far as possible] the discriminatory effects of the past" and "bar like discrimination in the future."
The opinion of the Court was delivered by Justice Ginsburg and joined by Justices Stevens, O'Connor, Kennedy, Souter, and Breyer. Justice Ginsburg wrote:
"We find no persuasive evidence in this record that VMI's male-only admission policy 'is in furtherance of a state policy of diversity.' No such policy, the Fourth Circuit observed, can be discerned from the movement of all other public colleges an d universities in Virginia away from single-sex education. A purpose genuinely to advance an array of educational options, as the Court of Appeals recognized, is not served by VMI's historic and constant plan- a plan to 'afford a unique educational benef it only to males.' However 'liberally' this plan serves the State's sons, it makes no provision whatever for her daughters. That is not equal protection."
In its consideration of Virginia's proffered attempt to protect VMI as male-only by establishing VWIL, the Court described the inadequacies of the program at Mary Baldwin College:
"VWIL affords women no opportunity to experience the rigorous military training for which VMI is famed.... Instead, the VWIL program 'deemphasize[s]' military education, and uses a 'cooperative method' of education 'which reinforces self-esteem.'
"In myriad respects other than military training, VWIL does not qualify as VMI's equal. VWIL's student body, faculty, course offerings, and facilities hardly match VMI's. Nor can the VWIL graduate anticipate the benefits associated with VMI's 157-ye ar history, the school's prestige, and its influential alumni network....
"In sum, Virginia's remedy does not fix the constitutional violation; the State has shown no 'exceedingly persuasive justification' for withholding from women qualified for the experience premier training of the kind VMI affords."
In conclusion the opinion states:
"Measuring the record in this case against the review standard...we conclude that Virginia has shown no 'exceedingly persuasive justification' for excluding women from the citizen-soldier training afforded by VMI. We therefore affirm the Fourth Cir cuit's initial judgment, which held that Virginia had violated the Fourteenth Amendment's Equal Protection Clause. Because the remedy proffered by Virginia--the Mary Baldwin VWIL program--does not cure the constitutional violation, i.e., it does not pro vide equal opportunity, we reverse the Fourth Circuit's final judgment in this case...and remand for further proceedings consistent with this opinion."
CONCURRING OPINION
Concurring in the judgment, Chief Justice Rehnquist wrote separately to express his disagreement with the Court's 'exceedingly persuasive justification' test. Although, the Court used the "important governmental objective" standard, Justice Rehnquist maintained that the Court's additional use of the "exceedingly persuasive justification" test "introduces an element of uncertainty respecting the appropriate test." Justice Rehnquist suggested that the Court should have "...adhered more closely to [the C ourt's] traditional 'firmly established,' standard that a gender-based classification must bear a close and substantial relationship to important governmental objectives."
DISSENT
Perhaps in his most extraordinary opinion thus far, Justice Scalia did not hide his contempt for the majority:
"Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.... As to precedent it drastically revises our established standards for reviewing sex-based classifications. And as to history: it counts for nothing the long tradition, enduring down to the present, of men's military colleges supported by both States and the Federal Government....
"[T]he rationale of today's decision is sweeping: for sex-based classifications, a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny. Indeed, the Court indicates that if any program restricted to one sex is 'uniqu[e],' it must be opened to members of the opposite sex 'who have the will and capacity' to participate in it. I suggest that the single-sex program that will not be capable of being characterized as 'unique' is not only unique but nonexistent."
REACTIONS
Pleased by the Supreme Court's ruling, major women's organizations weighed in with their praise.
The National Women's Law Center (NWLC), which filed the lead amicus brief on behalf of twenty-eight women's and civil rights organizations "applauded" the decision. Marcia Greenberger, co-president of NWLC said:
"By rejecting the use of old-fashioned stereotypes about women to justify the continued exclusion of women from important educational opportunities, the Supreme Court set an important precedent for advancing women's legal rights. Stereotypes that res t on fixed notions of women's abilities have no place in public education and can not be used to limit women's opportunities at VMI or elsewhere.... The Court saw through Virginia's attempt to hide behind the skirts of women's colleges. Women's colleges are designed to assist women in overcoming persistent barriers which have limited their full participation in society.... In requiring VMI to admit women based on their merit, the Supreme Court recognized this reality and reaffirmed its commitment to me aningful equal protection under the law".
While pleased by the Court's ruling, the National Organization of Women (NOW), considers the VMI decision a "mixed bag victory" because the Court "did not take this opportunity to extend a strict scrutiny standard to sex discrimination." In response to the VMI decision NOW Executive Vice President Kim Gandy announced:
"We're hailing a victory on VMI, specifically, but protesting only a slight tightening, at best, of the legal standards for sex discrimination, generally.... We had hoped the Supreme Court would use this case to finally raise sex discrimination to the same level of constitutional scrutiny as race.... I am black and I am female, and I can tell you that my sex affects me as much as my race. You can't separate the two and shouldn't apply a different standard to the two. This ruling is a mixed bag for wo men."
Judith L. Lichtman, President of the Women's Legal Defense Fund and Vice-Chair of the Leadership Conference on Civil Rights said:
"[The Court's] ruling is a tremendous and historic victory for American women. The Court has now made clear that states can never deny girls and women the same access to education that boys and men have.... [The Court's] ruling is a long overdue vot e of confidence in young women who want to serve their country, and in all women and girls who choose the challenges and privileges that for too long have been reserved only for men and boys."
As the MONITOR went to press, VMI officials had announced their intent to comply with the decision and integrate VMI. At the same time, some alumni had expressed an interest in converting the institution to private status and maintaining its all male policy. The Citadel in South Carolina, the only other male-only military institution, has also announced its intent to become co-ed in response to this decision.
  
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