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United States v. Virginia: 1996
Appellant: United States of America
Appellees: Commonwealth of Virginia, Governor Lawrence Douglas Wilder, and Virginia Military Institute, et al.
Chief Lawyer for Appellees: Theodore B. Olsen
Chief Lawyer for Appellant: Deputy Solicitor General Paul Bender
Appellant's Claim: That the male-only admissions policy of the state-supported Virginia Military Institute (V.M.I.) violated the Fourteenth Amendment.
Justices: Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, Chief Justice William H. Rehnquist, David H. Souter, and John Paul Stevens, III (majority); Antonin Scalia (dissent); Clarence Thomas disqualified himself from the case because his son, Jamal, was a V.M.I. student.
Place: Washington D.C.
Date: June 26, 1996
Decision: Excluding women from state-supported schools contravened the Fourteenth Amendment.
Significance The last two state-supported all-male colleges were forced to admit women or forego state funding.
The U.S. Supreme Court has long grouped race, national origin, and religion as "inherently suspect" classifications for Fourteenth Amendment purposes — meaning that any legislation targeting these groups must pass a "strict scrutiny" test. This test determines if the proposed law serves a compelling state interest that cannot be served by any other means. Legislation discriminating on the basis of sex, however, had never been found inherently suspect by the Court.
In 1995, it seemed this might change. President Bill Clinton instructed his administration to file a brief asking the U.S. Supreme Court to use U.S. v. Commonwealth of Virginia "as a vehicle for declaring that government actions that discriminate on the basis of sex should be subject to the same strict constitutional scrutiny the Court applies to official distinctions on the basis of race."
Virginia governor L. Douglas Wilder had said that the refusal of the Virginia Military Institute (V.M.I.) to admit women offended his "personal philosophy." He added that "no person should be denied admittance to a state-supported school because of his or her gender." Since he agreed to abide by the court decision, he did not participate in the suit. The state attorney general, also agreeing to abide by the court's ruling, withdrew as well — leaving a pro bono counsel (an attorney who works on a case without fee) to seek a "stay of proceedings" on behalf of the college.
Sex Discrimination at V.M.I.
On March 1, 1990, the U.S.
Department of Justice under President George Bush sued V.M.I. after
a female high school student complained of the school's all-male
admissions policy. In the two years prior to this complaint,
approximately 300 young women had been rebuffed by the institute.
The United States contended that V.M.I.'s exclusion of women violated the equal protection clause of the Fourteenth Amendment and the precedent established in the 1982 Mississippi University for Women v. Hogan decision (see page 131 of Women's Rights on Trial). In that case, the Supreme Court ruled that men could not be excluded from Mississippi's state-supported nursing college.
During a six-day trial, the District Court examined the 150-year history of the institution, which was founded, in 1839, by the Virginia legislature to produce "citizen-soldiers, educated and honorable men who are suited for leadership in civilian life and who can provide military leadership when necessary." The court also looked at the "adversative" method used to produce these "citizen-soldiers." The training "emphasizes physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination of values. . . . designed to foster in V.M.I. cadets doubts about previous beliefs and experiences and to instill in cadets new values . . . [in] a hostile, spartan environment. . . ."
In 1991, the District Court ruled that "diversity in education" was a legitimate state interest. Both V.M.I.'s male-only admissions policy and its "distinctive educational methods" were substantially related to this legitimate interest. Therefore, V.M.I.'s exclusion of women was upheld. The United States appealed.
Deja Vu
Circuit Court judge Paul V. Niemeyer delivered
the opinion of the Fourth Circuit Court of Appeals on October 5,
1992. He noted that in May 1864, during the Civil War, V.M.I. cadets
bravely fought Union troops at New Market, Virginia. Now, he said,
"the combatants have again confronted each other, but this time
the venue is in this court." He pointed out that:
the outcome of each confrontation finds resolution in the Equal Protection Clause. When the Civil War was over, to assure the abolition of slavery and the federal government's supervision over that policy, all states, north and south, yielded substantial sovereignty to the federal government in the ratification of the Fourteenth Amendment, and every state for the first time was expressly directed by federal authority not to deny any person within the state's jurisdiction "equal protection of the laws." The [United States] government now relies on this clause to attack V.M.I.'s admissions policy.
A Catch 22
The court ruled that the exclusion of women
from the type of education provided men at V.M.I. violated the equal
protection clause, but it also found that single-gender enrollment
formed the basis of "the unique characteristics of V.M.I.'s
program." However, admitting women would so change V.M.I. that
their admission would destroy the "unique characteristics"
women sought. Therefore, Virginia's violation of the Fourteenth
Amendment did not necessarily rest in its failure to admit women to
V.M.I. Rather, the violation was its failure to provide women with
an equal opportunity to develop the leadership and other skills
developed by men at the school.
Niemeyer wrote that the court would "not order that women be admitted to V.M.I. if alternatives are available" but would instead send back the case to the District Court "to give to the commonwealth the responsibility to select a course it chooses, so long as the guarantees of the Fourteenth Amendment are satisfied."
Among the means of forcing V.M.I. to comply with the Fourteenth Amendment, Niemeyer suggested that Virginia "might properly decide to admit women to V.M.I. and adjust the program to implement that choice, or it might establish parallel institutions or parallel programs, or it might abandon state support of V.M.I., leaving V.M.I. the option to pursue its own policies as a private institution."
V.M.I. requested a hearing en banc, or by the full circuit court, which was denied. Virginia and V.M.I. subsequently established a state-funded military-style program for women at Mary Baldwin College, a private women's college in Staunton, Virginia. The program was approved by the federal court and began operation in the summer of 1995. The Clinton administration appealed the federal circuit court ruling to the Supreme Court, which agreed to hear the case.
A New Look to the
Court
Ruth Bader Ginsburg, a recent
appointee to the Supreme Court, shared the president's desire to
establish a strict scrutiny standard for sex discrimination. As a
civil rights lawyer in the 1970s, Ginsburg had helped to win the
first women's rights case by using the Fourteenth Amendment, Reed v. Reed in 1971 (see page 112 of Women's Rights on Trian). In the 1973 case
Frontiero v. Richardson (see page 308 of
Women's Rights on Trial), she had come
within one vote of persuading the Court to adopt the strict scrutiny
standard in sex discrimination cases. She also had helped to win a
case in 1976 establishing the alternate "mid-level or heightened" scrutiny standard adopted
for sex discrimination cases in Craig v.
Boren (see page 123 of Women's Rights on
Trial).
On June 26, 1996, the Court ruled seven to one that V.M.I. must either forgo state funding or admit women. The opinion, written by Ginsburg, stopped short of establishing a strict scrutiny standard for sex discrimination. However, it thoroughly reviewed and perhaps strengthened the just-short-of-strict standard the court demanded. Ginsburg first repeated the Court's ruling in previous cases that sex discrimination must "serve important governmental objectives" and be "substantially related to the achievement of those objectives." Then she added some specifics:
The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overboard generalizations about the different talents, capacities, or preferences of males and females. . . . "Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women "for particular economic disabilities (they have) suffered," to "promot(e) equal employment opportunity," and to advance full development of the talent and capacities of our nation's people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social and economic inferiority of women.
Weighing the facts in this case "against the review standard just described," the Court agreed with the lower court that the all-male admission policy of the state-supported school violated the Fourteenth Amendment. The supposed state goal of offering educational diversity, Ginsburg said, was not served by a plan that provided "a unique educational benefit only to males." Such a plan, she continued, while "liberally" providing for "the State's sons . . . makes no provisions whatever for her daughters. That is not equal protection." She also brushed aside Virginia's argument that V.M.I.'s program would be "destroy(ed)" if women were admitted. This was reminiscent of the same "ancient and familiar fear" that had long kept women out of the legal and other professions, she said — and possibly just as misguided. "Women's successful entry into the Federal military academies," she wrote, "and their participation in the nation's military forces, indicate that Virginia's fears for the future of V.M.I. may not be solidly grounded."
Turning to the "parallel program" for females at the Mary Baldwin College, Ginsburg called it a "pale shadow" of V.M.I.'s illustrious and famed schooling. But "generalizations about the way women are, estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description." She said V.M.I. was for the select few of either sex by pointing out that Virginia had never tried to claim the program "suited most men."
Ginsburg cited many precedent-setting cases during the reading of her opinion. Many of them, she had argued before the court as a pioneering feminist lawyer. One case in which she was not involved, 1982's Mississippi University for Women v. Hogan was the first to prompt a decision that a state could not fund sex-segregated schools. Sandra Day O'Connor, the only other female justice, wrote that decision in 1982. On the morning of June 26, 1996, Ginsburg cited Hogan, and then stopped speaking to look toward O'Connor. O'Connor smiled, just a little, and Ginsburg continued reading her opinion: "Women seeking and fit for a V.M.I. quality education cannot be offered anything less under the State's obligation to afford the genuinely equal protection."
Chief Justice William H. Rehnquist issued a concurring opinion. He said he might have been persuaded to let a truly equal parallel program suffice and that he thought the majority decision had needlessly introduced new legal terminology. Justice Antonin Scalia wholeheartedly dissented from the entire decision.
The decision has forced V.M.I. and the Citadel, the last two state-supported, all-male colleges in the country, to admit women or forego public funding. Two days after the ruling, Citadel officials said they would admit women. V.M.I. officials took a few weeks to submit to the inevitable. Four female cadets entered the Citadel in August 1996 — under much calmer circumstances than did Shannon Faulkner one year earlier. Faulkner, embroiled in a legal fight and the only woman on campus, was ignored by some male students and taunted by others. She dropped out of the Citadel within a week, as did 30 male cadets.
For Further
Reading
Elshtain, Jean Bethke. Women and War. New York: Basic Books,
1987.
New York Times, April 4 and 24, 1991; June 18 and 19, 1991; August 13,
1992; October 6 and 14, 1992; November 19, 1992; September 26, 1993;
October 13, 1993; June 1, 1995; December 27, 1995; January 18, 1996;
and June 27 and 28, 1996.
Sadker, Myra, and David Sadker. Failing at Fairness: How
America's Schools Cheat Girls. New York: Charles Scribners Sons,
1994.
Smith, Bruce. "No Easy Ride Predicted as Women Enter Citadel." Detroit News, August 25, 1996.
Source: Women's Rights on Trial, 1st Ed., Gale, 1997, p.312