Petitioner
United States
Respondents
Commonwealth of Virginia, Governor Lawrence Douglas Wilder; Virginia MilitaryInstitute, et al.
Petitioner's Claim
That the male-only admissions policy of the state-supported Virginia MilitaryInstitute (V.M.I.) violated the Fourteenth Amendment.
Chief Lawyer for Petitioner
Paul Bender, U.S. Deputy Solicitor General
Chief Lawyer for Respondent
Theodore B. Olsen
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg (writing for the Court), Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehnquist, David H. Souter, John Paul Stevens
Justices Dissenting
Antonin Scalia (Clarence Thomas did not participate)
Place
Washington D.C.
Date of Decision
26 June 1996
Decision
Excluding women from state-supported schools was a violation of the Fourteenth Amendment.
Significance
The last two state-supported all-male colleges were forced to admit women orforego 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 discriminated onthe basis of sex, however, has 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 UnitedStates v. Commonwealth of Virginia "as a vehicle for declaring that government actions that discriminate on the basis of sex should be subject to thesame 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 VirginiaMilitary Institute (V.M.I.) to admit women offended his "personal philosophy." He added that "no person should be denied admittance to a state-supportedschool 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, alsoagreeing to abide by the court's ruling, withdrew as well--leaving a probono counsel to seek a "stay of proceedings" on behalf of Virginia and the governor.
Sex Discrimination at V.M.I.
On 1 March 1990, the U.S. Department of Justice 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 had their inquiries 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 Mississippi University for Women v. Hogan (1982). 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 doubtsabout 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 state. Therefore, V.M.I.'s exclusion of women was upheld. The United States appealed.
History Repeats Itself
Circuit Court judge Paul V. Niemeyer delivered the opinion of the Fourth Circuit Court of Appeals on 5 October 1992. He noted that in May of 1864, duringthe 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 thistime the venue is in this court." He pointed out that:
A Catch -22
The court ruled that the exclusion of women from the type of education provided 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." But 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 lay in its failure to admit women to V.M.I. Rather, the violation lay in 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 remand 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 bringing V.M.I. into compliance 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 andbegan operation in the summer of 1995. Virginia nonetheless 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 firstwomen's rights case by using the Fourteenth Amendment, Reed v. Reed (1971). In the 1973 case Frontiero v. Richardson, she had come within one vote of persuading the Court to adopt the strict scrutiny standard in sexdiscrimination cases. She also had helped to win a case in 1976 establishingthe alternate "mid-level or heightened" scrutiny standard adopted forsex discrimination cases in Craig v. Boren.
On 26 June 1996, the Court ruled 7-1 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 addedsome specifics:
Weighing the facts in this case "against the review standard just described,"the Court agreed with the Fourth Circuit that the all-male admission policyof the state-supported school violated the Fourteenth Amendment. The supposedstate goal of offering educational diversity, Ginsburg said, was not servedby a plan that provided "a unique educational benefit only to males." Such aplan, 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 entryinto the Federal military academies," she wrote, "and their participation inthe nation's military forces, indicate that Virginia's fears for the future of V.M.I. may not be solidly grounded."
Turning to the Fourth Circuit's approval of a parallel program for females atthe Mary Baldwin College, Ginsburg called it a "pale shadow" of V.M.I.'s illustrious and famed schooling. It was not a program most women would choose tojoin, she acknowledged. 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, Mississippi University for Women v. Hogan (1982) was the first to prompt a decision that a state couldnot fund sex-segregated schools. Sandra Day O'Connor, the only other female justice, wrote that decision in 1982. On the morning of 26 June 1996, Ginsburgcited Hogan, and than stopped speaking to look toward O'Connor. O'Connor smiled, just a little, and Ginsburg continued reading her opinion: "Womenseeking 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."
Justice Rehnquist issued a concurring opinion. He said he might have been persuaded to let a truly equal parallel program suffice and that he thought themajority 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, while V.M.I. officials simply said they "must discourage" speculation that they would be able to keep out women. Four female cadets entered the Citadel in August of 1996--under much calmer circumstances than did Shannon Faulkner one year earlier. Faulkner had been embroiled in a legal fight, had been the only woman on campus, and had been ignored and taunted by male students at the Citadel--she became ill as a result of the stress and dropped out.
Related Cases
United States
Respondents
Commonwealth of Virginia, Governor Lawrence Douglas Wilder; Virginia MilitaryInstitute, et al.
Petitioner's Claim
That the male-only admissions policy of the state-supported Virginia MilitaryInstitute (V.M.I.) violated the Fourteenth Amendment.
Chief Lawyer for Petitioner
Paul Bender, U.S. Deputy Solicitor General
Chief Lawyer for Respondent
Theodore B. Olsen
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg (writing for the Court), Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehnquist, David H. Souter, John Paul Stevens
Justices Dissenting
Antonin Scalia (Clarence Thomas did not participate)
Place
Washington D.C.
Date of Decision
26 June 1996
Decision
Excluding women from state-supported schools was a violation of the Fourteenth Amendment.
Significance
The last two state-supported all-male colleges were forced to admit women orforego 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 discriminated onthe basis of sex, however, has 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 UnitedStates v. Commonwealth of Virginia "as a vehicle for declaring that government actions that discriminate on the basis of sex should be subject to thesame 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 VirginiaMilitary Institute (V.M.I.) to admit women offended his "personal philosophy." He added that "no person should be denied admittance to a state-supportedschool 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, alsoagreeing to abide by the court's ruling, withdrew as well--leaving a probono counsel to seek a "stay of proceedings" on behalf of Virginia and the governor.
Sex Discrimination at V.M.I.
On 1 March 1990, the U.S. Department of Justice 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 had their inquiries 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 Mississippi University for Women v. Hogan (1982). 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 doubtsabout 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 state. Therefore, V.M.I.'s exclusion of women was upheld. The United States appealed.
History Repeats Itself
Circuit Court judge Paul V. Niemeyer delivered the opinion of the Fourth Circuit Court of Appeals on 5 October 1992. He noted that in May of 1864, duringthe 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 thistime 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 federalgovernment'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 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." But 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 lay in its failure to admit women to V.M.I. Rather, the violation lay in 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 remand 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 bringing V.M.I. into compliance 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 andbegan operation in the summer of 1995. Virginia nonetheless 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 firstwomen's rights case by using the Fourteenth Amendment, Reed v. Reed (1971). In the 1973 case Frontiero v. Richardson, she had come within one vote of persuading the Court to adopt the strict scrutiny standard in sexdiscrimination cases. She also had helped to win a case in 1976 establishingthe alternate "mid-level or heightened" scrutiny standard adopted forsex discrimination cases in Craig v. Boren.
On 26 June 1996, the Court ruled 7-1 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 addedsome 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 Fourth Circuit that the all-male admission policyof the state-supported school violated the Fourteenth Amendment. The supposedstate goal of offering educational diversity, Ginsburg said, was not servedby a plan that provided "a unique educational benefit only to males." Such aplan, 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 entryinto the Federal military academies," she wrote, "and their participation inthe nation's military forces, indicate that Virginia's fears for the future of V.M.I. may not be solidly grounded."
Turning to the Fourth Circuit's approval of a parallel program for females atthe Mary Baldwin College, Ginsburg called it a "pale shadow" of V.M.I.'s illustrious and famed schooling. It was not a program most women would choose tojoin, she acknowledged. 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, Mississippi University for Women v. Hogan (1982) was the first to prompt a decision that a state couldnot fund sex-segregated schools. Sandra Day O'Connor, the only other female justice, wrote that decision in 1982. On the morning of 26 June 1996, Ginsburgcited Hogan, and than stopped speaking to look toward O'Connor. O'Connor smiled, just a little, and Ginsburg continued reading her opinion: "Womenseeking 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."
Justice Rehnquist issued a concurring opinion. He said he might have been persuaded to let a truly equal parallel program suffice and that he thought themajority 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, while V.M.I. officials simply said they "must discourage" speculation that they would be able to keep out women. Four female cadets entered the Citadel in August of 1996--under much calmer circumstances than did Shannon Faulkner one year earlier. Faulkner had been embroiled in a legal fight, had been the only woman on campus, and had been ignored and taunted by male students at the Citadel--she became ill as a result of the stress and dropped out.
Related Cases
- Reed v. Reed, 404 U.S. 71 (1971).
- Frontiero v. Richardson, 411 U.S. 677 (1973).
- Craig v. Boren, 429 U.S. 190 (1976).
- Mississippi University for Women v. Hogan, 458 U.S. 718 (1982).
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