Mississippi University for Women v. Hogan

Hogan took his case further. The Fifth Circuit Court of Appeals in New Orleans reversed the lower court's decision, declaring that "rational relationship" in the minimal scrutiny test of constitutionality was misused. In explanation, the judicial body asserted that there were no inherent biological differences between men and women to rationalize separate educational facilities for nursing. It also pointed out that Mississippi was providing a unique educational opportunity for females, but not for males. Its ruling asserted that "intermediate scrutiny"--rather than minimal--should instead be applied, and that the admission policy to both the nursing school, and the Mississippi University for Women as a whole, was indeed unconstitutional. Hogan should be admitted, the appeals court declared. The Mississippi University for Women petitioned the U.S. Supreme Court to review that decision.

To feminists, the case's appearance before the High Court was viewed with some unease: if the Court upheld the legality of a policy that discriminated against men, then the language of the decision might be used to uphold statutes or policies that excluded women. The intermediate scrutiny test also came into question. It had been used as a judicial yardstick by the Supreme Court since the early 1970s in several noteworthy sex discrimination cases. However, by the time of the Hogan case, certain signals given by the more conservative justices had caused concern among feminist lawyers that the Court would no longer apply the intermediate scrutiny test. The High Court had recently heard challenges to male-only draft registration and statutory rape laws, and had given signs of this shift in its attitudes toward such cases. Furthermore, there were also signals that the Court might now shift the burden of proof in gender-discrimination cases to plaintiffs; customarily the government entity had to prove in court that its statute or policy decree was justified.