United States v. Virginia

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 (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 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.

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 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 Fourth Circuit 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 Fourth Circuit's approval of a parallel program for females at the 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 to join, 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 could not 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, Ginsburg cited Hogan, and than 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."

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 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, 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.