The Supreme Court cast doubt Monday on whether any public schools or colleges can refuse to enroll students based on gender, as the justices let stand a ruling requiring the all-male Virginia Military Institute to open its doors to women or forfeit taxpayer support.
The high court action, though not a final ruling, means that a federal judge must impose a plan that ensures equal treatment for young women in Virginia who seek a military-style education, unless the school gives up its state aid and affiliation.
VMI in Lexington, Va., and The Citadel in Charleston, S.C., are the nation's only state-supported, single-sex colleges, and both are under legal attack by the Justice Department. The court actions do not appear to threaten private women's or men's colleges that receive federal grants but are not government institutions.
The justices refused to consider an appeal filed by lawyers for VMI, who contended that the lower courts are demanding "coeducation . . . as a constitutional imperative" for all public institutions. Strict insistence on coeducation in all public schools cuts off the possibility of innovative programs, such as Detroit's attempt to set up all-male prep schools for black students, the VMI lawyers argued.
In 1991, the Detroit school board planned to open three all-male schools--an idea that won the endorsement of President George Bush--but officials dropped the plan when confronted with a court suit.
Since the mid-1970s, the Supreme Court has construed the Constitution's guarantee of "equal protection of the laws" to bar virtually all sex discrimination by the government. At the same time, for educational reasons, state colleges that were once limited to men or women began opening their doors.
But VMI stood unswayed, still fiercely devoted to its male society of "citizen-soldiers," molded through a strict regimen of drills, discipline and indoctrination. Its alumni say its rigorous program is unique.
The Shenandoah Valley college's storied history includes military legends such as Civil War Gen. Thomas (Stonewall) Jackson, who was once a professor of math and military science, and World War II Gen. George C. Marshall, a VMI graduate. Today, its students include Jamal Thomas, the son of Justice Clarence Thomas.
But in 1990, the Justice Department sued VMI and accused it of violating the 14th Amendment for its policy of excluding women. Virginia Gov. L. Douglas Wilder refused to defend the school's admission policy.
The school's board of visitors and its alumni took up the defense and argued that its rigid military-style training is especially beneficial to some young men. They also maintained that its unique style of education promoted a form of "diversity," offering an alternative to Virginia's 14 coeducational public colleges.
U.S. District Judge Jackson Kiser in Roanoke upheld VMI's policy, but a U.S. appeals court in Richmond rejected those arguments and ruled that VMI's all-male policy is unconstitutional because women do not have an equal opportunity to get the same type of education.
In October, the appeals court said VMI must now either admit women, create a separate "parallel program" for women or abandon state aid.
VMI's lawyers asked the high court to intervene. On Monday, the justices rejected the appeal in VMI vs. U.S., 92-1213, although Justice Antonin Scalia attached a statement noting that the court could still consider the issue once a final plan is imposed.
In a muted reaction, VMI's lawyers said they took heart from Scalia's comment and have not given up on keeping their doors closed to women.
In other actions, the court:
* Rejected the FBI's claim that it could keep secret the identities of all sources in its criminal investigations. This policy violates the Freedom of Information Act, the court said in U.S. vs. Landano, 91-2054. Instead, the court demanded a case-by-case review.
* Refused to block an investigation of the Justice Department's handling of the extradition of accused Nazi death camp guard John Demjanjuk. An Israeli court convicted the former Cleveland auto worker of being a guard at the Treblinka death camp known as Ivan the Terrible. But last year, appellate judges in Cincinnati began an investigation to see whether U.S. attorneys had deceived them in seeking an order to send Demjanjuk to Israel.
* Agreed to decide whether judges can be removed from a case because of their in-court comments. Lower courts are split on this issue. Some say only a judge's off-the-bench behavior can show him to be biased, while others say a judge's behavior in court can be the basis for removing him from a trial. The case of Liteky vs. U.S., 92-6221, will be heard in the fall.
* Ruled that employers must contribute money, not property, to meet pension obligations. The case is CIR vs. Keystone Industries, 91-1677.