High Court Case Revives Debate on Gender Bias

The new year will begin with a legal debate on women’s rights and the role of gender that has not been heard since the late 1970s.

Then, the proposed Equal Rights Amendment to the Constitution failed to win ratification in three-fourths of the states, but women’s rights lawyers won most of the battle for the issues it represented at the Supreme Court.

In a series of rulings, the justices said legal distinctions based on gender are generally forbidden but not always.

Now the Clinton administration is urging the court to take the final step and rule once and for all that gender, like race, is a forbidden distinction in law.

The argument comes before the court in mid-January in the government’s challenge to the all-male Virginia Military Institute.

Under pressure from the courts to open up military school enrollment, Virginia has established a military training program for women at Mary Baldwin College. But the administration’s lawyers say “separate but equal” is no more acceptable for women than for blacks.

“Sex, like race, is an immutable and highly visible characteristic that frequently bears no relation to ability to perform or contribute to society,” the administration says. “To remove any remaining ambiguity about the general illegitimacy of classifications . . . based solely on sex, this court should now hold that such classifications are inherently suspect and subject to strict scrutiny,” advises U.S. Solicitor General Drew S. Days III and Deval Patrick, assistant attorney general for civil rights.

That legal formulation would put gender bias on the same footing as racial bias. It would be “a monumental step forward in the quest for women’s rights,” says one group.

But a surprising number of prominent female lawyers and educators say that such a rigid rule would be not a final victory but a setback for many young women. In briefs filed on VMI’s side, USC law professor Susan Estrich, former Assistant Education Secretary Diane Ravitch and Lynne V. Cheney, former chairwoman of the National Endowment for the Humanities, are among those who are urging the court to tread cautiously.

What about women’s and men’s prisons, they ask. What about battered women’s shelters? What about high school and college sports, where “separate but equal” is the prevailing philosophy? And most important, what about private women’s colleges? If gender discrimination is declared flatly unconstitutional, they say, even private women’s colleges could be threatened because they receive federal grants.

“Single-sex colleges, private as well as public, are in trouble if we lose this case,” said Washington attorney Theodore B. Olson, who will argue VMI’s case (U.S. vs. Virginia, 94-1941).

Before the 1970s, women’s colleges flourished, in part because women were still excluded from many elite schools. The University of Virginia, for example, refused admission to women until 1970.

Coeducation swept across higher education in the 1970s but took a toll on women’s colleges. In 1968, 268 colleges enrolled women only. This year, 83 remain.

Men’s colleges have all but disappeared. VMI and the Citadel in South Carolina are the only state-funded all-male colleges. Ten other colleges enroll only men, but most are little-known technical or military schools.

The nation’s preeminent military academies, led by West Point, began to admit women in the 1970s.

But the court challenge to VMI has revived a debate about the value of single-sex schools, one that echoes a concern heard among black educators. During the 1960s, black leaders fought for the integration of all-white institutions. Once that goal had been achieved, however, some turned their attention to reviving support for historically black colleges.

Feminists on both sides of the VMI case tout the extraordinary achievements of women’s colleges. A 1992 survey found that one-third of the female board members among Fortune 1,000 companies were graduates of women’s colleges, even though these schools account for only 4% of all college graduates.

Twenty-four percent of women serving in Congress graduated from women’s colleges, as did First Lady Hillary Rodham Clinton (Wellesley College in Massachusetts). Today, about 64,000 women are enrolled in single-sex colleges, as are about 11,000 men.

Sex segregation has all but disappeared in public schools. The Justice Department says Baltimore and Philadelphia still operate high schools for girls only, while the Ventura public schools have experimented with math classes for girls. In 1991, a federal judge blocked Detroit schools from operating a boys’ academy.

Rather than striking down the last remnants of the past, the court should “affirm the constitutionality of single-gender programs,” says a brief filed on behalf of several educators. “Research has shown that single-sex education works for many women,” they say.

“I don’t think there is any doubt that single-sex education has an important role for women,” said Estrich, a Wellesley graduate. “So, if you believe that, then you have to ask yourself: ‘Why shouldn’t boys have the same option?’ ”

For its part, VMI offers harsh discipline, rugged physical training and stark quarters, a combination that appeals to some young men. A small school in the Shenandoah Valley, it enrolls only 1,300.

Last year, a U.S. appeals court upheld VMI’s men-only policy because the state had set up the “comparable” program for women.

(The same court required the Citadel to admit Shannon Faulkner last year because South Carolina had not created a similar military school for women.)

In the VMI case, the appeals court spoke approvingly of separate schools for men and women.

“Providing the option of a single-gender college education . . . is beneficial to both sexes,” the court said. Its opinion cited testimony from education experts who said some male students benefit from a harsh and highly competitive environment, while women flourish in a cooperative, nurturing program of learning.

“Men and women are different. Yes, they share many qualities too, but the law needs to be flexible to consider those differences,” said attorney Anita K. Blair, who filed a brief on behalf of the Independent Women’s Forum, which regularly challenges what it deems the orthodox feminist view.

However, a far greater number of women’s rights groups argue that VMI’s exclusionary policy is a relic and should be struck down. They also fault the lower courts for relying on “archaic stereotypes” about “women’s nature.”

“These gross generalizations are inaccurate and misleading. They reflect mostly what society tells you is accepted,” said Joan E. Bertin, a Columbia University attorney and expert on gender discrimination. Her brief says a state should not be allowed to “perpetuate historical discrimination against women.”

She and other women’s rights advocates say that such a ruling would not necessarily affect private women’s colleges. They also join the Clinton administration in arguing that a strict rule against gender discrimination should not be applied to affirmative action programs that favor women.

The current case does not concern employment. In 1964, Congress made it illegal to discriminate against women in the workplace.

In a step-by-step manner, the high court has invalidated other legal distinctions based on gender, including those in areas of inheritance, criminal penalties and jury selection. But some remain. For example, the marriage laws in every state allow men to marry women but not other men.

The key question for the court is how broadly to rule. The justices could simply conclude that the women’s program at Mary Baldwin College is not equal and, thereby, rule against VMI on those narrow grounds. Or they could choose to make a landmark statement on gender equality.

During the 1970s, Ruth Bader Ginsburg led the fight in the courts arguing that the Constitution absolutely forbids gender discrimination in law. Now, as a member of the Supreme Court, she has a chance to write that rule into law.

“This case has a symbolic importance. In this culture, separating the sexes works to the disadvantage of women,” Bertin said. “I hope they [the justices] take this opportunity to send a message that sex discrimination is as important as race discrimination.”