5 Justices Appear Skeptical as VMI Argues for All-Male Status

On May 15, 1864, the cadets of the Virginia Military Institute took to the battlefield to block the advance of the Union Army into the Shenandoah Valley.

That valiant stand in the face of overwhelming odds has become part of the VMI lore. Its cadets pride themselves as being tough and unyielding, determined to fight to the end.

For the past six years, the small state college has upheld that tradition in a court battle against U.S. government lawyers who have been trying to force VMI to open its doors to women. But the end may be coming in the Supreme Court.

Five members of the high court, led by Justices Ruth Bader Ginsburg and Sandra Day O’Connor, made clear on Wednesday that they were highly skeptical of the notion that a state-funded college such as VMI can simply exclude all women.

“What do you say to the qualified woman who says: ‘I want to go there?’ ” asked Justice Stephen G. Breyer near the end of the hourlong argument.

VMI’s lawyer said most women would not like a college that offered harsh discipline, rugged competition and stark facilities. Besides, the state offers an all-female military training program nearby, he said, and the men at VMI would not feel comfortable having women in their midst.

“Isn’t the answer to that, ‘So what?’ ” Breyer commented.

Only Justice Antonin Scalia, himself a graduate of a high school military academy, sounded sympathetic to VMI. A likely ally, Justice Clarence Thomas, had to sit out the case because his son Jamal is a senior at VMI.

The Citadel in South Carolina is the nation’s only other state college that excludes women. But last year, a federal judge forced it to open its doors to its first female student, Shannon Faulkner, who quit after one week.

But even if VMI loses its battle, the case may not yield a sweeping ruling on women’s rights. In the past when it struck down gender barriers, the court stopped short of announcing that sex discrimination must be judged by the same strict standard as race bias. A written ruling in the case, U.S. vs. Virginia, 94-1941, is due by the end of June.

In another case, the court also sent a warning to tardy taxpayers: You cannot get a refund for overpayments if you are more than two years late in filing your return.

Robert F. Lundy had $10,131 in taxes withheld during 1987, more than $3,000 above what he actually owed. But for reasons unexplained, Lundy did not file a return that year. When the Internal Revenue Service required him to file two years later, Lundy responded by demanding his refund. On a 7-2 vote, the court said the tax laws set a two-year period for refunds in that situation (CIR vs. Lundy, 94-1785.).