Court Strikes Down VMI’s All-Male Policy

Ending the reign of single-sex public colleges, the Supreme Court ruled Wednesday that the admissions policy is unconstitutional at the nation’s last state college whose doors were closed to women.

On a 7-1 vote, the justices said that Virginia Military Institute must admit qualified women and made clear that public schools can separate students based on gender only if there are “exceedingly persuasive” reasons for doing so.

The demanding military training academy “serves the state’s sons [but] makes no provisions whatever for her daughters. That is not equal protection,” said Justice Ruth Bader Ginsburg, who gained national prominence in the 1970s for arguing that the Constitution does not allow gender discrimination by law.

Her opinion stops short of declaring that all legal distinctions based on gender are automatically invalid.

Further, the court’s decision likely will not affect private colleges. The ruling was based on the 14th Amendment to the Constitution, which bars states from denying persons “the equal protection of the laws.”

But her opinion stressed that programs which separate students based on gender must have “an exceedingly persuasive” justification. While she did not define that term precisely, she said that the rationale “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females.”

That language casts doubt on the future of public schools or even special classes that are reserved for girls or boys only. Some urban schools have experimented with classes restricted to black males, while others have set up math classes for girls only.

Ginsburg conceded that single-sex classes may “benefit at least some students. Education is not a ‘one-size-fits-all’ business.”

Even so, the ruling means that such alternatives as special math classes for girls might be struck down “if they are really perpetuating the stereotype that girls are not able to do math,” said Marcia Greenberger, co-president of the National Women’s Law Center.

But because the opinion stops short of equating gender bias with race bias, it drew a mixed reaction from women’s rights groups.

Judith Lichtman, president of the Women’s Legal Defense Fund, called it “a tremendous and historic victory for women [because] it unequivocally outlaws the use of gender-based stereotypes.”

However, “it’s not quite the historic moment we hoped for. It’s a lost opportunity because the court did not adopt the strict scrutiny approach,” said Kathy Rodgers, executive director of the NOW Legal Defense Fund.

The case was not the first time VMI has fought the federal government and lost. The college, which opened in 1839 and employed Thomas J. “Stonewall” Jackson as an instructor, sent its cadets onto the battlefield in 1864 to block the advancing Union Army.

For the last six years, it has fought a rear-guard action against the federal Office for Civil Rights. Lawyers in the Bush administration filed a complaint against the college in 1990 for excluding women, and the Clinton administration has vigorously pursued the case.

But VMI enjoys a large endowment and fiercely loyal alumni and some have said that they would try to make the college private if the courts insist on enrolling women. Robert Patterson, a VMI graduate and one of the attorneys who represented the school, called the ruling “a great tragedy.”

VMI officials will consider the private-school issue in July. Any such move would need state approval and cost millions of dollars.

The dissenting court vote came from Justice Antonin Scalia. In a 40-page response to Ginsburg’s 41-page opinion, he slammed “this most illiberal court” for snuffing out a type of “diversity” in education. “Single-sex education is prohibited nationwide, not by democratic processes but by the order of this court,” he wrote.

VMI Supt. Josiah Bunting said: “I think we made our point as well as it could be made. We fought the good fight.”

He said that women could not be enrolled before fall 1997. “We literally do not have room in the entering [freshman] class, nor do we have applications” from women, Bunting said.

In the majority opinion, Ginsburg agreed that there are “inherent differences between men and women” but they “remain causes for celebration, not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.”

That language rebuked a federal appeals court in Richmond, which had upheld VMI’s men-only policy on the theory that, while young men thrive in a rigorously harsh “adversative” style of learning, women flourish with a more nurturing, “cooperative” approach.

Last year, The Citadel in Charleston, S.C., the nation’s only other all-male state college, was forced by a federal judge to admit its first woman, Shannon Faulkner. She dropped out after the first week.

Virginia temporarily staved off a similar order by setting up a small state-funded military training program for women at nearby Mary Baldwin College.

But Ginsburg said separate and unequal will not do.

Justice Clarence Thomas did not participate in the case (U.S. vs. Virginia, 99-1941) because his son, Jamal, attended VMI.

While the case retold VMI’s venerable history as a military academy, the notion of equal treatment for women has a surprisingly short history, as Ginsburg noted in her opinion. As late as 1948, the court upheld a law that barred women from becoming bartenders on the theory that this was not suitable work for women.

Twenty-five years ago in the case of Reed vs. Reed, the Supreme Court for the first time ruled in favor of a woman who complained that she had been denied the equal protection of the laws. The justices struck down an Idaho law that said men were to be preferred over women as estate executors.