United States v. Virginia: Background

1. Application of Hogan was a central issue in United States v. Virginia (1996), a case involving a challenge to the exclusion of women at the Virginia Military Institute. There are two issues involved in this case: 1) does VMI’s exclusion of women violate the Equal Protection Clause; and 2) if so, is the creation of a military program for women at Mary Baldwin College an appropriate remedy? The Fourth Circuit had answered both questions “Yes.” Thus, Virginia is the appellant as to Issue 1 and the United States is the Appellant as to Issue 2.
2. What test is used to evaluate a classification on the basis of gender in United States v. Virginia? Does it differ from the test set out in Craig v. Boren (1976) or Mississippi Univ. For Women v. Hogan (1982)?
3. Justice Scalia, in his dissent, writes: “Today, single sex education is prohibited nationwide.” Is that a correct reading of the case?

United States v. Virginia

518 U.S. 515 (1996)

[Majority: Ginsburg, Stevens, O’Connor, Kennedy, Souter, and Breyer. Concurring: Rehnquist (C.J.). Dissenting: Scalia.]

Justice Ginsburg delivered the opinion of the Court.

Virginia’s public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.

1. Founded in 1839, VMI is today the sole single-sex school among Virginia’s 15 public institutions of higher learning. VMI’s distinctive mission is to produce “citizen-soldiers,” men prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an “adversative method” modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. . . .

Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women. And the school’s impressive record in producing leaders has made admission desirable to some women. . . .

II-A. . . . VMI produces its “citizen-soldiers” through “an adversative, or doubting, model of education” which features “[p]hysical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values.” . . .

VMI cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the mess hall, and regularly participate in drills. Entering students are incessantly exposed to the rat line, “an extreme form of the adversative model,” comparable in intensity to Marine Corps boot camp. . . .

II-B. In 1990, prompted by a complaint filed with the Attorney General by a female high-school student seeking admission to VMI, the United States sued the Commonwealth of Virginia and VMI, alleging that VMI’s exclusively male admission policy violated the Equal Protection Clause of the 14th Amendment. . . .

The District Court ruled in favor of VMI, however, and rejected the equal protection challenge pressed by the United States. . . .

The Court of Appeals for the Fourth Circuit disagreed and vacated the District Court’s judgment. . . . Remanding the case, the appeals court assigned to Virginia, in the first instance, responsibility for selecting a remedial course. The court suggested these options for the State: Admit women to VMI; establish parallel institutions or programs; or abandon state support, leaving VMI free to pursue its policies as a private institution. . . .

II-C. . . . Virginia proposed a parallel program for women: Virginia Women’s Institute for Leadership (VWIL). The 4-year, state-sponsored undergraduate program would be located at Mary Baldwin College, a private liberal arts school for women, and would be open, initially, to about 25 to 30 students. Although VWIL would share VMI’s mission — to produce “citizen-soldiers” — the VWIL program would differ, as does Mary Baldwin College, from VMI in academic offerings, methods of education, and financial resources. . . .

II-D. Virginia returned to the District Court seeking approval of its proposed remedial plan, and the court decided the plan met the requirements of the Equal Protection Clause. . . .

A divided Court of Appeals affirmed the District Court’s judgment. . . .

III. The cross-petitions in this case present two ultimate issues. First, does Virginia’s exclusion of women from the educational opportunities provided by VMI-extraordinary opportunities for military training and civilian leadership development — deny to women “capable of all of the individual activities required of VMI cadets,” the equal protection of the laws guaranteed by the 14th Amendment? Second, if VMI’s “unique” situation — as Virginia’s sole single-sex public institution of higher education — offends the Constitution’s equal protection principle, what is the remedial requirement?

1. We note, once again, the core instruction of this Court’s pathmarking decisions in J.E.B. v. Alabama ex rel. T.B. (1994) [litigants may not strike potential jurors solely on the basis of gender], and Mississippi Univ. for Women (1982): Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action.

Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. . . . Since Reed [v. Reed (1971)], the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature — equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. . . .

To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. The State must show “at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.'” The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.

The heightened review standard our precedent establishes does not make sex a proscribed classification. . . . Physical differences between men and women, are enduring: “[T]he two sexes are not fungible. . . .”

“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,” 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. . . .

[W]e conclude that Virginia has shown no “exceedingly persuasive justification” for excluding all women from the citizen-soldier training afforded by VMI. . . . Because the remedy proffered by Virginia — the Mary Baldwin VWIL program — does not cure the constitutional violation, i.e., it does not provide equal opportunity, we reverse. . . .

1. . . . Virginia asserts two justifications in defense of VMI’s exclusion of women. First, the Commonwealth contends, “single-sex education provides important educational benefits,” and the option of single-sex education contributes to “diversity in educational approaches.” Second, the Commonwealth argues, “the unique VMI method of character development and leadership training,” the school’s adversative approach, would have to be modified were VMI to admit women. . . .

V-A. Single-sex education affords pedagogical benefits to at least some students, Virginia emphasizes, and that reality is uncontested in this litigation. Similarly, it is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the State. In cases of this genre, our precedent instructs that “benign” justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded. . . .

Neither recent nor distant history bears out Virginia’s alleged pursuit of diversity through single-sex educational options. In 1839, when the State established VMI, a range of educational opportunities for men and women was scarcely contemplated. Higher education at the time was considered dangerous for women. . . .

Virginia eventually provided for several women’s seminaries and colleges. . . . By the mid-1970’s, all four schools had become coeducational. . . .

Ultimately, in 1970 . . . the University of Virginia, introduced coeducation and, in 1972, began to admit women on an equal basis with men. . . .

Virginia describes the current absence of public single-sex higher education for women as “an historical anomaly.” But the historical record indicates action more deliberate than anomalous: First, protection of women against higher education; next, schools for women far from equal in resources and stature to schools for men; finally, conversion of the separate schools to coeducation. . . . [I]n 1990, an official commission, “legislatively established to chart the future goals of higher education in Virginia,” reaffirmed the policy “of affording broad access” while maintaining “autonomy and diversity.” Significantly, the Commission reported:

Because colleges and universities provide opportunities for students to develop values and learn from role models, it is extremely important that they deal with faculty, staff, and students without regard to sex, race, or ethnic origin.

This statement, the Court of Appeals observed, “is the only explicit one that we have found in the record in which the Commonwealth has expressed itself with respect to gender distinctions.”

Our 1982 decision in Mississippi Univ. for Women prompted VMI to reexamine its male-only admission policy. . . . A Mission Study Committee, appointed by the VMI Board of Visitors, studied the problem from October 1983 until May 1986, and in that month counseled against “change of VMI status as a single-sex college.” Whatever internal purpose the Mission Study Committee served — and however well-meaning the framers of the report — we can hardly extract from that effort any state policy evenhandedly to advance diverse educational options. As the District Court observed, the Committee’s analysis “primarily focuse[d] on anticipated difficulties in attracting females to VMI,” and the report, overall, supplied “very little indication of how th[e] conclusion was reached.”

In sum, we find no persuasive evidence in this record that VMI’s male-only admission policy “is in furtherance of a state policy of ‘diversity.'” . . . A purpose genuinely to advance an array of educational options, as the Court of Appeals recognized, is not served by VMI’s historic and constant plan — a plan to “affor[d] a unique educational benefit only to males.” However “liberally” this plan serves the State’s sons, it makes no provision whatever for her daughters. That is not equal protection.

V-B. Virginia next argues that VMI’s adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Alterations to accommodate women would necessarily be “radical,” so “drastic,” as to transform, indeed “destroy,” VMI’s program. Neither sex would be favored by the transformation: Men would be deprived of the unique opportunity currently available to them; women would not gain that opportunity because their participation would “eliminat[e] the very aspects of [the] program that distinguish [VMI]. . . .”

The District Court forecast from expert witness testimony, and the Court of Appeals accepted, that coeducation would materially affect “at least these three aspects of VMI’s program — physical training, the absence of privacy, and the adversative approach.” And it is uncontested that women’s admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets. It is also undisputed, however, that “the VMI methodology could be used to educate women.” The District Court even allowed that some women may prefer it to the methodology a women’s college might pursue. “[S]ome women, at least, would want to attend [VMI] if they had the opportunity,” the District Court recognized, and “some women,” the expert testimony established, “are capable of all of the individual activities required of VMI cadets.” The parties, furthermore, agree that “some women can meet the physical standards [VMI] now impose[s] on men.” In sum, as the Court of Appeals stated, “neither the goal of producing citizen soldiers,” VMI’s raison d’etre, “nor VMI’s implementing methodology is inherently unsuitable to women.” . . .

[T]he District Court made “findings” on “gender-based developmental differences” that restate the opinions of Virginia’s expert witnesses, opinions about typically male or typically female “tendencies.” . . . For example, “[m]ales tend to need an atmosphere of adversativeness,” while “[f]emales tend to thrive in a cooperative atmosphere.” . . .

The United States does not challenge any expert witness estimation on average capacities or preferences of men and women. Instead, the United States emphasizes that . . . we have cautioned reviewing courts to take a “hard look” at generalizations or “tendencies” of the kind pressed by Virginia, and relied upon by the District Court. State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on “fixed notions concerning the roles and abilities of males and females.”

It may be assumed . . . that most women would not choose VMI’s adversative method. . . . [I]t is also probable that “many men would not want to be educated in such an environment.” . . . The issue, however, is not whether “women — or men — should be forced to attend VMI;” rather, the question is whether the State can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.

The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “self-fulfilling prophec[ies],” once routinely used to deny rights or opportunities. When women first sought admission to the bar and access to legal education, concerns of the same order were expressed. . . .

Medical faculties similarly resisted men and women as partners in the study of medicine. . . .

Women’s successful entry into the federal military academies, and their participation in the Nation’s military forces, indicate that Virginia’s fears for the future of VMI may not be solidly grounded. The State’s justification for excluding all women from “citizen-soldier” training for which some are qualified, in any event, cannot rank as “exceedingly persuasive,” as we have explained and applied that standard. . . .

Surely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the State’s great goal is not substantially advanced by women’s categorical exclusion, in total disregard of their individual merit, from the State’s premier “citizen-soldier” corps. Virginia, in sum, “has fallen far short of establishing the ‘exceedingly persuasive justification,'” that must be the solid base for any gender-defined classification.

1. In the second phase of the litigation, Virginia presented its remedial plan — maintain VMI as a male-only college and create VWIL as a separate program for women. The plan met District Court approval. The Fourth Circuit, in turn, deferentially reviewed the State’s proposal and decided that the two single-sex programs directly served Virginia’s reasserted purposes: single-gender education, and “achieving the results of an adversative method in a military environment.” Inspecting the VMI and VWIL educational programs to determine whether they “afford[ed] to both genders benefits comparable in substance, [if] not in form and detail,” the Court of Appeals concluded that Virginia had arranged for men and women opportunities “sufficiently comparable” to survive equal protection evaluation. . . .

VI-A. A remedial decree . . . must be shaped to place persons unconstitutionally denied an opportunity or advantage in “the position they would have occupied in the absence of [discrimination].” The constitutional violation in this case is the categorical exclusion of women from an extraordinary educational opportunity afforded men. A proper remedy for an unconstitutional exclusion, we have explained, aims to “eliminate [so far as possible] the discriminatory effects of the past” and to “bar like discrimination in the future.”

Virginia chose not to eliminate, but to leave untouched, VMI’s exclusionary policy. For women only, however, Virginia proposed a separate program, different in kind from VMI and unequal in tangible and intangible facilities. . . .

VWIL affords women no opportunity to experience the rigorous military training for which VMI is famed. . . .

VWIL students participate in ROTC and a “largely ceremonial” Virginia Corps of Cadets, but Virginia deliberately did not make VWIL a military institute. The VWIL House is not a military-style residence and VWIL students need not live together throughout the 4-year program, eat meals together, or wear uniforms during the school day. VWIL students thus do not experience the “barracks” life “crucial to the VMI experience,” the spartan living arrangements designed to foster an “egalitarian ethic.” . . . Virginia deemed that core experience nonessential, indeed inappropriate, for training its female citizen-soldiers. . . .

VWIL students . . . [are] [k]ept away from the pressures, hazards, and psychological bonding characteristic of VMI’s adversative training VWIL students will not know the “feeling of tremendous accomplishment” commonly experienced by VMI’s successful cadets.

Virginia maintains that these methodological differences are “justified pedagogically,” based on “important differences between men and women in learning and developmental needs,” “psychological and sociological differences” Virginia describes as “real” and “not stereotypes.” . . .

[G]eneralizations 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. Notably, Virginia never asserted that VMI’s method of education suits most men. It is also revealing that Virginia accounted for its failure to make the VWIL experience “the entirely militaristic experience of VMI” on the ground that VWIL “is planned for women who do not necessarily expect to pursue military careers.” By that reasoning, VMI’s “entirely militaristic” program would be inappropriate for men in general or as a group, for “[o]nly about 15% of VMI cadets enter career military service.”

In contrast to the generalizations about women on which Virginia rests, we note again these dispositive realities: VMI’s “implementing methodology” is not “inherently unsuitable to women;” “some women . . . do well under [the] adversative model;” . . . “some women, at least, would want to attend [VMI] if they had the opportunity;” . . . “some women are capable of all of the individual activities required of VMI cadets,” . . . and “can meet the physical standards [VMI] now impose[s] on men.” . . . It is on behalf of these women that the United States has instituted this suit, and it is for them that a remedy must be crafted,[1] a remedy that will end their exclusion from a state-supplied educational opportunity for which they are fit, a decree that will “bar like discrimination in the future.”

VI-B. In myriad respects other than military training, VWIL does not qualify as VMI’s equal. VWIL’s student body, faculty, course offerings, and facilities hardly match VMI’s. Nor can the VWIL graduate anticipate the benefits associated with VMI’s 157-year history, the school’s prestige, and its influential alumni network. . . .

Virginia, in sum, while maintaining VMI for men only, has failed to provide any “comparable single-gender women’s institution.” Instead, the Commonwealth has created a VWIL program fairly appraised as a “pale shadow” of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence.

Virginia’s VWIL solution is reminiscent of the remedy Texas proposed 50 years ago, in response to a state trial court’s 1946 ruling that, given the equal protection guarantee, African Americans could not be denied a legal education at a state facility. See Sweatt v. Painter (1950). Reluctant to admit African Americans to its flagship University of Texas Law School, the State set up a separate school for Herman Sweatt and other black law students. . . .

This Court contrasted resources at the new school with those at the school from which Sweatt had been excluded. . . .

More important than the tangible features, the Court emphasized, are “those qualities which are incapable of objective measurement but which make for greatness” in a school, including “reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige.” . . . [T]he Court unanimously ruled that Texas had not shown “substantial equality in the [separate] educational opportunities” the State offered. . . .

VI-C. . . . The Fourth Circuit plainly erred in exposing Virginia’s VWIL plan to a deferential analysis, for “all gender-based classifications today” warrant “heightened scrutiny.” Valuable as VWIL may prove for students who seek the program offered, Virginia’s remedy affords no cure at all for the opportunities and advantages withheld from women who want a VMI education and can make the grade. In sum, Virginia’s remedy does not match the constitutional violation; the State has shown no “exceedingly persuasive justification” for withholding from women qualified for the experience premier training of the kind VMI affords.

VII. . . . A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignored or excluded. VMI’s story continued as our comprehension of “We the People” expanded. There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the “more perfect Union.” . . .

Justice Thomas took no part in the consideration or decision of this case.

Chief Justice Rehnquist, concurring in judgment.

The Court holds first that Virginia violates the Equal Protection Clause by maintaining the Virginia Military Institute’s (VMI’s) all-male admissions policy, and second that establishing the Virginia Women’s Institute for Leadership (VWIL) program does not remedy that violation. While I agree with these conclusions, I disagree with the Court’s analysis and so I write separately.

1. Two decades ago in Craig v. Boren (1976), we announced that “[t]o withstand constitutional challenge, . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” We have adhered to that standard of scrutiny ever since. While the majority adheres to this test today, it also says that the State must demonstrate an “exceedingly persuasive justification” to support a gender-based classification. It is unfortunate that the Court thereby introduces an element of uncertainty respecting the appropriate test.

While terms like “important governmental objective” and “substantially related” are hardly models of precision, they have more content and specificity than does the phrase “exceedingly persuasive justification.” That phrase is best confined, as it was first used, as an observation on the difficulty of meeting the applicable test, not as a formulation of the test itself. To avoid introducing potential confusion, I would have adhered more closely to our traditional, “firmly established” standard that a gender-based classification “must bear a close and substantial relationship to important governmental objectives.”

Our cases dealing with gender discrimination also require that the proffered purpose for the challenged law be the actual purpose. It is on this ground that the Court rejects the first of two justifications Virginia offers for VMI’s single-sex admissions policy, namely, the goal of diversity among its public educational institutions. While I ultimately agree that the State has not carried the day with this justification, I disagree with the Court’s method of analyzing the issue. . . .

In Mississippi Univ. for Women v. Hogan (1982), a case actually involving a single-sex admissions policy in higher education, the Court held that the exclusion of men from a nursing program violated the Equal Protection Clause. This holding did place Virginia on notice that VMI’s men-only admissions policy was open to serious question. . . .

Even if diversity in educational opportunity were the State’s actual objective, the State’s position would still be problematic. The difficulty with its position is that the diversity benefited only one sex; there was single-sex public education available for men at VMI, but no corresponding single-sex public education available for women. . . .

I do not think, however, that the State’s options were as limited as the majority may imply. . . . Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation. I do not believe the State was faced with the stark choice of either admitting women to VMI, on the one hand, or abandoning VMI and starting from scratch for both men and women, on the other. . . .

Virginia offers a second justification for the single-sex admissions policy: maintenance of the adversative method. I agree with the Court that this justification does not serve an important governmental objective. A State does not have substantial interest in the adversative methodology unless it is pedagogically beneficial. While considerable evidence shows that a single-sex education is pedagogically beneficial for some students, and hence a State may have a valid interest in promoting that methodology, there is no similar evidence in the record that an adversative method is pedagogically beneficial or is any more likely to produce character traits than other methodologies.

1. . . . Accordingly, the remedy should not necessarily require either the admission of women to VMI, or the creation of a VMI clone for women. An adequate remedy in my opinion might be a demonstration by Virginia that its interest in educating men in a single-sex environment is matched by its interest in educating women in a single-sex institution. . . . It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber.

If a state decides to create single-sex programs, the state would, I expect, consider the public’s interest and demand in designing curricula. And rightfully so. But the state should avoid assuming demand based on stereotypes; it must not assume a priori, without evidence, that there would be no interest in a women’s school of civil engineering, or in a men’s school of nursing.

In the end . . . VWIL, fails as a remedy, because it is distinctly inferior to the existing men’s institution and will continue to be for the foreseeable future. VWIL simply is not, in any sense, the institution that VMI is. In particular, VWIL is a program appended to a private college, not a self-standing institution; and VWIL is substantially underfunded as compared to VMI. I therefore ultimately agree with the Court that Virginia has not provided an adequate remedy

Justice Scalia, dissenting.

Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people. As to facts: it explicitly rejects the finding that there exist “gender-based developmental differences” supporting Virginia’s restriction of the “adversative” method to only a men’s institution, and the finding that the all-male composition of the Virginia Military Institute (VMI) is essential to that institution’s character. As to precedent: it drastically revises our established standards for reviewing sex-based classifications. And as to history: it counts for nothing the long tradition, enduring down to the present, of men’s military colleges supported by both States and the Federal Government.

Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were — as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a 1st Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. . . .

1. . . . I have no problem with a system of abstract tests such as rational-basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). . . . But in my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot supersede — and indeed ought to be crafted so as to reflect — those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts. . . .

[T]he tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.

And the same applies, more broadly, to single-sex education in general, which, as I shall discuss, is threatened by today’s decision with the cut-off of all state and federal support. . . .

Today, . . . single-sex education is prohibited nationwide, not by democratic processes but by order of this Court. Even while bemoaning the sorry, bygone days of “fixed notions” concerning women’s education, the Court favors current notions so fixedly that it is willing to write them into the Constitution of the United States by application of custom-built “tests.” This is not the interpretation of a Constitution, but the creation of one.

1. To reject the Court’s disposition today, however, it is not necessary to accept my view that the Court’s made-up tests cannot displace longstanding national traditions as the primary determinant of what the Constitution means. It is only necessary to apply honestly the test the Court has been applying to sex-based classifications for the past two decades. . . .

[T]he United States urged us to hold in this litigation “that strict scrutiny is the correct constitutional standard for evaluating classifications that deny opportunities to individuals based on their sex.” The Court, while making no reference to the Government’s argument, effectively accepts it. . . .

[T]he Court proceeds to interpret “exceedingly persuasive justification” in a fashion that contradicts the reasoning of Mississippi Univ. for Women v. Hogan (1982) and our other precedents.

That is essential to the Court’s result, which can only be achieved by establishing that intermediate scrutiny is not survived if there are some women interested in attending VMI, capable of undertaking its activities, and able to meet its physical demands. . . .

Only the amorphous “exceedingly persuasive justification” phrase, and not the standard elaboration of intermediate scrutiny, can be made to yield this conclusion that VMI’s single-sex composition is unconstitutional because there exist several women (or, one would have to conclude under the Court’s reasoning, a single woman) willing and able to undertake VMI’s program. Intermediate scrutiny has never required a least-restrictive-means analysis, but only a “substantial relation” between the classification and the state interests that it serves. . . . There is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance.

Not content to execute a de facto abandonment of the intermediate scrutiny that has been our standard for sex-based classifications for some two decades, the Court purports to reserve the question whether, even in principle, a higher standard (i.e., strict scrutiny) should apply. . . .

[I]f the question of the applicable standard of review for sex-based classifications were to be regarded as an appropriate subject for reconsideration, the stronger argument would be not for elevating the standard to strict scrutiny, but for reducing it to rational-basis review. The latter certainly has a firmer foundation in our past jurisprudence: Whereas no majority of the Court has ever applied strict scrutiny in a case involving sex-based classifications, we routinely applied rational-basis review until the 1970’s, see, e.g., Hoyt v. Florida (1961); Goesaert v. Cleary (1948). And of course normal, rational-basis review of sex-based classifications would be much more in accord with the genesis of heightened standards of judicial review, the famous footnote in United States v. Carolene Products Co. (1938). . . .

It is hard to consider women a “discrete and insular minorit[y]” unable to employ the “political processes ordinarily to be relied upon,” when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns. Moreover, a long list of legislation proves the proposition false. See, e.g., Equal Pay Act of 1963, 29 U.S.C. § 206(d); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681; Women’s Business Ownership Act of 1988, Pub. L. 100-533, 102 Stat. 2689; Violence Against Women Act of 1994, Pub. L. 103-322, Title IV, 108 Stat. 1902.

III. . . . The question to be answered, I repeat, is whether the exclusion of women from VMI is “substantially related to an important governmental objective.”

III-A. It is beyond question that Virginia has an important state interest in providing effective college education for its citizens. That single-sex instruction is an approach substantially related to that interest should be evident enough from the long and continuing history in this country of men’s and women’s colleges. . . .

The evidence establishing that fact was overwhelming — indeed, “virtually uncontradicted.” . . . This finding alone, which even this Court cannot dispute . . . should be sufficient to demonstrate the constitutionality of VMI’s all-male composition.

But besides its single-sex constitution, VMI is different from other colleges in another way. It employs a “distinctive educational method,” sometimes referred to as the “adversative, or doubting, model of education.” “Physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values are the salient attributes of the VMI educational experience.” No one contends that this method is appropriate for all individuals; education is not a “one size fits all” business. Just as a State may wish to support junior colleges, vocational institutes, or a law school that emphasizes case practice instead of classroom study, so too a State’s decision to maintain within its system one school that provides the adversative method is “substantially related” to its goal of good education. Moreover, it was uncontested that “if the state were to establish a women’s VMI-type [i.e., adversative] program, the program would attract an insufficient number of participants to make the program work;” and it was found by the District Court that if Virginia were to include women in VMI, the school “would eventually find it necessary to drop the adversative system altogether.” Thus, Virginia’s options were an adversative method that excludes women or no adversative method at all.

There can be no serious dispute that, as the District Court found, single-sex education and a distinctive educational method “represent legitimate contributions to diversity in the Virginia higher education system.” . . .

Substantial evidence in the District Court demonstrated that the Commonwealth has long proceeded on the principle that “‘[h]igher education resources should be viewed as a whole — public and private'” — because such an approach enhances diversity and because “‘it is academic and economic waste to permit unwarranted duplication.'” It is thus significant that, whereas there are “four all-female private [colleges] in Virginia,” there is only “one private all-male college,” which “indicates that the private sector is providing for th[e] [former] form of education to a much greater extent than it provides for all-male education.” In these circumstances, Virginia’s election to fund one public all-male institution and one on the adversative model — and to concentrate its resources in a single entity that serves both these interests in diversity — is substantially related to the State’s important educational interests.

III-B. The Court today has no adequate response to this clear demonstration of the conclusion produced by application of intermediate scrutiny. Rather, it relies on a series of contentions that are irrelevant or erroneous as a matter of law, foreclosed by the record in this case, or both. . . .

The Court suggests that Virginia’s claimed purpose in maintaining VMI as an all-male institution — its asserted interest in promoting diversity of educational options — is not “genuin[e],” but is a pretext for discriminating against women. . . . The relevance of the Mission Study Committee is that its very creation, its sober 3-year study, and the analysis it produced, utterly refute the claim that VMI has elected to maintain its all-male student-body composition for some misogynistic reason.

The Court also supports its analysis of Virginia’s “actual state purposes” in maintaining VMI’s student body as all-male by stating that there is no explicit statement in the record “‘in which the Commonwealth has expressed itself'” concerning those purposes. That is wrong on numerous grounds. First and foremost, in its implication that such an explicit statement of “actual purposes” is needed. . . .

It is, moreover, not true that Virginia’s contemporary reasons for maintaining VMI are not explicitly recorded. . . . As the parties stipulated, that report “notes that the hallmarks of Virginia’s educational policy are ‘diversity and autonomy.'” . . .

[T]he Court finds fault with Virginia’s failure to offer education based on the adversative training method to women. It dismisses the District Court’s “‘findings’ on ‘gender-based developmental differences.'” . . .

Ultimately, in fact, the Court does not deny the evidence supporting these findings. . . . The Court simply dispenses with the evidence submitted at trial — it never says that a single finding of the District Court is clearly erroneous — in favor of the Justices’ own view of the world. . . .

But treating the evidence as irrelevant is absolutely necessary for the Court to reach its conclusion. . . .

The Court’s analysis at least has the benefit of producing foreseeable results. Applied generally, it means that whenever a State’s ultimate objective is “great enough to accommodate women” (as it always will be), then the State will be held to have violated the Equal Protection Clause if it restricts to men even one means by which it pursues that objective — no matter how few women are interested in pursuing the objective by that means, no matter how much the single-sex program will have to be changed if both sexes are admitted, and no matter how beneficial that program has theretofore been to its participants. . . .

[T]hat VMI would not have to change very much if it were to admit women . . . is irrelevant: If VMI’s single-sex status is substantially related to the government’s important educational objectives, as I have demonstrated above and as the Court refuses to discuss, that concludes the inquiry. . . .

But if such a debate were relevant, the Court would certainly be on the losing side. . . .

In the face of these findings by two courts below, amply supported by the evidence. . . . that VMI would be fundamentally altered if it admitted women[2] . . .

Finally, the absence of a precise “all-women’s analogue” to VMI is irrelevant. In Mississippi Univ. for Women v. Hogan (1982), we attached no constitutional significance to the absence of an all-male nursing school. As Virginia notes, if a program restricted to one sex is necessarily unconstitutional unless there is a parallel program restricted to the other sex, “the opinion in Hogan could have ended with its first footnote, which observed that ‘Mississippi maintains no other single-sex public university or college.'” . . .

I have thus far said nothing about VWIL because it is, under our established test, irrelevant, so long as VMI’s all-male character is “substantially related” to an important state goal. But VWIL now exists, and the Court’s treatment of it shows how far-reaching today’s decision is. . . .

Even though VWIL was carefully designed by professional educators who have tremendous experience in the area, and survived the test of adversarial litigation, the Court simply declares, with no basis in the evidence, that these professionals acted on “‘overbroad’ generalizations.”

United States v. Virginia: Notes

            In Frontiero v. Richardson (1973), a closely divided Court rejected strict scrutiny as the standard for gender discrimination. Subsequently, in Craig v. Boren (1976), the Court adopted intermediate scrutiny. However, in United States v. Virginia (1996), the Court appeared to take a long step in the direction of stricter scrutiny. It found that the gender discrimination in that case could survive only if supported by an “exceedingly persuasive” justification.

In 2001, the Court appeared to retreat from the possibility that meeting the “exceedingly persuasive” standard applied in United States v. Virginia meant more than meeting the Craig v. Boren standard of intermediate scrutiny. In Nguyen v. Immigration and Naturalization Service (2001), a young man who had been ordered deported challenged the constitutionality of 8 U.S.C. § 1409, which governs how foreign-born illegitimate children can become American citizens. If the mother is an American, the child can be deemed an American citizen at birth. But if citizenship is claimed through an American father, the father must take steps to acknowledge paternity before the child turns 18.

Nguyen had been born in Vietnam to an American father and a Vietnamese mother. His father had raised him in Texas since he was six, but had not complied with the requirements of 8 U.S.C. § 1409 prior to the child’s 18th birthday to formally make him a United States citizen. Under the statute, mothers of foreign-born illegitimate children need do nothing for their child to become a citizen.

When Nguyen was 22, he pleaded guilty to two felonies in Texas state court and the INS subsequently initiated deportation proceedings since he was not a citizen. His father then successfully obtained an order of parentage from a state court, based on DNA testing. Since Nguyen was above 8 U.S.C. § 1409’s mandated age of 18 at the time of the order of parentage, the INS refused to reclassify him and continued with the deportation proceedings.

Nguyen challenged 8 U.S.C. § 1409 as a violation of the equal protection component of the 5th Amendment. In a 5–4 decision, the Supreme Court rejected his claim. The Court recognized that Congress had two interests in regulating the citizenship of illegitimate children of one American parent: proof of a biological link and proof “that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”

The Court held that Congress could have imposed the differential standards for mothers and fathers for two reasons: mothers are always present at the birth of the child, obviating problems of proof of parentage; and, “[i]n the case of a citizen mother and a child born overseas, the opportunity for a meaningful relationship between citizen parent and child inheres in the very event of birth, an event so often critical to our constitutional and statutory understandings of citizenship. The mother knows that the child is in being and is hers and has an initial point of contact with him. There is at least an opportunity for mother and child to develop a real, meaningful relationship.” Under the statute, it makes no difference whether the father is present or absent at the birth of the child.

The Court concluded:

In this difficult context of conferring citizenship on vast numbers of persons, the means adopted by Congress are in substantial furtherance of important governmental objectives. The fit between the means and the important end is “exceedingly persuasive.” See United States v. Virginia. We have explained that an “exceedingly persuasive justification” is established “by showing at least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.'” Mississippi Univ. for Women v. Hogan (1982). Section 1409 meets this standard.

Justice O’Connor vehemently dissented, saying that the justifications failed the test of intermediate scrutiny. In her view, an age cut-off for the opportunity of proving parentage was irrational given the current availability of DNA testing. She contended that the government’s second rationale should be rejected because it is based on stereotypes about the likelihood of mothers versus fathers to bond with their children:

[T]he idea that a mother’s presence at birth supplies adequate assurance of an opportunity to develop a relationship while a father’s presence at birth does not would appear to rest only on an overbroad sex-based generalization. A mother may not have an opportunity for a relationship if the child is removed from his or her mother on account of alleged abuse or neglect, or if the child and mother are separated by tragedy, such as disaster or war, of the sort apparently present in this case. There is no reason, other than stereotype, to say that fathers who are present at birth lack an opportunity for a relationship on similar terms. The “[p]hysical differences between men and women,” United States v. Virginia (1996), therefore do not justify § 1409(a)(4)’s discrimination. . . .

In denying petitioner’s claim that § 1409(a)(4) rests on stereotypes, the majority articulates a misshapen notion of “stereotype” and its significance in our equal protection jurisprudence. The majority asserts that a “stereotype” is “defined as a frame of mind resulting from irrational or uncritical analysis.” This Court has long recognized, however, that an impermissible stereotype may enjoy empirical support and thus be in a sense “rational.” See, e.g., J.E.B. v. Alabama ex rel T.B. (1994) (“We have made abundantly clear in past cases that gender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization”); Craig v. Boren (1976) (invalidating a sex-based classification even though the evidence supporting the distinction was “not trivial in a statistical sense”); id. (noting that “prior cases have consistently rejected the use of sex as a decision making factor even though the statutes in question certainly rested on far more predictive empirical relationships than this”); Weinberger v. Wiesenfeld (1975) (invalidating a sex-based classification even though the underlying generalization was “not entirely without empirical support”). Indeed, the stereotypes that underlie a sex-based classification “may hold true for many, even most, individuals.” Miller v. Albright (1998) (Ginsburg, J., dissenting). But in numerous cases where a measure of truth has inhered in the generalization, “the Court has rejected official actions that classify unnecessarily and overbroadly by gender when more accurate and impartial functional lines can be drawn.”

Nor do stereotypes consist only of those overbroad generalizations that the reviewing court considers to “show disrespect” for a class. Compare, e.g., Craig. The hallmark of a stereotypical sex-based classification under this Court’s precedents is not whether the classification is insulting, but whether it “relie[s] upon the simplistic, outdated assumption that gender could be used as a ‘proxy for other, more germane bases of classification.'” Mississippi Univ. for Women v. Hogan (1982).

^[1]. Admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs. . . . Experience shows such adjustments are manageable. . . .

 

^[2]. The Court’s do-it-yourself approach to factfinding, is exemplified by its invocation of the experience of the federal military academies to prove that not much change would occur. In fact, the District Court noted that “the West Point experience” supported the theory that a coeducational VMI would have to “adopt a [different] system,” for West Point found it necessary upon becoming coeducational to “move away” from its adversative system.