United States v. Virginia

Notable Items:

Issue(s) Before the Court:

• 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,” 766 F. Supp., at 1412, the equal protection of the laws guaranteed by the Fourteenth Amendment?
• Second, if VMI’s “unique” situation, id., at 1413—as Virginia’s sole single-sex public institution of higher education—offends the Constitution’s equal protection principle, what is the remedial requirement?

  Petitioner's Claim(s):

  Respondent's Claim(s):

  • First, the Commonwealth contends, “single-sex education provides important educational benefits,” Brief for Cross-Petitioners 20, and the option of single-sex education contributes to “diversity in educational approaches,” id., at 25.
  • 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.

  Holding(s) and Disposition:

  Held: The heightened review standard applicable to sex-based classifications does not make sex a proscribed classification, but it does mean that categorization by sex may not be used to create or perpetuate the legal, social, and economic inferiority of women.
  The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords.
  Disposition: Reversed and remanded.
  

  Material Facts:

  • A full recounting of the facts is available below

  Procedural History:

  • Virginia Military Institute (VMI) is the sole single-sex school among Virginia's public institutions of higher learning.
  • [in 1990] The United States sued Virginia and VMI, alleging that VMI's exclusively male admission policy violated the Fourteenth Amendment's Equal Protection Clause.
  • The District Court ruled in VMI's favor.
  • The Fourth Circuit reversed and ordered Virginia to remedy the constitutional violation.
  • In response, Virginia proposed a parallel program for women: Virginia Women's Institute for Leadership (VWIL), located at Mary Baldwin College, a private liberal arts school for women.
  • The District Court found that Virginia's proposal satisfied the Constitution's equal protection requirement, and the Fourth Circuit affirmed.

  Rationale

  Ginsburg Majority Opinion (Stevens, O'Connor, Kennedy, Souter, Breyer)

  • Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women.
  • There [Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982)], this Court underscored that a party seeking to uphold government action based on sex must establish an “exceedingly persuasive justification” for the classification.
  • To succeed, the defender of the challenged action must show “at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” pursue its policies as a private institution.
  • 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,” 766 F. Supp., at 1412, the equal protection of the laws guaranteed by the Fourteenth Amendment?
  • Second, if VMI’s “unique” situation, id., at 1413—as Virginia’s sole single-sex public institution of higher education—offends the Constitution’s equal protection principle, what is the remedial requirement?
  • Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed [v. Reed]] decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). See J. E. B. [v. Alabama ex rel. T. B., 511 U. S., at 152 (Kennedy, J., concurring in judgment) (case law evolving since 1971 “reveal[s] a strong presumption that gender classifications are invalid”).
  • 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.’ ”
  • 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.’ ”
  • Virginia, in sum, “has fallen far short of establishing the ‘exceedingly persuasive justification,’ ” Mississippi Univ. for Women, 458 U. S., at 731, that must be the solid base for any gender-defined classification.
  • In sum, Virginia's remedy does not match the constitutional violation; the Commonwealth has shown no "exceedingly persuasive justification" for withholding from women qualified for the experience premier training of the kind VMI affords.
  • Women seeking and fit for a VMI-quality education cannot be offered anything less, under the Commonwealth's obligation to afford them genuinely equal protection.
  • A full description of the rationale is available below

  Rehnquist Concurrance in judgement (??)

  • While I agree with these conclusions [violates the Equal Protection Clause and VWIL program does not remedy that violation], I disagree with the Court's analysis and so I write separately.
  • Part I
  • While the majority adheres to this test today, ante, at 524, 533, it also says that the Commonwealth 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.
  • 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.
  • Had the Commonwealth provided the kind of support for the private women's schools that it provides for VMI, ... the Commonwealth would have demonstrated that its interest in providing a single-sex education for men was to some measure matched by an interest in providing the same opportunity for women.
  • ... 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.
  • Part II
  • ... it is not the "exclusion of women" that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any-much less a comparable-institution for women.
  • Accordingly, the remedy should not necessarily require either the admission of women to VMI or the creation of a VMI clone for women.
  • 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. [Harvard and Radcliff?]
  • In the end, the women's institution Virginia proposes, 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 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.

  Scalia Dissent (??)

  • The virtue of a democratic system with a First 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.
  • So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: They left us free to change.
  • ... embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society's law-trained elite) into our Basic Law.
  • Part I
  • I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: "rational basis" scrutiny, intermediate scrutiny, or strict scrutiny.
  • More specifically, it is my view that "when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down." Rutan v. Republican Party of Ill., 497 U. S. 62, 95 (1990) (Scalia, dissenting).
  • 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 cutoff of all state and federal support.
  • "[It is] [c]oeducation, historically, [that] is a novel educational theory. From grade school through high school, college, and graduate and professional training, much of the Nation's population during much of our history has been educated in sexually segregated classrooms." Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 736 (1982) (Powell, J., dissenting)
  • Part II
  • It is well settled, as Justice O’Connor stated some time ago for a unanimous Court, that we evaluate a statutory classification based on sex under a standard that lies “[b]etween th[e] extremes of rational basis review and strict scrutiny.” Clark v. Jeter, 486 U. S., at 461.
  • We have denominated this standard “intermediate scrutiny” and under it have inquired whether the statutory classification is “substantially related to an important governmental objective.” Ibid. See, e. g., Heckler v. Mathews, 465 U. S. 728, 744 (1984); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 150 (1980); Craig v. Boren, 429 U. S., at 197.
  • The Court’s nine invocations of ["exceedingly persuasive justification”] would be unobjectionable if the Court acknowledged that whether a “justification” is “exceedingly persuasive” must be assessed by asking “[whether] the classification serves important governmental objectives and [whether] the discriminatory means employed are substantially related to the achievement of those objectives.”
  • 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.
  • In Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 579, 582–583 (1990), overruled on other grounds, Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 227 (1995), we held that a classification need not be accurate “in every case” to survive intermediate scrutiny so long as, “in the aggregate,” it advances the underlying objective.
  • 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, 368 U. S. 57 (1961); Goesaert v. Cleary, 335 U. S. 464 (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., 304 U. S. 144 (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.
  • Part III A
  • Part III B
  • Part III V
  • Part IV A
  • Part IV B
  • * * *

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  Full Recounting of Facts

  • A list of the material facts is available above

  Majority Full Argument

  • 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.
  • Part I
  • Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women.
  • Part II A
  • Part II B
  • The District Court ruled in favor of VMI, however, and rejected the equal protection challenge pressed by the United States.
  • That court correctly recognized that Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982), was the closest guide.
  • There, this Court underscored that a party seeking to uphold government action based on sex must establish an “exceedingly persuasive justification” for the classification.
  • To succeed, the defender of the challenged action must show “at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”
  • The court suggested these options for the Commonwealth: Admit women to VMI; establish parallel institutions or programs; or abandon state support, leaving VMI free to
  • [Fourth Circuit] Judge Phillips suggested that the Commonwealth would satisfy the Constitution’s equal protection requirement if it “simultaneously opened single-gender undergraduate institutions having substantially comparable curricular and extra-curricular programs, funding, physical plant, administration and support services, and faculty and library re- sources.”
  • Part III
  • The cross-petitions in this suit 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,” 766 F. Supp., at 1412, the equal protection of the laws guaranteed by the Fourteenth Amendment?
  • Second, if VMI’s “unique” situation, id., at 1413—as Virginia’s sole single-sex public institution of higher education—offends the Constitution’s equal protection principle, what is the remedial requirement?
  • Part IV
  • Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action.
  • Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed [v. Reed]] decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). See J. E. B. [v. Alabama ex rel. T. B., 511 U. S., at 152 (Kennedy, J., concurring in judgment) (case law evolving since 1971 “reveal[s] a strong presumption that gender classifications are invalid”).
  • 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.’ ”
  • Part V
  • The Fourth Circuit initially held that Virginia had advanced no state policy by which it could justify, under equal protection principles, its determination “to afford VMI’s unique type of program to men and not to women.”
  • Virginia challenges that “liability” ruling and asserts two justifications in defense of VMI’s exclusion of women.
  • First, the Commonwealth contends, “single-sex education provides important educational benefits,” Brief for Cross-Petitioners 20, and the option of single-sex education contributes to “diversity in educational approaches,” id., at 25.
  • 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.
  • Part V A
  • 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.’ ”
  • Part V B
  • 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.”
  • Virginia, in sum, “has fallen far short of establishing the ‘exceedingly persuasive justification,’ ” Mississippi Univ. for Women, 458 U. S., at 731, that must be the solid base for any gender-defined classification.
  • Part VI
  • 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 United States challenges this "remedial" ruling as pervasively misguided.
  • Part VI A
  • The constitutional violation in this suit is the categorical exclusion of women from an extraordinary educational opportunity afforded men.
  • 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."
  • Part 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."
  • Accordingly, the Court held, the Equal Protection Clause required Texas to admit AfricanAmericans to the University of Texas Law School. Id., at 636. In line with Sweatt [v. Painter (1950)], we rule here that Virginia has not shown substantial equality in the separate educational opportunities the Commonwealth supports at VWIL and VMI.
  • Part VI C
  • In sum, Virginia's remedy does not match the constitutional violation; the Commonwealth has shown no "exceedingly persuasive justification" for withholding from women qualified for the experience premier training of the kind VMI affords.
  • Part VII
  • Women seeking and fit for a VMI-quality education cannot be offered anything less, under the Commonwealth's obligation to afford them genuinely equal protection.
  • The core of the rationale is available above
  © Jonathan M. Bresler