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Supreme Court Invalidates Exclusion of Women by VMI

By Joan Biskupic
Washington Post Staff Writer
Thursday, June 27 1996; Page A01

Ending a 157-year tradition of state-supported, all-male education, the Supreme Court ruled yesterday that Virginia Military Institute's exclusion of women is unconstitutional.

The 7 to 1 decision constitutes the strongest endorsement of sexual equality by the court in recent years. Written by Justice Ruth Bader Ginsburg, the ruling means that the venerable military school must admit women or go private.

While Virginia "serves the state's sons, it makes no provision whatever for her daughters. That is not equal protection," Ginsburg said. The court found that neither VMI's goal of producing "citizen-soldiers" nor its physically and mentally grueling program make the school inherently unsuitable to women. The ruling offered a forceful rendering of the nation's efforts to reverse sex discrimination from the time women got the vote in 1920 to present times.

The expansive reading of a constitutional protection for women's rights garnered broad support on the court. Women's groups immediately celebrated the ruling, but some conservative groups and dissenting Justice Antonin Scalia warned that all single-sex public education is dead.

"The Supreme Court overwhelmingly has given life to the promise in the Constitution that all of us deserve an equal shot at educational opportunity," Attorney General Janet Reno said in a statement.

"This is a savage disappointment for the alumni," said VMI Superintendent Josiah Bunting. He defended VMI's seven-year legal battle to remain all-male, saying "if you fight for something you believe in, nothing is wasted, ever." As a practical matter, Bunting said, women could not be enrolled at the school before the fall of 1997. In a portion of her opinion she read slowly from the bench before a rapt audience, Ginsburg , who made her name as a women's rights advocate, said the prestigious school with an influential alumni network violated the constitutional guarantee of equal protection: "To cure that violation, and to afford genuinely equal protection, women seeking and fit for a VMI-quality education cannot be offered anything less."

Scalia, writing alone, blasted the majority for destroying an institution that had "served [Virginia] with pride and distinction." But, he said, the court's ruling "does not leave VMI without honor."

"In an odd sort of way, it is precisely VMI's attachment to such old-fashioned concepts as manly `honor' that has made it, and the system it represents, the target of those who today succeed in abolishing public single-sex education," Scalia wrote in a 40-page dissent that nearly matched the length of the majority opinion.

Justice Clarence Thomas, whose son attends VMI, did not take part in the case.

The case, United States v. Virginia, has drawn national attention. The Lexington, Va., school and The Citadel in Charleston, S.C., are the only two state-run, male-only schools in the country. They are the last of a kind: building discipline and loyalty through the "adversative" method, which relies on arduous physical routines and constant humiliation.

The case had been closely followed by women's rights advocates, educators and governments to see how it could affect the fate of single-sex schools and other programs based on sex.

"This is a great win for women on a number of fronts," said Marcia Greenberger, co-president of the National Women's Law Center. "Women who want a shot at going to VMI now will have this educational opportunity and access to its alumni networks in politics and government. The opinion also sets out in forceful terms that institutions have nothing to fear by opening their doors to women, that institutions will not be ruined."

Theodore B. Olson, who represented VMI, said, "It's a very sad day when the Supreme Court decides that public educators don't have the option of single-sex education. We ought to have as many tools available to create successful adults."

The majority's opinion, however, emphasized that states could still support single-sex schools as long as they were "evenhanded" in making educational opportunities available.

The majority generally relied on a traditional standard for assessing sex discrimination, rather than invoke, as the Justice Department had sought, the strictest judicial scrutiny. The latter standard, the toughest for government to meet, has been reserved only for discrimination based on race and national origin.

However, Ginsburg fully reinforced the standard used to determine when government can treat the sexes differently, calling it at one point, "skeptical scrutiny." She stressed that government "must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." She emphasized the government needs an "exceedingly persuasive justification" for any classification based on sex.

Joining Ginsburg in the judgment were Justices John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, Stephen G. Breyer and Chief Justice William H. Rehnquist.

Rehnquist did not sign Ginsburg's opinion but wrote separately to explain that while he did not agree with Ginsburg's rationale he nonetheless believed Virginia lacked good reasons for excluding women from the school.

Observing the state had sought to justify VMI on grounds of diversity (offering some coeducational programs and a single-sex one), Rehnquist said, "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."

Rehnquist agreed with the majority that the Virginia Women's Institute for Leadership, at nearby Mary Baldwin women's college, was "distinctly inferior." Ginsburg noted the VWIL program, established in response to a lower court ruling against VMI, offers a faculty with "significantly fewer Ph.D.'s" than at VMI and enrolls students with SAT scores about 100 points lower than the score for VMI freshmen. The case began in 1990 when the Bush administration Justice Department, acting on complaints from young women, sued Virginia over the VMI admissions policy. The 4th U.S. Circuit Court of Appeals ruled last year that education for the sexes can be "separate but substantially comparable." The appeals court said VMI need not become coed and endorsed the newly created all-female VWIL program. The women attend Reserve Officers Training Corps classes at VMI with the men but they do not participate in "adversative" training.

"When women first sought admission to the bar and access to legal education, concerns of the same order were expressed," Ginsburg said, adding women's entry into the military academies and participation as soldiers undermines Virginia's arguments.

Concluded Ginsburg, "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.' "

© Copyright 1997 The Washington Post Company

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