United States v. Virginia

___ U.S. ___, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996)

Vote 7-1

 

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.

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. The school’s graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course.

VMI has notably succeeded in its mission to produce leaders; among its alumni are military generals, Members of Congress, and business executives. The school’s alumni overwhelmingly perceive that their VMI training helped them to realize their personal goals. VMI’s endowment reflects the loyalty of its graduates; VMI has the largest per-student endowment of all undergraduate institutions in the Nation.

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. Nevertheless, Virginia has elected to preserve exclusively for men the advantages and opportunities a VMI education affords.

From its establishment in 1839 as one of the Nation’s first state military colleges, ... VMI has remained financially supported by Virginia and "subject to the control of the [Virginia] General Assembly." ... The first southern college to teach engineering and industrial chemistry, ... VMI once provided teachers for the State’s schools. ... Civil War strife threatened the school’s vitality, but a resourceful superintendent regained legislative support by highlighting "VMI’s great potential[,] through its technical know-how," to advance Virginia’s postwar recovery. ...

VMI today enrolls about 1,300 men as cadets. Its academic offerings in the liberal arts, sciences, and engineering are also available at other public colleges and universities in Virginia. But VMI’s mission is special. It is the mission of the school "‘to produce educated and honorable men, prepared for the varied work of civil life, imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready as citizen-soldiers to defend their country in time of national peril.’" ...

In contrast to the federal service academies, institutions maintained "to prepare cadets for career service in the armed forces," VMI’s program "is directed at preparation for both military and civilian life"; "[o]nly about 15% of VMI cadets enter career military service." ...

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." .... As one Commandant of Cadets described it, the adversative method "dissects the young student," and makes him aware of his "limits and capabilities," so that he knows "how far he can go with his anger, ... how much he can take under stress, ... exactly what he can do when he is physically exhausted." ...

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. ... Tormenting and punishing, the rat line bonds new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors. ...

VMI’s "adversative model" is further characterized by a hierarchical "class system" of privileges and responsibilities, a "dyke system" for assigning a senior class mentor to each entering class "rat," and a stringently enforced "honor code," which prescribes that a cadet "‘does not lie, cheat, steal nor tolerate those who do.’" ...

VMI attracts some applicants because of its reputation as an extraordinarily challenging military school, and "because its alumni are exceptionally close to the school." ... "[W]omen have no opportunity anywhere to gain the benefits of [the system of education at VMI]." ...

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 Fourteenth Amendment….

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 Fourteenth 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?

…Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action….

Measuring the record in this case against the review standard just described, we conclude that Virginia has shown no "exceedingly persuasive justification" for excluding all women from the citizen-soldier training afforded by VMI….

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. ...

Mississippi Univ. for Women is immediately in point. There the State asserted, in justification of its exclusion of men from a nursing school, that it was engaging in "educational affirmative action" by "compensat[ing] for discrimination against women." ... Undertaking a "searching analysis," ... the Court found no close resemblance between "the alleged objective" and "the actual purpose underlying the discriminatory classification." ... Pursuing a similar inquiry here, we reach the same conclusion.

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; reflecting widely held views about women’s proper place, the Nation’s first universities and colleges--for example, Harvard in Massachusetts, William and Mary in Virginia--admitted only men. ... VMI was not at all novel in this respect: In admitting no women, VMI followed the lead of the State’s flagship school, the University of Virginia, founded in 1819.

"[N]o struggle for the admission of women to a state university," a historian has recounted, "was longer drawn out, or developed more bitterness, than that at the University of Virginia." ... In 1879, the State Senate resolved to look into the possibility of higher education for women, recognizing that Virginia "‘has never, at any period of her history,’" provided for the higher education of her daughters, though she "‘has liberally provided for the higher education of her sons.’" ... Despite this recognition, no new opportunities were instantly open to women.

Virginia eventually provided for several women’s seminaries and colleges. Farmville Female Seminary became a public institution in 1884. ... Two women’s schools, Mary Washington College and James Madison University, were founded in 1908; another, Radford University, was founded in 1910. ... By the mid-1970’s, all four schools had become coeducational. ...

Debate concerning women’s admission as undergraduates at the main university continued well past the century’s midpoint. Familiar arguments were rehearsed. If women were admitted, it was feared, they "would encroach on the rights of men; there would be new problems of government, perhaps scandals; the old honor system would have to be changed; standards would be lowered to those of other coeducational schools; and the glorious reputation of the university, as a school for men, would be trailed in the dust." ....

Ultimately, in 1970, "the most prestigious institution of higher education in Virginia," the University of Virginia, introduced coeducation and, in 1972, began to admit women on an equal basis with men. ... A three-judge Federal District Court confirmed: "Virginia may not now deny to women, on the basis of sex, educational opportunities at the Charlottesville campus that are not afforded in other institutions operated by the [S]tate." ....

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. The state legislature, prior to the advent of this controversy, had repealed "[a]ll Virginia statutes requiring individual institutions to admit only men or women." ... And in 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. ... Virginia relies on that reexamination as a legitimate basis for maintaining VMI’s single-sex character. ... 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.’" ... No such policy, the Fourth Circuit observed, can be discerned from the movement of all other public colleges and universities in Virginia away from single-sex education. ... That court also questioned "how one institution with autonomy, but with no authority over any other state institution, can give effect to a state policy of diversity among institutions." ... 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.

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," Virginia asserts, as to transform, indeed "destroy," VMI’s program. ... Neither sex would be favored by the transformation, Virginia maintains: 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] from ... other institutions of higher education in Virginia." ...

…It may be assumed, for purposes of this decision, 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." ... (On that point, even our dissenting colleague might agree.) Education, to be sure, is not a "one size fits all" business. 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….

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.

Virginia and VMI trained their argument on "means" rather than "end," and thus misperceived our precedent. Single-sex education at VMI serves an "important governmental objective," they maintained, and exclusion of women is not only "substantially related," it is essential to that objective. By this notably circular argument, the "straightforward" test Mississippi Univ. for Women described, ... was bent and bowed.

The State’s misunderstanding … is apparent from VMI’s mission: to produce "citizen-soldiers," individuals "‘imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready ... to defend their country in time of national peril.’" ...

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….

A generation ago, "the authorities controlling Virginia higher education," despite long established tradition, agreed "to innovate and favorably entertain[ed] the [then] relatively new idea that there must be no discrimination by sex in offering educational opportunity." ... Commencing in 1970, Virginia opened to women "educational opportunities at the Charlottesville campus that [were] not afforded in other [State-operated] institutions." ... A federal court approved the State’s innovation, emphasizing that the University of Virginia "offer[ed] courses of instruction ... not available elsewhere." ... The court further noted: "[T]here exists at Charlottesville a ‘prestige’ factor [not paralleled in] other Virginia educational institutions." ...

VMI, too, offers an educational opportunity no other Virginia institution provides, and the school’s "prestige"--associated with its success in developing "citizen-soldiers"--is unequaled…. Women seeking and fit for a VMI-quality education cannot be offered anything less, under the State’s obligation to afford them genuinely equal protection….

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

Chief Justice Rehnquist, concurring in the 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.

Two decades ago in Craig v. Boren, ... 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….

Before this Court, Virginia has sought to justify VMI’s single-sex admissions policy primarily on the basis that diversity in education is desirable, and that while most of the public institutions of higher learning in the State are coeducational, there should also be room for single-sex institutions. I agree with the Court that there is scant evidence in the record that this was the real reason that Virginia decided to maintain VMI as men only.... But, unlike the majority, I would consider only evidence that postdates our decision in [Mississippi University for Women v.] Hogan, and would draw no negative inferences from the State’s actions before that time. I think that after Hogan, the State was entitled to reconsider its policy with respect to VMI, and to not have earlier justifications, or lack thereof, held against it.

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. When Hogan placed Virginia on notice that VMI’s admissions policy possibly was unconstitutional, VMI could have dealt with the problem by admitting women; but its governing body felt strongly that the admission of women would have seriously harmed the institution’s educational approach. Was there something else the State could have done to avoid an equal protection violation? Since the State did nothing, we do not have to definitively answer that question….

…The private women’s colleges are treated by the State exactly as all other private schools are treated, which includes the provision of tuition-assistance grants to Virginia residents. Virginia gives no special support to the women’s single-sex education. But obviously, the same is not true for men’s education. Had the State provided the kind of support for the private women’s schools that it provides for VMI, this may have been a very different case. For in so doing, the State 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.

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.

The Court defines the constitutional violation in this case as "the categorical exclusion of women from an extraordinary educational opportunity afforded to men." ... By defining the violation in this way, and by emphasizing that a remedy for a constitutional violation must place the victims of discrimination in "‘the position they would have occupied in the absence of [discrimination],’" ... the Court necessarily implies that the only adequate remedy would be the admission of women to the all-male institution. As the foregoing discussion suggests, I would not define the violation in this way; 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. 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. To demonstrate such, the State does not need to create two institutions with the same number of faculty Ph.D.’s, similar SAT scores, or comparable athletic fields. ... Nor would it necessarily require that the women’s institution offer the same curriculum as the men’s; one could be strong in computer science, the other could be strong in liberal arts. 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, 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 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 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. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men’s military academy--so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States--the old one--takes no sides in this educational debate, I dissent….

To reject the Court’s disposition today … it is only necessary to apply honestly the test the Court has been applying to sex-based classifications for the past two decades….

Although the Court in two places recites the test as stated in Hogan, ... which asks whether the State has demonstrated "that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives," ... the Court never answers the question presented in anything resembling that form. When it engages in analysis, the Court instead prefers the phrase "exceedingly persuasive justification" from Hogan. The Court’s nine invocations of that phrase, ... and even its fanciful description of that imponderable as "the core instruction" of the Court’s decisions in J. E. B. v. Alabama ex rel. T. B. ... (1994), and Hogan, ... 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." Instead, however, the Court proceeds to interpret "exceedingly persuasive justification" in a fashion that contradicts the reasoning of Hogan 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. Thus, in Califano v. Webster ... (1977) (per curiam), we upheld a congressional statute that provided higher Social Security benefits for women than for men. We reasoned that "women ... as such have been unfairly hindered from earning as much as men," but we did not require proof that each woman so benefited had suffered discrimination or that each disadvantaged man had not; it was sufficient that even under the former congressional scheme "women on the average received lower retirement benefits than men." ... The reasoning in our other intermediate-scrutiny cases has similarly required only a substantial relation between end and means, not a perfect fit. In Rostker v. Goldberg, ... (1981), we held that selective-service registration could constitutionally exclude women, because even "assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans." ... In Metro Broadcasting, Inc. v. FCC ... (1990), overruled on other grounds, Adarand Constructors, Inc. v. Pena ... (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. 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. "The Court has," it says, "thus far reserved most stringent judicial scrutiny for classifications based on race or national origin ... ," ... and it describes our earlier cases as having done no more than decline to "equat[e] gender classifications, for all purposes, to classifications based on race or national origin." ... The wonderful thing about these statements is that they are not actually false--just as it would not be actually false to say that "our cases have thus far reserved the ‘beyond a reasonable doubt’ standard of proof for criminal cases," or that "we have not equated tort actions, for all purposes, to criminal prosecutions." But the statements are misleading, insofar as they suggest that we have not already categorically held strict scrutiny to be inapplicable to sex-based classifications. ... And the statements are irresponsible, insofar as they are calculated to destabilize current law. Our task is to clarify the law--not to muddy the waters, and not to exact over-compliance by intimidation. The States and the Federal Government are entitled to know before they act the standard to which they will be held, rather than be compelled to guess about the outcome of Supreme Court peek-a-boo.

The Court’s intimations are particularly out of place because it is perfectly clear that, if 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.... 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), which said (intimatingly) that we did not have to inquire in the case at hand "whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." ...

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. ...

With this explanation of how the Court has succeeded in making its analysis seem orthodox--and indeed, if intimations are to be believed, even overly generous to VMI--I now proceed to describe how the analysis should have been conducted. The question to be answered, I repeat, is whether the exclusion of women from VMI is "substantially related to an important governmental objective."

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. But beyond that, as the Court of Appeals here stated: "That single-gender education at the college level is beneficial to both sexes is a fact established in this case." ...

The evidence establishing that fact was overwhelming--indeed, "virtually uncontradicted" in the words of the court that received the evidence. ... As an initial matter, Virginia demonstrated at trial that "[a] substantial body of contemporary scholarship and research supports the proposition that, although males and females have significant areas of developmental overlap, they also have differing developmental needs that are deep-seated." ... While no one questioned that for many students a coeducational environment was nonetheless not inappropriate, that could not obscure the demonstrated benefits of single-sex colleges….

"[I]n the light of this very substantial authority favoring single-sex education," the District Court concluded that "the VMI Board’s decision to maintain an all-male institution is fully justified even without taking into consideration the other unique features of VMI’s teaching and training." ... 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 … single-sex education and a distinctive educational method "represent legitimate contributions to diversity in the Virginia higher education system." ... As a theoretical matter, Virginia’s educational interest would have been best served (insofar as the two factors we have mentioned are concerned) by six different types of public colleges--an all-men’s, an all-women’s, and a coeducational college run in the "adversative method," and an all-men’s, an all-women’s, and a coeducational college run in the "traditional method." But as a practical matter, of course, Virginia’s financial resources, like any State’s, are not limitless, and the Commonwealth must select among the available options. Virginia thus has decided to fund, in addition to some 14 coeducational 4-year colleges, one college that is run as an all-male school on the adversative model: the Virginia Military Institute.

Virginia did not make this determination regarding the make-up of its public college system on the unrealistic assumption that no other colleges exist. 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 that 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.

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….

Under the constitutional principles announced and applied today, single-sex public education is unconstitutional. By going through the motions of applying a balancing test--asking whether the State has adduced an "exceedingly persuasive justification" for its sex-based classification--the Court creates the illusion that government officials in some future case will have a clear shot at justifying some sort of single-sex public education. Indeed, the Court seeks to create even a greater illusion than that: It purports to have said nothing of relevance to other public schools at all. "We address specifically and only an educational opportunity recognized ... as ‘unique’…." ...

The Supreme Court of the United States does not sit to announce "unique" dispositions. Its principal function is to establish precedent--that is, to set forth principles of law that every court in America must follow. As we said only this Term, we expect both ourselves and lower courts to adhere to the "rationale upon which the Court based the results of its earlier decisions." ... That is the principal reason we publish our opinions.

And the rationale of today’s decision is sweeping: for sex-based classifications, a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny. ... Indeed, the Court indicates that if any program restricted to one sex is "uniqu[e]," it must be opened to members of the opposite sex "who have the will and capacity" to participate in it. ... I suggest that the single-sex program that will not be capable of being characterized as "unique" is not only unique but nonexistent.

In any event, regardless of whether the Court’s rationale leaves some small amount of room for lawyers to argue, it ensures that single-sex public education is functionally dead. The costs of litigating the constitutionality of a single-sex education program, and the risks of ultimately losing that litigation, are simply too high to be embraced by public officials. Any person with standing to challenge any sex-based classification can haul the State into federal court and compel it to establish by evidence (presumably in the form of expert testimony) that there is an "exceedingly persuasive justification" for the classification. Should the courts happen to interpret that vacuous phrase as establishing a standard that is not utterly impossible of achievement, there is considerable risk that whether the standard has been met will not be determined on the basis of the record evidence--indeed, that will necessarily be the approach of any court that seeks to walk the path the Court has trod today. No state official in his right mind will buy such a high-cost, high-risk lawsuit by commencing a single-sex program. The enemies of single-sex education have won; by persuading only seven Justices (five would have been enough) that their view of the world is enshrined in the Constitution, they have effectively imposed that view on all 50 States….

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