United States V. Virginia – vmi gender integration

• Ginsburg 1996. Held that Virginia’s publicly-operated men-only military academy, Virginia Military Academy, violated equal protection.

• Facts. Virginia had operated VMI as a men-only institution since its founding in 1839; the school’s purpose was and is to develop “citizen-soldiers.” VMI was the only single-sex school among Virginia’s 15 public universities. Virginia’s principal defense of its single-sex policy was that three aspects of VMI’s approach – it’s extremely rigorous physical training, its technique of depriving students of privacy, and its “adversative” approach (under which entering students are extensively hazed, in a manner comparable to Marine Corps boot camp) – would have to be materially changed if the school were made co-ed. Instead, the state sought to create a less rigorous program for women – but still one in theory devoted to developing citizen-soldiers – at a pre-existing all -women private liberal arts college, Mary Baldwin College.

• Holding. By 7-1 majority, SCt held that (1) Virginia’s policy of excluding women from VMI was a violation of women’s equal protection rights; and (2) the program at Mary Baldwin College was not sufficiently comparable to the VMI program to redress the injury.

• No “overbroad generalizations.” Ginsburg began by noting that gender-based classifications “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females. [Gender-based] classifications may not be used, as they once were . . . to create or perpetuate legal, social, and economic inferiority of women.

1. Suitable for some women. Ginsburg rejected Virginia’s claim that VMI program would have to be materially changed if women were admitted. It may be true that, as Virginia asserted, most women wouldn’t like the rigorous, adversative martial VMI program, and would prefer a more cooperative program. But the experience of women in the U.S. military academies, and in the U.S. military, suggested that these fears were overblown. In any event, there were clearly some women for whom the existing VMI program was an attractive and suitable program, and Virginia could not deprive these unusual women of the opportunity to attend VMI. Generalizations 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.

2. Diversity policy. Virginia had also defended its men-only rules as being in furtherance of a state policy of “diversity of educational approaches.” But majority rejected this objective, concluding that this was not an “actual state purpose,” given that Virginia had no women-only public universities, and that the no-women policy of VMI dated from a time when Virginia did not offer any sort of public higher education for women.

• Mary Baldwin program insufficient. Majority then concluded that the proposed women-only program at Mary Baldwin would not constitute an adequate remedy for the equal protection violation caused by VMI’s men-only status. To remedy an equal protection violation, the solution would have to “place victims in the position they would have occupied in the absence of discrimination,” and to “eliminate so far as possible the discriminatory effects of the past.” The Mary Baldwin program would not be in any way the equivalent of VMI: it would not give its students the same intense military and leadership training (for instance, it would not use the adversative method); it should not have a student body or faculty of the same quality; it would not benefit from the same strong alumni ties, etc. It would, in sum, be a “pale shadow” of VMI.

• “Exceedingly persuasive justification” needed. Majority opinion was also notable for the stricter tone with which it applied mid-level scrutiny. Clinton Administration had asked SCt to change course, and apply strict scrutiny, instead of traditional mid-level review, in gender cases. Majority did not do this. But it said that sex-based classifications would have to undergo “skeptical scrutiny,” and would be upheld only if the state demonstrated an “exceedingly persuasive justification” for any gender-based governmental action.

1. Objective must be one that really motivated state. Perhaps the most important aspect of the new “skeptical scrutiny” is that when the government articulates a justification for the gender-based classification, this justification “must describe actual state purposes, not rationalizations for actions in fact differently grounded.” Thus, when Virginia asserted that its policy fulfilled the objective of diversity-in-education, SCt’s response was not that this wasn’t an important objective (or that the men-only program wasn’t closely related to achieving that objective), but that this wasn’t the real objective, merely a pretext.

• Dissent - Scalia.

• Objection to majority’s standard. Scalia objected first to majority’s choice of standard. He claimed that while majority admitted to having changed the traditional intermediate level of review, it was in fact substituting a new and improper “exceedingly persuasive justification” standard that contradicted the reasoning of the SCt’s prior gender cases. In Scalia’s view, this standard was an “unacknowledged adoption of what amounts to (at least) strict scrutiny.”

• Satisfies mid-level review. Scalia believed that operation of VMI as an all-male school satisfied mid-level review when that standard was properly applied. The state had an important interest in achieving the educational diversity provided by single-sex colleges. And when Virginia elected to have an all-male school that used the adversitive model (VMI) and an all-female school that used the cooperative model (the new Mary Baldwin program), it had selected a strategy that was “substantially related” to the achievement of that interest in diversity.

• End of single-sex public education. Scalia said that the majority’s approach “ensures that single-sex public education is functionally dead.” In fact, this approach even endangered private single-sex colleges, since the government’s furnishing of all-important financial assistance (e.g. tax deductions for private donations) might be held to be state action in support of discrimination, as it had been in cases involving private racially-discriminatory colleges.