Chief Justice William H. 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 (1976), we announced that “to 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. ...
[T]he 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. ...
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. ...
