Following are excerpts from the U.S. Supreme Court’s majority, concurring, and dissenting opinions in U.S. v. Virginia.
Justice Ruth Bader 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. ...
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. ...
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 14th 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?
We note, once again, the core instruction of this court’s pathmarking decisions in J.E.B. v. Alabama ex rel. T.B. (1994) and Mississippi University for Women [v. Hogan (1982)]: Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification’’ for that action.
Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this court acknowledged a generation ago, “our nation has had a long and unfortunate history of sex discrimination,’' Frontiero v. Richardson (1973). Through a century plus three decades and more of that history, women did not count among voters composing “We the People’'; not until 1920 did women gain a constitutional right to the franchise. And for a half-century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any “basis in reason’’ could be conceived for the discrimination. ...
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. We therefore affirm the [U.S. Court of Appeals for the] 4th Circuit’s initial judgment, which held that Virginia had violated the 14th Amendment’s equal-protection clause. Because the remedy proffered by Virginia--the [Virginia Women’s Institute for Leadership (VWIL) program at Mary Baldwin College]--does not cure the constitutional violation, i.e., it does not provide equal opportunity, we reverse the 4th Circuit’s final judgment in this case. ...
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. ...
[W]e find no persuasive evidence in this record that VMI’s male-only admission policy is in furtherance of a state policy of “diversity.’' ... 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 “afford 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. ...
It may be assumed, for purposes of this decision, that most women would not choose VMI’s adversative method. ... 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 prophecies, 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. ...
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 plan met district court approval. The 4th Circuit, in turn, deferentially reviewed the state’s proposal and decided that the two single-sex programs directly served Virginia’s reasserted purposes: single-gender education and achieving the results of an adversative method in a military environment. ...
VWIL affords women no opportunity to experience the rigorous military training for which VMIis famed. ...
VWIL students receive their “leadership training’’ in seminars, externships, and speaker series, episodes and encounters lacking the physical rigor, mental stress, minute regulation of behavior, and indoctrination in desirable values made hallmarks of VMI’s citizen-soldier training. Kept away from the pressures, hazards, and psychological bonding characteristic of VMI’s adversative training, VWIL students will not know the feeling of tremendous accomplishment commonly experienced by VMI’s successful cadets. ...
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. Instead, the commonwealth has created a VWIL program fairly appraised as a “pale shadow’’ of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support, and influence. ...
VMI ... offers an educational opportunity no other Virginia institution provides, and the school’s prestige--associated with its success in developing “citizen soldiers’'--is unequaled. Virginia has closed this facility to its daughters and, instead, has devised for them a “parallel program,’' with a faculty less impressively credentialed and less well-paid, more limited course offerings, fewer opportunities for military training and for scientific specialization. VMI, beyond question, possesses to a far greater degree than the VWIL program those qualities which are incapable of objective measurement but which make for greatness in a school, including position and influence of the alumni, standing in the community, traditions, and prestige. 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.
A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignored or excluded. VMI’s story continued as our comprehension of “We the People’’ expanded. 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.’' ..
