Justice Antonin 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. ...
Today [the court] 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. ...
As is frequently true, the court’s decision today will have consequences that extend far beyond the parties to the case. ...
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. [Quoting from the majority opinion:] “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. ...
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. ...
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. ... 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.
This is especially regrettable because, as the district court here determined, educational experts in recent years have increasingly come to support the view that substantial educational benefits flow from a single-gender environment, be it male or female, that cannot be replicated in a coeducational setting. ... Until quite recently, some public officials have attempted to institute new single-sex programs, at least as experiments. In 1991, for example, the Detroit board of education announced a program to establish three boys-only schools for inner-city youth; it was met with a lawsuit, a preliminary injunction was swiftly entered by a district court that purported to rely on [Mississippi University for Women v.] Hogan, and the Detroit board of education voted to abandon the litigation and thus abandon the plan. Today’s opinion assures that no such experiment will be tried again. ...
