OCTOBER TERM, 1995
Syllabus
UNITED STATES
v. VIRGINIA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No.94-1941. Argued January 17, 1996-Decided June 26,1996*
Virginia Military Institute (VMI) is the sole single-sex school
among Virginia's 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. Using an
"adversative method" of training not available elsewhere in
Virginia, VMI endeavors to instill physical and mental discipline
in its cadets and impart to them a strong moral code. Reflecting
the high value alumni place on their VMI training, VMI has the
largest per-student endowment of all public undergraduate
institutions in the Nation. The United States sued Virginia and
VMI, alleging that VMI's exclusively male admission policy violated
the Fourteenth Amendment's Equal Protection Clause. The District
Court ruled in VMI's favor. The Fourth Circuit reversed and ordered
Virginia to remedy the constitutional violation. In response,
Virginia proposed a parallel program for women: Virginia Women's
Institute for Leadership (VWIL), located at Mary Baldwin College, a
private liberal arts school for women. The District Court found
that Virginia's proposal satisfied the Constitution's equal
protection requirement, and the Fourth Circuit affirmed. The
appeals court deferentially reviewed Virginia's plan and determined
that provision of single-gender educational options was a
legitimate objective. Maintenance of single-sex programs, the court
concluded, was essential to that objective. The court recognized,
however, that its analysis risked bypassing equal protection
scrutiny, so it fashioned an additional test, asking whether VMI
and VWIL students would receive "substantively comparable"
benefits. Although the Court of Appeals acknowledged that the VWIL
degree lacked the historical benefit and prestige of a VMI degree,
the court nevertheless found the educational opportunities at the
two schools sufficiently comparable.
Held:
1. Parties who seek to defend gender-based government action
must demonstrate an "exceedingly persuasive justification" for that
action.
E. g., Mississippi Univ. for Women v.
Hogan,
458 U. S.
718,724. Nei-
*Together with No. 94-2107,
Virginia et al. v.
United
States, also on certiorari to the same court.
516
Syllabus
ther federal nor state government acts compatibly with equal
protection when a law or official policy denies to women, simply
because they are women, full citizenship stature-equal opportunity
to aspire, achieve, participate in and contribute to society based
on their individual talents and capacities. To meet the burden of
justification, a State must show "at least that the [challenged]
classification serves 'important governmental objectives and that
the discriminatory means employed' are 'substantially related to
the achievement of those objectives.'''
Ibid., quoting
Wengler v.
Druggists Mut. Ins. Co., 446 U. S. 142, 150. The
justification must be genuine, not hypothesized or invented
post
hoc in response to litigation. And it must not rely on
overbroad generalizations about the different talents, capacities,
or preferences of males and females. See,
e. g., Weinberger
v.
Wiesenfeld, 420 U. S. 636, 643, 648.
The heightened review standard applicable to sex-based
classifications does not make sex a proscribed classification, but
it does mean that categorization by sex may not be used to create
or perpetuate the legal, social, and economic inferiority of women.
pp. 531-534.
2. Virginia's categorical exclusion of women from the
educational opportunities VMI provides denies equal protection to
women. Pp. 534-546.
(a) Virginia contends that single-sex education yields important
educational benefits and that provision of an option for such
education fosters diversity in educational approaches. Benign
justifications proffered in defense of categorical exclusions,
however, must describe actual state purposes, not rationalizations
for actions in fact differently grounded. 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 Commonwealth. A purpose genuinely to
advance an array of educational options is not served by VMI's
historic and constant plan to afford a unique educational benefit
only to males. However well this plan serves Virginia's sons, it
makes no provision whatever for her daughters. Pp. 535-540.
(b) Virginia also argues that VMI's adversative method of
training provides educational benefits that cannot be made
available, unmodified, to women, and that alterations to
accommodate women would necessarily be so drastic as to destroy
VMI's program. It is uncontested that women's admission to VMI
would require accommodations, primarily in arranging housing
assignments and physical training programs for female cadets. It is
also undisputed, however, that neither the goal of producing
citizen-soldiers, VMI's
raison d'etre, nor VMI's
implementing methodology is inherently unsuitable to women. The
District Court made "findings" on "gender-based developmental
differences" that restate the opinions of Virginia's expert
witnesses about typically male or typically female "tendencies."
Courts, however, must take "a hard
517
look" at generalizations or tendencies of the kind Virginia
pressed, for state actors controlling gates to opportunity have no
warrant to exclude qualified individuals based on "fixed notions
concerning the roles and abilities of males and females."
Mississippi Univ. for Women, 458 U. S., at 725. 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], see
id., at 730, once
routinely used to deny rights or opportunities. Women's successful
entry into the federal military academies, and their participation
in the Nation's military forces, indicate that Virginia's fears for
VMI's future may not be solidly grounded. The Commonwealth's
justification for excluding all women from "citizen-soldier"
training for which some are qualified, in any event, does not rank
as "exceedingly persuasive." Pp. 540-546.
3. The remedy proffered by Virginia-maintain VMI as a male-only
college and create VWIL as a separate program for women-does not
cure the constitutional violation. Pp. 546-558.
(a) A remedial decree must closely fit the constitutional
violation; it must be shaped to place persons unconstitutionally
denied an opportunity or advantage in the position they would have
occupied in the absence of discrimination. See
Milliken v.
Bradley, 433
U. S. 267, 280. The constitutional violation in this case is
the categorical exclusion of women, in disregard of their
individual merit, from an extraordinary educational opportunity
afforded men. Virginia chose to leave untouched VMI's exclusionary
policy, and proposed for women only a separate program, different
in kind from VMI and unequal in tangible and intangible facilities.
VWIL affords women no opportunity to experience the rigorous
military training for which VMI is famed. 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. Virginia maintains that methodological
differences are justified by the important differences between men
and women in learning and developmental needs, but 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. In myriad respects other than military training, VWIL
does not qualify as VMI's equal. The VWIL program is a pale shadow
of VMI in terms of the range of curricular choices and faculty
stature, funding, prestige, alumni support and influence. Virginia
has not shown substantial equality in the separate educational
opportunities the Commonwealth supports at VWIL and VMI. Cf.
Sweatt v.
Painter, 339 U. S. 629. Pp.
547-554.
518
Syllabus
(b) The Fourth Circuit failed to inquire whether the proposed
remedy placed women denied the VMI advantage in the position they
would have occupied in the absence of discrimination,
Milliken, 433 U. S., at 280, and considered instead whether
the Commonwealth could provide, with fidelity to equal protection,
separate and unequal educational programs for men and women. In
declaring the substantially different and significantly unequal
VWIL program satisfactory, the appeals court displaced the exacting
standard developed by this Court with a deferential standard, and
added an inquiry of its own invention, the "substantive
comparability" test. The Fourth Circuit plainly erred in exposing
Virginia's VWIL plan to such a deferential analysis, for "all
genderbased classifications today" warrant "heightened scrutiny."
See
J. E. B. v.
Alabama ex rel. T. B.,
511 U. S. 127,
136. Women seeking and fit for a VMI-quality education cannot be
offered anything less, under the Commonwealth's obligation to
afford them genuinely equal protection. Pp. 554-558.
No. 94-2107,
976 F.2d
890, affirmed; No. 94-1941,
44 F.3d
1229, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, KENNEDY, SOUTER, and BREYER, JJ., joined.
REHNQUIST, C. J., filed an opinion concurring in the judgment,
post, p. 558. SCALIA, J., filed a dissenting opinion,
post, p. 566. THOMAS, J., took no part in the consideration
or decision of the case.
Paul Bender argued the cause for the United States in both
cases. With him on the briefs were Solicitor General Days,
Assistant Attorney General Patrick, Cornelia T. L. Pillard, Jessica
Dunsay Silver, and Thomas E. Chandler.
Theodore B. Olson argued the cause and filed briefs for
respondents in No. 94-1941 and petitioners in No. 94-2107. With him
on the briefs were James S. Gilmore III, Attorney General of
Virginia, William H. Hurd, Deputy Attorney General, Thomas G.
Hungar, D. Jarrett Arp, Robert H. Patterson, Jr., Anne Marie
Whittemore, William G. Broaddus,
J. William Boland, Griffin
B. Bell, and William A. Clineburg, Jr.t
tBriefs of
amici curiae urging reversal in No. 94-1941
were filed for the State of Maryland et al. by
J. Joseph
Curran, Jr., Attorney General of Maryland, and
Andrew H.
Baida, Assistant Attorney General, and by the Attorneys General
for their respective jurisdictions as follows:
Margery
519
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.
S. Bronster of Hawaii, Scott Harshbarger of Massachusetts,
Frankie Sue Del Papa of Nevada, C. Sebastian Aloot of the Northern
Mariana Islands, and Theodore R. Kulongoski of Oregon; for the
Employment Law Center et al. by Patricia A. Shiu and Judith Kurtz;
and for the National Women's Law Center et al. by Robert N. Weiner,
Marcia D. Greenberger, Sara L. Mandelbaum, Janet Gallagher, Mary
Wyckoff, Steven R. Shapiro, and Susan Deller Ross.
Briefs of
amici curiae urging affirmance in No. 94-1941
were filed for the State of South Carolina et al. by
Charles
Molony Condon, Attorney General,
Treva Ashworth, Deputy
Attorney General,
Kenneth P. Woodington, Senior Assistant
Attorney General,
Reginald I. Lloyd, Assistant Attorney
General, and
M. Dawes Cooke, Jr.; and for Kenneth E. Clark
et al. by
James C.
Roberts and
George A.
Somerville.
Briefs of
amici curiae were filed in both cases for the
State of Wyoming et al. by
William U. Hill, Attorney General
of Wyoming,
Thomas W Corbett, Jr., Attorney General of
Pennsylvania, and
Bradley B. Cavedo; for Bennett College et
al. by
Wendy S.
White; for the Center for Military
Readiness et al. by
Mellissa Wells-Petry and
Jordan W
Lorence; for the Employment Law Center et al. by
Patricia A.
Shiu and
Judith Kurtz; for the Independent Women's Forum
et al. by
Anita K. Blair and C.
Douglas Welty; for
Mary Baldwin College by
Craig T. Merritt and
Richard K.
Willard; for the South Carolina Institute of Leadership for
Women by
Julianne Farnsworth; for Wells College et al. by
David M. Lascell; for Women's Schools Together, Inc., et al.
by
John C.
Danforth and
Thomas C.
Walsh; and for Nancy Mellette by
Valorie K. Vojdik, Henry
Weisburg, Suzanne E. Coe, and
Robert R. Black.
Briefs of
amici curiae were filed in No. 94-1941 for the
American Association of University Professors et al. by
Joan E.
Bertin and
Ann H. Franke; and for Rhonda Cornum et al.
by
Allan L. Gropper.
Daniel F. Kolb, Herbert
J. Hansell, Paul C. Saunders,
Norman Redlich, Barbara R. Arnwine, Thomas
J. Henderson, and
Richard T. Seymour filed a brief for the Lawyers' Committee for
Civil Rights Under Law as amicus curiae in No. 94-2107.
520
I
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 public undergraduate
institutions in the Nation.
N either 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.
II A
From its establishment in 1839 as one of the Nation's first
state military colleges, see 1839 Va. Acts, ch. 20, VMI has
remained financially supported by Virginia and "subject to
521
the control of the [Virginia] General Assembly," Va. Code Ann. §
23-92 (1993). First southern college to teach engineering and
industrial chemistry, see H. Wise, Drawing Out the Man: The VMI
Story 13 (1978) (The VMI Story), VMI once provided teachers for the
Commonwealth's schools, see 1842 Va. Acts, ch. 24, § 2 (requiring
every cadet to teach in one of the Commonwealth's schools for a
2-year period).l 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. The VMI Story
47.
VMI today enrolls about 1,300 men as cadets.2 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
1 During the Civil War, school teaching became a field dominated
by women. See A. Scott, The Southern Lady: From Pedestal to
Politics, 1830-1930, p. 82 (1970).
2 Historically, most of Virginia's public colleges and
universities were single sex; by the mid-1970's, however, all
except VMI had become coeducational. 766 F. Supp. 1407, 1418-1419
(WD Va. 1991). For example, Virginia's legislature incorporated
Farmville Female Seminary Association in 1839, the year VMI opened.
1839 Va. Acts, ch. 167. Originally providing instruction in
"English, Latin, Greek, French, and piano" in a "home atmosphere,"
R. Sprague, Longwood College: A History 7-8, 15 (1989) (Longwood
College), Farmville Female Seminary became a public institution in
1884 with a mission to train "white female teachers for public
schools," 1884 Va. Acts, ch. 311. The school became Longwood
College in 1949, Longwood College 136, and introduced coeducation
in 1976,
id., at 133.
522
time of national periL'" 766 F. Supp. 1407, 1425 (WD Va. 1991)
(quoting Mission Study Committee of the VMI Board of Visitors,
Report, May 16, 1986).
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." 766 F. Supp., at 1432.
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."
Id., at 1421. 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.'"
Id., at 1421-1422 (quoting Col. N.
Bissell).
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.
Id.,
at 1424, 1432. Entering students are incessantly exposed to the rat
line, "an extreme form of the adversative model," comparable in
intensity to Marine Corps boot camp.
Id., at 1422.
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.
Ibid.
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.'"
Id., at 1422-1423.
523
VMI attracts some applicants because of its reputation as an
extraordinarily challenging military school, and "because its
alumni are exceptionally close to the school."
Id., at 1421.
"[W]omen have no opportunity anywhere to gain the benefits of [the
system of education at VMI]."
Ibid.
B
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.
Id., at
1408.3 Trial of the action consumed six days and involved an array
of expert witnesses on each side.
Ibid.
In the two years preceding the lawsuit, the District Court
noted, VMI had received inquiries from 347 women, but had responded
to none of them.
Id., at 1436. "[S]ome women, at least," the
court said, "would want to attend the school if they had the
opportunity."
Id., at 1414. The court further recognized
that, with recruitment, VMI could "achieve at least 10% female
enrollment"-"a sufficient 'critical mass' to provide the female
cadets with a positive educational experience."
Id., at
1437-1438. And it was also established that "some women are capable
of all of the individual activities required of VMI cadets."
Id., at 1412. In addition, experts agreed that if VMI
admitted women, "the VMI ROTC experience would become a better
training program from the perspective of the armed forces, because
it would provide training in dealing with a mixed-gender army."
Id., at 1441.
The District Court ruled in favor of VMI, however, and rejected
the equal protection challenge pressed by the United States. That
court correctly recognized that
Mississippi Univ. for Women
v.
Hogan, 458
U. S. 718 (1982), was
3 The District Court allowed the VMI Foundation and the VMI
Alumni Association to intervene as defendants. 766 F. Supp., at
1408.
524
the closest guide. 766 F. Supp., at 1410. There, this Court
underscored that a party seeking to uphold government action based
on sex must establish an "exceedingly persuasive justification" for
the classification.
Mississippi Univ. for Women, 458 U. S.,
at 724 (internal quotation marks omitted). To succeed, the defender
of the challenged action must show "at least that the
classification serves important governmental objectives and that
the discriminatory means employed are substantially related to the
achievement of those objectives."
Ibid. (internal quotation
marks omitted).
The District Court reasoned that education in "a singlegender
environment, be it male or female," yields substantial benefits.
766 F. Supp., at 1415. VMI's school for men brought diversity to an
otherwise coeducational Virginia system, and that diversity was
"enhanced by VMI's unique method of instruction."
Ibid. If
single-gender education for males ranks as an important
governmental objective, it becomes obvious, the District Court
concluded, that the
only means of achieving the objective
"is to exclude women from the all-male institution- VMI."
Ibid.
"Women are [indeed] denied a unique educational opportunity that
is available only at VMI," the District Court acknowledged.
Id., at 1432. But "[VMI's] single-sex status would be lost,
and some aspects of the [school's] distinctive method would be
altered," if women were admitted,
id., at 1413: "Allowance
for personal privacy would have to be made,"
id., at 1412;
"[p]hysical education requirements would have to be altered, at
least for the women,"
id., at 1413; the adversative
environment could not survive unmodified,
id., at 1412-1413.
Thus, "sufficient constitutional justification" had been shown, the
District Court held, "for continuing [VMI's] single-sex policy."
Id., at 1413.
The Court of Appeals for the Fourth Circuit disagreed and
vacated the District Court's judgment. The appellate court held:
"The Commonwealth of Virginia has not ... advanced any state policy
by which it can justify its determination,
525
under an announced policy of diversity, to afford VMI's unique
type of program to men and not to women." 976
The appeals court greeted with skepticism Virginia's assertion
that it offers single-sex education at VMI as a facet of the
Commonwealth's overarching and undisputed policy to advance
"autonomy and diversity." The court underscored Virginia's
nondiscrimination commitment: "'[I]t is extremely important that
[colleges and universities] deal with faculty, staff, and students
without regard to sex, race, or ethnic origin.'" Id., at 899
(quoting 1990 Report of the Virginia Commission on the University
of the 21st Century). "That statement," the Court of Appeals said,
"is the only explicit one that we have found in the record in which
the Commonwealth has expressed itself with respect to gender
distinctions." 976 F. 2d, at 899. Furthermore, the appeals court
observed, in urging "diversity" to justify an all-male VMI, the
Commonwealth had supplied "no explanation for the movement away
from [single-sex education] in Virginia by public colleges and
universities."
Ibid. In short, the court concluded, "[a]
policy of diversity which aims to provide an array of educational
opportunities, including single-gender institutions, must do more
than favor one gender."
Ibid.
The parties agreed that
"some women can meet the physical
standards now imposed on men,"
id., at 896, and the court
was satisfied that "neither the goal of producing citizen soldiers
nor VMI's implementing methodology is inherently unsuitable to
women,"
id., at 899. The Court of Appeals, however, accepted
the District Court's finding that "at least these three aspects of
VMI's program-physical training, the absence of privacy, and the
adversative approach-would be materially affected by coeducation."
Id., at 896-897. Remanding the case, the appeals court
assigned to Virginia, in the first instance, responsibility for
selecting a remedial course. The court suggested these options for
the Commonwealth: Admit women to VMI; establish parallel
institutions
526
or programs; or abandon state support, leaving VMI free to
pursue its policies as a private institution.
Id., at 900.
In May 1993, this Court denied certiorari. See 508 U. S. 946; see
also
ibid. (opinion of SCALIA, J., noting the interlocutory
posture of the litigation).
C
In response to the Fourth Circuit's ruling, Virginia proposed a
parallel program for women: Virginia Women's Institute for
Leadership (VWIL). The 4-year, state-sponsored undergraduate
program would be located at Mary Baldwin College, a private liberal
arts school for women, and would be open, initially, to about 25 to
30 students. Although VWIL would share VMI's mission-to produce
"citizensoldiers" -the VWIL program would differ, as does Mary
Baldwin College, from VMI in academic offerings, methods of
education, and financial resources. See 852 F. Supp. 471, 476-477
(WD Va. 1994).
The average combined SAT score of entrants at Mary Baldwin is
about 100 points lower than the score for VMI freshmen. See
id., at 501. Mary Baldwin's faculty holds "significantly
fewer Ph. D.'s than the faculty at VMI,"
id., at 502, and
receives significantly lower salaries, see Tr. 158 (testimony of
James Lott, Dean of Mary Baldwin College), reprinted in 2 App. in
Nos. 94-1667 and 94-1717 (CA4) (hereinafter Tr.). While VMI offers
degrees in liberal arts, the sciences, and engineering, Mary
Baldwin, at the time of trial, offered only bachelor of arts
degrees. See 852 F. Supp., at 503. A VWIL student seeking to earn
an engineering degree could gain one, without public support, by
attending Washington University in St. Louis, Missouri, for two
years, paying the required private tuition. See
ibid.
Experts in educating women at the college level composed the
Task Force charged with designing the VWIL program; Task Force
members were drawn from Mary Baldwin's own faculty and staff.
Id., at 476. Training its attention on methods of
instruction appropriate for "most women," the
527
Task Force determined that a military model would be "wholly
inappropriate" for VWIL.
Ibid.; see
44
F.3d 1229, 1233 (CA4 1995).
VWIL students would participate in ROTC programs and a newly
established, "largely ceremonial" Virginia Corps of Cadets,
id., at 1234, but the VWIL House would not have a military
format, 852 F. Supp., at 477, and VWIL would not require its
students to eat meals together or to wear uniforms during the
schoolday,
id., at 495. In lieu of VMI's adversative method,
the VWIL Task Force favored "a cooperative method which reinforces
self-esteem."
Id., at 476. In addition to the standard
bachelor of arts program offered at Mary Baldwin, VWIL students
would take courses in leadership, complete an off-campus leadership
externship, participate in community service projects, and assist
in arranging a speaker series. See 44 F. 3d, at 1234.
Virginia represented that it will provide equal financial
support for in-state VWIL students and VMI cadets, 852 F. Supp., at
483, and the VMI Foundation agreed to supply a $5.4625 million
endowment for the VWIL program,
id., at 499. Mary Baldwin's
own endowment is about $19 million; VMI's is $131 million.
Id., at 503. Mary Baldwin will add $35 million to its
endowment based on future commitments; VMI will add $220 million.
Ibid. The VMI Alumni Association has developed a network of
employers interested in hiring VMI graduates. The Association has
agreed to open its network to VWIL graduates,
id., at 499,
but those graduates will not have the advantage afforded by a VMI
degree.
D
Virginia returned to the District Court seeking approval of its
proposed remedial plan, and the court decided the plan met the
requirements of the Equal Protection Clause.
Id., at 473.
The District Court again acknowledged evidentiary support for these
determinations: "[T]he VMI methodology could be used to educate
women and, in fact, some
528
women ... may prefer the VMI methodology to the VWIL
methodology."
Id., at 481. But the "controlling legal
principles," the District Court decided, "do not require the
Commonwealth to provide a mirror image VMI for women."
Ibid.
The court anticipated that the two schools would "achieve
substantially similar outcomes."
Ibid. It concluded: "If VMI
marches to the beat of a drum, then Mary Baldwin marches to the
melody of a fife and when the march is over, both will have arrived
at the same destination."
Id., at 484.
A divided Court of Appeals affirmed the District Court's
judgment.
44 F.3d
1229 (CA4 1995). This time, the appellate court determined to
give "greater scrutiny to the selection of means than to the
[Commonwealth's] proffered objective."
Id., at 1236. The
official objective or purpose, the court said, should be reviewed
deferentially.
Ibid. Respect for the "legislative will," the
court reasoned, meant that the judiciary should take a "cautious
approach," inquiring into the "legitima[cy]" of the governmental
objective and refusing approval for any purpose revealed to be
"pernicious."
Ibid.
"[P]roviding the option of a single-gender college education may
be considered a legitimate and important aspect of a public system
of higher education," the appeals court observed,
id., at
1238; that objective, the court added, is "not pernicious,"
id., at 1239. Moreover, the court continued, the adversative
method vital to a VMI education "has never been tolerated in a
sexually heterogeneous environment."
Ibid. The method itself
"was not designed to exclude women," the court noted, but women
could not be accommodated in the VMI program, the court believed,
for female participation in VMI's adversative training "would
destroy ... any sense of decency that still permeates the
relationship between the sexes."
Ibid.
Having determined, deferentially, the legitimacy of Virginia's
purpose, the court considered the question of means.
529
Exclusion of "men at Mary Baldwin College and women at VMI," the
court said, was essential to Virginia's purpose, for without such
exclusion, the Commonwealth could not "accomplish [its] objective
of providing single-gender education."
Ibid.
The court recognized that, as it analyzed the case, means merged
into end, and the merger risked "bypass[ing] any equal protection
scrutiny."
Id., at 1237. The court therefore added another
inquiry, a decisive test it called "substantive comparability."
Ibid. The key question, the court said, was whether men at
VMI and women at VWIL would obtain "substantively comparable
benefits at their institution or through other means offered by the
[S]tate."
Ibid. Although the appeals court recognized that
the VWIL degree "lacks the historical benefit and prestige" of a
VMI degree, it nevertheless found the educational opportunities at
the two schools "sufficiently comparable."
Id., at 1241.
Senior Circuit Judge Phillips dissented. The court, in his
judgment, had not held Virginia to the burden of showing an
"'exceedingly persuasive [justification]''' for the Commonwealth's
action.
Id., at 1247 (quoting
Mississippi Univ. for
Women, 458 U. S., at 724). In Judge Phillips' view, the court had
accepted "rationalizations compelled by the exigencies of this
litigation," and had not confronted the Commonwealth's "actual
overriding purpose." 44 F. 3d, at 1247. That purpose, Judge
Phillips said, was clear from the historical record; it was "not to
create a new type of educational opportunity for women, ... nor to
further diversify the Commonwealth's higher education system[,] ...
but [was] simply ... to allow VMI to continue to exclude women in
order to preserve its historic character and mission."
Ibid.
Judge Phillips suggested that the Commonwealth would satisfy the
Constitution's equal protection requirement if it "simultaneously
opened single-gender undergraduate institutions having
substantially comparable curricular and extra-curricular programs,
funding, physical plant, adminis-
530
tration and support services, and faculty and library
resources."
Id., at 1250. But he thought it evident that the
proposed VWIL program, in comparison to VMI, fell "far short ...
from providing substantially equal tangible and intangible
educational benefits to men and women."
Ibid.
The Fourth Circuit denied rehearing en bane.
52 F.3d
90 (1995). Circuit Judge Motz, joined by Circuit Judges Hall,
Murnaghan, and Michael, filed a dissenting opinion.4 Judge Motz
agreed with Judge Phillips that Virginia had not shown an
"'exceedingly persuasive justification'" for the disparate
opportunities the Commonwealth supported.
Id., at 92
(quoting
Mississippi Univ. for Women, 458 U. S., at 724).
She asked: "[H]ow can a degree from a yet to be implemented
supplemental program at Mary Baldwin be held 'substantively
comparable' to a degree from a venerable Virginia military
institution that was established more than 150 years ago?" 52 F.
3d, at 93. "Women need not be guaranteed equal 'results,'" Judge
Motz said, "but the Equal Protection Clause does require equal
opportunity ... [and] that opportunity is being denied here."
Ibid.
III
The cross-petitions in this suit 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," 766 F. Supp., at 1412, the equal protection of the laws
guaranteed by the Fourteenth Amendment? Second, if VMI's "unique"
situation,
id., at 1413-as Virginia's sole single-sex public
institution of
4 Six judges voted to rehear the case en banc, four voted
against rehearing, and three were recused. The Fourth Circuit's
local Rule permits rehearing en banc only on the vote of a majority
of the Circuit's judges in regular active service (currently 13)
without regard to recusals. See 52 F. 3d, at 91, and n. 1.
531
higher education-offends the Constitution's equal protection
principle, what is the remedial requirement?
IV
We note, once again, the core instruction of this Court's
pathmarking decisions in
J. E. B. v.
Alabama ex
rel. T. B., 511
U. S. 127, 136-137, and n. 6 (1994), and
Mississippi Univ.
for Women, 458 U. S., at 724 (internal quotation marks
omitted): 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, 411 U. S. 677, 684
(1973). Through a century plus three decades and more of that
history, women did not count among voters composing "We the
People"; 5 not until 1920 did women gain a constitutional right to
the franchise.
Id., at 685. 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. See,
e. g., Goesaert
v.
Cleary, 335
U. S. 464, 467 (1948) (rejecting challenge of female tavern
owner and her daughter to Michigan law denying bartender licenses
to females-except for wives and daughters of male tavern owners;
Court would not "give ear" to the contention that "an unchivalrous
desire of male
5 As Thomas Jefferson stated the view prevailing when the
Constitution was new:
"Were our State a pure democracy ... there would yet be excluded
from their deliberations ... [w]omen, who, to prevent depravation
of morals and ambiguity of issue, could not mix promiscuously in
the public meetings of men." Letter from Thomas Jefferson to Samuel
Kercheval (Sept. 5, 1816), in 10 Writings of Thomas Jefferson
45-46, n. 1 (P. Ford ed. 1899).
532
bartenders to ... monopolize the calling" prompted the
legislation).
In 1971, for the first time in our Nation's history, this Court
ruled in favor of a woman who complained that her State had denied
her the equal protection of its laws.
Reed v.
Reed,
404 U. S. 71, 73
(holding unconstitutional Idaho Code prescription that, among
"'several persons claiming and equally entitled to administer [a
decedent's estate], males must be preferred to females' "). Since
Reed, the Court has repeatedly recognized that neither
federal nor state government acts compatibly with the equal
protection principle when a law or official policy denies to women,
simply because they are women, full citizenship stature-equal
opportunity to aspire, achieve, participate in and contribute to
society based on their individual talents and capacities. See,
e. g., Kirchberg v.
Feenstra, 450 U. S. 455, 462-463
(1981) (affirming invalidity of Louisiana law that made husband
"head and master" of property jointly owned with his wife, giving
him unilateral right to dispose of such property without his wife's
consent);
Stanton v.
Stanton, 421 U. S. 7 (1975)
(invalidating Utah requirement that parents support boys until age
21, girls only until age 18).
Without equating gender classifications, for all purposes, to
classifications based on race or national origin,6 the Court, in
post-Reed decisions, has carefully inspected official action
that closes a door or denies opportunity to women (or to men). See
J. E. B., 511 U. S., at 152 (KENNEDY, J., concurring in
judgment) (case law evolving since 1971 "reveal[s] a strong
presumption that gender classifications are invalid"). To summarize
the Court's current directions for cases of official classification
based on gender: Focusing on the differen-
6 The Court has thus far reserved most stringent judicial
scrutiny for classifications based on race or national origin, but
last Term observed that strict scrutiny of such classifications is
not inevitably "fatal in fact."
Adarand Constructors, Inc.
v.
Pena, 515
U. S. 200, 237 (1995) (internal quotation marks omitted).
533
tial treatment or denial of opportunity for which relief is
sought, the reviewing court must determine whether the proffered
justification is "exceedingly persuasive." The burden of
justification is demanding and it rests entirely on the State. See
Mississippi Univ. for Women, 458 U. S., at 724. The State
must show "at least that the [challenged] classification serves
'important governmental objectives and that the discriminatory
means employed' are 'substantially related to the achievement of
those objectives.'"
Ibid. (quoting
Wengler v.
Druggists Mut. Ins. Co., 446 U. S. 142, 150
(1980)). The justification must be genuine, not hypothesized or
invented
post hoc in response to litigation. And it must not
rely on overbroad generalizations about the different talents,
capacities, or preferences of males and females. See
Weinberger v.
Wiesenfeld, 420 U. S. 636, 643, 648
(1975);
Califano v.
Goldfarb, 430 U. S. 199, 223-224
(1977) (STEVENS, J., concurring in judgment).
The heightened review standard our precedent establishes does
not make sex a proscribed classification. Supposed "inherent
differences" are no longer accepted as a ground for race or
national origin classifications. See
Loving v.
Virginia, 388 U.
S. 1 (1967). Physical differences between men and women,
however, are enduring: "[T]he two sexes are not fungible; a
community made up exclusively of one [sex] is different from a
community composed of both."
Ballard v.
United
States, 329 U. S.
187, 193 (1946).
"Inherent differences" between men and women, we have come to
appreciate, remain cause for celebration, but not for denigration
of the members of either sex or for artificial constraints on an
individual's opportunity. Sex classifications may be used to
compensate women "for particular economic disabilities [they have]
suffered,"
Califano v.
Webster, 430 U. S. 313, 320
(1977)
(per curiam), to "promot[e] equal employment
opportunity," see
California Fed. Sav. &
Loan
Assn. v.
Guerra, 479 U. S. 272, 289
(1987), to advance full development of the talent and capacities of
our Nation's peo-
534
ple.7 But such classifications may not be used, as they once
were, see
Goesaert, 335 U. S., at 467, to create or
perpetuate the legal, social, and economic inferiority of
women.
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
Fourth Circuit's initial judgment, which held that Virginia had
violated the Fourteenth Amendment's Equal Protection Clause.
Because the remedy proffered by Virginia-the Mary Baldwin VWIL
program-does not cure the constitutional violation, i.
e.,
it does not provide equal opportunity, we reverse the Fourth
Circuit's final judgment in this case.
V
The Fourth Circuit initially held that Virginia had advanced no
state policy by which it could justify, under equal protection
principles, its determination "to afford VMI's unique type of
program to men and not to women." 976 F. 2d, at 892. Virginia
challenges that "liability" ruling and asserts two justifications
in defense of VMI's exclusion of
7 Several
amici have urged that diversity in educational
opportunities is an altogether appropriate governmental pursuit and
that single-sex schools can contribute importantly to such
diversity. Indeed, it is the mission of some single-sex schools "to
dissipate, rather than perpetuate, traditional gender
classifications." See Brief for Twenty-six Private Women's Colleges
as
Amici Curiae 5. We do not question the Commonwealth's
prerogative evenhandedly to support diverse educational
opportunities. We address specifically and only an educational
opportunity recognized by the District Court and the Court of
Appeals as "unique," see 766 F. Supp., at 1413, 1432; 976 F. 2d, at
892, an opportunity available only at Virginia's premier military
institute, the Commonwealth's sole single-sex public university or
college. Cf.
Mississippi Univ. for Women v.
Hogan,
458 U. S. 718,
720, n. 1 (1982) ("Mississippi maintains no other single-sex public
university or college. Thus, we are not faced with the question of
whether States can provide 'separate but equal' undergraduate
institutions for males and females.").
535
women. First, the Commonwealth contends, "single-sex education
provides important educational benefits," Brief for
Cross-Petitioners 20, and the option of single-sex education
contributes to "diversity in educational approaches,"
id.,
at 25. Second, the Commonwealth argues, "the unique VMI method of
character development and leadership training," the school's
adversative approach, would have to be modified were VMI to admit
women.
Id., at 33-36 (internal quotation marks omitted). We
consider these two justifications in turn.
A
Single-sex education affords pedagogical benefits to at least
some students, Virginia emphasizes, and that reality is uncontested
in this litigation.8 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
Commonwealth. 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 ac-
8 On this point, the dissent sees fire where there is no flame.
See
post, at 596-598, 598-600. "Both men and women can
benefit from a single-sex education," the District Court
recognized, although "the beneficial effects" of such education,
the court added, apparently "are stronger among women than among
men." 766 F. Supp., at 1414. The United States does not challenge
that recognition. Cf. C. Jencks & D. Riesman, The Academic
Revolution 297-298 (1968):
"The pluralistic argument for preserving all-male colleges is
uncomfortably similar to the pluralistic argument for preserving
all-white colleges .... The all-male college would be relatively
easy to defend if it emerged from a world in which women were
established as fully equal to men. But it does not. It is therefore
likely to be a witting or unwitting device for preserving tacit
assumptions of male superiority-assumptions for which women must
eventually pay."
536
tions in fact differently grounded. See
Wiesenfeld, 420
U. S., at 648, and n. 16 ("mere recitation of a benign [or]
compensatory purpose" does not block "inquiry into the actual
purposes" of government-maintained gender-based classifications);
Goldfarb, 430 U. S., at 212-213 (rejecting
government-proffered purposes after "inquiry into the actual
purposes" (internal quotation marks omitted)).
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." 458 U. S., at 727. Undertaking a "searching analysis,"
id., at 728, the Court found no close resemblance between
"the alleged objective" and "the actual purpose underlying the
discriminatory classification,"
id., at 730. 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 Commonwealth established VMI, a range of educational
opportunities for men and women was scarcely contemplated. Higher
education at the time was considered dangerous for women; 9
reflecting
9 Dr. Edward H. Clarke of Harvard Medical School, whose
influential book, Sex in Education, went through 17 editions, was
perhaps the most well-known speaker from the medical community
opposing higher education for women. He maintained that the
physiological effects of hard study and academic competition with
boys would interfere with the development of girls' reproductive
organs. See E. Clarke, Sex in Education 38-39, 62-63 (1873);
id., at 127 ("identical education of the two sexes is a
crime before God and humanity, that physiology protests against,
and that experience weeps over"); see also H. Maudsley, Sex in Mind
and in Education 17 (1874) ("It is not that girls have not
ambition, nor that they fail generally to run the intellectual race
[in coeducational settings], but it is asserted that they do it at
a cost to their strength and health which entails life-long
suffering, and even incapacitates them for the adequate performance
of the natural functions of their sex."); C. Meigs, Females and
Their Diseases 350 (1848) (after five or six weeks of "mental and
educational discipline," a healthy woman would "lose ... the habit
of menstruation"
537
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. See E. Farello, A
History of the Education of Women in the United States 163 (1970).
VMI was not at all novel in this respect: In admitting no women,
VMI followed the lead of the Commonwealth'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." 2 T. Woody, A History of Women's Education in the United
States 254 (1929) (History of Women's Education). 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.'"
Ibid. (quoting 10 Educ. J. Va. 212
(1879)). Despite this recognition, no new opportunities were
instantly open to women.10
Virginia eventually provided for several women's seminaries and
colleges. Farmville Female Seminary became a public institution in
1884. See
supra, at 521, n. 2. Two women's schools, Mary
Washington College and James Madison University, were founded in
1908; another, Radford University, was founded in 1910. 766 F.
Supp., at 1418-1419. By the mid-1970's, all four schools had become
coeducational.
Ibid.
Debate concerning women's admission as undergraduates at the
main university continued well past the century's midpoint.
Familiar arguments were rehearsed. If women
and suffer numerous ills as a result of depriving her body for
the sake of her mind).
10 Virginia's Superintendent of Public Instruction dismissed the
coeducational idea as '''repugnant to the prejudices of the
people'" and proposed a female college similar in quality to
Girton, Smith, or Vassar. 2 History of Women's Education 254
(quoting Dept. of Interior, 1 Report of Commissioner of Education,
H. R. Doc. No.5, 58th Cong., 2d Sess., 438 (1904)).
538
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." 2 History of Women's Education 255.
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. See
Kirstein v.
Rector and Visitors of Univ. of
Virginia, 309 F. Supp. 184, 186 (ED Va. 1970). 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."
Id., at 187.
Virginia describes the current absence of public single-sex
higher education for women as "an historical anomaly." Brief for
Cross-Petitioners 30. 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." 766 F. Supp., at 1419. 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.'" 976 F. 2d, at
898-899 (quoting Report of the Virginia Commission on the
University of the 21st Century). Significantly, the commission
reported:
"'Because colleges and universities provide opportunities for
students to develop values and learn from role
539
models, it is extremely important that they deal with faculty,
staff, and students without regard to sex, race, or ethnic
origin.'" Id., at 899 (emphasis supplied by Court of Appeals
deleted).
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."
Ibid.
Our 1982 decision in
Mississippi Univ. for Women prompted
VMI to reexamine its male-only admission policy. See 766 F. Supp.,
at 1427-1428. Virginia relies on that reexamination as a legitimate
basis for maintaining VMI's single-sex character. See Reply Brief
for Cross-Petitioners 6. 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." See 766 F. Supp., at 1429
(internal quotation marks omitted). 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
commonwealth 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 thee] conclusion was reached."
Ibid.
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.'" See 976 F. 2d, at 899. 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. See
ibid. 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."
Ibid. A purpose genuinely to advance an
array of educa-
540
tional 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."
Ibid. However
"liberally" this plan serves the Commonwealth's sons, it makes no
provision whatever for her daughters. That is not
equal
protection.
B
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. See Brief for
Cross-Petitioners 34-36. 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."
Id., at 34.
The District Court forecast from expert witness testimony, and
the Court of Appeals accepted, that coeducation would materially
affect "at least these three aspects of VMI's program-physical
training, the absence of privacy, and the adversative approach."
976 F. 2d, at 896-897. And it is uncontested that women's admission
would require accommodations, primarily in arranging housing
assignments and physical training programs for female cadets. See
Brief for Cross-Respondent 11, 29-30. It is also undisputed,
however, that "the VMI methodology could be used to educate women."
852 F. Supp., at 481. The District Court even allowed that some
women may prefer it to the methodology a women's college might
pursue. See
ibid. "[S]ome women, at least, would want to
attend [VMI] if they had the opportunity," the District Court
recognized, 766 F. Supp., at 1414, and "some women," the expert
testimony established, "are
541
capable of all of the individual activities required of VMI
cadets,"
id., at 1412. The parties, furthermore, agree that
"some women can meet the physical standards [VMI] now
impose[s] on men." 976 F. 2d, at 896. In sum, as the Court of
Appeals stated, "neither the goal of producing citizen soldiers,"
VMI's
raison detre, "nor VMI's implementing methodology is
inherently unsuitable to women."
Id., at 899.
In support of its initial judgment for Virginia, a judgment
rejecting all equal protection objections presented by the United
States, the District Court made "findings" on "gender-based
developmental differences." 766 F. Supp., at 1434-1435. These
"findings" restate the opinions of Virginia's expert witnesses,
opinions about typically male or typically female "tendencies."
Id., at 1434. For example, "[m]ales tend to need an
atmosphere of adversativeness," while "[f]emales tend to thrive in
a cooperative atmosphere."
Ibid. "I'm not saying that some
women don't do well under [the] adversative model," VMI's expert on
educational institutions testified, "undoubtedly there are some
[women] who do"; but educational experiences must be designed
"around the rule," this expert maintained, and not "around the
exception."
Ibid. (internal quotation marks omitted).
The United States does not challenge any expert witness
estimation on average capacities or preferences of men and women.
Instead, the United States emphasizes that time and again since
this Court's turning point decision in
Reed v.
Reed,
404 U. S. 71
(1971), we have cautioned reviewing courts to take a "hard look" at
generalizations or "tendencies" of the kind pressed by Virginia,
and relied upon by the District Court. See O'Connor, Portia's
Progress, 66 N. Y. U. L. Rev. 1546, 1551 (1991). State actors
controlling gates to opportunity, we have instructed, may not
exclude qualified individuals based on "fixed notions concerning
the roles and abilities of males and females."
Mississippi Univ.
for Women, 458 U. S., at 725; see
J. E. B., 511 U. S.,
at 139, n. 11 (equal protection principles, as applied to gender
classifications, mean
542
state actors may not rely on "overbroad" generalizations to make
"judgments about people that are likely to ... perpetuate
historical patterns of discrimination").
It may be assumed, for purposes of this decision, that most
women would not choose VMI's adversative method. As Fourth Circuit
Judge Motz observed, however, in her dissent from the Court of
Appeals' denial of rehearing en bane, it is also probable that
"many men would not want to be educated in such an environment." 52
F. 3d, at 93. (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
Commonwealth can constitutionally deny to women who have the will
and capacity, the training and attendant opportunities that VMI
uniquely affords.
Ibid.
The notion that admission of women would downgrade VMI's
stature, destroy the adversative system and, with it, even the
school,l1 is a judgment hardly proved,12 a prediction
11 See
post, at 566, 598-599, 603. Forecasts of the same
kind were made regarding admission of women to the federal military
academies. See,
e. g., Hearings on H. R. 9832 et al.
before Subcommittee No.2 of the House Committee on Armed Services,
93d Cong., 2d Sess., 137 (1975) (statement of Lt. Gen. A. P. Clark,
Superintendent of U. S. Air Force Academy) ("It is my considered
judgment that the introduction of female cadets will inevitably
erode this vital atmosphere.");
id., at 165 (statement of
Hon. H. H. Callaway, Secretary of the Army) ("Admitting women to
West Point would irrevocably change the Academy .... The Spartan
atmospherewhich is so important to producing the final
product-would surely be diluted, and would in all probability
disappear.").
12 See 766 F. Supp., at 1413 (describing testimony of expert
witness David Riesman: "[I]f VMI were to admit women, it would
eventually find it necessary to drop the adversative system
altogether, and adopt a system that provides more nurturing and
support for the students."). Such judgments have attended, and
impeded, women's progress toward full citizenship stature
throughout our Nation's history. Speaking in 1879 in support of
higher education for females, for example, Virginia State Senator
C. T. Smith of Nelson recounted that legislation proposed to
pro-
543
hardly different from other "self-fulfilling prophec[ies]," see
Mississippi Univ. for Women, 458 U. S., at 730, 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. For example, in 1876, the Court
of Common Pleas of Hennepin County, Minnesota, explained why women
were thought ineligible for the practice of law. Women train and
educate the young, the court said, which
"forbids that they shall bestow that time (early and late) and
labor, so essential in attaining to the eminence to which the true
lawyer should ever aspire. It cannot therefore be said that the
opposition of courts to the admission of females to practice ... is
to any extent the outgrowth of ... 'old fogyism[.J' ... [I]t arises
rather from a comprehension of the magnitude of the
responsibilities connected with the successful practice of law, and
a desire to grade up the profession." In re Application of
Martha Angle Dorsett to Be Admitted to Practice as Attorney and
Counselor at Law (Minn. C. P. Hennepin Cty., 1876), in The Syllabi,
Oct. 21, 1876, pp. 5, 6 (emphasis added).
A like fear, according to a 1925 report, accounted for Columbia
Law School's resistance to women's admission, although
"[t]he faculty ... never maintained that women could not master
legal learning .... No, its argument has been ... more practical.
If women were admitted to
tect the property rights of women had encountered resistance. 10
Educ. J. Va. 213 (1879). A Senator opposing the measures objected
that "there [was] no formal call for the [legislation]," and
"depicted in burning eloquence the terrible consequences such laws
would produce."
Ibid. The legislation passed, and a year or
so later, its sponsor, C. T. Smith, reported that "not one of [the
forecast "terrible consequences"] has or ever will happen, even
unto the sounding of Gabriel's trumpet."
Ibid. See also
supra, at 537-538.
544
the Columbia Law School, [the faculty] said, then the choicer,
more manly and red-blooded graduates of our great universities
would go to the Harvard Law Schoo!!" The Nation, Feb. 18, 1925, p.
173.
Medical faculties similarly resisted men and women as partners
in the study of medicine. See R. Morantz-Sanchez, Sympathy and
Science: Women Physicians in American Medicine 51-54, 250 (1985);
see also M. Walsh, "Doctors Wanted:
No Women Need Apply" 121-122 (1977) (quoting E. Clarke, Medical
Education of Women, 4 Boston Med. & Surg. J. 345, 346 (1869) ("
'God forbid that I should ever see men and women aiding each other
to display with the scalpel the secrets of the reproductive system
.... ' ")); cf.
supra, at 536537, n. 9. More recently, women
seeking careers in policing encountered resistance based on fears
that their presence would "undermine male solidarity," see F.
Heidensohn, Women in Control? 201 (1992); deprive male partners of
adequate assistance, see
id., at 184-185; and lead to sexual
misconduct, see C. Milton et al., Women in Policing 32-33 (1974).
Field studies did not confirm these fears. See Heidensohn,
supra, at 92-93; P. Bloch & D. Anderson, Policewomen on
Patrol: Final Report (1974).
Women's successful entry into the federal military academies,13
and their participation in the Nation's military forces,14 indicate
that Virginia's fears for the future of VMI
13 Women cadets have graduated at the top of their class at
every federal military academy. See Brief for Lieutenant Colonel
Rhonda Cornum et al. as
Amici Curiae 11, n. 25; cf. Defense
Advisory Committee on Women in the Services, Report on the
Integration and Performance of Women at West Point 64 (1992).
14 Brief for Lieutenant Colonel Rhonda Cornum,
supra, at
5-9 (reporting the vital contributions and courageous performance
of women in the military); see Mintz, President Nominates 1st Woman
to Rank of Three-Star General, Washington Post, Mar. 27, 1996, p.
A19, col. 1 (announcing President's nomination of Marine Corps
Major General Carol Mutter to rank of Lieutenant General; Mutter
will head corps manpower and planning); Tousignant, A New Era for
the Old Guard, Washington Post, Mar. 23,
545
may not be solidly grounded.15 The Commonwealth'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, see 458 U. S., at 724-725, was bent and bowed.
The Commonwealth's misunderstanding and, in turn, the District
Court's, 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'" 766
F. Supp., at 1425 (quoting Mission Study Committee of the VMI Board
of Visitors, Report, May 16, 1986).
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 Commonwealth's
1996, p.
C1, col. 2 (reporting admission of Sergeant
Heather Johnsen to elite Infantry unit that keeps round-the-clock
vigil at Tomb of the Unknowns in Arlington National Cemetery).
15 Inclusion of women in settings where, traditionally, they
were not wanted inevitably entails a period of adjustment. As one
West Point cadet squad leader recounted: "[T]he classes of '78 and
'79 see the women as women, but the classes of '80 and '81 see them
as classmates." U. S. Military Academy, A. Vitters, Report of
Admission of Women (Project Athena II) 84 (1978) (internal
quotation marks omitted).
546
great goal is not substantially advanced by women's categorical
exclusion, in total disregard of their individual merit, from the
Commonwealth's premier "citizen-soldier" corps.16 Virginia, in sum,
"has fallen far short of establishing the 'exceedingly persuasive
justification,'"
Mississippi Univ. for Women, 458 U. S., at
731, that must be the solid base for any gender-defined
classification.
VI
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 Fourth Circuit, in turn, deferentially reviewed the
Commonwealth'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." See 44 F. 3d, at
1236, 1239. Inspecting the VMI and VWIL educational programs to
determine whether they "afford[ed] to both genders benefits
comparable in substance, [if] not in form and detail,"
id.,
at 1240, the Court of Appeals concluded that Virginia had arranged
for men and women opportunities "sufficiently comparable" to
survive equal protection evaluation,
id., at 1240-1241. The
United States challenges this "remedial" ruling as pervasively
misguided.
16 VMI has successfully managed another notable change. The
school admitted its first African-American cadets in 1968. See The
VMI Story 347-349 (students no longer sing "Dixie," salute the
Confederate flag or the tomb of General Robert E. Lee at ceremonies
and sports events). As the District Court noted, VMI established a
program on "retention of black cadets" designed to offer academic
and social-cultural support to "minority members of a dominantly
white and tradition-oriented student body." 766 F. Supp., at
1436-1437. The school maintains a "special recruitment program for
blacks" which, the District Court found, "has had little, if any,
effect on VMI's method of accomplishing its mission."
Id.,
at 1437.
547
A
A remedial decree, this Court has said, must closely fit the
constitutional violation; it must be shaped to place persons
unconstitutionally denied an opportunity or advantage in "the
position they would have occupied in the absence of
[discrimination]." See
Milliken v.
Bradley, 433 U. S. 267, 280 (1977)
(internal quotation marks omitted). The constitutional violation in
this suit is the categorical exclusion of women from an
extraordinary educational opportunity afforded men. A proper remedy
for an unconstitutional exclusion, we have explained, aims to
"eliminate [so far as possible] the discriminatory effects of the
past" and to "bar like discrimination in the future."
Louisiana v.
United States, 380 U. S. 145, 154
(1965).
Virginia chose not to eliminate, but to leave untouched, VMI's
exclusionary policy. For women only, however, Virginia proposed a
separate program, different in kind from VMI and unequal in
tangible and intangible facilities.17 Having violated the
Constitution's equal protection requirement, Virginia was obliged
to show that its remedial proposal "directly address[ed] and
relate[d] to" the violation, see
Milliken, 433 U. S., at
282, i.
e., the equal protection denied to women ready,
willing, and able to benefit from educational
17 As earlier observed, see
supra, at 529, Judge
Phillips, in dissent, measured Virginia's plan against a paradigm
arrangement, one that "could survive equal protection scrutiny":
single-sex schools with "substantially comparable curricular and
extra-curricular programs, funding, physical plant, administration
and support services, ... faculty[,] and library resources."
44 F.3d
1229, 1250
(CA4 1995). Cf.
Bray v.
Lee,
337 F. Supp. 934 (Mass. 1972) (holding inconsistent with the Equal
Protection Clause admission of males to Boston's Boys Latin School
with a test score of 120 or higher (up to a top score of 200) while
requiring a score, on the same test, of at least 133 for admission
of females to Girls Latin School, but not ordering coeducation).
Measuring VMIIVWIL against the paradigm, Judge Phillips said,
"reveals how far short the [Virginia] plan falls from providing
substantially equal tangible and intangible educational benefits to
men and women." 44 F. 3d, at 1250.
548
opportunities of the kind VMI offers. Virginia described VWIL as
a "parallel program," and asserted that VWIL shares VMI's mission
of producing "citizen-soldiers" and VMI's goals of providing
"education, military training, mental and physical discipline,
character ... and leadership development." Brief for Respondents 24
(internal quotation marks omitted). If the VWIL program could not
"eliminate the discriminatory effects of the past," could it at
least "bar like discrimination in the future"? See
Louisiana,
380 U. S., at 154. A comparison of the programs said to be
"parallel" informs our answer. In exposing the character of, and
differences in, the VMI and VWIL programs, we recapitulate facts
earlier presented. See
supra, at 520-523, 526-527.
VWIL affords women no opportunity to experience the rigorous
military training for which VMI is famed. See 766 F. Supp., at
1413-1414 ("No other school in Virginia or in the United States,
public or private, offers the same kind of rigorous military
training as is available at VMI.");
id., at 1421 (VMI "is
known to be the most challenging military school in the United
States"). Instead, the VWIL program "deemphasize[s]" military
education, 44 F. 3d, at 1234, and uses a "cooperative method" of
education "which reinforces self-esteem," 852 F. Supp., at 476.
VWIL students participate in ROTC and a "largely ceremonial"
Virginia Corps of Cadets, see 44 F. 3d, at 1234, but Virginia
deliberately did not make VWIL a military institute. The VWIL House
is not a military-style residence and VWIL students need not live
together throughout the 4-year program, eat meals together, or wear
uniforms during the schoolday. See 852 F. Supp., at 477, 495. VWIL
students thus do not experience the "barracks" life "crucial to the
VMI experience," the spartan living arrangements designed to foster
an "egalitarian ethic." See 766 F. Supp., at 14231424. "[T]he most
important aspects of the VMI educational experience occur in the
barracks," the District Court
549
found,
id., at 1423, yet Virginia deemed that core
experience nonessential, indeed inappropriate, for training its
female citizen-soldiers.
VWIL students receive their "leadership training" in seminars,
externships, and speaker series, see 852 F. Supp., at 477, episodes
and encounters lacking the "[p]hysical rigor, mental stress, ...
minute regulation of behavior, and indoctrination in desirable
values" made hallmarks of VMI's citizen-soldier training, see 766
F. Supp., at 1421.18 Kept away from the pressures, hazards, and
psychological bonding characteristic of VMI's adversative training,
see
id., at 1422, VWIL students will not know the "feeling
of tremendous accomplishment" commonly experienced by VMI's
successful cadets,
id., at 1426.
Virginia maintains that these methodological differences are
"justified pedagogically," based on "important differences between
men and women in learning and developmental needs," "psychological
and sociological differences" Virginia describes as "real" and "not
stereotypes." Brief for Respondents 28 (internal quotation marks
omitted). The Task Force charged with developing the leadership
program for women, drawn from the staff and faculty at Mary Baldwin
College, "determined that a military model and, especially VMI's
adversative method, would be wholly inappropriate for educating and
training
most women." 852 F. Supp., at 476 (emphasis added).
See also 44 F. 3d, at 1233-1234 (noting Task Force conclusion that,
while "some women would be suited to and interested in [a VMI
-style experience]," VMI's adversative method "would not be
effective for
women as a group" (emphasis added)). The
Com-
18 Both programs include an honor system. Students at VMI are
expelled forthwith for honor code violations, see 766 F. Supp., at
1423; the system for VWIL students, see 852 F. Supp., at 496-497,
is less severe, see Tr. 414-415 (testimony of Mary Baldwin College
President Cynthia Tyson).
550
monwealth embraced the Task Force view, as did expert witnesses
who testified for Virginia. See 852 F. Supp., at 480-481.
As earlier stated, see
supra, at 541-542, 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. Notably, Virginia never asserted that VMI's method of
education suits
most men. It is also revealing that Virginia
accounted for its failure to make the VWIL experience "the entirely
militaristic experience of VMI" on the ground that VWIL "is planned
for women who do not necessarily expect to pursue military
careers." 852 F. Supp., at 478. By that reasoning, VMI's "entirely
militaristic" program would be inappropriate for men in general or
as a group, for "[o]nly about 15% of VMI cadets enter career
military service." See 766 F. Supp., at 1432.
In contrast to the generalizations about women on which Virginia
rests, we note again these dispositive realities:
VMI's "implementing methodology" is not "inherently unsuitable
to women," 976 F. 2d, at 899; "some women ... do well under [the]
adversative model," 766 F. Supp., at 1434 (internal quotation marks
omitted); "some women, at least, would want to attend [VMI] if they
had the opportunity,"
id., at 1414; "some women are capable
of all of the individual activities required of VMI cadets,"
id., at 1412, and "can meet the physical standards [VMI] now
impose[s] on men," 976 F. 2d, at 896. It is on behalf of these
women that the United States has instituted this suit, and it is
for them that a remedy must be crafted,19 a remedy that will end
their
19 Admitting women to VMI would undoubtedly require alterations
necessary to afford members of each sex privacy from the other sex
in living arrangements, and to adjust aspects of the physical
training programs. See Brief for Petitioner 27-29; cf. note
following 10 U. S. C. § 4342 (academic and other standards for
women admitted to the Military, Naval,
551
exclusion from a state-supplied educational opportunity for
which they are fit, a decree that will "bar like discrimination in
the future."
Louisiana, 380 U. S., at 154.
B
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.
Mary Baldwin College, whose degree VWIL students will gain,
enrolls first-year women with an average combined SAT score about
100 points lower than the average score for VMI freshmen. 852 F.
Supp., at 501. The Mary Baldwin faculty holds "significantly fewer
Ph. D.'s,"
id., at 502, and receives substantially lower
salaries, see Tr. 158 (testimony of James Lott, Dean of Mary
Baldwin College), than the faculty at VMI.
Mary Baldwin does not offer a VWIL student the range of
curricular choices available to a VMI cadet. VMI awards
baccalaureate degrees in liberal arts, biology, chemistry, civil
engineering, electrical and computer engineering, and mechanical
engineering. See 852 F. Supp., at 503; Virginia Military Institute:
More than an Education 11 (Govt. exh. 75,
and Air Force Academies "shall be the same as those required for
male individuals, except for those minimum essential adjustments in
such standards required because of physiological differences
between male and female individuals"). Experience shows such
adjustments are manageable. See U. S. Military Academy, A. Vitters,
N. Kinzer, & J. Adams, Report of Admission of Women (Project
Athena I-IV) (1977-1980) (4-year longitudinal study of the
admission of women to West Point); Defense Advisory Committee on
Women in the Services, Report on the Integration and Performance of
Women at West Point 17-18 (1992).
552
lodged with Clerk of this Court). VWIL students attend a school
that "does not have a math and science focus," 852 F. Supp., at
503; they cannot take at Mary Baldwin any courses in engineering or
the advanced math and physics courses VMI offers, see
id.,
at 477.
For physical training, Mary Baldwin has "two multipurpose
fields" and "[o]ne gymnasium."
Id., at 503. VMI has "an NCAA
competition level indoor track and field facility; a number of
multi-purpose fields; baseball, soccer and lacrosse fields; an
obstacle course; large boxing, wrestling and martial arts
facilities; an ll-laps-to-the-mile indoor running course; an indoor
pool; indoor and outdoor rifle ranges; and a football stadium that
also contains a practice field and outdoor track."
Ibid.
Although Virginia has represented that it will provide equal
financial support for in-state VWIL students and VMI cadets,
id., at 483, and the VMI Foundation has agreed to endow VWIL
with $5.4625 million,
id., at 499, the difference between
the two schools' financial reserves is pronounced. Mary Baldwin's
endowment, currently about $19 million, will gain an additional $35
million based on future commitments; VMI's current endowment, $131
million-the largest public college per-student endowment in the
Nation-will gain $220 million.
Id., at 503.
The VWIL student does not graduate with the advantage of a VMI
degree. Her diploma does not unite her with the legions of VMI
"graduates [who] have distinguished themselves" in military and
civilian life. See 976 F. 2d, at 892893. "[VMI] alumni are
exceptionally close to the school," and that closeness accounts, in
part, for VMI's success in attracting applicants. See 766 F. Supp.,
at 1421. A VWIL graduate cannot assume that the "network of
business owners, corporations, VMI graduates and non-graduate
employers ... interested in hiring VMI graduates," 852 F. Supp., at
499, will be equally responsive to her search for employment,
553
see 44 F. 3d, at 1250 (Phillips, J., dissenting) ("the powerful
political and economic ties of the VMI alumni network cannot be
expected to open" for graduates of the fledgling VWIL program).
Virginia, in sum, while maintaining VMI for men only, has failed
to provide any "comparable single-gender women's institution."
Id., at 1241. 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. See
id., at 1250 (Phillips,
J., dissenting).
Virginia's VWIL solution is reminiscent of the remedy Texas
proposed 50 years ago, in response to a state trial court's 1946
ruling that, given the equal protection guarantee,
African-Americans could not be denied a legal education at a state
facility. See
Sweatt v.
Painter, 339 U. S. 629 (1950).
Reluctant to admit African-Americans to its flagship University of
Texas Law School, the State set up a separate school for Heman
Sweatt and other black law students.
Id., at 632. As
originally opened, the new school had no independent faculty or
library, and it lacked accreditation.
Id., at 633.
Nevertheless, the state trial and appellate courts were satisfied
that the new school offered Sweatt opportunities for the study of
law "substantially equivalent to those offered by the State to
white students at the University of Texas."
Id., at 632
(internal quotation marks omitted).
Before this Court considered the case, the new school had gained
"a faculty of five full-time professors; a student body of 23; a
library of some 16,500 volumes serviced by a full-time staff; a
practice court and legal aid association; and one alumnus who ha[d]
become a member of the Texas Bar."
Id., at 633. This Court
contrasted resources at the new school with those at the school
from which Sweatt had been excluded. The University of Texas Law
School had a full-time faculty of 16, a student body of 850, a
library containing over
554
65,000 volumes, scholarship funds, a law review, and moot court
facilities.
Id., at 632-633.
More important than the tangible features, the Court emphasized,
are "those qualities which are incapable of objective measurement
but which make for greatness" in a school, including "reputation of
the faculty, experience of the administration, position and
influence of the alumni, standing in the community, traditions and
prestige."
Id., at 634. Facing the marked differences
reported in the
Sweatt opinion, the Court unanimously ruled
that Texas had not shown "substantial equality in the [separate]
educational opportunities" the State offered.
Id., at 633.
Accordingly, the Court held, the Equal Protection Clause required
Texas to admit AfricanAmericans to the University of Texas Law
School.
Id., at 636. In line with
Sweatt, we rule
here that Virginia has not shown substantial equality in the
separate educational opportunities the Commonwealth supports at
VWIL and VMI.
C
When Virginia tendered its VWIL plan, the Fourth Circuit did not
inquire whether the proposed remedy, approved by the District
Court, placed women denied the VMI advantage in "the position they
would have occupied in the absence of [discrimination]."
Milliken, 433 U. S., at 280 (internal quotation marks
omitted). Instead, the Court of Appeals considered whether the
Commonwealth could provide, with fidelity to the equal protection
principle, separate and unequal educational programs for men and
women.
The Fourth Circuit acknowledged that "the VWIL degree from Mary
Baldwin College lacks the historical benefit and prestige of a
degree from VMI." 44 F. 3d, at 1241. The Court of Appeals further
observed that VMI is "an ongoing and successful institution with a
long history," and there remains no "comparable single-gender
women's institution."
Ibid. Nevertheless, the appeals court
declared the substantially different and significantly unequal VWIL
program sat-
555
isfactory. The court reached that result by revising the
applicable standard of review. The Fourth Circuit displaced the
standard developed in our precedent, see
supra, at 532534,
and substituted a standard of its own invention.
We have earlier described the deferential review in which the
Court of Appeals engaged, see
supra, at 528-529, a brand of
review inconsistent with the more exacting standard our precedent
requires, see
supra, at 532-534. Quoting in part from
Mississippi Univ. for Women, the Court of Appeals candidly
described its own analysis as one capable of checking a legislative
purpose ranked as "pernicious," but generally according "deference
to [the] legislative will." 44 F. 3d, at 1235, 1236. Recognizing
that it had extracted from our decisions a test yielding "little or
no scrutiny of the effect of a classification directed at
[single-gender education]," the Court of Appeals devised another
test, a "substantive comparability" inquiry,
id., at 1237,
and proceeded to find that new test satisfied,
id., at
1241.
The Fourth Circuit plainly erred in exposing Virginia's VWIL
plan to a deferential analysis, for "all gender-based
classifications today" warrant "heightened scrutiny." See
J.
E. B., 511 U. S., at 136. Valuable as VWIL may prove for students
who seek the program offered, Virginia's remedy affords no cure at
all for the opportunities and advantages withheld from women who
want a VMI education and can make the grade. See
supra, at
549-554.20 In sum, Virginia's
20 Virginia's prime concern, it appears, is that "plac[ing] men
and women into the adversative relationship inherent in the VMI
program ... would destroy, at least for that period of the
adversative training, any sense of decency that still permeates the
relationship between the sexes." 44 F. 3d, at 1239; see
supra, at 540-546. It is an ancient and familiar fear.
Compare
In re Lavinia Goodell, 39 Wis. 232, 246 (1875)
(denying female applicant's motion for admission to the bar of its
court, Wisconsin Supreme Court explained: "Discussions are
habitually necessary in courts of justice, which are unfit for
female ears. The habitual presence of women at these would tend to
relax the public sense of decency and propriety."), with Levine,
Closing Comments, 6 Law & Inequality 41 (1988) (presentation
at
556
remedy does not match the constitutional violation; the
Commonwealth has shown no "exceedingly persuasive justification"
for withholding from women qualified for the experience premier
training of the kind VMI affords.
VII
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."
Kirstein, 309 F. Supp., at 186. Commencing in
1970, Virginia opened to women "educational opportunities at the
Charlottesville campus that [were] not afforded in other
[state-operated] institutions."
Id., at 187; see
supra, at 538. A federal court approved the Commonwealth's
innovation, emphasizing that the University of Virginia "offer[ed]
courses of instruction ... not available elsewhere." 309 F. Supp.,
at 187. The court further noted: "[T]here exists at Charlottesville
a 'prestige' factor
Eighth Circuit Judicial Conference, Colorado Springs, Colo.,
July 17, 1987) (footnotes omitted);
"Plato questioned whether women should be afforded equal
opportunity to become guardians, those elite Rulers of Platonic
society. Ironically, in that most undemocratic system of
government, the Republic, women's native ability to serve as
guardians was not seriously questioned. The concern was over the
wrestling and exercise class in which all candidates for
guardianship had to participate, for rigorous physical and mental
training were prerequisites to attain the exalted status of
guardian. And in accord with Greek custom, those exercise classes
were conducted in the nude. Plato concluded that their virtue would
clothe the women's nakedness and that Platonic society would not
thereby be deprived of the talent of qualified citizens for reasons
of mere gender."
For Plato's full text on the equality of women, see 2 The
Dialogues of Plato 302-312 (B. Jowett transl., 4th ed. 1953).
Virginia, not bound to ancient Greek custom in its "rigorous
physical and mental training" programs, could more readily make the
accommodations necessary to draw on "the talent of [all] qualified
citizens." Cf.
supra, at 550-551, n. 19.
557
[not paralleled in] other Virginia educational institutions."
Ibid.
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. 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. Cf.
Sweatt, 339 U. S., at 633. 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."
Id., at 634. Women seeking and fit for a VMI
-quality education cannot be offered anything less, under the
Commonwealth'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.21 VMI's story continued as our comprehension of "We the
People" expanded. See
supra, at 532, n. 6.
21 R. Morris, The Forging of the Union, 1781-1789, p. 193
(1987); see
id., at 191, setting out letter to a friend from
Massachusetts patriot (later second President) John Adams, on the
subject of qualifications for voting in his home State:
"[I]t is dangerous to open so fruitful a source of controversy
and altercation as would be opened by attempting to alter the
qualifications of voters; there will be no end of it. New claims
will arise; women will demand a vote; lads from twelve to
twenty-one will think their rights not enough attended to; and
every man who has not a farthing, will demand an equal voice with
any other, in all acts of state. It tends to confound and destroy
all distinctions, and prostrate all ranks to one common level."
Letter from John Adams to James Sullivan (May 26, 1776), in 9 Works
of John Adams 378
(C. Adams ed. 1854).
558
REHNQUIST, C. J., concurring in judgment
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."
***
For the reasons stated, the initial judgment of the Court of
Appeals,
976 F.2d
890 (CA4 1992), is affirmed, the final judgment of the Court of
Appeals,
44 F.3d
1229 (CA4 1995), is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
JUSTICE THOMAS took no part in the consideration or decision of
these cases.
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.
I
Two decades ago in
Craig v.
Boren, 429 U. S. 190, 197
(1976), 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. See
Califano v.
Goldfarb, 430 U. S. 199, 210-211
(1977);
Califano v.
Webster, 430 U. S. 313, 316-317
(1977);
Orr v.
Orr, 440 U. S. 268, 279
(1979);
Caban v.
Mohammed, 441 U. S. 380, 388
(1979);
Davis v.
Passman, 442 U. S. 228, 234-235,
235, n. 9 (1979);
Personnel Administrator of Mass. v.
Feeney, 442 U.
S. 256, 273 (1979);
559
Califano v.
Westcott, 443 U. S. 76,85 (1979);
Wengler v.
Druggists Mut. Ins. Co., 446 U. S. 142, 150
(1980);
Kirchberg v.
Feenstra, 450 U. S. 455, 459-460
(1981);
Michael M. v.
Superior Court, Sonoma Cty.,
450 U. S. 464,
469 (1981);
Mississippi Univ. for Women v.
Hogan,
458 U. S. 718,
724 (1982);
Heckler v.
Mathews, 465 U. S. 728, 744
(1984);
J. E. B. v.
Alabama ex rel. T. B.,
511 U. S. 127,
137, n. 6 (1994). While the majority adheres to this test today,
ante, at 524, 533, it also says that the Commonwealth must
demonstrate an "'exceedingly persuasive justification'" to support
a gender-based classification. See
ante, at 524, 529, 530,
531, 533, 534, 545, 546, 556. 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. See,
e. g., Feeney, supra, at 273 ("[T]hese precedents dictate
that any state law overtly or covertly designed to prefer males
over females in public employment require an exceedingly persuasive
justification"). To avoid introducing potential confusion, I would
have adhered more closely to our traditional, "firmly established,"
Hogan, supra, at 723;
Heckler, supra, at 744,
standard that a gender-based classification "must bear a close and
substantial relationship to important governmental objectives."
Feeney, supra, at 273.
Our cases dealing with gender discrimination also require that
the proffered purpose for the challenged law be the actual purpose.
See
ante, at 533, 535-536. 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 Common-
560
REHNQUIST, C. J., concurring in judgment
wealth has not carried the day with this justification, I
disagree with the Court's method of analyzing the issue.
VMI was founded in 1839, and, as the Court notes,
ante,
at 536-537, admission was limited to men because under the
then-prevailing view men, not women, were destined for higher
education. However misguided this point of view may be by
present-day standards, it surely was not unconstitutional in 1839.
The adoption of the Fourteenth Amendment, with its Equal Protection
Clause, was nearly 30 years in the future. The interpretation of
the Equal Protection Clause to require heightened scrutiny for
gender discrimination was yet another century away.
Long after the adoption of the Fourteenth Amendment, and well
into this century, legal distinctions between men and women were
thought to raise no question under the Equal Protection Clause. The
Court refers to our decision in
Goesaert v.
Cleary,
335 U. S. 464
(1948). Likewise representing that now abandoned view was
Hoyt v.
Florida, 368 U. S. 57 (1961), where the Court
upheld a Florida system of jury selection in which men were
automatically placed on jury lists, but women were placed there
only if they expressed an affirmative desire to serve. The Court
noted that despite advances in women's opportunities, the "woman is
still regarded as the center of home and family life."
Id.,
at 62.
Then, in 1971, we decided
Reed v.
Reed, 404 U. S. 71, which the
Court correctly refers to as a seminal case. But its facts have
nothing to do with admissions to any sort of educational
institution. An Idaho statute governing the administration of
estates and probate preferred men to women if the other statutory
qualifications were equal. The statute's purpose, according to the
Idaho Supreme Court, was to avoid hearings to determine who was
better qualified as between a man and a woman both applying for
letters of administration. This Court held that such a rule
violated the Fourteenth Amendment because "a mandatory preference
to members of either
561
sex over members of the other, merely to accomplish the
elimination of hearings," was an "arbitrary legislative choice
forbidden by the Equal Protection Clause."
Id., at 76. The
brief opinion in
Reed made no mention of either
Goesaert or
Hoyt.
Even at the time of our decision in
Reed v.
Reed,
therefore, Virginia and VMI were scarcely on notice that its
holding would be extended across the constitutional board. They
were entitled to believe that "one swallow doesn't make a summer"
and await further developments. Those developments were 11 years in
coming. In
Mississippi Univ. for Women v.
Hogan,
supra, a case actually involving a singlesex admissions policy
in higher education, the Court held that the exclusion of men from
a nursing program violated the Equal Protection Clause. This
holding did place Virginia on notice that VMI's men-only admissions
policy was open to serious question.
The VMI Board of Visitors, in response, appointed a Mission
Study Committee to examine "the legality and wisdom of VMI's
single-sex policy in light of"
Hogan. 766 F. Supp. 1407,
1427 (WD Va. 1991). But the committee ended up cryptically
recommending against changing VMI's status as a single-sex college.
After three years of study, the committee found "'no information'"
that would warrant a change in VMI's status.
Id., at 1429.
Even the District Court, ultimately sympathetic to VMI's position,
found that "[t]he Report provided very little indication of how
[its] conclusion was reached" and that "[t]he one and one-half
pages in the committee's final report devoted to analyzing the
information it obtained primarily focuses on anticipated
difficulties in attracting females to VMI."
Ibid. The
reasons given in the report for not changing the policy were the
changes that admission of women to VMI would require, and the
likely effect of those changes on the institution. That VMI would
have to change is simply not helpful in addressing the
constitutionality of the status after
Hogan.
562
REHNQUIST, C. J., concurring in judgment
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 Commonwealth 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
Hogan,
and would draw no negative inferences from the Commonwealth's
actions before that time. I think that after
Hogan, the
Commonwealth was entitled to reconsider its policy with respect to
VMI, and not to have earlier justifications, or lack thereof, held
against it.
Even if diversity in educational opportunity were the
Commonwealth's actual objective, the Commonwealth'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
*The dissent equates our conclusion that VMI's "asserted
interest in promoting diversity" is not" 'genuine,'" with a
"charge" that the diversity rationale is "a pretext for
discriminating against women."
Post, at 579580. Of course,
those are not the same thing. I do not read the Court as saying
that the diversity rationale is a pretext for discrimination, and I
would not endorse such a proposition. We may find that diversity
was not the Commonwealth's real reason without suggesting, or
having to show, that the real reason was "antifeminism,"
post, at 580. Our cases simply require that the proffered
purpose for the challenged gender classification be the actual
purpose, although not necessarily recorded. See
ante, at
533, 535-536. The dissent also says that the interest in diversity
is so transparent that having to articulate it is "absurd on its
face."
Post, at 592. Apparently, that rationale was not
obvious to the Mission Study Committee which failed to list it
among its reasons for maintaining VMI's all-men admissions
policy.
563
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 Commonwealth could have done to avoid an equal protection
violation? Since the Commonwealth did nothing, we do not have to
definitively answer that question.
I do not think, however, that the Commonwealth's options were as
limited as the majority may imply. The Court cites, without
expressly approving it, a statement from the opinion of the
dissenting judge in the Court of Appeals, to the effect that the
Commonwealth could have "simultaneously opened single-gender
undergraduate institutions having substantially comparable
curricular and extra-curricular programs, funding, physical plant,
administration and support services, and faculty and library
resources."
Ante, at 529-530 (internal quotation marks
omitted). If this statement is thought to exclude other
possibilities, it is too stringent a requirement. VMI had been in
operation for over a century and a half, and had an established,
successful, and devoted group of alumni. No legislative wand could
instantly call into existence a similar institution for women; and
it would be a tremendous loss to scrap VMI's history and tradition.
In the words of Grover Cleveland's second inaugural address, the
Commonwealth faced a condition, not a theory. And it was a
condition that had been brought about, not through defiance of
decisions construing gender bias under the Equal Protection Clause,
but, until the decision in
Hogan, a condition that had not
appeared to offend the Constitution. Had Virginia made a genuine
effort to devote comparable public resources to a facility for
women, and followed through on such a plan, it might well have
avoided an equal protection violation. I do not believe the
Commonwealth was faced with the stark choice of either admitting
women to VMI, on the
564
REHNQUIST, C. J., concurring in judgment
one hand, or abandoning VMI and starting from scratch for both
men and women, on the other.
But, as I have noted, neither the governing board of VMI nor the
Commonwealth took any action after 1982. If diversity in the form
of single-sex, as well as coeducational, institutions of higher
learning were to be available to Virginians, that diversity had to
be available to women as well as to men.
The dissent criticizes me for "disregarding the four allwomen's
private colleges in Virginia (generously assisted by public
funds)."
Post, at 595. The private women's colleges are
treated by the Commonwealth
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 Commonwealth
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 Commonwealth 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, see 766 F.
Supp., at 1414, 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.
565
II
The Court defines the constitutional violation in these cases as
"the categorical exclusion of women from an extraordinary
educational opportunity afforded to men."
Ante, at 547. 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],'"
ibid., the Court necessarily
implies that the only adequate remedy would be the admission of
women to the allmale 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 Commonwealth does
not need to create two institutions with the same number of faculty
Ph. Do's, similar SAT scores, or comparable athletic fields. See
ante, at 551-552. 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
566
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. Closedminded they were-as
every age is, including our own, with regard to matters it cannot
guess, because it simply does not
567
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 countermajoritarian 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.
I
I shall devote most of my analysis to evaluating the Court's
opinion on the basis of our current equal protection jurisprudence,
which regards this Court as free to evaluate everything under the
sun by applying one of three tests: "rational basis" scrutiny,
intermediate scrutiny, or strict scrutiny. These tests are no more
scientific than their names suggest, and a further element of
randomness is added by the fact that it is largely up to us which
test will be applied in each case. Strict scrutiny, we have said,
is reserved for state "classifications based on race or national
origin and classifications affecting fundamental rights,"
Clark v.
Jeter, 486 U. S. 456, 461 (1988)
(citation omitted). It is my position that the term "fundamental
rights" should be limited to "interest[s] traditionally protected
by our society,"
Michael H.
568
v.
Gerald D., 491 U. S. 110, 122 (1989)
(plurality opinion of SCALIA, J.); but the Court has not accepted
that view, so that strict scrutiny will be applied to the
deprivation of whatever sort of right we consider "fundamental." We
have no established criterion for "intermediate scrutiny" either,
but essentially apply it when it seems like a good idea to load the
dice. So far it has been applied to content-neutral restrictions
that place an incidental burden on speech, to disabilities
attendant to illegitimacy, and to discrimination on the basis of
sex. See,
e. g., Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622, 662 (1994);
Mills v.
Habluetzel, 456 U. S. 91, 98-99
(1982); Craig v.
Boren, 429 U. S. 190, 197
(1976).
I have no problem with a system of abstract tests such as
rational basis, intermediate, and strict scrutiny (though I think
we can do better than applying strict scrutiny and intermediate
scrutiny whenever we feel like it). Such formulas are essential to
evaluating whether the new restrictions that a changing society
constantly imposes upon private conduct comport with that "equal
protection" our society has always accorded in the past. But in my
view the function of this Court is to
preserve our society's
values regarding (among other things) equal protection, not to
revise them; to prevent backsliding from the degree of
restriction the Constitution imposed upon democratic government,
not to prescribe, on our own authority, progressively higher
degrees. For that reason it is my view that, whatever abstract
tests we may choose to devise, they cannot supersede-and indeed
ought to be crafted
so as to reflect-those constant and
unbroken national traditions that embody the people's understanding
of ambiguous constitutional texts. More specifically, it is my view
that "when a practice not expressly prohibited by the text of the
Bill of Rights bears the endorsement of a long tradition of open,
widespread, and unchallenged use that dates back to the beginning
of the Republic, we have no proper basis for striking it down."
Rutan v.
Republican Party of Ill., 497 U. S. 62, 95 (1990)
(SCALIA, J.,
569
dissenting). The same applies,
mutatis mutandis, to a
practice asserted to be in violation of the post-Civil War
Fourteenth Amendment. See,
e. g., Burnham v.
Superior
Court of Cal., County of Marin, 495 U. S. 604 (1990)
(plurality opinion of SCALIA, J.) (Due Process Clause);
J.
E. B. v.
Alabama ex rel. T. B., 511 U. S. 127, 156-163
(1994) (SCALIA, J., dissenting) (Equal Protection Clause);
Planned Parenthood of Southeastern Pa. v.
Casey,
505 U. S. 833,
979-984, 1000-1001 (1992) (SCALIA, J., dissenting) (various alleged
"penumbras").
The all-male constitution of VMI comes squarely within such a
governing tradition. Founded by the Commonwealth of Virginia in
1839 and continuously maintained by it since, VMI has always
admitted only men. And in that regard it has not been unusual. For
almost all of VMI's more than a century and a half of existence,
its single-sex status reflected the uniform practice for
government-supported military colleges. Another famous Southern
institution, The Citadel, has existed as a state-funded school of
South Carolina since 1842. And all the federal military
colleges-West Point, the Naval Academy at Annapolis, and even the
Air Force Academy, which was not established until 1954-admitted
only males for most of their history. Their admission of women in
1976 (upon which the Court today relies, see
ante, at
544-545, nn. 13, 15) came not by court decree, but because the
people, through their elected representatives, decreed a change.
See,
e. g., § 803(a), 89 Stat. 537, note following 10
U. S. C. § 4342. In other words, the tradition of having
government-funded military schools for men is as well rooted in the
traditions of this country as the tradition of sending only men
into military combat. The people may decide to change the one
tradition, like the other, through democratic processes; but the
assertion that either tradition has been unconstitutional through
the centuries is not law, but politics-smuggled-into-Iaw.
And the same applies, more broadly, to single-sex education in
general, which, as I shall discuss, is threatened by
570
today's decision with the cutoff of all state and federal
support. Government-run nonmilitary educational institutions for
the two sexes have until very recently also been part of our
national tradition. "[It is] [c]oeducation, historically, [that] is
a novel educational theory. From grade school through high school,
college, and graduate and professional training, much of the
Nation's population during much of our history has been educated in
sexually segregated classrooms."
Mississippi Univ. for Women
v.
Hogan, 458
U. S. 718, 736 (1982) (Powell, J., dissenting); see
id.,
at 736-739. These traditions may of course be changed by the
democratic decisions of the people, as they largely have been.
Today, however, change is forced upon Virginia, and reversion to
single-sex education is prohibited nationwide, not by democratic
processes but by order of this Court. Even while bemoaning the
sorry, bygone days of "fixed notions" concerning women's education,
see
ante, at 536-537, and n. 10, 537539, 542-544, the Court
favors current notions so fixedly that it is willing to write them
into the Constitution of the United States by application of
custom-built "tests." This is not the interpretation of a
Constitution, but the creation of one.
II
To reject the Court's disposition today, however, it is not
necessary to accept my view that the Court's made-up tests cannot
displace longstanding national traditions as the primary
determinant of what the Constitution means. It is only necessary to
apply honestly the test the Court has been applying to sex-based
classifications for the past two decades. It is well settled, as
JUSTICE O'CONNOR stated some time ago for a unanimous Court, that
we evaluate a statutory classification based on sex under a
standard that lies "[b]etween thee] extremes of rational basis
review and strict scrutiny."
Clark v.
Jeter, 486 U.
S., at 461. We have denominated this standard "intermediate
scrutiny" and under it have inquired whether the statutory
classification is "sub-
571
stantially related to an important governmental objective."
Ibid. See, e. g., Heckler v. Mathews,
465 U. S. 728, 744
(1984); Wengler v. Druggists Mut. Ins. Co.,
446 U. S. 142, 150
(1980); Craig v. Boren, 429 U. S., at 197.
Before I proceed to apply this standard to VMI, I must comment
upon the manner in which the Court
avoids doing so.
Notwithstanding our above-described precedents and their" 'firmly
established principles,'"
Heckler, supra, at 744 (quoting
Hogan, supra, at 723), the United States urged us to hold in
this litigation "that strict scrutiny is the correct constitutional
standard for evaluating classifications that deny opportunities to
individuals based on their sex." Brief for United States in No.
94-2107, p. 16. (This was in fiat contradiction of the Government's
position below, which was, in its own words, to "stat[e]
unequivocally that the appropriate standard in this case is
'intermediate scrutiny.'" 2 Record, Doc. No. 88, p. 3 (emphasis
added).) The Court, while making no reference to the Government's
argument, effectively accepts it.
Although the Court in two places recites the test as stated in
Hogan, see
ante, at 524, 532-533, 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," 458 U. S., at 724 (internal quotation marks omitted),
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, see
ante, at 524, 529, 530, 531, 533, 534, 545, 546, 556, 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., supra, and
Hogan, supra, see
ante, at 531, would be unobjectionable if the Court
acknowledged that
whether a "justification" is "exceedingly
persuasive" must be assessed by asking
572
"[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. Thus, the Court summarizes its holding as follows:
"In contrast to the generalizations about women on which
Virginia rests, we note again these dispositive realities:
VMI's implementing methodology is not inherently unsuitable
to women; some women do well under the adversative model;
some women, at least, would want to attend VMI if they had
the opportunity; some women are capable of all of the
individual activities required of VMI cadets and can meet the
physical standards VMI now imposes on men." Ante, at 550
(internal quotation marks, citations, and punctuation omitted;
emphasis added).
Similarly, the Court states that "[t]he Commonwealth's
justification for excluding all women from 'citizen-soldier'
training for which some are qualified ... cannot rank as
'exceedingly persuasive' .... "
Ante, at 545.1
1 Accord,
ante, at 541 ("In sum ... , neither the goal of
producing citizensoldiers, VMI's
raison d'etre, nor VMI's
implementing methodology is
inherently unsuitable to women"
(internal quotation marks omitted; emphasis added));
ante,
at 542 ("[T]he question is whether the Commonwealth can
constitutionally deny to women who have the will and capacity, the
training and attendant opportunities that VMI uniquely affords");
ante, at 547-548 (the "violation" is that "equal protection
[has been] denied to women ready, willing, and able to benefit from
educational opportunities of the kind VMI offers");
ante, at
550 ("As earlier stated, see
supra, at 541-542, gen-
573
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, 430 U. S. 313 (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."
Id., at 318, and n. 5 (emphasis added). 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, 453 U. S. 57 (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."
Id., at 81. In
Metro Broadcasting,
Inc. v.
FCC, 497 U. S. 547, 579,
582-583 (1990), overruled on other grounds,
Adarand
Constructors, Inc. v.
Pena, 515 U. S. 200, 227
(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
eralizations 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").
574
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 ... ,"
ante, at 532, n. 6 (emphasis added); 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,"
ante, at 532 (emphasis
added). 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 sexbased classifications. See,
e. g.,
Heckler v.
Mathews, 465 U. S. 728 (1984)
(upholding state action after applying
only
intermediate scrutiny);
Michael M. v.
Superior Court,
Somoma Cty., 450
U. S. 464 (1981) (plurality and both concurring opinions)
(same);
Califano v.
Webster, supra (per curiam)
(same). 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 overcompliance 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 applica-
575
ble 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, see,
e. g.,
Hoyt v.
Florida, 368 U. S. 57 (1961);
Goesaert v.
Cleary, 335 U. S. 464 (1948). 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., 304 U. S. 144 (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." Id., at 152-153, n. 4.
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.
See,
e. g., ante, at 536-537, 542-546 (and
accompanying notes). Moreover, a long list of legislation proves
the proposition false. See,
e. g., Equal Pay Act of
1963, 29 U. S. C. § 206(d); Title VII of the Civil Rights Act of
1964, 42 U. S. C. § 2000e-2; Title IX of the Education Amendments
of 1972, 20 U. S. C. § 1681; Women's Business Ownership Act of
1988, Pub. L. 100-533, 102 Stat. 2689;
576
Violence Against Women Act of 1994, Pub. L. 103-322, Title IV;
108 Stat. 1902.
III
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."
A
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." 44 F.3d
1229, 1238 (CA4 1995) (emphasis added).
The evidence establishing that fact was overwhelmingindeed,
"virtually uncontradicted" in the words of the court that received
the evidence, 766 F. Supp. 1407, 1415 (WD Va. 1991). 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 deepseated."
Id., at 1434. 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. For example, the District Court stated as
follows:
"One empirical study in evidence, not questioned by any expert,
demonstrates that single-sex colleges pro-
577
vide better educational experiences than coeducational
institutions. Students of both sexes become more academically
involved, interact with faculty frequently, show larger increases
in intellectual self-esteem and are more satisfied with practically
all aspects of college experience (the sole exception is social
life) compared with their counterparts in coeducational
institutions. Attendance at an all-male college substantially
increases the likelihood that a student will carry out career plans
in law, business and college teaching, and also has a substantial
positive effect on starting salaries in business. Women's colleges
increase the chances that those who attend will obtain positions of
leadership, complete the baccalaureate degree, and aspire to higher
degrees." Id., at 1412.
See also
id., at 1434-1435 (factual findings). "[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."
Id., at 1412. This finding
alone, which even this Court cannot dispute, see
ante, at
535, 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." 766 F. Supp., at 1413, 1421.
"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."
Id., at 1421. 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
578
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," 44 F. 3d, at 1241; 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," 766 F. Supp., at 1413. Thus, Virginia's options
were an adversative method that excludes women or no adversative
method at all.
There can be no serious dispute that, as the District Court
found, single-sex education and a distinctive educational method
"represent legitimate contributions to diversity in the Virginia
higher education system."
Ibid. 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
coeducational4-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 pri-
579
vate' "-because such an approach enhances diversity and because
"'it is academic and economic waste to permit unwarranted
duplication.'"
Id., at 1420-1421 (quoting 1974 Report of the
General Assembly Commission on Higher Education to the General
Assembly of Virginia). 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 thee] [former] form of education to a much
greater extent that it provides for all-male education." 766 F.
Supp., at 1420-1421. 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 Commonwealth's important educational interests.
B
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 litigation, or both.
1. I have already pointed out the Court's most fundamental
error, which is its reasoning that VMI's all-male composition is
unconstitutional because "some women are capable of all of the
individual activities required of VMI cadets," 766 F. Supp., at
1412, and would prefer military training on the adversative model.
See
supra, at 571-574. This unacknowledged adoption of what
amounts to (at least) strict scrutiny is without antecedent in our
sex-discrimination cases and by itself discredits the Court's
decision.
2. The Court suggests that Virginia's claimed purpose in
maintaining VMI as an all-male institution-its asserted interest in
promoting diversity of educational options-is not "genuin[e]," but
is a pretext for discriminating against women.
Ante, at 539;
see
ante, at 535-540. To support this
580
charge, the Court would have to impute that base motive to VMI's
Mission Study Committee, which conducted a 3-year study from 1983
to 1986 and recommended to VMI's Board of Visitors that the school
remain all male. The committee, a majority of whose members
consisted of non- VMI graduates, "read materials on education and
on women in the military," "made site visits to single-sex and
newly coeducational institutions" including West Point and the
Naval Academy, and "considered the reasons that other institutions
had changed from single-sex to coeducational status"; its work was
praised as "thorough" in the accreditation review of VMI conducted
by the Southern Association of Colleges and Schools. See 766 F.
Supp., at 1413, 1428; see also
id., at 1427-1430 (detailed
findings of fact concerning the Mission Study Committee). The Court
states that "[w]hatever internal purpose the Mission Study
Committee servedand however well meaning the framers of the
report-we can hardly extract from that effort any commonwealth
policy evenhandedly to advance diverse educational options."
Ante, at 539. But whether it is part of the evidence to
prove that diversity
was the Commonwealth's objective (its
short report said nothing on that particular subject) is quite
separate from whether it is part of the evidence to prove that
antifeminism
was not. The relevance of the Mission Study
Committee is that its very creation, its sober 3-year study, and
the analysis it produced utterly refute the claim that VMI has
elected to maintain its all-male student-body composition for some
misogynistic reason.
The Court also supports its analysis of Virginia's "actual state
purposes" in maintaining VMI's student body as all male by stating
that there is no explicit statement in the record "'in which the
Commonwealth has expressed itself'" concerning those purposes.
Ante, at 535, 539 (quoting
976 F.2d
890, 899 (CA4 1992)); see also
ante, at 525. That is
wrong on numerous grounds. First and foremost, in its implication
that such an explicit statement of "actual purposes"
581
is needed. The Court adopts, in effect, the argument of the
United States that since the exclusion of women from VMI in 1839
was based on the "assumptions" of the time "that men alone were fit
for military and leadership roles," and since "[b]efore this
litigation was initiated, Virginia never sought to supply a valid,
contemporary rationale for VMI's exclusionary policy," "[t]hat
failure itself renders the VMI policy invalid." Brief for United
States in No. 94-2107, at 10. This is an unheard-of doctrine. Each
state decision to adopt or maintain a governmental policy need not
be accompanied-in anticipation of litigation and on pain of being
found to lack a relevant state interest-by a lawyer's
contemporaneous recitation of the State's purposes. The
Constitution is not some giant Administrative Procedure Act, which
imposes upon the States the obligation to set forth a "statement of
basis and purpose" for their sovereign Acts, see 5 U. S. C. §
553(c). The situation would be different if what the Court assumes
to have been the 1839 policy
had been enshrined
and
remained enshrined in legislation-a VMI charter, perhaps,
pronouncing that the institution's purpose is to keep women in
their place. But since the 1839 policy was no more explicitly
recorded than the Court contends the present one is, the mere fact
that
today's Commonwealth continues to fund VMI "is enough
to answer [the United States'] contention that the [classification]
was the 'accidental by-product of a traditional way of thinking
about females.'"
Michael M., 450 U. S., at 471, n. 6
(pluralityopinion) (quoting
Califano v.
Webster, 430
U. S., at 320) (internal quotation marks omitted).
It is, moreover, not true that Virginia's contemporary reasons
for maintaining VMI are not explicitly recorded. It is hard to
imagine a more authoritative source on this subject than the 1990
Report of the Virginia Commission on the University of the 21st
Century (1990 Report). As the parties stipulated, that report
"notes that the hallmarks of Virginia's educational policy are
'diversity and autonomy.'" Stipula-
582
tions of Fact 37, reprinted in Lodged Materials from the Record
64 (Lodged Materials). It said: "The formal system of higher
education in Virginia includes a great array of institutions:
state-supported and independent, two-year and senior, research and
highly specialized, traditionally black
and single-sex."
1990 Report, quoted in relevant part at Lodged Materials 64-65
(emphasis added).2 The Court's only response to this is repeated
reliance on the Court of Appeals' assertion that "'the only
explicit [statement] that we have found in the record in which the
Commonwealth has expressed itself with respect to gender
distinctions'" (namely, the statement in the 1990 Report that the
Commonwealth's institutions must "deal with faculty, staff, and
students without regard to sex") had nothing to do with the purpose
of diversity.
Ante, at 525, 539 (quoting 976 F. 2d, at 899).
This proves, I suppose, that the Court of Appeals did not find a
statement dealing with sex and diversity in the record; but the
pertinent question (accepting the need for such a statement) is
whether it was there. And the plain fact, which the Court
does not deny, is that it
was.
2 This statement is supported by other evidence in the record
demonstrating, by reference to both public and private
institutions, that Virginia actively seeks to foster its "'rich
heritage of pluralism and diversity in higher education,'" 1969
Report of the Virginia Commission on Constitutional Revision,
quoted in relevant part at Lodged Materials 53; that Virginia
views" '[o]ne special characteristic of the Virginia system [as
being] its diversity,'" 1989 Virginia Plan for Higher Education,
quoted in relevant part at Lodged Materials 64; and that in the
Commonwealth's view "[h]igher education resources should be viewed
as a whole-public and private"-because '''Virginia needs the
diversity inherent in a dual system of higher education,'" 1974
Report of the General Assembly Commission on Higher Education to
the General Assembly of Virginia, quoted in 766 F. Supp. 1407, 1420
(WD Va. 1991). See also Budget Initiatives for 19901992 of State
Council of Higher Education for Virginia 10 (June 21, 1989) (Budget
Initiatives), quoted at n. 3,
infra. It should be noted (for
this point will be crucial to my later discussion) that these
official reports quoted here, in text and footnote, regard the
Commonwealth's educational system-public
and private-as a
unitary one.
583
The Court contends that "[a] purpose genuinely to advance an
array of educational options ... is not served" by VMI.
Ante, at 539-540. It relies on the fact that all of
Virginia's
other public colleges have become coeducational.
Ibid.; see also
ante, at 521, n. 2. The apparent
theory of this argument is that unless Virginia pursues a great
deal of diversity, its pursuit of some diversity must be a sham.
This fails to take account of the fact that Virginia's resources
cannot support all possible permutations of schools, see
supra, at 578, and of the fact that Virginia coordinates its
public educational offerings with the offerings of in-state private
educational institutions that the Commonwealth provides money for
its residents to attend and otherwise assists-which include four
women's colleges.3
Finally, the Court unreasonably suggests that there is some
pretext in Virginia's reliance upon decentralized deci-
3 The Commonwealth provides tuition assistance, scholarship
grants, guaranteed loans, and work-study funds for residents of
Virginia who attend private colleges in the Commonwealth. See,
e. g., Va. Code Ann. §§ 23-38.11 to 23-38.19 (1993
and Supp. 1995) (Tuition Assistance Grant Act); §§ 23-38.30 to
23-38.44:3 (Virginia Student Assistance Authorities); Va. Code Ann.
§§ 23-38.45 to 23-38.53 (1993) (College Scholarship Assistance
Act); §§ 23-38.53:1 to 23-38.53:3 (Virginia Scholars Program); §§
2338.70,23-38.71 (Virginia Work-Study Program). These programs
involve substantial expenditures: for example, Virginia
appropriated $4,413,750 (not counting federal funds it also
earmarked) for the College Scholarship Assistance Program for both
1996 and 1997, and for the Tuition Assistance Grant Program
appropriated $21,568,000 for 1996 and $25,842,000 for 1997. See
1996 Va. Appropriations Act, ch. 912, pt. 1, § 160.
In addition, as the parties stipulated in the District Court,
the Commonwealth provides other financial support and assistance to
private institutions-including single-sex colleges-through low-cost
building loans, state-funded services contracts, and other
programs. See,
e. g., Va. Code Ann. §§ 23-30.39 to
23.30.58 (1993) (Educational Facilities Authority Act). The State
Council of Higher Education for Virginia, in a 1989 document not
created for purposes of this litigation but introduced into
evidence, has described these various programs as a "means by which
the Commonwealth can provide funding to its independent
institutions, thereby helping to maintain a diverse system of
higher education." Budget Initiatives 10.
584
sionmaking to achieve diversity-its granting of substantial
autonomy to each institution with regard to student-body
composition and other matters, see 766 F. Supp., at 1419. The Court
adopts the suggestion of the Court of Appeals that it is not
possible for "one institution with autonomy, but with no authority
over any other state institution, [to] give effect to a state
policy of diversity among institutions."
Ante, at 539
(internal quotation marks omitted). If it were impossible for
individual human beings (or groups of human beings) to act
autonomously in effective pursuit of a common goal, the game of
soccer would not exist. And where the goal is diversity in a free
market for services, that tends to be achieved even by autonomous
actors who act out of entirely selfish interests and make no effort
to cooperate. Each Virginia institution, that is to say, has a
natural incentive to make itself distinctive in order to attract a
particular segment of student applicants. And of course none of the
institutions is
entirely autonomous; if and when the
legislature decides that a particular school is not well serving
the interest of diversity-if it decides, for example, that a men's
school is not much needed-funding will cease.4
4 The Court, unfamiliar with the Commonwealth's policy of
diverse and independent institutions, and in any event careless of
state and local traditions, must be forgiven by Virginians for
quoting a reference to "'the Charlottesville campus'" of the
University of Virginia. See
ante, at 538. The University of
Virginia, an institution even older than VMI, though not as old as
another of the Commonwealth's universities, the College of William
and Mary, occupies the portion of Charlottesville known, not as the
"campus," but as "the grounds." More importantly, even if it were a
"campus," there would be no need to specify "the Charlottesville
campus," as one might refer to the Bloomington or Indianapolis
campus of Indiana University. Unlike university systems with which
the Court is perhaps more familiar, such as those in New York
(e. g., the State University of New York at Binghamton or
Buffalo), Illinois (University of Illinois at Urbana-Champaign or
at Chicago), and California (University of California, Los Angeles,
or University of California, Berkeley), there is only
one
University of Virginia. It happens (because Thomas Jefferson lived
near there) to be located at Charlottesville. To many Virginians it
is known,
585
3. In addition to disparaging Virginia's claim that VMI's
single-sex status serves a state interest in diversity, the Court
finds fault with Virginia's failure to offer education based on the
adversative training method to women. It dismisses the District
Court's "'findings' on 'gender-based developmental differences'" on
the ground that "[t]hese 'findings' restate the opinions of
Virginia's expert witnesses, opinions about typically male or
typically female 'tendencies.'"
Ante, at 541 (quoting 766 F.
Supp., at 1434-1435). How remarkable to criticize the District
Court on the ground that its findings rest on the evidence (i.
e., the testimony of Virginia's witnesses)! That is what
findings are supposed to do. It is indefensible to tell the
Commonwealth that "[t]he burden of justification is demanding and
it rests entirely on [you],"
ante, at 533, and then to
ignore the District Court's findings
because they rest on
the evidence put forward by the Commonwealth-particularly when, as
the District Court said, "[t]he evidence in the case ... is
virtually uncontradicted," 766 F. Supp., at 1415 (emphasis
added).
Ultimately, in fact, the Court does not deny the evidence
supporting these findings. See
ante, at 541-546. It instead
makes evident that the parties to this litigation could have saved
themselves a great deal of time, trouble, and expense by omitting a
trial. The Court simply dispenses with the evidence submitted at
trial-it never says that a single finding of the District Court is
clearly erroneous-in favor of the Justices' own view of the world,
which the Court proceeds to support with (1) references to
observations of someone
simply, as "the University," which suffices to distinguish it
from the Commonwealth's other institutions offering 4-year college
instruction, which include Christopher Newport College, Clinch
Valley College, the College of William and Mary, George Mason
University, James Madison University, Longwood College, Mary
Washington University, Norfolk State University, Old Dominion
University, Radford University, Virginia Commonwealth University,
Virginia Polytechnic Institute and State University, Virginia State
University-and, of course, VMI.
586
who is not a witness, nor even an educational expert, nor even a
judge who reviewed the record or participated in the judgment
below, but rather a judge who merely dissented from the Court of
Appeals' decision not to rehear this litigation en bane, see
ante, at 542, (2) citations of nonevidentiary materials such
as
amicus curiae briefs filed in this Court, see
ante, at 544-545, nn. 13, 14, and (3) various historical
anecdotes designed to demonstrate that Virginia's support for VMI
as currently constituted reminds the Justices of the "bad old
days," see
ante, at 542-544.
It is not too much to say that this approach to the litigation
has rendered the trial a sham. But treating the evidence as
irrelevant is absolutely necessary for the Court to reach its
conclusion. Not a single witness contested, for example, Virginia's
"substantial body of 'exceedingly persuasive' evidence ... that
some students, both male and female, benefit from attending a
single-sex college" and "[that] [f]or those students, the
opportunity to attend a single-sex college is a valuable one,
likely to lead to better academic and professional achievement."
766 F. Supp., at 1411-1412. Even the United States' expert witness
"called himself a 'believer in single-sex education,'" although it
was his "personal, philosophical preference," not one "born of
educational-benefit considerations," "that single-sex education
should be provided only by the private sector."
Id., at
1412.
4. The Court contends that Virginia, and the District Court,
erred, and "misperceived our precedent," by "train[ing] their
argument on 'means' rather than 'end,'"
ante, at 545. The
Court focuses on "VMI's mission," which is to produce 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." 766
F. Supp., at 1425 (quoting Mission Study Committee of the VMI Board
of
587
Visitors, Report, May 16, 1986). "Surely," the Court says, "that
goal is great enough to accommodate women."
Ante, at
545.
This is lawmaking by indirection. What the Court describes as
"VMI's mission" is no less the mission of
all Virginia
colleges. Which of them would the Old Dominion continue to fund if
they did
not aim to create individuals "imbued with love of
learning, etc.," right down to being ready "to defend their country
in time of national peril"? It can be summed up as "learning,
leadership, and patriotism." To be sure, those general educational
values are described in a particularly martial fashion in VMI's
mission statement, in accordance with the military, adversative,
and all-male character of the institution. But imparting those
values
in that fashion-i. e., in a military, adversative,
all-male environment-is the
distinctive mission of VMI. And
as I have discussed (and both courts below found),
that
mission is
not "great enough to accommodate women."
The Court's analysis at least has the benefit of producing
foreseeable results. Applied generally, it means that whenever a
State's ultimate objective is "great enough to accommodate women"
(as it always will be), then the State will be held to have
violated the Equal Protection Clause if it restricts to men even
one means by which it pursues that objective-no matter how few
women are interested in pursuing the objective by that means, no
matter how much the single-sex program will have to be changed if
both sexes are admitted, and no matter how beneficial that program
has theretofore been to its participants.
5. The Court argues that VMI would not have to change very much
if it were to admit women. See,
e. g., ante,
at 540-542. The principal response to that argument is that it is
irrelevant: If VMI's single-sex status is substantially related to
the government's important educational objectives, as I have
demonstrated above and as the Court refuses to dis-
588
cuss, that concludes the inquiry. There should be no debate in
the federal judiciary over "how much" VMI would be required to
change if it admitted women and whether that would constitute "too
much" change.
But if such a debate were relevant, the Court would certainly be
on the losing side. The District Court found as follows: "[T]he
evidence establishes that key elements of the adversative VMI
educational system, with its focus on barracks life, would be
fundamentally altered, and the distinctive ends of the system would
be thwarted, if VMI were forced to admit females and to make
changes necessary to accommodate their needs and interests." 766 F.
Supp., at 1411. Changes that the District Court's detailed analysis
found would be required include new allowances for personal privacy
in the barracks, such as locked doors and coverings on windows,
which would detract from VMI's approach of regulating minute
details of student behavior, "contradict the principle that
everyone is constantly subject to scrutiny by everyone else," and
impair VMI's "total egalitarian approach" under which every student
must be "treated alike"; changes in the physical training program,
which would reduce "[t]he intensity and aggressiveness of the
current program"; and various modifications in other respects of
the adversative training program that permeates student life. See
id., at 1412-1413, 1435-1443. As the Court of Appeals
summarized it, "the record supports the district court's findings
that at least these three aspects of VMI's programphysical
training, the absence of privacy, and the adversative
approach-would be materially affected by coeducation, leading to a
substantial change in the egalitarian ethos that is a critical
aspect of VMI's training." 976 F. 2d, at 896-897.
In the face of these findings by two courts below, amply
supported by the evidence, and resulting in the conclusion that VMI
would be fundamentally altered if it admitted women, this Court
simply pronounces that "[t]he notion that
589
admission of women would downgrade VMI's stature, destroy the
adversative system and, with it, even the school, is a judgment
hardly proved."
Ante, at 542 (footnote omitted). The point
about "downgrad[ing] VMI's stature" is a straw man; no one has made
any such claim. The point about "destroy[ing] the adversative
system" is simply false; the District Court not only stated that
"[e]vidence supports this theory," but specifically concluded that
while "[w]ithout a doubt" VMI could assimilate women, "it is
equally without a doubt that VMI's present methods of training and
education would have to be changed" by a "move away from its
adversative new cadet system." 766 F. Supp., at 1413, and n. 8,
1440. And the point about "destroy[ing] the school," depending upon
what that ambiguous phrase is intended to mean, is either false or
else sets a standard much higher than VMI had to meet. It sufficed
to establish, as the District Court stated, that VMI would be
"significantly different" upon the admission of women, 766 F.
Supp., at 1412, and "would eventually find it necessary to drop the
adversative system altogether,"
id., at 1413.5
5 The Court's do-it-yourself approach to factfinding, which
throughout is contrary to our well-settled rule that we will not
"undertake to review concurrent findings of fact by two courts
below in the absence of a very obvious and exceptional showing of
error,"
Graver Tank &
Mfg. Co. v.
Linde Air
Products Co., 336
U. S. 271, 275 (1949) (and cases cited), is exemplified by its
invocation of the experience of the federal military academies to
prove that not much change would occur. See
ante, at 542, n.
11; 544545, and n. 15; 550-551, n. 19. In fact, the District Court
noted that "the West Point experience"
supported the theory
that a coeducational VMI would have to "adopt a [different]
system," for West Point found it necessary upon becoming
coeducational to "move away" from its adversative system. 766 F.
Supp., at 1413, 1440. ''Without a doubt ... VMI's present methods
of training and education would have to be changed as West Point's
were."
Id., at 1413, n. 8; accord,
976
F.2d 890, 896-897
(CA4 1992) (upholding District Court's
findings that "the unique characteristics of VMI's program,"
including its "unique methodology," "would be destroyed by
coeducation").
590
6. Finally, the absence of a precise "all-women's analogue" to
VMI is irrelevant. In
Mississippi Univ. for Women v.
Hogan, 458 U.
S. 718 (1982), we attached no constitutional significance to
the absence of an all-male nursing school. As Virginia notes, if a
program restricted to one sex is necessarily unconstitutional
unless there is a parallel program restricted to the other sex,
"the opinion in
Hogan could have ended with its first
footnote, which observed that 'Mississippi maintains no other
single-sex public university or college.'" Brief for
Cross-Petitioners in No. 94-2107, p. 38 (quoting
Mississippi
Univ. for Women v.
Hogan, supra, at 720, n. 1).
Although there is no precise female-only analogue to VMI,
Virginia has created during this litigation the Virginia Women's
Institute for Leadership (VWIL), a state-funded all-women's program
run by Mary Baldwin College. I have thus far said nothing about
VWIL because it is, under our established test, irrelevant, so long
as
VMFs all-male character is "substantially related" to an
important state goal. But VWIL now exists, and the Court's
treatment of it shows how far reaching today's decision is.
VWIL was carefully designed by professional educators who have
long experience in educating young women. The program
rejects the proposition that there is a "difference in the
respective spheres and destinies of man and woman,"
Bradwell
v.
State, 16 Wall. 130, 141 (1873), and is designed to
"provide an all-female program that will achieve substantially
similar outcomes [to VMI's] in an all-female environment," 852 F.
Supp. 471, 481 (WD Va. 1994). After holding a trial where
voluminous evidence was submitted and making detailed findings of
fact, the District Court concluded that "there is a legitimate
pedagogical basis for the different means employed [by VMI and
VWIL] to achieve the sub-
591
stantially similar ends."
Ibid. The Court of Appeals
undertook a detailed review of the record and affirmed.
44 F.3d
1229 (CA4 1995).6 But it is Mary Baldwin College, which runs
VWIL, that has made the point most succinctly:
"It would have been possible to develop the VWIL program to more
closely resemble VMI, with adversative techniques associated with
the rat line and barracks-like living quarters. Simply replicating
an existing program would have required far less thought, research,
and educational expertise. But such a facile approach would have
produced a paper program with no real prospect of successful
implementation." Brief for Mary Baldwin College as Amicus Curiae
5.
It is worth noting that none of the United States' own experts
in the remedial phase of this litigation was willing to testify
that VMI's adversative method was an appropriate methodology for
educating women. This Court, however, does not care. Even though
VWIL was carefully designed by professional educators who have
tremendous experience in the area, and survived the test of
adversarial litigation, the Court simply declares, with no basis in
the evidence, that
6 The Court is incorrect in suggesting that the Court of Appeals
applied a "deferential" "brand of review inconsistent with the more
exacting standard our precedent requires."
Ante, at 555.
That court "inquir[ed] (1) whether the state's objective is
'legitimate and important,' and (2) whether 'the requisite direct,
substantial relationship between objective and means is present,'"
44 F. 3d, at 1235 (quoting
Mississippi Univ. for Women v.
Hogan, 458 U.
S. 718, 725 (1982)). To be sure, such review is "deferential"
to a degree that the Court's new standard is not,
for it is
intermediate scrntiny. (The Court cannot evade this point or
prove the Court of Appeals too deferential by stating that that
court "devised another test, a 'substantive comparability'
inquiry,' "
ante, at 555 (quoting 44 F. 3d, at 1237), for as
that court explained, its "substantive comparability" inquiry was
an
"additional step" that it engrafted on "th[e] traditional
test" of intermediate scrutiny,
ibid. (emphasis added).)
592
these professionals acted on "'overbroad' generalizations,"
ante, at 542, 550.
C
A few words are appropriate in response to the concurrence,
which finds VMI unconstitutional on a basis that is more moderate
than the Court's but only at the expense of being even more
implausible. The concurrence offers three reasons: First, that
there is "scant evidence in the record,"
ante, at 562, that
diversity of educational offering was the real reason for
Virginia's maintaining VMI. "Scant" has the advantage of being an
imprecise term. I have cited the clearest statements of diversity
as a goal for higher education in the 1990 Report, the 1989
Virginia Plan for Higher Education, the Budget Initiatives prepared
in 1989 by the State Council of Higher Education for Virginia, the
1974 Report of the General Assembly Commission on Higher Education
to the General Assembly of Virginia, and the 1969 Report of the
Virginia Commission on Constitutional Revision. See
supra,
at 579, 581-582, and n. 2, 583, n. 3. There is
no evidence
to the contrary, once one rejects (as the concurrence rightly does)
the relevance of VMI's founding in days when attitudes toward the
education of women were different. Is this conceivably not enough
to foreclose rejecting as clearly erroneous the District Court's
determination regarding "the Commonwealth's objective of
educational diversity"? 766 F. Supp., at 1413. Especially since it
is absurd on its face even to
demand "evidence" to prove
that the Commonwealth's reason for maintaining a men's military
academy is that a men's military academy provides a distinctive
type of educational experience (i.
e., fosters diversity).
What other purpose
would the Commonwealth have? One may
argue, as the Court does, that this
type of diversity is
designed only to indulge hostility toward women-but that is a
separate point, explicitly rejected by the concurrence, and amply
refuted by the evidence I have mentioned in dis-
593
cussing the Court's opinion.7 What is now under discussion-the
concurrence's making central to the disposition of this litigation
the supposedly "scant" evidence that Virginia maintained VMI in
order to offer a diverse educational experience-is rather like
making crucial to the lawfulness of the United States Army record
"evidence" that its purpose is to do battle. A legal culture that
has forgotten the concept of
res ipsa loquitur deserves the
fate that it today decrees for VMI.
Second, the concurrence dismisses out of hand what it calls
Virginia's "second justification for the single-sex admissions
policy: maintenance of the adversative method."
Ante, at
564. The concurrence reasons that "this justification does not
serve an important governmental objective" because, whatever the
record may show about the pedagogical benefits of
single-sex
education, "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."
Ibid. That is simply wrong. See,
e. g., 766 F.
Supp., at 1426 (factual findings concerning character traits
produced by VMI's adversative methodology);
id., at 1434
(factual findings concerning benefits for many college-age men of
an adversative approach in general). In reality, the pedagogical
benefits of VMI's adversative approach were not only proved, but
were a
given in this litigation. The reason the woman
applicant who prompted this suit wanted to enter VMI was assuredly
not that she wanted to go to an all-male school; it would cease
being all-male as
7 The concurrence states that it "read[s] the Court" not "as
saying that the diversity rationale is a pretext" for
discriminating against women, but as saying merely that the
diversity rationale is not genuine.
Ante, at 562, n. The
Court itself makes no such disclaimer, which would be difficult to
credit inasmuch as the foundation for its conclusion that the
diversity rationale is not "genuin[e],"
ante, at 539, is its
antecedent discussion of Virginia's "deliberate" actions over the
past century and a half, based on "[f]amiliar arguments," that
sought to enforce once "widely held views about women's proper
place,"
ante, at 537, 538.
594
soon as she entered. She wanted the distinctive adversative
education that VMI provided, and the battle was joined (in the
main) over whether VMI had a basis for excluding women from that
approach. The Court's opinion recognizes this, and devotes much of
its opinion to demonstrating that "'some women ... do well under
[the] adversative model''' and that "[i]t is on behalf of these
women that the United States has instituted this suit."
Ante, at 550 (quoting 766 F. Supp., at 1434). Of course, in
the last analysis it does not matter whether there are any benefits
to the adversative method. The concurrence does not contest that
there are benefits to
single-sex education, and that alone
suffices to make Virginia's case, since admission of a woman will
even more surely put an end to VMI's single-sex education than it
will to VMI's adversative methodology.
A third reason the concurrence offers in support of the judgment
is that the Commonwealth and VMI were not quick enough to react to
the "further developments" in this Court's evolving jurisprudence.
Ante, at 561. Specifically, the concurrence believes it
should have been clear after
Hogan that "[t]he difficulty
with [Virginia's] 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."
Ante, at 562. If only, the concurrence asserts,
Virginia had "made a genuine effort to devote comparable public
resources to a facility for women, and followed through on such a
plan, it might well have avoided an equal protection violation."
Ante, at 563. That is to say, the concurrence believes that
after our decision in
Hogan (which held a program of the
Mississippi University for Women to be unconstitutional-without any
reliance on the fact that there was no corresponding Mississippi
all-men's program), the Commonwealth should have known that what
this Court expected of it was ... yes!, the creation of a state
all-women's program. Any lawyer who gave that advice to the
Commonwealth
595
ought to have been either disbarred or committed. (The proof of
that pudding is today's 6-Justice majority opinion.) And any
Virginia politician who proposed such a step when there were
already four 4-year women's colleges in Virginia (assisted by state
support that may well exceed, in the aggregate, what VMI costs, see
n. 3,
supra) ought to have been recalled.
In any event, "diversity in the form of single-sex, as well as
coeducational, institutions of higher learning"
is
"available to women as well as to men" in Virginia.
Ante, at
564. The concurrence is able to assert the contrary only by
disregarding the four all-women's private colleges in Virginia
(generously assisted by public funds) and the Commonwealth's
longstanding policy of coordinating public with private educational
offerings, see
supra, at 579, 581-582, and n. 2, 583-584,
and n. 3. According to the concurrence, the
reason
Virginia's assistance to its four all-women's private colleges does
not count is that "[t]he private women's colleges are treated by
the State
exactly as all other private schools are treated."
Ante, at 564. But if Virginia cannot get
credit for
assisting women's education if it only treats women's private
schools as it does all other private schools, then why should it
get
blame for assisting men's education if it only treats
VMI as it does all other public schools? This is a great
puzzlement.
IV
As is frequently true, the Court's decision today will have
consequences that extend far beyond the parties to the litigation.
What I take to be the Court's unease with these consequences, and
its resulting unwillingness to acknowledge them, cannot alter the
reality.
A
Under the constitutional principles announced and applied today,
single-sex public education is unconstitutional. By going through
the motions of applying a balancing test-ask-
596
ing 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 singlesex 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.'"
Ante, at 534, n. 7.
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."
Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 66-67 (1996)
(emphasis added). That is the principal reason we publish our
opinions.
And the rationale of today's decision is sweeping: for sexbased
classifications, a redefinition of intermediate scrutiny that makes
it indistinguishable from strict scrutiny. See
supra, at
571-574. 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.
Ante, at 542. I suggest that the single-sex program that
will not be capable of being characterized as "unique" is not only
unique but nonexistent.8
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.
8 In this regard, I note that the Court-which I concede is under
no obligation to do so-provides no example of a program that
would pass muster under its reasoning today: not even, for
example, a football or wrestling program. On the Court's theory,
any woman ready, willing, and physically able to participate in
such a program would,
as a constitutional matter, be
entitled to do so.
597
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
singlesex 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 "suppor[t] [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." 766 F. Supp., at 1415 (emphasis added). "The evidence
in th[is] case," for example, "is virtually uncontradicted" to that
effect.
Ibid. 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
Hogan, see
Garrett v.
Board of Ed. of
School Dist. of Detroit, 775 F. Supp. 1004, 1006 (ED Mich.
1991), and the
598
Detroit Board of Education voted to abandon the litigation and
thus abandon the plan, see Detroit Plan to Aid Blacks with All-Boy
Schools Abandoned, Los Angeles Times, Nov. 8, 1991, p. A4, col. 1.
Today's opinion assures that no such experiment will be tried
again.
B
There are few extant single-sex public educational programs. The
potential of today's decision for widespread disruption of existing
institutions lies in its application to
private single-sex
education. Government support is immensely important to private
educational institutions. Mary Baldwin College-which designed and
runs VWILnotes that private institutions of higher education in the
1990-1991 school year derived approximately 19 percent of their
budgets from federal, state, and local government funds,
not
including financial aid to students. See Brief for Mary Baldwin
College as
Amicus Curiae 22, n. 13 (citing U. S. Dept. of
Education, National Center for Education Statistics, Digest of
Education Statistics, p. 38 and Note (1993)). Charitable status
under the tax laws is also highly significant for private
educational institutions, and it is certainly not beyond the Court
that rendered today's decision to hold that a donation to a
single-sex college should be deemed contrary to public policy and
therefore not deductible if the college discriminates on the basis
of sex. See Note, The Independent Sector and the Tax Laws: Defining
Charity in an Ideal Democracy, 64 S. Cal. L. Rev. 461, 476 (1991).
See also
Bob Jones Univ. v.
United States, 461 U. S. 574 (1983).
The Court adverts to private single-sex education only briefly,
and only to make the assertion (mentioned above) that "[w]e address
specifically and only an educational opportunity recognized by the
District Court and the Court of Appeals as 'unique.'"
Ante,
at 534, n. 7. As I have already remarked, see
supra, at 596,
that assurance assures nothing, unless it is to be taken as a
promise that in the future
599
the Court will disclaim the reasoning it has used today to
destroy VMI. The Government, in its briefs to this Court, at least
purports to address the consequences of its attack on VMI for
public support of private single-sex education. It contends that
private colleges that are the direct or indirect beneficiaries of
government funding are not thereby necessarily converted into state
actors to which the Equal Protection Clause is then applicable. See
Brief for United States in No. 94-2107, at 35-37 (discussing
Rendell-Baker v.
Kohn, 457 U. S. 830 (1982), and
Blum v.
Yaretsky, 457 U. S. 991 (1982)).
That is true. It is also virtually meaningless.
The issue will be not whether government assistance turns
private colleges into state actors, but whether the government
itself would be violating the Constitution by providing
state support to single-sex colleges. For example, in
Norwood v.
Harrison, 413 U. S. 455 (1973), we
saw no room to distinguish between state operation of racially
segregated schools and state support of privately run segregated
schools. "Racial discrimination in state-operated schools is barred
by the Constitution and '[i]t is also axiomatic that a state may
not induce, encourage or promote private persons to accomplish what
it is constitutionally forbidden to accomplish.'"
Id., at
465 (quoting
Lee v.
Macon County Bd. of Ed., 267 F.
Supp. 458, 475-476 (MD Ala. 1967)); see also
Cooper v.
Aaron, 358 U. S.
1, 19 (1958) ("State support of segregated schools through any
arrangement, management, funds, or property cannot be squared with
the [Fourteenth] Amendment's command that no State shall deny to
any person within its jurisdiction the equal protection of the
laws");
Grove City College v.
Bell, 465 U. S. 555, 565 (1984)
(case arising under Title IX of the Education Amendments of 1972
and stating that "[t]he economic effect of direct and indirect
assistance often is indistinguishable"). When the Government was
pressed at oral argument concerning the implications of these cases
for private single-sex education if government-provided single-sex
education is unconstitu-
600
tional, it stated that the implications will not be so
disastrous, since States
can provide funding to
racially segregated private schools, "depend[ing] on the
circumstances," Tr. of Oral Arg. 56. I cannot imagine what those
"circumstances" might be, and it would be as foolish for
privateschool administrators to think that that assurance from the
Justice Department will outlive the day it was made, as it was for
VMI to think that the Justice Department's "unequivoca[l]" support
for an intermediate-scrutiny standard in this litigation would
survive the Government's loss in the courts below.
The only hope for state-assisted single-sex private schools is
that the Court will not apply in the future the principles of law
it has applied today. That is a substantial hope, I am happy and
ashamed to say. After all, did not the Court today abandon the
principles of law it has applied in our earlier sex-classification
cases? And does not the Court positively invite private colleges to
rely upon our ad-hocery by assuring them this litigation is
"unique"? I would not advise the foundation of any new single-sex
college (especially an all-male one) with the expectation of being
allowed to receive any government support; but it is too soon to
abandon in despair those single-sex colleges already in existence.
I t will certainly be possible for this Court to write a future
opinion that ignores the broad principles of law set forth today,
and that characterizes as utterly dispositive the opinion's
perceptions that VMI was a uniquely prestigious allmale
institution, conceived in chauvinism, etc., etc. I will not join
that opinion.
***
Justice Brandeis said it is "one of the happy incidents of the
federal system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country."
New State
Ice Co. v.
Liebmann, 285 U. S. 262, 311
601
(1932) (dissenting opinion). But it is one of the unhappy
incidents of the federal system that a self-righteous Supreme
Court, acting on its Members' personal view of what would make a "
'more perfect Union,'"
ante, at 558 (a criterion only
slightly more restrictive than a "more perfect world"), can impose
its own favored social and economic dispositions nationwide. As
today's disposition, and others this single Term, show, this places
it beyond the power of a "single courageous State," not only to
introduce novel dispositions that the Court frowns upon, but to
reintroduce, or indeed even adhere to, disfavored dispositions that
are centuries old. See,
e. g., BMW of North America, Inc. v.
Gore, 517 U.
S. 559 (1996); Romer v.
Evans, 517 U. S. 620 (1996). The
sphere of self-government reserved to the people of the Republic is
progressively narrowed.
In the course of this dissent, I have referred approvingly to
the opinion of my former colleague, Justice Powell, in
Mississippi Univ. for Women v.
Hogan, 458 U. S. 718 (1982).
Many of the points made in his dissent apply with equal force
here-in particular, the criticism of judicial opinions that purport
to be "narro[w]" but whose "logic" is "sweepin[g]."
Id., at
745-746, n. 18. But there is one statement with which I cannot
agree. Justice Powell observed that the Court's decision in
Hogan, which struck down a single-sex program offered by the
Mississippi University for Women, had thereby "[l]eft without honor
... an element of diversity that has characterized much of American
education and enriched much of American life."
Id., at 735.
Today's decision does not leave VMI without honor; no court opinion
can do that.
In an odd sort of way, it is precisely VMI's attachment to such
old-fashioned concepts as manly "honor" that has made it, and the
system it represents, the target of those who today succeed in
abolishing public single-sex education. The record contains a
booklet that all first-year VMI stu-
602
dents (the so-called "rats") were required to keep in their
possession at all times. N ear the end there appears the following
period piece, entitled "The Code of a Gentleman":
"Without a strict observance of the fundamental Code of Honor,
no man, no matter how 'polished,' can be considered a gentleman.
The honor of a gentleman demands the inviolability of his word, and
the incorruptibility of his principles. He is the descendant of the
knight, the crusader; he is the defender of the defenseless and the
champion of justice ... or he is not a Gentleman.
"A Gentleman ...
"Does not discuss his family affairs in public or with
acquaintances.
"Does not speak more than casually about his girl friend.
"Does not go to a lady's house if he is affected by alcohol. He
is temperate in the use of alcohol.
"Does not lose his temper; nor exhibit anger, fear, hate,
embarrassment, ardor or hilarity in public.
"Does not hail a lady from a club window.
"A gentleman never discusses the merits or demerits of a
lady.
"Does not mention names exactly as he avoids the mention of what
things cost.
"Does not borrow money from a friend, except in dire need. Money
borrowed is a debt of honor, and must be repaid as promptly as
possible. Debts incurred by a deceased parent, brother, sister or
grown child are assumed by honorable men as a debt of honor.
"Does not display his wealth, money or possessions. "Does not
put his manners on and off, whether in the club or in a ballroom.
He treats people with courtesy, no matter what their social
position may be.
603
"Does not slap strangers on the back nor so much as lay a finger
on a lady.
"Does not 'lick the boots of those above' nor 'kick the face of
those below him on the social ladder.'
"Does not take advantage of another's helplessness or ignorance
and assumes that no gentleman will take advantage of him.
"A Gentleman respects the reserves of others, but demands that
others respect those which are his.
"A Gentleman can become what he wills to be .... "
I do not know whether the men of VMI lived by this code; perhaps
not. But it is powerfully impressive that a public institution of
higher education still in existence sought to have them do so. I do
not think any of us, women included, will be better off for its
destruction.
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