Virginia, United States v.

Virginia, United States v., 518 U.S. 515 (1996), argued 17 Jan. 1996, decided 26 June 1996 by vote of 7 to 1; Ginsburg for the Court, Scalia in dissent; Thomas took no part in the consideration or the decision of the case since his son was a student at the Virginia Military Academy (VMI). By 1995 only two state‐supported all‐male military colleges existed in the United States: The Citadel, in Charleston, South Carolina, and VMI, in Lexington, Virginia. In both instances, the colleges had excluded women from their ranks. VMI did so on the grounds that its “adversative” method of training was not appropriate for women. The Court of Appeals for the Fourth Circuit had concluded that excluding women from a state‐supported military education violated the Fourteenth Amendment's guarantee of equal protection of the laws. In the case of VMI, however, the Fourth Circuit had accepted Virginia's plan to offer a military‐style education for women in the Virginia Women's Institute for Leadership (VWIL) at Mary Baldwin College in nearby Staunton, Virginia. The Clinton administration then appealed this decision on the grounds that Virginia had actually made the situation worse by not even meeting the constitutionally discredited standard of “separate but equal” in Plessy v. Ferguson (1896).

Counsel for Virginia argued to the Supreme Court that single‐sex education offered distinctive advantages for men that would be fundamentally altered if women were admitted to the program. Women, Virginia argued, differed from men in their psychological and physical makeup. Men were better equipped for self‐reliance; women were better suited to relationships. Women could not and would not be able to perform under the “adversative” method of training that had become the hallmark of an education at VMI.

The United States countered by arguing that the constitutional guarantee of equal protection of the laws under the Fourteenth Amendment prohibited a state from limiting individual rights by resorting to stereotypes. The government struck especially hard at the VWIL program set up for women who wanted military training, insisting that such a program not only denied the women the same facilities and training methods used by the men but it prevented them from demonstrating that they could ever succeed in the more rigorous environment of VMI. Finally, the government insisted that the Court should apply a standard of strict scrutiny, which had been applied to racial categories, in dealing with matters of gender discrimination.

Justice Ruth Bader Ginsburg's opinion for the Court brought an end to the 157‐year tradition of all‐male education at VMI. Ginsburg held that the practice violated the Equal Protection Clause of the Fourteenth Amendment. “While Virginia serves the state's sons,” Ginsburg wrote, “it makes no provision whatever for her daughters. That is not equal protection.” Ginsburg also dismissed VWIL at Mary Baldwin College as distinctly inferior based on the quality of the faculty, the academic skills of the student body, and the physical facilities. The justice also reminded Virginia that women already attended the nation's military academies. “There is no reason,” Ginsburg concluded, “to believe that the admission of women capable of all the activities required of V.M.I. cadets would destroy the Institute rather than enhance its capacity. …”

Justice Antonin Scalia denounced the majority for destroying VMI, “an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and half. … I do not think any of us, women included, will be better off for its destruction.” Chief Justice William Rehnquist, who refused to sign Ginsburg's opinion, authored a concurring opinion that accepted the outcome but rejected the majority's rationale for reaching it. If, according to Rehnquist, VWIL had offered a program comparable to VMI's, he likely would have voted in support of it.

The VMI decision was viewed at the time as a test case for all single‐sex education, even private schools that receive public funds. Whether it will prove to be that sweeping, as Scalia warned in his dissent, remains to be seen. Strikingly, the Court refused to adopt a new standard for deciding the legality of any classification based on sex, continuing as a result to adhere to the “intermediate scrutiny” test rather than replacing it with a strict scrutiny standard. At the same time, Justice Ginsburg's decision does make clear that the traditional standard will be applied in a more forceful way. Government has, therefore, to produce an “exceedingly persuasive justification” for any classification based on sex. This principle is what Ginsburg termed “skeptical scrutiny.”

Kermit L. Hall