United States v. Virginia (1996)

Summary

Beginning in the 1970s, the Supreme Court decided a series of cases that applied the Fourteenth Amendment’s Equal Protection Clause to policies that discriminated on the basis of sex.  These cases culminated in Justice Ruth Bader Ginsburg’s landmark opinion in United States v. Virginia.  In 1990, the United States sued Virginia on behalf of several women who wanted to attend the Virginia Military Institute (VMI)—a public, all-male university.  The Supreme Court ruled that VMI’s male-only admissions policy violated the Fourteenth Amendment’s Equal Protection Clause.  In her majority opinion for the Court, Justice Ginsburg explained that for a state policy providing differential treatment on the basis of sex to survive Fourteenth Amendment scrutiny, the state must offer an “exceedingly persuasive justification.”  In the end, Justice Ginsburg concluded that Virginia’s attempts to justify VMI’s all-male admission policy failed such a test.  As a result, the Court ruled that women had a constitutional right to be admitted to VMI.

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Excerpt: Majority Opinion, Justice Ruth Bader Ginsburg

Virginia's public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree. . . .

Founded in 1839, VMI is today the sole single-sex school among Virginia's 15 public institutions of higher learning. VMI’s distinctive mission is to produce “citizen-soldiers,” men prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an “adversative method” modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. The school’s graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course.

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. . . . 

Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women. And the school’s impressive record in producing leaders has made admission desirable to some women. Nevertheless, Virginia has elected to preserve exclusively for men the advantages and opportunities a VMI education affords. . . .

In response to [a previous lower-court 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 “citizen-soldiers”--the VWIL program would differ, as does Mary Baldwin College, from VMI in academic offerings, methods of education, and financial resources. . . .

[T]he Task Force [establishing VWIL] determined that a military model would be “wholly inappropriate” for VWIL. VWIL students would participate in ROTC programs and a newly established, “largely ceremonial” Virginia Corps of Cadets, but the VWIL House would not have a military format, and VWIL would not require its students to eat meals together or to wear uniforms during the school day. In lieu of VMI’s adversative method, the VWIL Task Force favored “a cooperative method which reinforces self-esteem.” 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. 

Virginia represented that it will provide equal financial support for in-state VWIL students and VMI cadets and the VMI Foundation agreed to supply a $5.4625 million endowment for the VWIL program. . . . 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, but those graduates will not have the advantage afforded by a VMI degree. . . .

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,” the equal protection of the laws guaranteed by the Fourteenth Amendment? Second, if VMI's “unique” situation--as Virginia’s sole single-sex public institution of higher education-offends the Constitution’s equal protection principle, what is the remedial requirement? . . .

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.” Through a century plus three decades and more of that history, women did not count among voters composing “We the People”; not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any “basis in reason” could be conceived for the discrimination. 

In 1971 (in Reed v. Reed), 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. 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. Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court . . . has carefully inspected official action that closes a door or denies opportunity to women (or to men). To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential 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. 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.’” 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. 

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. 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.” 

“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,” to “promot[e] equal employment opportunity,” to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women. ...

A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.

Excerpt: Dissent, Justice Antonin Scalia

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 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]n 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.” The same applies . . . to a practice asserted to be in violation of the post-Civil War Fourteenth Amendment.

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. . . . [T]he 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-law.

And the same applies, more broadly, to single-sex education in general, which . . . is threatened by 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.” 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, 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. . . . 

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. . . . 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. . . .

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, “That single-gender education at the college level is beneficial to both sexes is a fact established in this case.” The evidence establishing that fact was overwhelming—indeed, “virtually uncontradicted” . . . .

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.” “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.” . . . 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 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,” and it was found by [the lower court] that if Virginia were to include women in VMI, the school “would eventually find it necessary to drop the adversative system altogether.” Thus, Virginia’s options were an adversative method that excludes women or no adversative method at all. . . .

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. It 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 all-male 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.” 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,”” (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 . . . show[s], 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. The sphere of self-government reserved to the people of the Republic is progressively narrowed. . . .

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 students (the so-called “rats”) were required to keep in their possession at all times. Near 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.

“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. 
 

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