Wednesday Writs: VMI Goes Co-Ed Edition

L1: The Virginia Military Institute is a notoriously rigorous academy meant to teach its students to endure and overcome mental and physical stress through an intense program of structure and discipline . Students lived in barracks with no privacy and constant supervision, subject to “boot camp” style treatment from faculty and upperclassmen, with the intent of turning out exemplary leaders and “citizen soldiers.” Those who successfully completed the so-called “adversative model of education” and possessed a degree from VMI enjoyed a reputation as having proven themselves thoroughly capable, disciplined, and hard working. This provided the VMI graduate an advantage in employment prospects- one that was foreclosed to women.

By 1990, VMI was the only all-male public university in Virginia. A female high school grad with dreams of becoming a VMI cadet filed a complaint with the US Attorney General over her exclusion from the college, prompting the federal government to sue the Commonwealth of Virginia and VMI itself for violation of the Fourteenth Amendment Clause’s Equal Protection guarantee. After a week-long trial in federal District Court, the Court recognized in its ruling that 1) enough women had expressed interest in attending VMI to make up 10% of its student body, 2)at least some women were capable of meeting the school’s rigorous demands, and 3)the addition of women to the program would enhance training in that it would provide experience in leading a “mixed-gender army.”

Nevertheless, the Court ruled in favor of the Commonwealth and the school, rejecting the Equal Protection claim. The Court cited the closest analogous case, Mississippi University for Women v. Hogan, in which a male student sued over his denial of admission to a state women’s nursing school. The Supreme Court held in Mississippi that the same level of scrutiny was applicable to cases in which men complained of discrimination as woman: that there must exist “exceedingly persuasive justification.” However, the court felt that the Commonwealth and VMI had met that burden.

Yes, the District Court said, VMI does offer a unique education regimen that is not available to women, but admitting women would require adjustments that would change or diminish the program (this based on privacy concerns as well as the trial court’s notion that the adversative model, for some reason, would have to be changed for women.)

The US appealed to the Fourth Circuit Court of Appeals, which vacated the trial court’s ruling. The Appeals Court accepted the lower court’s findings that aspects of the VMI program would be altered if women were permitted to attend; however, it did not find that reasoning persuasive enough to justify discrimination. On remand, the Court advised the state to consider either creating a similar program for women or withdrawing all public funding from the school.

The Commonwealth chose the former and proposed the Virginia Women’s Institute for Leadership at Mary Baldwin College, a private liberal arts school. But the proposed new program differed vastly from VMI, in areas from degrees and programs offered to the credentials of faculty. Most importantly, the task force created to design the new program concluded that the military model of education, such as that of VMI, was “wholly inappropriate” for women. There would be no uniforms, no required communal meals, and an emphasis on self-esteem building rather than the “wear them down and rebuild” approach favored at VMI.

In short, it was nothing like VMI. However, the District Court approved the plan when brought before the Court for review, finding that it satisfied the Equal Protection requirements. In finding the programs close enough for government work, the Court said “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.”

The federal government again appealed. This time, the Fourth Circuit reacted more favorably to the commonwealth and VMI. The Court found the VMI and VWIL programs “sufficiently comparable.” The government then appealed to the Supreme Court of the United States, resulting in our case of the week, United States v. Virginia, the first discrimination case in which Ginsburg authored the majority opinion since joining the Supreme Court.

Her majority opinion was 7-1, with Justice Scalia dissenting. Justice Thomas did not participate, as his son was a cadet at VMI at that time. Ginsburg began by acknowledging the “exceedingly persuasive justification” standard espoused in Mississippi Univ. School of Nursing v. Hogan case of 1982, which was authored by Justice O’Connor. She summarized the standard:

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.

Ginsburg acknowledged that while the Court has made clear that “inherent differences” could not be used as a basis for treating individuals differently based on race or ethnicity, physical differences between men and women must be recognized:

‘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.

The respondents argued that the offering of single-sex education served to enhance the “diversity” of educational offerings. The Majority admits that single-sex education has benefits for some students; however, the Court notes that there is no evidence that this was the reason for VMI’s policy of exclusivity; no retrofitted “diversity” justification was going to suffice here. VMI was established in 1839, at a time when higher education was considered dangerous for women. Nothing in the history of the Commonwealth’s evolution from no higher ed for women, to subpar higher ed for women, to the sex integration of all but one of its public colleges, led to the conclusion that VMI’s single sex determination was meant to promote diversity. Wrote Ginsburg plainly, “However “liberally” this plan serves the Commonwealth’s sons, it makes no provision whatever for her daughters. That is not equal protection.”

The next argument proffered by VMI and Virginia was that its adversative education model could not be afforded to women without requiring “drastic” changes that would “destroy” the program. These changes, they argued, would take an opportunity away from men, and change it to such degree that it would no longer be of novel benefit for women, either. But this argument was based on assumptions about the “tendencies” of the sexes, despite a general agreement that there were undoubtedly some women who could be successful in the traditional VMI program. The majority opinion rejected this justification outright:

“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’… 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 banc, it is also probable that ‘many men would not want to be educated in such an environment.’

Ginsburg next discussed the proposed remedy of the WVIL program. A remedy must leave those who were discriminated against in the position they would have been in if the discrimination had not occurred. To analyze, the Court considers the significant features of VMI and the differences between the two programs. Notably, WVIL was not deemed a “military academy” by the state; the WVIL program would “de-emphasize” the military aspect in favor of a “cooperative” approach. There was no “barracks life”, which is so central to the VMI program. “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.” The Commonwealth attempted to justify the differences by once again turning to the opinion of experts, that the adversative training style would not do for “most” women, nor be effective for training a group of women. Justice Ginsburg again derides the incorporation of an idea about “the way women are” in the crafting of a remedy here. As an example, the school argued that VMI’s militaristic was less suited to women than WVIL program in part because WVIL was “planned for women who do not necessarily expect to pursue military careers,” an interesting argument give that less than 15% of VMI graduates at the time went on to military careers themselves.

The benefits of completing the WVIL program would pale in comparison to those of VMI, the opinion states. To society and especially to employers, a degree from VMI would undoubtedly hold more prestige and create more opportunities than a degree from Mary Baldwin College, which is what WVIL graduates would have.

Virginia, in sum, while maintaining VMI for men only, has failed to provide any “comparable single-gender women’s institution.” Instead, the Commonwealth has created a VWIL program fairly appraised as a “pale shadow” of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence.

The majority opinion compared the proposed “remedy” with that proposed by the state of Texas in its creation of a separate law school for black students in 1950’s Sweatt v Painter, which lacked full time faculty, a library, and accreditation. Like Texas in the Court’s opinion in Sweatt, Virginia had failed to show substantial equality in its educational offering to woman.

Chief Justice Rehnquist concurred in the judgment, writing to explain that while he agreed with the outcome, he disagreed with how the majority got there. He felt that the “exceedingly persuasive justification” brought uncertainty to the analysis, preferring the simpler test of whether or not the complained-of government action or police was substantially related to an important government interest. He further explained that had Virginia created a program more similar to VMI than the proposed VWIL program, they likely could have survived an equal protection challenge.

Antonin Scalia wrote a lengthy and blunt dissent, as was his way. He began forcefully:

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.

Like Rehnquist, he disagreed with the majority’s scrutiny analysis. He found it too strident and closer to strict scrutiny than intermediate, which was the prevailing standard (based on precedent set in 1976 in Craig v. Boren, argued by Justice Ginsburg.) He goes on to chastise the majority for its criticism of the close-mindedness of our ancestors, who, though he concedes were wrong in their ideas about the abilities of women, ” 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 counter majoritarian preferences of the society’s law-trained elite) into our Basic Law.”

He disagreed with the majority’s finding that no overriding government interest was served by the prohibition of female cadets at VMI. Moreover, Scalia thought the decision threatened the very existence of any and all co-ed colleges. Such a change, he thought, was better achieved, if at all, gradually through the Democratic process; for the Court to impose the change was akin to writing into the constitution.

Ginsburg would later relate that Scalia gave her a copy of his dissent, which was nearly as long as the majority, as soon as he could, so that she could incorporate and respond to his objections in her opinion. “He absolutely ruined my weekend,” she said, “but my opinion is ever so much better because of his stinging dissent.

L2: In the wake of Ginsburg’s death, discussion has increased about court packing. Why do we have nine justices, anyway?

L3: Education Secretary Betsy DeVos is the subject of an investigation into whether she violated the Hatch Act when her department circulated a video criticizing Joe Biden. The video, which was a clip of DeVos on Fox News calling Biden’s education plans “shameful”, was sent to DOE employees under the subject “Important Updates from U.S. Department of Education Secretary Betsy DeVos.”

L4: Ohio State’s failure to disclose documents related to sexual abuse allegations to one of the men accusing an OSU doctor of abuse was a violation of state record laws, according to a court reviewer.

L5: The University of Arizona is considering legal action if students continue to gather in groups in violation of the school’s Covid-19 guidance. The current recommendations are voluntary, but that may change if the number of cases go up.

L6: In a story we have heard one time too many, two fertility doctors are accused of fathering the children of women who came to their clinics for IVF, against those patients’ wishes.

L7: In a case of “urban piracy,” a Minnesota man who stole a houseboat and floated up the Mississippi River claims he had the right to do so, “under Maritime law”.