United States v. Virginia, 518 U.S. 515 

Supreme Court of the United States

1996

Chapter

5

Title

Equality and the Constitution

Page

637

Topic

Heightened Scrutiny and the Problem of Gender

Quick Notes

Virginia had operated VMI, a prestigious military college, as a men-only institution since its founding in 1839. The school's purpose was and is to develop "citizen-soldiers." VMI was the only single-sex school in Virginia's. VMI is known for physical rigor, mental stress, absolute equality of treatment, absence of privacy, in a manner comparable to Marine Corps boot camp).  The U.S. sued Virginia VMI, alleging its men-only admissions policy violated the Equal Protection Clause of the Fourteenth Amendment.  Virginia argued that it would have to materially changed its distinctive methods if the school were made co-ed.  Instead, the state sought to create a less rigorous program for women at Mary Baldwin College.

Rule

o         State military schools offering boot-camp style training may not exclude women, even if they offer separate women only programs, unless they demonstrate an "exceedingly persuasive justification."

Application

o         Gender based distinctions must show exceedingly persuasive justification.

Holding

o         By a surprisingly broad 7-1 majority, the Court held that: (1) Virginia's policy of excluding women from VMI was a violation of women's equal protection rights; and (2) the program at Mary Baldwin College was not sufficiently comparable to the VMI program to redress the injury.

o         The MAJORITY said sex-based classifications would have to undergo "skeptical scrutiny," and would be upheld ONLY IF the state demonstrated an "exceedingly persuasive justification " for any gender-based governmental action.

o         An aspect of skeptical scrutiny is that a state "must describe actual state purposes, not rationalizations for actions in fact differently grounded."

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0

Issue

o         Whether the State can constitutionally deny to women the opportunities that VMI affords?

Procedure

Trial

o         Ruled in favor of VMI

Appellant

o         Reversed.  Neither the goal of producing citizen soldiers nor VMIs implementing methodology is inherently unsuitable to women.  It remanded the case back to the district court.  VMI came up with another remedy.

Supreme

o         Judgment reversed; Virginia failed to satisfy its burden of providing an exceedingly persuasive justification for its sex-based admissions policy or that the policy was substantially related to the achievement of those objectives

Facts

Discussion

Key Phrases

Rules

Pl -  United States

Df -  Virginia

Description

o         Virginia had operated VMI, a prestigious military college, as a men-only institution since its founding in 1839.

o         The school's purpose was and is to develop "citizen-soldiers." VMI was the only single-sex school in Virginia's.

o         VMI is known for physical rigor, mental stress, absolute equality of treatment, absence of privacy, in a manner comparable to Marine Corps boot camp). 

o         The U.S. sued Virginia VMI, alleging its men-only admissions policy violated the Equal Protection Clause of the Fourteenth Amendment.  

o         Virginia argued that it would have to materially changed its distinctive methods if the school were made co-ed. 

o         Instead, the state sought to create a less rigorous program for women at Mary Baldwin College.

District Court

o         Ruled in favor of VMI.

o         If women were admitted, aspects of the schools distinctive methods would have to change.

o    Person Privacy

o    Physical requirements

o    Adversative Environment

Court of Appeals

o         Reversed

o         Neither the goal of producing citizen soldiers nor VMIs implementing methodology is inherently unsuitable to women.

Virginia offers Womens Institute for leadership (VMIL).

o         Shares VMIs mission.

o         Different academic offerings, methods, and financial resources.

o         LSAT entrance is 100 points lower than VMI.

o         Only offered arts degree, but could obtain an engineering degree paying their own tuition.

o         Different adversative method, were they focused on reinforcing self-esteem.

o         District Court Approved Plan.

Justice Ginsburg

Section IV

Exceedingly Persuasive Justification

o         Parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action.

States Burden

o         The burden of justification, a State must show "at least that the [challenged] classification

1.  Serves 'important governmental objectives and
2. That the discriminatory means employed' are 'substantially related to the achievement of those objectives.'"
3. The justification must be genuine, not hypothesized or invented post hoc in response to litigation.
4. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.

Heightened Review Standard

o         The heightened review standard applicable to sex-based classifications does not make sex a proscribed [prohibited] classification.

When sex classifications can be used

o         Sex classifications may be used

1. To compensate women for particular economic disabilities [they have] suffered.
2. To promote equal employment opportunity.
3. To advance full development of the talent and capacities of our Nation's people.

When sex classifications CANNOT be used

o         But such classifications may not be used to create or perpetuate the legal, social, and economic inferiority of women.

Holding

o         We conclude that Virginia has shown no "exceedingly persuasive justification" for excluding all women from the citizen-soldier training afforded by VMI.

o         We therefore affirm the Fourth Circuit's initial judgment, which held that Virginia had violated the Fourteenth Amendment's Equal Protection Clause.

o         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.

Section V

Virginias Arg - single-sex education provides important educational benefits

o         First, the Commonwealth contends, "single-sex education provides important educational benefits," and the option of single-sex education contributes to "diversity in educational approaches.

Courts Response Categorical exclusion was not enact to diversify education

o         While single-sex education offers some pedagogical benefits, and diversity among public schools can be a public good, our precedents hold that "benign" justifications proffered to defend categorical exclusions will not be accepted automatically UNLESS  the state enacted the exclusion for that purpose.

o         Virginia has not shown VMI's policy was actually established to diversify educational opportunities.

Virginias Arg #2 VMIs adversative approach would have to change

o         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

Courts Response Some women would choose and meet current method

o         As for Virginia's contention that admitting women would require VMI to change its program radically, we find that some women would choose VMI's current method, and be capable of meeting VMI's current physical standards.

Not Exceeding persuasive self-fulfilling Prophecy

o         The notion that admitting women would downgrade VMI's stature and quality is a self-fulfilling prophecy, like those historically used to deny women rights and opportunities, and cannot rank as "exceedingly persuasive."

Section VI Virginias Separate Program

o         Virginia did not eliminate Plan.

o         Instead Virginia created a separate plan

Court Must remedy exclusionary policies

o         States which choose to retain exclusionary policies must propose a remedy "directly addressed and related to" the violation.

Court No opportunity to experience VMI training

o         Here, Virginia's proposed women's program offers no opportunity to experience the rigorous military training for which VMI is known, instead offering a "cooperative method" emphasizing self-esteem.

Concurring Chief Justice Rehnquist

o         Agrees with decision.

o         Disagrees with analysis.

Traditional Test To withstand a constitutional challenge (Craig v. Boren)

o         To withstand constitutional challenge, classifications by gender

1. Must serve important governmental objectives AND-
2. Must be substantially related to achievement of those objectives."

Introduction of another of an UNCERTAIN element

o         The majority adheres to this standard,

o         But also introduced the "exceedingly persuasive justification" standard, which adds uncertainty.

Not models of precision

o         Important governmental objective

o         Substantially related.

o         But they have more content than does the phrase exceedingly persuasive justification.

Section II

Adequate Remedy

o         Demonstrate that the two programs match.

o         An adequate remedy would be if the two institutions offered the same quality of education and were of the same overall calibre.

DISSENT Justice Scalia

Objection to majority's standard

o         Scalia objected first to the majority's choice of standard.

o         He claimed that while the majority admitted to having changed the traditional intermediate level of review, it was in fact substituting a new and improper "exceedingly persuasive justification" standard that contradicted the reasoning of the Court's prior gender cases.

o         In Scalia's view, this standard was an "unacknowledged adoption of what amounts to (at least) strict scrutiny."

Satisfies mid-level review

o         Scalia believed that operation of VMI as an all-male school satisfied mid-level review when that standard was properly applied.

o         The state had an important interest in achieving the educational diversity provided by single-sex colleges.

o         And when Virginia elected to have an all-male school that used the adversative model (VMI) and an all-female school that used the cooperative model (the new Mary Baldwin program), it had selected a strategy that was "substantially related" to the achievement of that interest in diversity.

End of single-sex public education

o         Scalia said that the majority's approach "ensures that single-sex public education is functionally dead."

o         In fact, he said, this approach even endangered private single-sex colleges, since the government's furnishing of all-important financial assistance (e.g., tax deductions for private donations) might be held to be state action in support of discrimination, as it had been in cases involving private racially-discriminatory colleges

Rules

Rule

o         State military schools offering boot-camp style training may not exclude women, even if they offer separate women only programs, unless they demonstrate an "exceedingly persuasive justification."

Application

o         Gender based distinctions must show exceedingly persuasive justification.

Class Notes