The future of single-sex education - Virginia Military Institute case

USA Today (Society for the Advancement of Education), Jan, 1997 by D. Grier Stephenson, Jr.

VWIL would have a mission similar to VMI's: education, military training, mental and physical discipline, and character and leadership development. Educationally, VWIL would differ most noticeably from VMI in the absence of on-site engineering courses that would be available only through arrangements with distant campuses. In other respects, VWIL would reject the military life pervasive at VMI and instead address emotional needs deemed common to most women. There would be no adversative method - no barracks routine and no rat line - because they were thought ineffective for most women. In place of the negatives of adversity and de privation would be the positives of nurture and development. In place of a regimen to deconstruct male egos would be an environment to reconstruct the esteem of women - all with the objective of cultivating qualities of leadership.

VWIL was unacceptable to the Justice Department. Because it differed substantially from what was available at VMI, it was unequal as well as separate. Women had no access to VMI's unique educational methodology Moreover, the government argued that the Mary Baldwin alternative relied "on false stereotypes and generalizations that women are not tough enough to succeed" at VMI. VWIL would have none of the VMI tradition. Indeed, that would be impossible. Moreover, graduates of VWIL would not have the connections and contacts accruing to graduates of VMI, at least not for a while. In other words, women still would not be able to partake of what made VMI unique.

In April, 1994, over those objections, the district court approved the VWIL alternative. A state-supported, single-sex military education now would be available for both men and women as part of Virginia's system of higher education. The court acknowledged that VWIL "differs substantially from the VMI program," but found the differences to be justified because of the different needs of men and women.

The appeals court faced a situation different from its first encounter with VMI. It also was a situation different from the Supreme Court's encounter with Mississippi University for Women. Thus, the appeals court modified the Supreme Court's standard from the 1982 MUW decision in order to evaluate the VMI/VWIL options. To the usual requirements for heightened scrutiny, the appeals court stipulated a third: the programs and opportunities had to be "substantively comparable," a measure that two members of the Fourth Circuit's three-judge panel concluded in January, 1995, that the state had satisfied.

A brand-new Court

When the case reached the Supreme Court months later, attorneys for both sides knew that the makeup of the Court had changed greatly since 1982. Of the justices who took part in the MUW case, just three remained: Chief Justice William Rehnquist and Justices John Paul Stevens and O'Connor. Of these, Stevens and O'Connor had voted against MUM. The others - Antonin Scalia, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer - would be heard for the first time on this issue. (Clarence Thomas took no part in the case because his son is a student at VMI.)