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.

Counsel also knew that the Court's decision probably would be influenced by its perception of VMI and VWIL. Figuratively, the Court had a choice of viewing the case through one or the other of two pairs of eye-glasses. One pair focused on the process that defines an education at VMI. The educational program there was designed to develop leadership qualities in a very limited number of people, all of whom were men. Clearly, most 18-year-olds are not suited for VMI, but just as clearly, some are, and thus thrive precisely because of the stress and deprivations that make the school what it is. For this reason, VWIL at Mary Baldwin would not be a copy of VMI. Rather, with the parallel objective of developing leadership qualities in women, VWIL would be defined by those things which are more likely to succeed with women, just as VMI was defined by those things more likely to succeed with men. Considered in this way, VWIL would be a constitutionally acceptable alternative to a VMI open to both sexes, and VMI would be allowed to retain its single-sex status.

Perhaps to counter this perspective, the Justice Department tried to convince the Court that distinctions based on sex should be judged under the more rigorous standard of "strict scrutiny" and therefore as unacceptable as distinctions based on race. It was Ruth Bader Ginsburg, then an attorney, who unsuccessfully pressed that same point in a case the Court decided in 1973. Now, the Clinton Administration hoped that Justice Ginsburg would help to make the VMI case a vehicle to do what the Supreme Court had failed to do 23 years before.

In a majority opinion written, ironically, by Ginsburg, the Court declined the Justice Department's invitation, but ruled against VMI nonetheless. Short of upsetting its narrowly decided holding in the nursing school case, the Court hardly could have done otherwise.

With only Scalia dissenting, the Court selected the other pair of glasses, centering at tention not on the process, but on the product of a VMI education. If all the things that define VMI are of value because of the superior graduate who emerges, then the case presented a plain denial of benefits to a class of people because of their sex. The state could not constitutionally deny half the population of prospective college students the opportunity to compete for the chance to be that superior graduate. "A purpose genuinely to advance an array of educational options is not served by VMI's historic and constant plan to afford a unique education benefit only to males," Ginsburg declared.

Left open was the possibility that a different VWIL might have made the grade. "The VWIL program," she wrote, "is a pale shadow of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence." That possibility is remote at best. It is mind-boggling to consider the risk and the resources necessary to convert a "pale shadow" into the real thing.

With the end of VNH's six-year war, what difference will the decision make. It clearly is important to VMI and its alumni, prospective students of both sexes, those intensely interested either in preserving or demolishing male bastions, and those concerned with sexual equality generally. However, the actual number of states and institutions that directly are affected by the ruling is exactly two - VMI and South Carolina's The Citadel. (The latter acceded to the decision and will admit longer reach.