United States v. Virgina: Skeptical scrutiny and the future of gender discrimination law

St. John's Law Review, Fall 1996 by Gleason, Christina

The legal war between the sexes dates back to the origin of our country and its common law legal system which promoted the idea of treating men and women differently.l Over the last twenty-five years, United States Supreme Court decisions have continually challenged the traditional notion that women, based solely on their gender, were not entitled to the same rights and liberties as men.2 Through the extension of equal protection guarantees,3 the nation's highest court has struck down many of the legal bases for gender discrimination.4 This jurisprudential shift5 continually forces the courts and legislatures to closely examine the equal protection ramifications of policies in order to ensure that laws, by policy or practice, do not discriminate on the basis of gender.6

Founded in 1839, the Virginia Military Institute ("VMI") was the only single-sex public college in Virginia and the last statefunded, all-male military institution in the country.7 The institution's original objective was to turn young men into citizensoldiers.8 VMI's admissions policy reflected the all-male status of the armed forces at the time of the school's inception.9 Despite the integration of women into the armed forces and other public colleges in Virginia, the Board of Visitors, VMI's equivalent of a Board of Trustees, continued to retain an all-male Corp of Cadets.l0 The desire of the Board of Visitors to retain its all-male admissions policy led to a head-on clash between the Supreme Court's interpretation of the Equal Protection Clause and a state's power to fund single-sex colleges. The battle ended with the Supreme Court's ruling in United States v. Virginia11 that the Board of Visitors' all-male admissions policy violated the Equal Protection Clause12 and that the proposed remedy-the Virginia Women's Leadership Institute ("VWIL") at Mary Baldwin College, did not remedy the constitutional violation.l3 On September 21, 1996, the Board of Visitors of VMI voted to admit women cadets into the class of 2001, upending 157 years of an all-male admissions policy.l4

Responding to a complaint filed by a female high school student interested in attending VMI, the United States brought suit against the Commonwealth of Virginia, VMI, the school's president, its superintendent, and the Board of Visitors, seeking to force the end of VMI's all-male admissions policy.l5 The Supreme Court decided two critical issues: whether VMI's admission policy violated the Equal Protection Clause, and whether the creation of the WIL remedied the alleged violation.16In a 7-1 decision,l7 the Supreme Court affirmed the United States Court of Appeals for the Fourth Circuit's decision holding that VMI's admissions policy violated equal protection guarantees,18 but reversed the lower court's decision, finding that the VWIL program remedied the constitutional violation.19

Justice Ginsburg, writing for the Court, stated that VMI failed to show an "exceedingly pervasive justification" for excluding women from the Corp of Cadets, thus, the all-male admissions policy violated the Constitution's Equal Protection Clause.20

According to Justice Ginsburg, in order to meet the skeptical scrutiny standard21 and its "exceedingly pervasive justification" burden, a state must show "at least that the [gender based] classification serves `important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.'"22

In examining the validity of the VWIL as an appropriate remedy, Justice Ginsburg stated that "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."23 The Court, applying the skeptical scrutiny test, found that the only viable solutions to remedy the constitutional violation were either the admission of women into the Corp of Cadets or the conversion of VMI into a private institution.24

Writing in concurrence, Chief Justice Rehnquist stated that the holding was justified because the Commomwealth and VMI should have taken actions much sooner to conform with the equal protection guarantees laid out in 1982 25 in Mississippi University for Women v. Hogan.26 He did not, however, favor the creation of a new test in the area of sex discrimination.27 Chief Justice Rehnquist argued that the "skeptical scrutiny test" is even more complex and confusing than the original intermediate scrutiny test.28

Justice Scalia served as the sole dissent in support of the "history of our people" and the tradition of single-sex education.29 Justice Scalia argued that despite the language borrowed from the Court's prior decisions, Justice Ginsburg redefined the intermediate scrutiny standard so as to make it indistinguishable from the strict scrutiny test.3o Justice Scalia further argued that the majority created the skeptical scrutiny test because VMI's admissions policy would not have violated the intermediate scrutiny standard as applied in prior decisions.31Justice Scalia contended that the Court, in the process of ensuring that women could attend VMI, has made it nearly impossible for government to sponsor single-sex education on any level.32