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

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

Equal Protection Clause, the court suggested that VMI could retain their tradition of a male-only Corp of Cadets if the Commonwealth offered a comparable military program for women. United States v. Virginia (VMI I), 976 F.2d at 900 ('[The Commonwealth might properly decide to admit women to VMI and adjust the program to implement that choice, or it might establish parallel institutions or parallel programs, or it might abandon state support of VMI, leaving VMI the option to pursue its own policies as a private institution."), aff'd, 116 S. Ct. 2264 (1996). The Commonwealth responded by establishing the first state-run, all women's military program, the Virginia Women's Leadership Institute on the campus of Mary Baldwin College. See Soderberg, supra note 8, at 441-45 (comparing qualities of VMI with its female counterpart VWIL); see also Juliette Kayyem, The Search for Citizen-Soldiers: Female Cadets and the Campaign Against the Virginia Military Institute, 30 HARV. C.R.-C.L. L. REV. 247, 259-61 (1995) (examining court decisions on VWIL as remedy of constitutional violations). The United States challenged the validity of the VWIL as a proper remedy for VMI's constitutional violation, taking the position that the only way a parallel program could remedy the equal protection violations caused by VMI's admissions policy was only if the program was, in all re

spects, a mirror image of VMI. United States v. Virginia (VMI II), 852 F. Supp. 471, 473 (W.D. Va. 1994) (holding that proposed VWIL program served as adequate remedy to constitutional violations in VMI I), affd, 44 F.3d 1229 (4th Cir. 1995), rev'd, 116 S. Ct. 2264 (1996); see Amstein, supra note 7, at 70-71 (reciting history of VMI litigation before Judge Kiser's decision on VWIL program).

Differences between VMI and VWIL cited by the United States included: differences in academic degrees offered, differences in the qualification of faculty, differences in residential life requirements, and differences in the level of military training. See United States v. Virginia, 116 S. Ct. 2264, 2284 (1996); see also Kayyem, supra, at 260-61 (discussing view of district court concerning differences in academic offerings, residential life and military training pointed out by United States).

District Judge Kiser heard the case on remand and ruled in favor of the Commonwealth and VMI, finding that as long as the goal of producing "citizen-soldiers" was the same for both institutions, the means of achieving the goal did not have to be identical. Concluding, Judge Kiser wrote, "[i]f 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." United States v. Virginia (VMI II), 852 F. Supp. at 484.

The United States appealed again to the Fourth Circuit, but this time the Court of Appeals upheld the lower court's ruling, based in part on a special intermediate scrutiny test:

the alternatives left available to each gender by a classification based on a homogeneity of gender need not be the same, but they must be substantively comparable so that ... we cannot conclude that the value of the benefits provided ... to one gender tends, by comparison to the benefits provided to the other, to lessen the dignity, respect, or sccietal regard of the other gender.