[*] First Lieutenant, USMCR. The author would like to thank his fiancee, Jeanette Watkins, for moral support and patience, and Lieutenant Colonel David Francis, USMC, for the motivation to write this Comment. The views expressed herein are solely those of the author and should not be construed as representing the views of the United States Marine Corps, nor any other branch of the U.S. Armed Services. Return to text.

[1] Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 734 (1982) (Blackmun, J., dissenting). Return to text.

[2] Jenness v. Fortson, 403 U.S. 431, 442 (1971) (Stewart, J., writing for the majority). Return to text.

[3] The Virginia Military Institute (VMI) is located in Lexington, Virginia and is state-funded. See United States v. Virginia, 766 F. Supp. 1407 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993) [hereinafter VMI I]. Return to text.

[4] The Citadel is located in Charleston, South Carolina and is funded by the state. See Faulkner v. Jones, 10 F.3d 226 (4th Cir. 1993), mandamus denied, 14 F.3d 3 (4th Cir.), stay vacated by 114 S. Ct. 872 (1994) [hereinafter Faulkner I]. Return to text.

[5] VMI I, 766 F. Supp. at 1408. Return to text.

[6] Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6 (1995), permits the United States to bring actions on behalf of civil rights plaintiffs to remedy violations of the Constitution or federal statutes. See VMI I, 766 F. Supp. at 1408. Return to text.

[7] VMI I, 976 F.2d 890, 895 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). Return to text.

[8] See Faulkner I, 10 F.3d at 229 n.1 (Faulkner wanted to be "considered on the merits."). Return to text.

[9] Id. at 229. Return to text.

[10] Id. Return to text.

[11] Id. (Faulkner's "motion did not request that she be admitted to the corps of cadets."). Return to text.

[12] VMI I, 766 F. Supp. 1407 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). Return to text.

[13] Faulkner I, 10 F.3d 226 (4th Cir. 1993), mandamus denied, 14 F.3d 3 (4th Cir.), stay vacated by 114 S. Ct. 872 (1994) (upholding preliminary injunc tion granted by the District Court for the District of South Carolina); Faulkner v. Jones, 858 F. Supp. 552 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995) (trial and appeal on merits of equal protection claim) [hereinafter Faulkner II]. Return to text.

[14] VMI I, 766 F. Supp. at 1407. Return to text.

[15] United States v. Virginia, 852 F. Supp. 471 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995) [hereinafter VMI II]. Return to text.

[16] VMI II, 44 F.3d at 1229. Return to text.

[17] Interview with Steven G. Gey, Professor of Constitutional Law at the Florida State University College of Law, in Tallahassee, Fla. (Feb. 15, 1995).

The Supreme Court considered granting certiorari to VMI I but did not do so because the case was procedurally incomplete. Justice Scalia wrote a separate opinion underscoring his belief that the issues in VMI I deserved the attention of the Court. He stated, "Whether it is constitu tional for a state to have a men-only military school is an issue that should receive the attention of this Court before, rather than after a national institution as venerable as the Virginia Military Institute is compelled to transform itself." VMI I, 113 S. Ct. at 243. Return to text.

[18] VMI II, 116 S. Ct. 281 (1995). Return to text.

[19] Faulkner II, 116 S. Ct. 331 (1995) (dismissing certiorari); Faulkner II, 116 S. Ct. 352 (1995) (denying certiorari). Return to text.

[20] See generally Daniel Gardenswartz, Comment, Public Education: An Inner-City Crisis! Single-Sex Schools: An Inner-City Answer?, 42 EMORY L.J. 591 (1993); Brian S. Yablonski, Comment, Marching to the Beat of a Different Drummer: The Case of the Virginia Military Institute, 47 U. MIAMI L. REV. 1449 (1993); Douglas W. Kmiec, Rule of Single-Sex Schools Aren't Unconstitu tional, WALL ST. J., Oct. 14, 1992, at A15. Return to text.

[21] See infra notes 327-48 and accompanying text. Return to text.

[22] VMI I, 766 F. Supp. 1407 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993); VMI II, 852 F. Supp. 471 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[23] Faulkner I, 10 F.3d 226 (4th Cir. 1993), mandamus denied, 14 F.3d 3 (4th Cir.), stay vacated by 114 S. Ct. 872 (1994); Faulkner II, 858 F. Supp. 552 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995). Return to text.

[24] HARRY F. BYRD, JR., THE VIRGINIA MILITARY INSTITUTE: IN PEACE A GLORIOUS ASSET, IN WAR A TOWER OF STRENGTH 8-9 (1984). Return to text.

[25] Yablonski, supra note 20, at 1451. Return to text.

[26] General Stonewall Jackson is one of the most beloved figures in Southern culture. He bedeviled numerous Union generals by repeatedly routing the numerically superior Army of the Potomac in the Shenandoah Valley. See ALLEN R. MILLETT & PETER MASLOWSKI, FOR THE COMMON DEFENSE: A MILITARY HISTORY OF THE UNITED STATES OF AMERICA 193-99 (1984). Every morning the cadets of VMI render a salute to the bronze statue of Stonewall Jackson that stands in the center of the campus. See Yablonski, supra note 20, at 1451. Return to text.

[27] Yablonski, supra note 20, at 1451. General Marshall was the top general in the United States Army during World War II and orchestrated the postwar rebuilding of Europe pursuant to his "Marshall Plan." Id. He won the Nobel Peace Prize for his efforts. Id. Return to text.

[28] VMI I, 976 F.2d 890, 892 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). Return to text.

[29] THE CITADEL, AN OVERVIEW OF THE CITADEL: THE MILITARY COL LEGE OF SOUTH CAROLINA (1994) [hereinafter OVERVIEW OF THE CITADEL]. Fearing an invasion by the British in the summer of 1780, the residents of Charleston, South Carolina constructed a large rampart to protect the city. Id. Charleston residents named the rampart "The Citadel" because of its imposing image. The city never fell to the British, and The Citadel remained standing. Id. Return to text.

[30] THE GUIDON: 1994-1995 33 (Kirby R. Baker ed., 1994) [hereinafter THE GUIDON]. Return to text.

[31] Id. Return to text.

[32] See id. at 34-35. Return to text.

[33] Id. Return to text.

[34] Id. The cannons were directed at a Union supply ship, the "Star of the West," which was en route to supply the Union outpost at Fort Sumter. Id. Under heavy fire, the vessel turned about and put out to sea. Fort Sumter fell shortly thereafter. Id. Return to text.

[35] Id. at 35. Return to text.

[36] Id. The defense of Savannah was no small task. As one of the most successful Union generals, General Sherman's reputation for ruthlessness preceded him. He was responsible for the burning of Atlanta and for cutting a swath of "scorched earth" across the heart of the Confederacy. See RUSSELL F. WEIGLEY, THE AMERICAN WAY OF WAR: A HISTORY OF U.S. MILITARY STRATEGY AND POLICY 150-152 (1973). Return to text.

[37] See THE GUIDON, supra note 30, at 33-45. Return to text.

[38] Consider the story of Citadel Admission Officer Jeff Cole. Cole graduated with honors from The Citadel in the spring of 1994. He spent his first semesters of college at a coeducational institution in South Carolina. He enjoyed the social aspects of the coeducational university but felt that he was making insufficient academic progress. Lacking direction and personal discipline, Cole transferred to The Citadel in the hope of finding that direction. Cole survived the grueling first-year cadet indoctrination and eventually graduated as an Honor Cadet from The Citadel. He credits The Citadel's strict single-gender environment with helping him to find personal direction and academic focus. Telephone Interview with Jeff Cole, Admission Officer, The Citadel (January 20, 1995) [hereinafter Cole Interview]. Return to text.

[39] See VMI I, 766 F. Supp. 1407, 1426 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). Return to text.

[40] Id. Return to text.

[41] See OVERVIEW OF THE CITADEL, supra note 29. At The Citadel, the overall graduation rate among cadets is 37% higher than the U.S. average. Id. Among African-American cadets, the graduation rate is 135% higher than the national average. Id. Return to text.

[42] See VMI I, 766 F. Supp. at 1412-15; Faulkner I, 10 F.3d 226 (4th Cir. 1993), mandamus denied, 14 F.3d 3 (4th Cir.), stay vacated by 114 S. Ct. 872 (1994). Return to text.

[43] VMI I, 766 F. Supp. at 1426. Return to text.

[44] Faulkner I, 10 F.3d at 229. Return to text.

[45] VMI I, 766 F. Supp. 1407, 1421 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993) (emphasis added).

Being punished or rewarded for the sins or accomplishments of brother rats, as well as for one's own, builds a sense of class solidarity in addition to individual responsibility. The rat line is sufficiently rigorous and stressful that those who complete it feel both a sense of accomplishment and a bonding to their fellow sufferers and former tormentors.
Id. at 1422.
At The Citadel, each cadet participates in the full rigors of barracks life—learning, training and developing through drills, formations, parades, inspections, studies, sports and even meals. Every cadet enters The Citadel on a basis of absolute equality with all others. Every cadet's success is based on his own performance and achievement. The system is demanding; it is tough; and it is pervasive; but it is fair.
See also OVERVIEW OF THE CITADEL, supra note 29. Return to text.

[46] See VMI II, 44 F.3d 1229, 1234-35 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[47] See VMI I, 766 F. Supp. at 1421. Return to text.

[48] Id. at 1422. Return to text.

[49] Cadets gain rank and acquire greater privileges as they progress academically. Id. at 1422-23; THE GUIDON, supra note 30, at 171. However, every entering cadet, whether a freshman or transfer sophomore, starts at the very bottom of the cadet social structure and must work his way up through merit and self-achievement. Id. Return to text.

[50] VMI I, 976 F.2d 890, 893 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). Return to text.

[51] See Faulkner II, 858 F. Supp. 552, 554 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995). Return to text.

[52] VMI I, 766 F. Supp. 1407, 1422 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993) (citation omitted). At The Citadel, the entering cadet is called a "knob." See THE GUIDON, supra note 30, at 152-67. Return to text.

[53] VMI I, 766 F. Supp. at 1422. Return to text.

[54] Id. at 1421 ("The VMI experience is predicated on the importance of creating doubt about previous beliefs and experiences in order to create a mindset conducive to the values VMI attempts to impart."); THE GUIDON, supra note 30, at 167.

The Citadel is an institution of higher learning, to mold our minds, morals, and bodies so that we may be fit officers and better civilians of our country. More than that, however, it is a fortress of duty . . . a towering bulwark of rigid discipline, instilling within us high ideals, honor, uprightness, loyalty, patriotism, obedience, initiative, leadership, professional knowl edge, and pride in achievement.
THE GUIDON, supra note 30, at 167 (emphasis added). Return to text.

[55] VMI I, 766 F. Supp. at 1421-22. Return to text.

[56] Id. at 1423; Cole Interview, supra note 38. Return to text.

[57] VMI I, 766 F. Supp. at 1424. This is particularly the case at VMI. The barracks at VMI consist of a four-story, neo-gothic building that houses all 1,300 cadets. Id. The barracks are stark and poorly ventilated—an atmosphere designed to induce stress. Id. Each class is assigned one floor, with the freshmen on the top (and most visible) floor. Id. A freshman cadet on the top floor cannot go to the bathroom or take a shower without being observed by everyone in that quadrangle on all levels. Id. Cadets are generally housed four to a room. Id. The arrangement of the barracks places each cadet under the constant scrutiny of his peers and superiors and allows for minute regulation of behavior. Id. Return to text.

[58] Cole Interview, supra note 38. Return to text.

[59] VMI I, 766 F. Supp. at 1422. Return to text.

[60] After admitting women in 1976, the Army Academy at West Point modified basic training to break it into groups according to ability. Absolute equality of treatment was replaced with fairness. Id. at 1439. Return to text.

[61] Id. Return to text.

[62] U.S. CONST. amend. XIV, § 1. ("No state shall . . . deny to any person within its jurisdiction the equal protection of the laws."). The Citadel and VMI, as publicly funded universities, are considered "state actors" and are accordingly subject to scrutiny under the Equal Protection Clause. See Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 343-44 (1938) (holding that Missouri University curators were state actors). Return to text.

[63] See Faulkner I, 10 F.3d 226, 230 (4th Cir. 1993), mandamus denied, 14 F.3d 3 (4th Cir.), stay vacated by 114 S. Ct. 872 (1994). Return to text.

[64] Id. Return to text.

[65] Id.; see also Jenness v. Fortson, 403 U.S. 431, 442 (1971) ("Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike."). Return to text.

[66] Faulkner I, 10 F.3d at 230. Return to text.

[67] See Rostker v. Goldberg, 453 U.S. 57 (1981) (holding that a law requiring only men to register for the draft did not violate the Due Process Clause of the Fifth Amendment). Return to text.

[68] New Orleans v. Dukes, 427 U.S. 297, 303 (1976). The "rational relationship" test is the equal protection default position and is highly deferential to the governmental regulation in question. Id. Classifications defined by economic factors generally fall under "rational relationship" review. Id. Return to text.

[69] Faulkner I, 10 F.3d at 230-31. Return to text.

[70] See, e.g., Palmore v. Sidoti, 466 U.S. 429, 432-33 (1984). Return to text.

[71] Id. Return to text.

[72] Id. Return to text.

[73] Id. Return to text.

[74] See, e.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Palmore v. Sidoti, 466 U.S. 429 (1984); see also Jon A. Soderberg, VMI Essays—The Virginia Military Institute and the Equal Protection Clause: A Factual and Legal Introduction, 50 WASH. & LEE L. REV. 15, 21 n.25 (1993). Return to text.

[75] Soderberg, supra note 74, at 21. Return to text.

[76] Michael M. v. Superior Court, 450 U.S. 464, 468 (1980). Return to text.

[77] Faulkner I, 10 F.3d 226, 231 (4th Cir. 1993), mandamus denied, 14 F.3d 3 (4th Cir.), stay vacated by 114 S. Ct. 872 (1994). Return to text.

[78] 450 U.S. at 478 (Stewart, J., concurring). Return to text.

[79] Id. (emphasis added). Return to text.

[80] See Craig v. Boren, 429 U.S. 190, 221 (1976) (Rehnquist, J., dissenting) ("[T]he phrases used [in "intermediate scrutiny" review] are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation masquerading as judgments."). See also Michael M., 450 U.S. at 468 ("As is evident from our opinions, the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classification."). Return to text.

[81] 404 U.S. 71 (1971); see also Yablonski, supra note 20, at 1455. Return to text.

[82] Reed, 404 U.S. at 73-74. Return to text.

[83] Id. at 76. Return to text.

[84] Id. Return to text.

[85] Id. The Reed Court found that increasing efficiency in probate matters "is not without some legitimacy." Id. Thus, under a true "rational basis" review, the Idaho statute probably would have passed constitutional muster. Hoyt v. Florida, 368 U.S. 57 (1961) (upholding different jury duty standards for women and men using a "rational relationship" test). Return to text.

[86] 411 U.S. 677 (1973). Return to text.

[87] Id. at 680. Return to text.

[88] Id. at 686-87. The concurrence of Justice Bradley in Bradwell v. Illinois, 16 Wall. 130 (1872), illustrates with great force the "romantic paternalism" that Justice Brennan found objectionable:

Man is, or should be woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.
Id. at 684-85. Return to text.

[89] See id. at 688. Return to text.

[90] See, e.g., Michael M. v. Superior Court, 450 U.S. 464, 468 (1980) ("[W]e have not held that gender-based classifications are inherently suspect."). Return to text.

[91] 416 U.S. 351 (1974). Return to text.

[92] 419 U.S. 498 (1975). Return to text.

[93] Neither case applied "strict scrutiny" review, as suggested by the Frontiero plurality. See id.; Kahn, 416 U.S. at 351. Return to text.

[94] Kahn, 416 U.S. at 352. Return to text.

[95] Id. at 354. Return to text.

[96] Id. at 355. Return to text.

[97] Id. (quoting Reed v. Reed, 404 U.S. 71, 76 (1971)). Return to text.

[98] Schlesinger v. Ballard, 419 U.S. 498, 499-500 (1975). Return to text.

[99] Id. at 508-09. Return to text.

[100] Craig v. Boren, 429 U.S. 190, 198 n.6 (1976). Return to text.

[101] Id. at 190. Return to text.

[102] See Yablonski, supra note 20, at 1455. Return to text.

[103] Craig, 429 U.S. at 191-92. Return to text.

[104] Id. at 197. Return to text.

[105] Id. at 200. Return to text.

[106] The Craig Court's close scrutiny of Oklahoma's traffic statistics was somewhat puzzling, given the substantial deference accorded the proffered statistics in Kahn and Schlesinger. See Gardenswartz, supra note 20, at 619. Justice Rehnquist, dissenting in Craig, opined that the majority's statistical second-guessing of the Oklahoma Legislature was the "judicial equivalent of a doctoral examination in statistics." Craig, 429 U.S. at 224 (Rehnquist, J., dissenting). Justice Rehnquist argued that "the legislature is not required to prove before a court that its statistics are perfect." Id. Return to text.

[107] See Craig, 429 U.S. at 211 (Powell, J., concurring) ("[T]his gender-based classification does not bear a fair and substantial relation to the object of the legislation."). Return to text.

[108] 347 U.S. 483 (1954) (holding that the racially "separate but equal" public school system in Topeka, Kansas was unconstitutional under "strict scrutiny" analysis). Return to text.

[109] See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 720 n.1 (1982). Return to text.

[110] See, e.g., Heaton v. Bristol, 317 S.W.2d 86, 99 (Tex. Civ. App. 1958); Allred v. Heaton, 336 S.W.2d 251, 261 (Tex. Civ. App. 1960). Return to text.

[111] See Vorchheimer v. School Dist., 532 F.2d 880 (3rd Cir. 1976), aff'd, 430 U.S. 703 (1977) (equally divided decision). Return to text.

[112] 336 S.W.2d at 251. Return to text.

[113] Id. at 258-59; see Gardenswartz, supra note 20, at 613-14. Return to text.

[114] Allred, 336 S.W.2d at 260. Return to text.

[115] 309 F. Supp. 184 (E.D. Va. 1970) (three-judge panel approving Virginia's plan to allow females into the University of Virginia at Charlottesville). Return to text.

[116] Id. at 187. Return to text.

[117] Id. Educational "prestige" was one of the points of contention in VMI II. 44 F.3d 1229, 1240 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). See infra notes 239, 244 and accompanying text. Return to text.

[118] Kirstein, 309 F. Supp. at 187. Return to text.

[119] Id. at 188. Return to text.

[120] Id. at 187. Return to text.

[121] Id. Return to text.

[122] 316 F. Supp. 134 (D.S.C. 1970), aff'd per curiam, 401 U.S. 951 (1971). Return to text.

[123] Id. at 137. Gender-based classifications were analyzed under a rational basis scrutiny at the time Williams was decided. The Supreme Court had not issued its opinion in Reed v. Reed, 404 U.S. 71 (1971). Return to text.

[124] Id. at 137-38. Return to text.

[125] Id. at 138. Return to text.

[126] Id. Return to text.

[127] Id. Return to text.

[128] Id. But see Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (convenience found to be a factor in determining whether male plaintiff suffered injury in being denied admission to all-female school).

In its subsequent review of Williams, the Supreme Court passed on the opportunity to issue an opinion on the per se constitutionality of single-gender institutions. The Court avoided doing so by summarily affirming the opinion of the district court. Williams v. McNair, 401 U.S. 951 (1971). Return to text.

[129] 532 F.2d 880 (3d Cir. 1976), aff'd, 430 U.S. 703 (1977) (equally divided decision). Return to text.

[130] See supra notes 112-14 and accompanying text. Return to text.

[131] See supra notes 122-28 and accompanying text. Return to text.

[132] Vorchheimer, 532 F.2d at 886-87. Return to text.

[133] Id. Return to text.

[134] Id. at 886. Return to text.

[135] Id. at 887. Return to text.

[136] 430 U.S. 703 (1977). Return to text.

[137] See generally Vorchheimer v. School Dist. of Philadelphia, 532 F.2d 880 (3d Cir. 1976), aff'd, 430 U.S. 703 (1977) (equally divided decision); Williams v. McNair, 316 F. Supp. 134 (D. S.C. 1970), aff'd per curiam, 401 U.S. 951 (1971); Kirstein v. Rector & Visitors of the Univ. of Va., 309 F. Supp. 184 (E.D. Va. 1970); Allred v. Heaton, 336 S.W.2d 251 (Tex. Civ. App. 1960). Return to text.

[138] 458 U.S. 718 (1982). Return to text.

[139] Id. at 720-21. Return to text.

[140] Id. at 721. Return to text.

[141] Id. at 729-30. The first prong, as articulated in Craig v. Boren, required the governmental actor to proffer an "important governmental objective" for a gender-based classification. 429 U.S. 190, 197 (1976). Return to text.

[142] Hogan, 458 U.S. at 724. Return to text.

[143] Id. at 727. Justice Powell's dissent suggested another justification for MUW's single-sex admissions policy: the promotion of educational diversity. Id. at 742-43 (Powell, J., dissenting). The majority opinion never directly addressed the educational diversity issue. See id. at 731 n.17. Return to text.

[144] Id. at 728. Return to text.

[145] Id. at 729-30. Justice O'Connor reasoned that an all-female nursing program perpetuates the stereotype of nursing as a strictly female profession; this stereotype leads to decreased wages and prestige for nurses. Id. Return to text.

[146] Id. at 730. The second prong of "intermediate scrutiny" required a governmental actor to demonstrate that a gender-based classification was "substantially related to the achievement" of the proffered important governmental objective. Craig v. Boren, 429 U.S. 190, 197 (1976). Return to text.

[147] Hogan, 458 U.S. at 730. Return to text.

[148] See Yablonski, supra note 20, at 1460. Return to text.

[149] 114 S. Ct. 1419 (1994) (holding gender-based peremptory challenges unconstitutional). Return to text.

[150] See generally id. In VMI I & II and Faulkner II, the Fourth Circuit discussed Justice O'Connor's language in Hogan, not as a new "third prong," but rather as an element of intermediate scrutiny's first prong. Specifically, a gender-based classification that stigmatizes one gender vis-à-vis the other can never constitute an important governmental purpose. See Faulkner II, 51 F.3d 440, 443 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995); see also infra note 171. Gardenswartz, supra note 20, at 611 (assessing the impact of Hogan on single-gender education: "[t]he more central question is now whether separation on the basis of sex perpetuates common stereotypes about men and women"). Return to text.

[151] Hogan, 458 U.S. at 724-25. Return to text.

[152] Id. at 725. Return to text.

[153] Id. at 733 (Burger, C.J., dissenting) ("[T]he Court's holding today is limited to the context of a professional nursing school."). Return to text.

[154] Id. at 720 n.1. Return to text.

[155] What constitutes an "extremely persuasive justification" in the context of single-gender education, however, has remained hazy after Hogan. Return to text.

[156] VMI I, 766 F. Supp. 1407 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). Return to text.

[157] Id. Return to text.

[158] Id. Return to text.

[159] See VMI II, 852 F. Supp. 471, 473 n.2 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[160] VMI I, 766 F. Supp. at 1414. For a discussion of the holistic educational methodology employed at VMI, see supra notes 38-61 and accompanying text. Return to text.

[161] VMI I, 766 F. Supp. at 1415. Return to text.

[162] Id. The ease of VMI's victory in the district court was surprising, considering the conflicting interests among the named defendants. See Soderberg, supra note 74, at 18. Then Virginia Governor Douglas Wilder was a black man who had personally been subjected to de jure racial segregation in Virginia. Id. Ironically, in VMI I, Governor Wilder found himself opposing the forces of gender integration. After Judge Kiser refused to dismiss Governor Wilder as a defendant, Governor Wilder responded to the Justice Department's complaint. Governor Wilder stated that VMI's policy of not admitting females was against his personal philosophy but agreed that he would abide by the district court's ruling. Id. Following the lead of Governor Wilder, Virginia's first female Attorney General, Mary Sue Terry, also withdrew from representing the Commonwealth. Id. She cited a conflict of interest as the reason for her withdrawal. Id. Attorney General Terry explained that in the absence of a contrary statutory directive, Governor Wilder's position was "persuasive." Id. Accordingly, she felt compelled as Attorney General to follow the Governor's position. Private pro bono counsel was then appointed to represent the Commonwealth. Id. Return to text.

[163] VMI I, 976 F.2d at 890. Return to text.

[164] See Yablonski, supra note 20, at 1453 ("[A] three judge panel issued a convoluted opinion that overturned the district court's ruling but refused to compel VMI to admit women."). Conservative commentator George Will labeled the Fourth Circuit's decision in VMI I "a ruinous victory" for VMI. George F. Will, Government Coercion, VMI's Diversity, WASH. POST, January 31, 1993, at C7. Return to text.

[165] VMI I, 976 F.2d at 898. Return to text.

[166] Id. at 898 n.7. Return to text.

[167] Id. at 897. Return to text.

[168] Id. (emphasis added). The VMI "catch-22," which the Fourth Circuit found so persuasive, echoes common sense. Even though a small minority of women would be physically capable of performing all activities required of male cadets at VMI, a coeducational VMI would be different from the all-male version. VMI I, 766 F. Supp. at 1412-13. True, the differences necessitated by coeducation would not destroy VMI's ability to function as a military school, but would the changes destroy the holistic educational methodology that makes VMI unique? Yes, they would. For example, there is presently an absolute absence of privacy in the VMI barracks. The admission of women would force changes to afford both genders some degree of individual privacy. Id. at 1438. The every move of each cadet would no longer be observable by every other fellow cadet in the barracks; this would limit the minute regulation of behavior which characterizes the holistic VMI methodology. Cross-sexual relationships would occur, facilitating distractions from already limited study time and creating the possibility of dating rivalries, resulting in loss of esprit de corps among cadets. See generally ALEXANDER ASTIN, FOUR CRITICAL YEARS (1977) (arguing that students at single-gender schools are able to invest more energy in school-oriented activities because they have few opportunities to engage in courtship activities). It is worth noting that many cadets come to VMI to escape the social distractions associated with coeducation. VMI I, 766 F. Supp. at 1426.

The current program at VMI requires every cadet to pass precisely the same physical tests before graduation. The rigor of the tests would prevent a disproportionate percentage of women from passing and, thus, graduating. Id. Accordingly, VMI would either need to establish different requirements for women and destroy the absolute equality of treatment that is paramount to VMI's methodology, or reduce the requirements so that they could be applied equally to both sexes. Lowering the standards would destroy the rigor of the experience for many male cadets, many of whom were drawn to VMI because of the extreme mental and physical rigor. Id. at 1439.

Renowned Harvard sociologist Dr. David Riesman contends that because of the sociological differences between men and women, VMI would eventually be forced to drop the adversative system altogether. Id. at 1413. Because adolescent women generally enter college with less self-esteem than men, the tearing down effect of an adversative education would be counterproductive when applied to most women. See VMI II, 44 F.3d 1229, 1234-35 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). In order to draw a sufficient contingent of female cadets to VMI, the VMI system would need to be modified to provide more emotional support for female cadets. Id. at 1413. The experience of the Army Academy at West Point when it became coeducational supports Dr. Riesman's contentions. Consider the following:

The prophetic tales of integration at West Point and the other service academies demonstrate the inevitable demise of the adversative model at VMI. Since 1976, the year West Point admitted its first female cadet, physical standards have been lowered to accommodate the physiological differences between men and women. Basic training is now divided into groups according to ability . . . . Furthermore, studies show that since integration at the academies, unit morale has declined as a result of cross-sexual relationships and the distractions associated with them . . . . There have been complaints of sexual harassment. Additionally, more than half of the women at the academies believe that gender integration has been unsuccessful.
Yablonski, supra note 20, at 1471-72 (emphasis added). But see Bennett L. Saferstein, Note, Revisiting Plessy at the Virginia Military Institute: Reconciling Single-Sex Education with Equal Protection, 54 U. PITT. L. REV. 637 (1993) (labeling the Fourth Circuit's reasoning "disingenuous" and comparing the VMI "catch-22" to the old Groucho Marx joke "I would never wanna belong to any club that would have someone like me for a member"). Return to text.

[169] See VMI I, 976 F.2d 890, 900 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). Return to text.

[170] Id. Return to text.

[171] Id. The Fourth Circuit in VMI I never specifically delineated which prong of "intermediate scrutiny" caused the constitutional violation. The argument has been made that the constitutional violation in VMI I was the Commonwealth's failure to satisfy the second prong. See Soderberg, supra note 74, at 31 ("VMI's all-male admissions policy did not pass the second prong of the 'intermediate scrutiny' test because by not offering a similar opportunity for women, VMI's single-gender admissions policy was not substantially related to an important governmental objective."). However, the Fourth Circuit's later analysis of the second prong inquiry in VMI II indicates that the second prong was probably not the foundation for the constitutional violation. See VMI II, 44 F.3d at 1237 (arguing that where single-gender education is proffered as the "important governmental objective," the second prong of "intermediate scrutiny" is virtually bypassed because "the classification by gender is by definition necessary for accomplishing the objective"). Thus, it is more probable that the constitutional violation in VMI I was premised on the first prong of intermediate scrutiny. Specifically, the provision of a VMI-type of education to men but not to women, without adequate explanation for the disparate opportunity, could not constitute an important governmental objective. See VMI I, 976 F.2d at 900. Return to text.

[172] VMI I, 976 F.2d at 900. Return to text.

[173] Id. Return to text.

[174] VMI II, 852 F. Supp. 471 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[175] Faulkner I, 10 F.3d 226 (4th Cir. 1993), mandamus denied, 14 F.3d 3 (4th Cir.), stay vacated by 114 S. Ct. 872 (1994); Faulkner II, 858 F. Supp 552 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995). Return to text.

[176] Faulkner II, 858 F. Supp. 552, 554 n.2 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995). Return to text.

[177] Id. at 555. Return to text.

[178] Id. Return to text.

[179] Id. at 554. Return to text.

[180] Brief for Appellants at 3, Faulkner v. Jones, 10 F.3d 226 (4th Cir. 1993) (No. 93-2030). Return to text.

[181] Faulkner II, 858 F. Supp. at 555. Return to text.

[182] Faulkner v. Jones, No. 2:93-0488-2 (D.S.C. Aug. 17, 1993) (order granting preliminary injunction). Return to text.

[183] Faulkner I, 10 F.3d 226 (4th Cir. 1993), mandamus denied, 14 F.3d 3 (4th Cir.), stay vacated by 114 S. Ct. 872 (1994). Return to text.

[184] Id. at 233. Return to text.

[185] Faulkner I, 114 S. Ct. 872 (1994). Return to text.

[186] Cole Interview, supra note 38. Return to text.

[187] Faulkner II, 858 F. Supp. 552 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995). Return to text.

[188] Id. at 555. Shannon Faulkner made a motion for summary judgment on May 28, 1993. Therefore, Faulkner II came to trial in the posture of a summary judgment request with greater deference being given to the party opposing summary judgment. Because of the procedural posture, Faulkner's attorney's accepted that the holdings in VMI I would apply with equal force to The Citadel. Judge Houck made it clear, however, that Faulkner would be able to challenge the applicability of VMI I to her facts at a later date if it became necessary for her to do so. Id. at 555 n.5. Return to text.

[189] Id. at 564. Return to text.

[190] Id. Return to text.

[191] Id. Return to text.

[192] Id. at 566. Return to text.

[193] Id. Judge Houck commented that South Carolina had "called the court's attention to no case that supports the proposition that lack of demand is a sufficient justification." Id. at 564. Return to text.

[194] Id. Return to text.

[195] Id. at 567.

To place the matter of remedy in proper perspective, the manner in which [this] case has been conducted should also be taken into consideration . . . . [T]he defendants have continued to defend this case at a cost of millions of dollars to the taxpayers of South Carolina when they do not have a single case to offer in support of their position that a lack of demand for single-sex education on the part of women justifies providing such an education only for men.
Id.

The South Carolina Legislature had formed a committee in May 1993, to make recommendations regarding the provision of single-gender educational opportunities to women. Id. The committee, however, met four times and was dissolved by operation of law. Id. South Carolina's lawyers did provide the judge with a document stating that "within sixty days after liability is determined," the state would set forth a specific proposed remedy, but Judge Houck found the document unacceptable. Id. Return to text.

[196] Id. at 567-68 (citing VMI I, 976 F.2d 890, 900 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993)). Return to text.

[197] Transfer students are not allowed to enter The Citadel's Corps of Cadets after the beginning of their junior year. Cole Interview, supra note 38. Return to text.

[198] Telephone Interview with Major Rick Mill (USMC), Public Relations Officer, The Citadel (Jan. 20, 1995) ("Privatization is not really an option; The Citadel would require an endowment of between 350 to 400 million dollars to be able to privatize."). Return to text.

[199] Judge Houck concluded that South Carolina's previous actions indicated a strong likelihood that the state might delay implementation of any parallel program for females to such a time as to "insure that Faulkner would never have the opportunity to enroll in such a parallel institution or program." Faulkner II, 858 F. Supp. at 568. Return to text.

[200] Id. at 569. Return to text.

[201] Id. Return to text.

[202] Faulkner v. Jones, No. 94-1978 (4th Cir. Aug. 12, 1994) (order granting appellants' motion to stay, pending appeal). Return to text.

[203] See Faulkner II, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995). Return to text.

[204] Answering and Opening Brief of Appellees/Cross Appellants at 11, United States v. Virginia, 44 F.3d 1229 (4th Cir. 1995) (Nos. 94-1667, 94-1712) [hereinafter Answering and Opening Brief]. Return to text.

[205] VMI II, 852 F. Supp. 471 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[206] Id. at 484. Return to text.

[207] Id. at 485. Return to text.

[208] VMI II, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[209] Answering and Opening Brief, supra note 204, at 12-13. Return to text.

[210] MBC had remained entirely female for more than 150 years and had a prestigious history of its own. Answering and Opening Brief, supra note 204, at 11 n.3. Return to text.

[211] Id. at 14. Return to text.

[212] Id. Return to text.

[213] VMI II, 44 F.3d 1229, 1234 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[214] Michael Janofsky, Yes, Ma'am, Mary Baldwin Offers Women Students a Military-Training Program of Their Own, CHI. TRIB., Feb. 12, 1995, Womanews, at 10. Return to text.

[215] Id. Return to text.

[216] Id. Return to text.

[217] Id. at 11. Return to text.

[218] Id. at 18. The designers of VWIL considered that although a few women might desire the harsh adversative environment of VMI, the overall demand for such an all-female program would not be sufficient to support it. However, the designers felt they could produce the same educational outcomes as VMI by using a similar, but less severe, educational methodology. See VMI II, 44 F.3d 1229, 1234-35 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995) (quoting, with approval, educational specialist Dr. Heather Anne Wilson: "[T]he VMI model is based on the premise that young men come with [an] inflated sense of self-efficacy that must be knocked down and rebuilt . . . . What [women] need is a system that builds their sense of self-efficacy through meeting challenges, developing self-discipline, meeting rigor and dealing with it, and having successes."). Return to text.

[219] VMI II, 44 F.3d at 1233. Return to text.

[220] Id. at 1234. To satisfy the leadership component, each VWIL student would be required to teach a leadership seminar or engage in a semester of independent research on a topic relevant to women and leadership. On Saturdays, VWIL students would be required to attend and participate in these seminars. Outside of the academic curriculum, students would be required to complete a leadership externship in the public or private sector and to organize and carry out community service projects. VMI II, 852 F. Supp. 471, 494-96 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[221] VMI II, 44 F.3d at 1234. Return to text.

[222] VMI II, 852 F. Supp. at 494-95. Return to text.

[223] Id. Return to text.

[224] Id. Return to text.

[225] Id. at 497-98. Not all VMI students who desire commissions in the armed forces are able to receive one. Various other factors, such as standardized test scores, are involved in determining which cadets will receive commissions. The students at VWIL would have the same eligibility and credentials to receive commissions as their male counterparts at VMI. Id. Return to text.

[226] VMI I, 976 F.2d 890, 900 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). Return to text.

[227] Faulkner I, 10 F.3d 226 (4th Cir. 1993), mandamus denied, 14 F.3d 3 (4th Cir.), stay vacated by 114 S. Ct. 872 (1994). Return to text.

[228] Id. Return to text.

[229] Id. Return to text.

[230] The VMI Mission Statement:

[I]t is the mission of the Virginia Military Institute to produce educated and honorable men, prepared for the varied work of civil life, imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American Democracy . . . and ready as citizen-soldiers to defend their country in time of national peril. To accomplish this result, the Virginia Military Institute shall provide to qualified young men undergraduate education of highest quality . . . facilitated by the unique VMI system of military discipline.
VMI I, 976 F.2d at 893 (quoting THE VMI BOARD OF VISITORS, MISSION STUDY COMMITTEE REPORT (1986)). Return to text.

[231] VMI II, 44 F.3d 1229, 1233 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[232] Id. Return to text.

[233] See VMI II, 852 F. Supp. 471, 473 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[234] VMI II, 44 F.3d at 1235. Return to text.

[235] See Answering and Opening Brief, supra note 204 at 16 n.7. In this brief to the circuit court, the Justice Department discussed the origin of the "allegorical Jackie Jones" at the district court remedy trial:

In its opening statement, the United States used the pseudonym Jackie Jones to identify a young woman who had made an inquiry about admission to VMI. In the course of the proceedings, the Court, the parties, and the witnesses referred to the "allegorical Jackie Jones." The U.S. argued that if "Jackie Jones" desires to attend VMI, the Commonwealth is constitutionally obligated to admit her.
Id. Return to text.

[236] Id. at 16. Return to text.

[237] VMI II, 44 F.3d at 1235. Return to text.

[238] Id. at 1237. Although technically outside the framework of "intermediate scrutiny," the issue of "separate but equal" in the context of gender will likely be of great importance when VMI II is reviewed by the Supreme Court. See, e.g., Faulkner II, 51 F.3d 440, 450 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995) (Hall, J., concurring); VMI II, 44 F.3d at 1245 (Phillips, J., dissenting); Sara L. Mandelbaum, Women Would Not Destroy The Citadel or VMI, VIRGINIA-PILOT (Norfolk, Va.), June 7, 1994, at A14. Return to text.

[239] 339 U.S. 629 (1950). The plaintiff in Sweatt sought admission to the all-white University of Texas Law School. Texas offered to create an African-American law school, which it claimed would remedy any constitutional violation emanating from the University of Texas Law School's all-white admissions policy. The Supreme Court ruled that the Texas remedy was inadequate because the intangible qualities that made the University of Texas Law School prestigious would be denied African-Americans since they would be forced to attend a different and less prestigious law school. Id. Return to text.

[240] 347 U.S. 483 (1954) (holding that schools segregated on the basis of race were inherently unequal). Return to text.

[241] Modern courts have generally held that classifications based on race per se violate the Constitution. See, e.g., Michael M. v. Superior Court, 450 U.S. 464, 478 (1980) (Stewart, J., concurring). Return to text.

[242] Id. Return to text.

[243] VMI II, 44 F.3d 1229, 1237 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). The Supreme Court has held repeatedly that real differences between the genders may justify different treatment under the law. See, e.g., Rostker v. Goldberg, 453 U.S. 57 (1981) (requiring only men to register for the draft); Michael M. v. Superior Court, 450 U.S. 464 (1980) (holding that California statutory rape law could constitutionally be applied only to males); Schlesinger v. Ballard, 419 U.S. 498 (1975) (upholding regulation granting women four years longer to make specified rank before mandatory discharge); Kahn v. Shevin, 416 U.S. 351 (1974) (upholding law granting only women a specified tax exemption). Return to text.

[244] VMI II, 44 F.3d at 1237. If Virginia had attempted to create a "mirror image" VMI for women, such a remedy would have endorsed "separate but equal" institutions segregated on the basis of gender. Such a remedy would likely have failed constitutional muster under Sweatt v. Painter because the 150-year-old Virginia Military Institute would have greater overall prestige than the fledgling VWIL program. See id. at 1250 (Phillips, J., dissenting).

Because men and women are different, however, institutional prestige is not the only factor to be considered in determining whether women are deprived of equal protection. Prestigious or not, experts testified that the vast majority of women would not desire the harsh adversity and degradation of the VMI "rat line." See VMI II, 852 F. Supp. 471, 476, 480-81 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Nevertheless, the prestige issue is significant. See generally Sweatt v. Painter, 339 U.S. 629 (1950); Kirstein v. Rector & Visitors of the Univ. of Va., 309 F. Supp. 184 (E.D. Va. 1970). It will undoubtedly stand as a significant obstacle to VMI's success before the United States Supreme Court. Return to text.

[245] See generally Men, Women & the Sex Difference (ABC television broadcast, August 30, 1995). Return to text.

[246] See, e.g., Lani Guinier et al., Becoming Gentlemen: Women's Experiences at One Ivy League Law School, 143 U. PA. L. REV. 1, 43-44 (1994) (arguing that the Socratic method and adversative law school classes disadvantage female law students because women internalize their problems as personal failure to a greater extent than do men).

The research of renowned Harvard sociologist David Riesman indicates that men tend to learn better in an adversative and competitive environment in which the instructor is a worthy competitor (as with the Socratic method employed in many law school classes), whereas women "tend to thrive in a cooperative atmosphere in which the teacher is emotionally connected with the students." VMI I, 766 F. Supp. 1407, 1434 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). Of course, there are exceptions to the rule for both genders. But, an educational methodology must be designed to accommodate the mean, and not the exception. Id. at 1413. Return to text.

[247] VMI II, 44 F.3d 1229, 1234 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995) (testimony of Dr. Heather Anne Wilson); see also VMI II, 852 F. Supp. at 476 (citing testimony of Dr. Elizabeth Fox-Genovese: "Young women . . . do not need to have uppityness and aggression beaten out of them"). Return to text.

[248] VMI I, 766 F. Supp. at 1434. Return to text.

[249] At the time of the trial in VMI I, Colonel Toffler was the Director of the Office of Institutional Research (OIR) at West Point. The purpose of OIR was "to assess the degree to which [West Point] is successful in realizing its purpose, accomplishing its mission[, and] achieving its outcome goals." Id. at 1418. Return to text.

[250] Id. at 1434. Return to text.

[251] Id. at 1438. Return to text.

[252] Id. Return to text.

[253] See supra notes 245-52 and accompanying text. Return to text.

[254] VMI II, 44 F.3d 1229, 1238 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[255] Id. See also Sandra Reeves, A Burst of Popularity: Most Women's Colleges Are Flourishing by Offering Students a Sense of Empowerment, U.S. NEWS AND WORLD REP., Sept. 26, 1994, at 105; Suzanne Fields, Assault on VMI Could Backfire on Feminists, ATLANTA J. & CONST., Oct. 8, 1992, at A12. Return to text.

[256] VMI II, 44 F.3d at 1235. Return to text.

[257] Id. at 1240. Return to text.

[258] Id. See supra note 168 for an analysis of the VMI "catch-22." Return to text.

[259] VMI II, 44 F.3d at 1240. Return to text.

[260] See VMI I, 766 F. Supp. 1407, 1420 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993); Reeves, supra note 255, at 105. Return to text.

[261] See George H. Orvin, Same Gender Schools Important Step on Road to Maturity, CHARLESTON POST & COURIER, July 22, 1994, at 19A. See also Astin, supra note 168. Return to text.

[262] Orvin, supra note 261. Return to text.

[263] See VMI I, 766 F. Supp. at 1435; OVERVIEW OF THE CITADEL, supra note 29 (discussing the disproportionately high graduation rate at The Citadel in comparison to that at coeducational institutions). Though the success of single-gender education at VMI and The Citadel is readily observable, the success of single-gender education is particularly visible in the context of single-gender women's schools. Women who attend single-gender schools succeed in far greater proportions than their coeducational counterparts. See Reeves, supra note 255, at 106. For example, as of 1994, one-fourth of the women in Congress were alumni of single-gender undergraduate institutions. Id. This was also true for one-third of the women on the boards of directors of Fortune 500 Corporations. Id. Statistics show that graduates of women's colleges are twice as likely to attain a Ph.D. or medical degree than women who attend coeducational universities. Id. Alumni of women's colleges go on to seek a graduate degree 81% of the time. Id.

Congress has explicitly recognized the importance of publicly funded single-gender institutions. The 1972 Title IX Education Amendments generally prohibited disbursement of federal funds to educational programs that discriminated on the basis of gender. Id. However, Congress intentionally excepted from the statutory prohibition single-gender schools, such as VMI and The Citadel. See 20 U.S.C. § 1681 (a)(5) (1994). Return to text.

[264] Mississippi Univ. for Women v. Hogan instructed that the first prong of "intermediate scrutiny" requires a state to proffer "an extremely persuasive justification" for any gender-based classification. 458 U.S. 718, 724 (1982). Return to text.

[265] See VMI II, 44 F.3d 1229, 1234 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995) (testimony of Dr. Heather Anne Wilson); VMI I, 766 F. Supp. 1407, 1434 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993) (testimony of Harvard Sociologist Dr. David Riesman); Janofsky, supra note 214, at 10. Return to text.

[266] See VMI I, 976 F.2d 890, 897 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993) ("It is the homogeneity of gender in the process, regardless of which sex is considered, that has been shown to be related to the essence of the education and training at VMI."). Return to text.

[267] See supra notes 24-37 and accompanying text. Return to text.

[268] See Answering and Opening Brief, supra note 204, at 17 n.8. Return to text.

[269] Id. Return to text.

[270] Id. Since the vast majority of cadets at VMI and The Citadel would still be men and the method of indoctrinating values would still be the inquisitional adversative method, it is difficult to see how cross-sexual adversative confrontations could be avoided. A possible solution might be to separate women totally from men for purposes of the "rat line," but, seemingly, such a policy would contravene the very reason that women would seek admission to VMI. Return to text.

[271] Id. Return to text.

[272] Id. Return to text.

[273] See VMI II, 44 F.3d 1229, 1240-41 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[274] Id. Return to text.

[275] Id. at 1237. Parallel single-gender institutions, such as VMI and VWIL, "substantially advance" the goals of providing the benefits of single-gender education and educational diversity. If VMI is ordered to integrate women, publicly funded single-gender education would no longer exist in Virginia. See Yablonski, supra note 20, at 1471 ("[I]ntegration at VMI would benefit neither females nor males. Instead, Virginia with an integrated VMI would lose what it considers to be an essential element of diversity in its system of higher education."). Both genders would have to attend private schools to reap the benefits of single-gender education. See Elizabeth Fox-Genovese, Single-Sex Education Under Siege, WALL ST. J., August 24, 1995, at A16. Those who could not afford the significantly higher costs of private school would no longer be able to obtain a single-gender education. Id. Return to text.

[276] VMI II, 44 F.3d at 1237. Return to text.

[277] Id. Return to text.

[278] Id. at 1237-38. Return to text.

[279] Id. at 1240. Return to text.

[280] Id. at 1240-41. Return to text.

[281] Id. at 1240-42. Return to text.

[282] Id. at 1241. Return to text.

[283] Id. Return to text.

[284] See Faulkner II, 51 F.3d at 443 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995) ("We noted, however, that when providing single-gender education to one gender, Virginia could not, without adequate justification, deny a substantively comparable benefit to the other gender."). Return to text.

[285] VMI II, 44 F.3d at 1240. Return to text.

[286] Id. at 1242. The Fourth Circuit also found that the Commonwealth had remedied the other matter that concerned the court in VMI I: the lack of uniform support for single-sex education within Virginia's governing body. Id. at 1241-42. By the time of trial in VMI II, former Governor Wilder, Virginia's new Governor George F. Allen, and the entire Virginia Legislature had officially come out in support of VWIL and an all-male VMI. VMI II, 852 F. Supp. 471, 483-84 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995) ("[E]very person in Virginia officialdom who has or has had the authority to affect Virginia's policies on higher education has spoken in favor of diversity by offering single-sex education to men and women of the Commonwealth and have strongly supported VWIL."). Return to text.

[287] Faulkner II, 51 F.3d at 440. Return to text.

[288] Faulkner II, 858 F. Supp. 552, 564 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995). See supra notes 189-94 and accompanying text. Return to text.

[289] Id. at 564. Return to text.

[290] Faulkner II, 51 F.3d at 440. Return to text.

[291] Id. at 445-46. The Fourth Circuit sidestepped potentially troublesome legal issues when it refused to affirm the district court's holding on equal protection vis-à-vis demand. Had the Fourth Circuit agreed with the district court that equal protection is strictly an individual right, for which demand is irrelevant, a wide array of single-gender programs could arguably be found unconstitutional.

As George Will has argued, if demand is irrelevant to equal protection scrutiny, would not an all-male college football team, or an all-male boot camp for juvenile offenders, be unconstitutional in the absence of an all-female counterpart? Would the state be forced to create shelters for battered husbands? See Will, supra note 164, at C7. Return to text.

[292] Faulkner II, 51 F.3d at 445-46. Since South Carolina failed to show sufficient facts to support a conclusion of inadequate demand, the Fourth Circuit did not reach the issue of whether inadequate demand could "justify" providing a single-gender military education to men only. Id. Return to text.

[293] Id. at 450. Return to text.

[294] Id. at 448. Return to text.

[295] Id. at 449. If Faulkner was not admitted to The Citadel by the 1995-1996 school year, her junior year, she would be ineligible to graduate from The Citadel because of the school's graduation requirements. Id. Thus, time was truly of the essence for her. Return to text.

[296] Twila Decker, Judge Sets Deadlines for Citadel, State Has 3 Months To Set Up Parallel Program, THE STATE (Columbia, S.C.), May 12, 1995, at B1. Return to text.

[297] See Faulkner II, 51 F.3d at 448. Return to text.

[298] See Decker, supra note 296, at B1. South Carolina vowed to submit a specific remedial plan for Faulkner and all other women by June 1995. Id.

South Carolina's first task was to reach an agreement with one of the state's two private schools concerning the establishment of a program. Following an outright rejection by Columbia College, the state was able to induce an initially ambivalent Converse College to cooperate in the formulation of the parallel program at the Converse campus. See Second Chance To Explain Citadel Option Sought, S.C. Offering To Create Women's Program, RICHMOND TIMES-DISPATCH, Feb. 15, 1995, at B5. South Carolina would provide $10 million towards the establishment of the program, $6.6 million would be raised privately by The Citadel, and $3.4 million would be allocated by the South Carolina Legislature. Citadel Is Told Faulkner Must Also Be a "Knob," Judge Rules She Must Also Be in Barracks, RICHMOND TIMES-DISPATCH, June 8, 1995, at B3 [hereinafter Judge Rules]. Return to text.

[299] See Judge Rules, supra note 298, at B3; Alternative Plan for The Citadel Unveiled, ATLANTA J. & CONST., June 6, 1995, at A10. For more specific details of the proposed SCIL program, see Citadel Plan Keeps Female Cadets Out, GREENSBORO NEWS & REC., June 6, 1995, at B4. Return to text.

[300] Citadel Plan Keeps Female Cadets Out, supra note 299, at B4. Return to text.

[301] On June 24, 1995, Judge Houck lamented that he did not "have any earthly idea what's going to happen at Converse College." Judge Wants Details on Citadel Plan, RICHMOND TIMES-DISPATCH, June 24, 1995, at B4. He instructed Citadel attorneys to provide details on capital improvements at Converse, the names of the leadership faculty, and the names of those who have applied for leadership program director. Id. Return to text.

[302] Debbi Wilgoren, Female Cadet Leaves Citadel, Faulkner Had Spent First Week of Training in Infirmary, WASH. POST, Aug. 19, 1995, at A1. The Citadel appealed Judge Houck's ruling to the Fourth Circuit, which declined to stay the decision. Id. Subsequent stay requests to Justice Rehnquist and Justice Scalia were summarily denied. Id. Return to text.

[303] The Fourth Circuit had instructed Judge Houck that Faulkner should be admitted to The Citadel Corps of Cadets, barring the successful implementation of a remedial program by August 1995. Faulkner II, 51 F.3d 440, 450 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995). Return to text.

[304] See Wilgoren, supra note 302, at A1. Return to text.

[305] Suzanne Fields, Faulkner Displayed Grace Under Feminist Fire, Citadel Controversy Should Spark a Fresh Debate About Single-Gender Schools, ATLANTA J. & CONST., Aug. 24, 1995, at A18. Return to text.

[306] See Wilgoren, supra note 302, at A1. Return to text.

[307] Id. Return to text.

[308] Id. Return to text.

[309] Id. Return to text.

[310] Id. Return to text.

[311] Wes Allison, Faulkner Quits; Other Cadets Rejoice but This Isn't the End, Her Lawyers Say, RICHMOND TIMES-DISPATCH, Aug. 19, 1995, at A1. Return to text.

[312] See Sara Rimer, Shannon Faulkner Evokes Mixed Reaction, N.Y. TIMES, Aug. 21, 1995. Return to text.

[313] See, e.g., Cal Thomas, Shannon Faulkner: Flawed Symbol, ST. LOUIS POST-DISPATCH, Aug. 26, 1995, at B15 ("If Faulkner could not withstand the legal battle, how could she have been expected to face a battlefield enemy? . . . There are no fainting couches in war, and certainly not different rules of engagement for women . . . . This issue is about politics, not education or opportunity . . . . [P]olitics was her point."). Return to text.

[314] See Faulkner Suit Options Debated: Women Joining It Seen as Having Little Effect, RICHMOND TIMES- DISPATCH, Aug. 25, 1995, at B4. Return to text.

[315] Faulkner II, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331, and cert. denied, 116 S. Ct. 352 (1995); see Decker, supra note 296, at B1. Return to text.

[316] See VMI II, 44 F.3d 1229, 1240 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). The successful implementation of SCIL is also contingent on VMI's success before the United States Supreme Court in United States v. Virginia. Return to text.

[317] EDWARD J. CLEARY, BEYOND THE BURNING CROSS 152 (1994). Return to text.

[318] See, e.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 520-21 (1989). Return to text.

[319] See, e.g., J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1433 (1994) (Kennedy, J., concurring) ("In over 20 cases beginning in 1971 . . . we have subjected government classifications based on sex to heightened scrutiny. Neither the State nor any Member of the Court questions that principle here."). Return to text.

[320] Paul M. Barrett, High Court To Hear Discrimination Case over VMI'S Policy of Excluding Women, WALL ST. J., Oct. 18, 1995 at B5. Return to text.

[321] See Craig v. Boren, 429 U.S. 190, 221 (1976) (Rehnquist, J., dissenting). Return to text.

[322] 114 S. Ct. 1419 (1994). Return to text.

[323] Interview with Steven G. Gey, Professor of Constitutional Law, Florida State University College of Law, in Tallahassee, Fla. (Feb. 15, 1995). Return to text.

[324] J.E.B. involved an action for child support in Alabama state court. 114 S. Ct. at 1421-22. An entirely female jury concluded that the defendant, J.E.B., was the putative father of a child. Id. at 1422. The jury was all-female because gender-motivated peremptory challenges had been used to exclude men from the jury. Id. Return to text.

[325] Id. at 1421. Return to text.

[326] Gardenswartz, supra note 20, at 611; see also, Lyle Denniston, Supreme Court To Rule on Men-Only Admission at Military School; VMI's Ban on Women at Issue in Equality Test, BALTIMORE SUN, Oct. 6, 1995, at 4A. Return to text.

[327] Kmiec, supra note 20, at A15. Return to text.

[328] See Yablonski, supra note 20, at 1487-88. Return to text.

[329] See Fields, supra note 255, at A12; Reeves, supra note 255, at 107; Fox-Genovese, supra note 275, at A16. Return to text.

[330] See Fields, supra note 255, at A12; Reeves, supra note 255, at 107; Fox-Genovese supra note 275, at A16. Return to text.

[331] See Will, supra note 164, at C7; Gardenswartz, supra note 20. Return to text.

[332] Because they are generally not considered to be "state actors," private organizations are usually not subject to suit under the Equal Protection Clause. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-22 (1961); Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (arguing that the Equal Protection Clause "erects no shield against merely private conduct, however discriminatory, or wrongful"). VMI and The Citadel, as publicly funded state universities, are state actors. See Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 343-44 (1938) (holding that curators of the University of Missouri Law School were state actors for purposes of the Equal Protection Clause). Less clear, however, is the status of private women's colleges and whether they would be denominated state actors if their single-gender admission policies are challenged under the Equal Protection Clause.

The Supreme Court has yet to distinguish a lodestar for determining when an entity that receives state or federal funds becomes a "state actor." See Burton, 365 U.S. at 722 ("[T]o fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an 'impossible task' which this Court has never attempted.") (quoting Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947)); see also Ronna G. Schneider, State Action—Making Sense out of Chaos—An Historical Approach, 37 U. FLA. L. REV. 737 (1985). Private women's colleges across the country receive approximately 20% of their operating funds from governmental entities. Yablonski, supra note 20, at 1483. In comparison, VMI receives approximately 40% of its operating budget from state funds. Charlotte Grimes, Idea of Women as Cadets Has VMI up in Arms, ST. LOUIS POST- DISPATCH, Feb. 18, 1990, at A1. The significant degree of public funding at private women's colleges may lead to their classification as "state actors" by the Supreme Court. See Grove City College v. Bell, 465 U.S. 555, 569-70 (1984) (holding that private college was subject to Title IX of the Education Amendments of 1972 because students at the college received federal financial aid); Norwood v. Harrison, 413 U.S. 455 (1973) (holding that Mississippi's practice of purchasing and loaning textbooks to private schools that discriminated on the basis of race constituted state action). Return to text.

[333] See Reeves, supra note 255, at 107; Fields, supra note 255, at A12. Return to text.

[334] See, e.g., William Rasberry, How Do You Justify Separate Schools?, WASH. POST, May 25, 1990, at A21; Judy Mann, The Role of Women's Schools, WASH. POST, May 16, 1990, at B3 (quoting Ellen J. Vargyas, Staff Attorney at the National Women's Law Center) ("I think [single-gender education is] a very important option for girls and young women to have in ways I can't see any legitimate need for (white) boys and young men to have . . . . They have those role models. They dominate just about everywhere they are."). But see Fields, supra note 255, at A18 ("Few doubt that certain women can benefit from single-sex schools. Why deprive men of equal opportunity."). Return to text.

[335] Reeves, supra note 255, at 107; Fox-Genovese, supra note 275, at A16. Feminists have attempted to distinguish VMI's admissions policy from the admissions policies of single-gender women's colleges by arguing for a "compensatory" theory of equal protection jurisprudence. See Kmiec, supra note 20, at A15; Mann, supra note 334, at B3. Essentially, the "compensatory" theory posits that one class of persons may be treated more favorably than a different class of persons in order to "compensate" the benefitted class for past discrimination. Feminists argue that single-gender admissions policies at women's colleges "compensate" women for past discrimination, while the single-gender admissions policies at schools such as VMI and The Citadel stigmatize women. See Mann, supra note 334, at B3; Mandelbaum, supra note 238, at A14.

There is significant legal support for the "compensatory" argument, particular in the opinions of Justice O'Connor. See, e.g., J.A. Croson Co., 488 U.S. 469, 476 (1989); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 728 (1982). Justice O'Connor commented in Hogan that "[i]n limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened." Hogan, 458 U.S. at 728. See also Schlesinger v. Ballard, 419 U.S. 498, 508 (1975); Kahn v. Shevin, 416 U.S. 351 (1974) (supporting the proposition that compensation for past discrimination can justify gender-based classifications that favor women). Accord Craig v. Boren, 429 U.S. 190, 198 n.6 (1976).

But see Brunet v. City of Columbus, 1 F.3d 390, 403-04 (6th Cir. 1993) (holding that gender-based affirmative action plans are subject to "strict scrutiny" when challenged under the Equal Protection Clause); Lamprecht v. F.C.C., 958 F.2d 382 (D.C. Cir. 1992) (holding that compensatory FCC policy preferring female broadcast applicants over similarly situated male applicants was invalid under the Equal Protection Clause). Return to text.

[336] Reeves, supra note 255, at 107. Return to text.

[337] See Gardenswartz, supra note 20, at 645. Return to text.

[338] Id. at 609-10. Return to text.

[339] Id. See also Dennis Kelly, Rites of Passage Encourage High Expectations, Providing a Social Anchor, USA TODAY, Jan. 15, 1992, at A6. The academies were intended to serve approximately 250 boys ranging in grade levels from kindergarten through the eighth grade. Gardenswartz, supra note 20, at 609-10. Return to text.

[340] 775 F. Supp. 1004 (E.D. Mich. 1991). Return to text.

[341] Id. Return to text.

[342] Id. at 1014. Return to text.

[343] Id. Return to text.

[344] See id.; VMI II, 44 F.3d 1229, 1232 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995). Return to text.

[345] See Garrett, 775 F. Supp. at 1013 n.14.; VMI I, 976 F.2d 890, 900 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). Return to text.

[346] See VMI II, 44 F.3d at 1239-40. Return to text.

[347] Gardenswartz, supra note 20, at 645. Return to text.

[348] See id. at 644. Return to text.

[349] Orvin, supra note 261. Return to text.

[350] Compare Rostker v. Goldberg, 453 U.S. 57 (1981) with Michael M. v. Superior Court, 450 U.S. 464 (1980); Jenness v. Fortson, 403 U.S. 431, 442 (1971). Return to text.

[351] See VMI II, 852 F. Supp. 471, 484 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir.), cert. granted, 116 S. Ct. 281 (1995) ("If 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."). Return to text.

[352] Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 734 (1982) (Blackmun, J., dissenting) (emphasis added). Return to text.

[353] The Supreme Court heard oral arguments in United States v. Virginia on January 17, 1996. 64 U.S.L.W. 27d29 (U.S. January 23, 1996). See also Kathryn R. Urbonya, Separate but Equal Revisited: The Court Weighs Whether State-Supported Military Schools May Bar Women, A.B.A. J., Feb. 1996, at 44; Joan Biskupic, VMI Argues for All-Male Tradition, WASH. POST, January 18, 1996, at A4. By most accounts, VMI did not fare well before the Court. See, e.g., Biskupic, supra, at A4 ("[A] majority of the justices suggested the time may have come for the prestigious state-run school to change."). With Justice Clarence Thomas having recused himself from the case, only eight Justices heard oral argument. Four of the Justices, Stevens, Souter, Ginsburg, and Breyer, expressed strong skepticism about the exclusion of women from VMI. Id. Of the remaining four Justices, only Justice Scalia was unwavering in his defense of VMI. Id. Nevertheless, the outcome of the case remains unclear. Justice O'Connor, who is frequently the deciding vote on equal protection issues, hinted that a separate program for men and women, within the grounds of VMI itself (and yielding a VMI degree to both genders), might be sufficient to eliminate any constitutional inequity. Id. Questions posed by Justice Kennedy during oral arguments suggest that he might support such an approach as well. Id.

Such a compromise approach would leave neither side happy but would likely yield an equitable result. VMI would presumably be able to maintain its adversative methodology, and those women who desired it would have the opportunity to pursue the rigor and prestige of a VMI degree. Return to text.