It is easy to go too far with rigid rules in this area of claimed sex discrimination, and to lose—indeed destroy—values that mean much to some people by forbidding the State to offer them a choice while not depriving others of an alternative choice.
Justice Harry A. Blackmun
Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike.
Justice Potter Stewart
The men rise before sunrise. With the playing of reveille, they are out of their bunks, on the move. All around is frantic activity, noise, making of beds, adjusting of uniforms. No stalls divide the bathrooms; there is no privacy. All is seen. People are yelling, "Formation in five minutes, get out of the barracks." Soon they are out in the cold morning air. They will not sleep for nearly seventeen hours. This is not boot camp and these are not soldiers. They are college students, cadets at the Virginia Military Institute (VMI) and The Citadel, the state-funded military colleges of Virginia and South Carolina.
There are currently no female cadets at VMI or The Citadel. However, in 1990, an anonymous woman contacted the United States Department of Justice (Justice Department) and filed a complaint regarding VMI's single-gender admissions policy. The Justice Department, acting under statutory authority, brought suit against VMI on behalf of the complainant; the suit alleged that VMI's single-gender admissions policy violated the Equal Protection Clause of the Fourteenth Amendment.
Two years later, South Carolina resident Shannon Richey Faulkner, who instructed her guidance counselor to delete any reference to gender on her Citadel application, applied for and was granted conditional ad mission to The Citadel. The admission was withdrawn when The Citadel learned that Faulkner was female. Shortly thereafter, Faulkner brought suit against The Citadel seeking a court order that would permit her to attend day classes.
United States v. Virginia2 and Faulkner v. Jones raise the same fundamental questions. First, can the public funding of single-gender military education promote and further an important governmental objective? Second, can the Equal Protection Clause of the Fourteenth Amendment permit a state to provide a publicly funded military education for one gender, while providing no equivalent educational program for the other gender? Third, if the Equal Protection Clause does prohibit a state from offering single-gender education to one sex, while withholding it from the other, can the constitutional violation be remedied through the establish ment of a parallel single-gender institution for the excluded sex?
United States v. Virginia has two litigation phases: the liability phase (VMI I) and, on remand, the remedial phase (VMI II). A final disposition of VMI II was recently rendered by the United States Court of Appeals for the Fourth Circuit. Accordingly, United States v. Virginia became procedurally ripe for review by the United States Supreme Court.
Certiorari was granted by the Supreme Court to United States v. Virginia on October 5, 1995. Additionally, the Court disposed of the procedurally incomplete Faulkner v. Jones. The Court's resolution of VMI II could potentially have broad ramifications. The fate of single-gender education, whether public or private, may ultimately hang in the balance.
This Comment analyzes the present legal controversies surrounding VMI and The Citadel. Part II chronicles the rich traditions of VMI and The Citadel and endeavors to illustrate the positive role that the Citadel/VMI methodology plays in improving the lives of young men. Part III discusses the doctrinal history leading up to the present litigation. In so doing, Part III discusses how the Equal Protection Clause has been applied to gender classifications through the use of "intermediate scrutiny." Part III also assesses the line of cases construing the validity of single-gender public education. Part IV delineates the procedural history of United States v. Virginia and Faulkner v. Jones.
Part V analyzes the Fourth Circuit's recent decision in VMI II and assesses the court's new test for determining the validity of publicly funded single-gender institutions. Part V additionally argues that the Fourth Circuit's approval of Virginia's remedial plan in VMI II satisfies the Equal Protection Clause. Part VI assesses the present status of the Faulkner litigation and discusses Shannon Faulkner's abrupt departure from The Citadel. Part VII discusses the possible outcome of the Supreme Court's ruling in United States v. Virginia. Finally, part VIII argues that valuable educational opportunities may be permanently lost, to both genders, if the Supreme Court does not affirm the Fourth Circuit's final disposition of United States v. Virginia.
VMI enjoys a prestigious history. It was established in 1839 in a building previously used to house surplus ammunition and weapons from the War of 1812. The fledgling university performed an instrumental role in the War Between the States. Nearly one-third of the field grade officers (majors and colonels) for Robert E. Lee's Confederate Army of Virginia were VMI graduates.
VMI's alumni have continued to play important roles in every American military engagement since the Civil War. Names affiliated with the Institute include VMI's most famous professor, Thomas "Stonewall" Jackson, and distinguished alumni General George S. Patton and General of the Army George C. Marshall. Six VMI alumni have received the Congressional Medal of Honor, the highest honor that can be bestowed for military bravery.
In 1842, the South Carolina Legislature created a military college at "The Citadel." The mission of the new college was to provide "a system of education for the poor but deserving boys" of South Carolina. The Citadel provided young "cadets" military training for "times of conflict" and "knowledge in the practical arts and sciences for service as citizens in time of peace."
"Times of conflict" were close at hand. The Citadel's cadets played a dramatic role in the War Between the States. They manned the cannons that fired the first shots across Fort Sumter, marking the symbolic beginning of the Civil War. During the war, the cadets were called upon to defend Charleston and South Carolina eight different times. In one noteworthy engagement, cadets helped delay General Sherman and his battle-hardened Union troops for ten days while Savannah, Georgia was successfully evacuated by Confederate forces. Over the years, The Citadel has produced many great leaders, both military and civilian.
At VMI and The Citadel, individual success stories are commonplace. Young men lacking direction and discipline, but with a desire to improve themselves, come to the spartan barracks as an alternative to the social distractions of the coeducational university. Others are drawn to the rigor of the experience, which represents an ultimate challenge. Despite the iron discipline and scant social life imposed on cadets, the graduation rate is significantly above the national average. This success is in a large part attributable to the "holistic" educational methodology employed at the two schools. Every activity, be it in the classroom or barracks, is intended to instill knowledge and to modify behavior. At VMI and The Citadel, character development is the primary goal.
VMI and The Citadel both use an adversative model of education. This model includes "[p]hysical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoc trination in desirable values." The model is premised on a theory that adolescent males enter college with overinflated egos and misconceptions about their own self-importance. The Citadel/VMI educational methodology challenges the entire belief structure of entering cadets and rebuilds each young man into the mold of the citizen soldier. The tearing down process can be ruthless, but it is applied equally to all cadets, regardless of individual talents or abilities.
The freshman year is the most severe time for cadets at both schools. It is designed to render an experience comparable to Marine Corps boot camp. The first year also serves as a time of indoctrination and extensive learning. Although there are small differences between the programs at VMI and The Citadel, the experiences are comparable. An account of the experience endured by first-year cadets at VMI illustrates the holistic nature of The Citadel/VMI educational methodology.
The entering cadet is termed a "rat" because "the rat is 'probably the lowest animal on earth.'" "Rats" endure the "rat line," a yearlong ritual of harsh physical and psychological adversity intended to weed out the unsuited. The "rats" are verbally abused, stripped of previous beliefs and attitudes, and instilled with the core values of VMI. Survivors of the first year become "brother rats." Colonel N. Michael Bissell, the Commandant of Cadets at VMI, describes the indoctrination and matura tion of the "rat" as follows:
I like to think VMI literally dissects the young student that comes in there, kind of pulls him apart, and through the stress . . . teach[es] him to know every thing about himself. He truly knows how far he can go with his anger . . . he knows just exactly what he can do when he is physically exhausted, he fully understands himself and his limits and capabilities. Something I think is the mainstay of leadership.Barracks life comprises a significant portion of the holistic education received by cadets at VMI and The Citadel. All cadets are required to live in the barracks during their four years of school. First-year cadets receive informal training and constant scrutiny by upperclassmen. There is a total absence of privacy. Furnishings are sparse and inspections frequent. "Rats" and "knobs" must maintain a full load of college classes, as well as memorize and recite to upperclassmen on demand information about institutional regulations, school history, and general military protocol.
Punishments and rewards are collective as well as individual and are designed to foster egalitarianism and class solidarity. Unlike the United States military academies, VMI and The Citadel employ no ability-level grouping. Each cadet comes to realize that he individually must perform at required levels, lest his peers suffer for his personal shortcomings.
The Equal Protection Clause of the Fourteenth Amendment commands that laws apply equally to all persons within legally cognizable classes. However, a government is not required to regulate different classes of people identically under all circumstances. Thus, the Equal Protection Clause accommodates the principle that some classes of people are inherently different: "[f]undamental injustice would undoubtedly result if the law were to treat different people as though they were the same." Courts have found constitutional such disparate treatment from laws regulating the age at which a person may drive or purchase alcohol and requiring only men to register for Selective Service.
Generally, a government regulation may distinguish among classes of persons if the regulation is "rationally related" to a legitimate public purpose. However, certain types of regulatory classifications provoke closer judicial scrutiny under the Equal Protection Clause. Courts consider inherently "suspect" governmental action that affects people differently on the basis of race or national origin or that impinges on the "fundamental rights" of individuals. Suspect classifications are subject to "strict scrutiny" by reviewing courts. In analyzing such governmental action, courts employ a two-prong analysis: the governmental authority must demonstrate a compelling state interest for the discriminatory classifica tion, and it must demonstrate that the compelling state interest is advanced by the least restrictive means possible. Courts almost universally invalidate discriminatory governmental actions receiving "strict scrutiny." This is, at least in part, because little or no deference is given to the challenged governmental regulation during "strict scrutiny" review.
Regulations that discriminate on the basis of a person's gender are not "inherently suspect" so as to require strict scrutiny. Rather, gender-based classifications receive a mid-level form of heightened judicial review that is often described as "intermediate scrutiny."
Justice Stewart's concurrence in Michael M. v. Superior Court of Sonoma County expounds on the rationale for this distinction:
[D]etrimental racial classifications by government always violate the Constitution, for the simple reason that, so far as the Constitution is concerned, people of different races are always similarly situated . . . . By contrast, while detrimental gender classifications by government often violate the Constitution, they do not always do so, for the reason that there are differences between males and females that the Constitution necessarily recognizes.The test for "intermediate scrutiny" is amorphous and often produces inconsistent judicial results. The following section traces the development of "intermediate scrutiny" for gender classifications under the Equal Protection Clause.
The United States Supreme Court first applied heightened scrutiny to gender classifications in Reed v. Reed. Reed involved an Idaho probate statute that preferred the appointment of men as probate administrators. Idaho attempted to justify the discriminatory statute on the grounds of administrative convenience. The Supreme Court found Idaho's administrative convenience rationale insufficient to justify the gender-based classification. The Court stated that Idaho's statute was "the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause." Thereafter, the Court nominally invalidated the Idaho statute under a "rational relationship" analysis, but language in Reed indicated that the Court was applying a higher level of scrutiny.
The Court addressed several equal protection challenges to gender-based discrimination in the years following Reed. Among the cases was Frontiero v. Richardson. In Frontiero, the Court invalidated a federal statute that provided greater benefits to female spouses than to male spouses of military personnel. Justice Brennan, writing for the Frontiero plurality, condemned the use by courts of "romantic paternalism" to evaluate gender-based classifications and contended that "romantic paternalism" had "the effect of invidiously relegating . . . females to inferior legal status without regard to . . . actual capabilities." Frontiero also signaled to the lower courts that gender-based classifications could no longer be justified by referencing invidious stereotypes about the roles of men and women. Justice Brennan concluded that gender-based classifications were "inherently suspect." However, later Supreme Court opinions unequivocally reject the notion that gender-based classifications are inher ently suspect.
Kahn v. Shevin and Schlesinger v. Ballard, decided shortly after Frontiero, effectively narrowed the holding of Frontiero. In both Kahn and Schlesinger, the Court upheld statutes that favored one gender over the other. Kahn involved a Florida statute that gave widows, but not widowers, a $500 cash exemption from state property taxes. In upholding the Kahn statute, the Court found dispositive statistics that indicated that a widowed woman working full-time would make significantly less than a similarly situated male. Such an income discrepancy would exacerbate economic hardship for a widow to a greater extent than for a wid ower. Thus the Court found that Florida's unequal treatment of widowers had a "fair and substantial relation to the object of the legislation."
The Schlesinger Court addressed a challenge to a federal statute that granted female Naval officers a thirteen-year tenure of commissioned service to reach a specified rank before mandatory discharge but gave male officers only nine years to achieve the same rank. In upholding the statute, the Court reasoned that because women were prohibited from serving in combat billets, they had less opportunity to advance in rank. Together, Kahn and Schlesinger support the proposition that a classification favoring one gender may be justified if it intentionally and directly compensates the gender that has been disproportionately burdened by past discrimination.
Craig v. Boren set forth what has become the modern "intermediate scrutiny" test for evaluating the constitutionality of gender-based classifi cations. Craig concerned an Oklahoma statute that permitted females to purchase beer at eighteen years of age but prohibited the sale of beer to males before they reached the age of twenty-one. The Craig Court applied a two-prong test that requires a governmental actor to show: first, that a gender-based classification serves an "important governmental objective," and, second, that the classification is "substantially related to achievement of that objective." Oklahoma offered traffic safety as its justification for the disparate treatment and produced statistics backed by substantial evidence showing that changing the statute would adversely affect traffic safety. The Craig Court rejected these statistics and found the Oklahoma statute unconstitutional because it failed to "advance substantially" Oklahoma's "important objective."
The Supreme Court's landmark decision in Brown v. Board of Educa tion brought an end to legally sanctioned racial segregation in American public schools. However, the Supreme Court has not extended the Brown prohibition of "separate but equal" schools beyond the context of racial classifications, and constitutional challenges to publicly funded single-sex education in the years following Brown met with little suc cess. Both state and federal courts continued to apply a form of "separate but equal" analysis to address gender classifications. In Allred v. Heaton, a Texas court rejected a female plaintiff's challenge to the all-male admission policy of Texas A & M University. The Allred court found that women enjoyed substantially equal educational opportunities at other Texas state schools; it reasoned that even if this were not so, under the Equal Protection Clause, gender-based classifications required less scrutiny than race classifications.
Beginning in the 1970s, courts intensified the scrutiny of publicly funded single-gender education. In Kirstein v. Rectors & Visitors of the University of Virginia, a Virginia federal district court held that the Equal Protection Clause prohibited Virginia from denying women the opportunity to attend the University of Virginia at Charlottesville. Kirstein was the first case to acknowledge that the "prestige" of an insti tution is a relevant consideration in determining whether a school's single-gender admission policy passes constitutional muster. While the Kirstein court found that no other Virginia university offered women prestige substantially equal to that of the University of Virginia, it did not order the University of Virginia to become coeducational. Instead, the court approved a consent decree governing the phasing in of coeducation under a plan voluntarily formulated by the University of Virginia.
Kirstein must be understood as a narrow opinion. The court refused to hold publicly funded single-sex education per se unconstitutional. Rather, it expressly stated, with ironic foresight: "[W]e are urged to go further and to hold that Virginia may not operate any educational institution separated according to the sexes. We decline to do so . . . . One of Virginia's educational institutions is military in character. Are women to be admitted on an equal basis . . . ?"
Federal courts have also upheld single-sex education. In Williams v. McNair, a male plaintiff sought admission to South Carolina's all-female Winthrop College. The District Court for the District of South Carolina evaluated Winthrop's all-female admissions policy under a rational basis review and concluded that it was constitutional.3 The Williams court explicitly accepted that Winthrop College's single-sex policy was rationally justified by a need for statewide educational diversi ty. Specifically, the court stated: "[F]lexibility and diversity in educa tional methods, when not tainted with racial overtones, often are both desirable and beneficial; they should be encouraged, not condemned." Although it acknowledged that the Kirstein court disapproved a single-gender admission policy under similar circumstances, the Williams court distinguished Kirstein on the basis that Winthrop College did not enjoy the prestige or offer the vast educational opportunities of the University of Virginia. The court was unpersuaded by the plaintiff's argument that he was inconvenienced by having to attend a university outside his hometown.
Vorchheimer v. School District of Philadelphia, decided in 1976, is the most recent case upholding publicly funded single-gender education. In Vorchheimer, the Third Circuit borrowed the "substantial equality" rationale of Allred and the "educational diversity" reasoning of Williams, to hold that the Philadelphia school system could continue to operate separate single-gender high schools for gifted students. The court conceded that the programs for females did not provide the same science curriculum and facilities as those for males. Nevertheless, the court found the discrepancies insufficient to render the whole program unconstitutional; it reasoned that differences between the sexes, under limited circumstances, could justify variations in educational curricula. The court suggested that variations in parallel educational programs could be constitutional if each school district on the whole gave both genders an equal opportunity to succeed in the academic disciplines of their choice. It then found that the Philadelphia school system, as a whole, provided equal opportunities in science for boys and girls, but it reached this conclusion on little evidence. An equally divided Supreme Court affirmed the Third Circuit's holding in Vorchheimer without opinion.
These early single-sex education cases represent judicial confirmation that single-sex education may serve an important governmental purpose. However, the point at which single-gender education ceases to be an "important governmental purpose" and, instead, becomes "invidious discrimination" is unclear. The Supreme Court's opinion in Mississippi University for Women v. Hogan addressed the issue but seemingly created more questions than it answered.
The litigation in Mississippi University for Women v. Hogan arose when Joe Hogan, a state resident, sought permission to enroll for credit at the nursing school of the Mississippi University for Women (MUW), Mississippi's only publicly funded single-gender institution. The Mississippi University for Women denied Hogan permission to enroll, notwithstanding its policy that allowed him to audit the same classes for no credit. Justice O'Connor, writing for a five-to-four majority, held the MUW nursing school's all-female admission policy unconstitutional.
The Court found that MUW's admissions policy failed the first prong of the "intermediate scrutiny" analysis. For a state to maintain gender-based classifications in education, it must demonstrate "an exceedingly persuasive justification" for the classification. MUW proffered affirmative action as its justification: namely, that the program provided women with an opportunity to advance in a nursing career. The majority conceded that, in some circumstances, providing affirmative action to a previously disadvantaged class could be considered an important governmental objective. However, the Court found that offering a nursing program only to women would actually decrease the career opportunities and prestige of women and thereby negate any affirmative action effect.
MUW's admissions policy also failed the second prong of intermediate scrutiny. The policy of permitting male auditors to participate fully in classes "fatally undermine[d] its claim that women . . . [were] adversely affected by the presence of men."
One commentator has suggested that Hogan creates a third prong for reviewing gender-based classifications. Language in J.E.B. v. Alabama ex rel. T.B., the Court's most recent pronouncement on gender under the Equal Protection Clause, supports such a proposition. The Hogan Court, borrowing dicta from Frontiero, declared that "intermediate scrutiny" review must be applied "free of fixed notions concerning the roles and abilities of males and females." Further, Hogan required courts to engage in a "reasoned analysis rather than . . . mechanical application of traditional . . . assumptions about the proper roles of men and women."
The holding in Hogan was narrow.3 Hogan did not decide whether publicly funded, single-sex institutions were per se unconstitutional. The Court expressly declined to address the issue because Mississippi maintained no other single-gender university or college. Hogan suggests that publicly funded, single-gender education (whether in parallel institutions or otherwise) can be constitutionally permissible, provided that an "extremely persuasive justification" for gender-based classifications can be shown. After an eight-year hiatus from the courts, challenges to the constitutionality of single-gender education resurfaced in 1990. Litigation initiated against VMI and The Citadel reopened the questions left unanswered in Hogan.
The Justice Department began its quest to make VMI coeducational on March 1, 1990, when it filed a complaint in the Federal District Court for the Western District of Virginia. The complaint named as defendants, among others, Virginia Governor Douglas Wilder, VMI, and the VMI Board of Visitors. Additionally, the complaint alleged that VMI's failure to admit women into its "Corps of Cadets" constituted discrimination on the basis of sex in violation of the Fourteenth Amendment's Equal Protection Clause. The Justice Department argued that the only suitable remedy for the constitutional violation was the admission of women into VMI. Virginia, representing VMI, responded that the Equal Protection Clause was not violated because the exclusion of women is imperative to preserving VMI's unique and holistic educational methodology. The Commonwealth further argued that VMI's exclusion of women was required to promote educational diversity, an "important state educational objective." After extensive fact-finding, Judge Jackson Kiser found that Virginia's arguments justified the exclusion of women from VMI.
The Justice Department appealed VMI I to the Fourth Circuit Court of Appeals. The Fourth Circuit's decision, however, left both sides unsure whether they had won or lost. The court adopted the district court's finding that "single-gender education is pedagogically justifiable" and agreed that "differences between a single-gender student population and a coeducational one justify a state's offering single-gender education." Additionally, the court agreed that VMI's unique method of education would be materially altered by the integration of women. In summarizing the "catch-22" of admitting women to VMI, the court stated, "[W]omen are denied the opportunity when excluded from VMI and cannot be given the opportunity by admitting them, because the change caused by their admission would destroy the opportunity."
Despite its language suggesting an indication to do otherwise, the Fourth Circuit refused to affirm the district court's disposition of VMI I. Essentially, the court found that the women of Virginia were not afforded educational opportunities analogous to those enjoyed by men at VMI. Therefore, the Commonwealth's failure to offer females a comparable single-gender military program violated the Equal Protection Clause.
The court proposed three ways that the Commonwealth might remedy the constitutional violation: 1) become a private all-male institution and reject state funding, 2) create an all-female military program parallel to VMI, or 3) voluntarily integrate women. The Fourth Circuit then remanded the case to the district court to permit the Commonwealth to "formulate, adopt and implement a plan that conforms to the principles of equal protection."
Following the court's instructions, Virginia developed a plan to remedy the constitutional violation. The evaluation of Virginia's proposed remedial plan, VMI II, was argued before the district court on April 29, 1994. During the one-and-one-half-year interim between VMI I and VMI II, litigation raising similar legal issues as those presented in United States v. Virginia was commenced against The Citadel in Faulkner v. Jones.
The obvious difference between Faulkner v. Jones and United States v. Virginia was the presence of Shannon Faulkner, "a real, live plaintiff who, but for her sex, would probably be a member of the Corps of Cadets." Shannon Faulkner, a seventeen-year-old high school senior from Powdersville, South Carolina, applied to The Citadel and was temporarily accepted in January 1993. Upon discovering Faulkner's gender, The Citadel revoked her admission. Claiming a violation of her equal protection rights, Faulkner promptly brought suit in the District Court for the District of South Carolina. Faulkner sought a permanent injunction compelling The Citadel to abolish its single-sex admissions policy and to admit Faulkner and any other qualified female applicant into The Citadel's Corps of Cadets. The Citadel stipulated that "but for" Shannon Faulkner's sex, she was qualified to be a member of The Citadel's Corps of Cadets.
Four months after initiating the lawsuit, Faulkner filed a motion for a preliminary injunction to compel The Citadel to admit her to day classes pending the resolution of her case. The court granted the motion. The Fourth Circuit affirmed the preliminary injunction over the vehement dissent of Judge Hamilton. The majority balanced the potential harm to The Citadel of admitting Faulkner against the harm to Faulkner of being denied admission to day classes through the duration of potentially lengthy litigation. The court concluded that "the district court did not abuse its discretion in entering the preliminary injunction for [this] limited but temporary relief."
The United States Supreme Court stayed the preliminary injunction in Faulkner I on January 12, 1994, but vacated the stay six days later. After one year of litigation, Shannon Faulkner began attending day classes at The Citadel. She was the first woman ever to do this.
In April 1994, Faulkner II finally proceeded to a trial on the merits. At trial, VMI I controlled all of the legal issues in Faulkner II except two, "justification" and "remedy." South Carolina, arguing on behalf of The Citadel, contended that the constitutional violation in VMI I was grounded on Virginia's inability to "justify" providing a single-gender military education to one gender while withholding it from the other. South Carolina sought to avoid a similar result by demonstrating that providing single-gender military education to women was impracticable because of insufficient demand.
South Carolina's justification did not directly address single-gender education in the context of the unique military experience provided at The Citadel. Rather, the state argued that it could not provide any public single-sex education to women because there was insufficient demand for such an education among South Carolina's female population. Further, the state reasoned that any existing demand among South Carolina's women for single-gender education was "fully met by the private women's colleges, Converse and Columbia, whose South Carolina students received state support through the South Carolina Tuition Grants Program." No mention was made, however, of providing for South Carolina's women who desired a "military education" in a single-gender environment.
The district court rejected South Carolina's positions and found that the state failed to articulate an "important policy" that justified "offering the unique benefits of a Citadel type education to men and not to women." Accordingly, the court held that The Citadel's all-male admissions policy violated the Equal Protection Clause of the Fourteenth Amendment.
South Carolina fared no better on the issue of remedy. At the time of the trial, the state provided "nothing before the court . . . that permits it to determine what the defendants will do or can do to guarantee to the plaintiff her constitutional rights." Finding that South Carolina had not proposed a sufficient remedy, the judge evaluated the three possible remedies suggested by the Fourth Circuit in VMI I: privatization, integration, or the creation of a parallel institution for the excluded sex. Judge Houck reasoned that because Faulkner was about to enter her junior year of college, time was of the essence. Since privatization of The Citadel was not financially feasible, and the establishment of a program comparable to The Citadel would take too long to give Shannon Faulkner an adequate remedy, the district court concluded that Shannon Faulkner must immediately be admitted into The Citadel's Corps of Cadets. Further, the district court ordered that South Carolina be prepared by August 1995, to implement a remedy, in accordance with VMI I, for other South Carolina women desiring a single-gender military education. The Fourth Circuit stayed the district court's order pending appeal. The court heard the appeal on January 30, 1995, four days after it released its ruling in VMI II.
Following VMI I, Virginia set out to formulate an appropriate remedy for the constitutional violation noted by the Fourth Circuit in VMI I. Pursuant to the Fourth Circuit's mandate, Virginia decided to create a parallel leadership training program for women. The Commonwealth named the new program The Virginia Women's Institute for Leadership (VWIL).
In April 1994, Virginia submitted its remedial plan to the District Court for the Western District of Virginia. After weighing the testimony of expert witnesses for the Commonwealth and the Justice Department and making extensive findings of fact, the district court found that VWIL effectively remedied the constitutional violation in VMI I. Accordingly, the district court held the remedy of VWIL constitutional and ordered its immediate implementation. The Justice Department appealed the district court's remedial determination to the Fourth Cir cuit.
[T]he proposed Plan is ingenious, and would seem to be unique. When carried into effect, it will provide to women an educationally solid, meaningful experience comparable . . . to the opportunities provided for men at VMI, and one which is otherwise unavailable to women in Virginia.Dr. David Riesman Harvard University
VWIL is an all-female educational program established with state funds at Mary Baldwin College (MBC), one of Virginia's all-female private schools. The Virginia Legislature passed a budget bill funding VWIL "at the same level per Virginia student as the appropriation per Virginia student at VMI." In addition, the VMI Alumni Association extended its career placement services to VWIL, offered assistance in recruiting prospective students to VWIL, and began to develop a joint alumni networking program with Mary Baldwin College. The VMI Foundation pledged a $5.6 million permanent endowment for the benefit of VWIL. The first VWIL class began in September 1995. Fifteen students had committed to the VWIL program as of February 1995. VWIL planned to enroll twenty-five students in the fall of 1995, with a slightly larger class expected in 1996.
The faculty of MBC played a substantial role in designing VWIL. VWIL's designers concluded that the mission and goals of VWIL could be better achieved for young women if the VWIL program de-emphasized the harsh adversative method incorporated in the "rat line" at VMI. Instead, the program designers sought to create "a structured environment emphasizing leadership training."
Description of the essential program of VWIL follows. In addition to the standard academic program offered at Mary Baldwin College, VWIL students are required to complete, as a "minor," a curriculum in leadership training. Each student must take eight semesters of health and physical education courses. The military aspect of VWIL includes four years of mandatory ROTC training taught by ROTC professors from VMI. In addition to standard ROTC training, students participate in organized military drill and the newly formed "Virginia Corps of Cadets," composed of the all-female VWIL, the all-male VMI, and the military component of coeducational Virginia Tech. The Governor of Virginia is the Commander-in-Chief of the Virginia Corps of Cadets. VWIL students are required to attend a six-week ROTC summer training program between their junior and senior years, and they will be eligible for military commission in any of the four Armed Services upon graduation.
VMI I suggested that the establishment of parallel single-sex military programs could eliminate any constitutional violation inherent in providing military education only to men.6 In Faulkner I, the Fourth Circuit provided further guidance, indicating that parallel programs would not have to be "identical for both men and women." Rather, the court determined that the nature of real differences between men and women should dictate "the type of facility permissible for each gender":
[A]ny analysis of the nature of a separate facility provided in response to a justified purpose, must take into account the nature of the difference on which the separation is based, the relevant benefits to and the needs of each gender, [and] the demand (both in terms of quality and quantity) . . . . [A]ny separate facilities provided for males and females may be based on real differences between the sexes . . . so long as the distinctions are not based on stereotyped or generalized perceptions of differences.In conformance with the Fourth Circuit's guidance, VWIL represents Virginia's attempt to provide the young women of the Commonwealth a holistic military education comparable to VMI's program. VWIL's institutional mission is almost identical to that of VMI: "to produce citizen-soldiers, who are educated and honorable women, prepared for the varied work of civil life, qualified to serve in the armed forces, imbued with love of learning, confident in the functions and attitudes of leadership, and possessing a high sense of public service." The women of VWIL will pursue the same five pedagogical goals as the men of VMI: "education, military training, mental and physical discipline, character development, and leadership development." However, VWIL was not intended to provide a "mirror image" of VMI. This, the Justice Department contends, was VWIL's fatal shortcoming.
The Justice Department opined that VWIL is inadequate, and it argued that only one remedy would satisfy the constitutional violation found in VMI I: the total integration of females into VMI's Corps of Cadets. The Department reasoned that if only one woman in all the Commonwealth, the "allegorical Jackie Jones," desired the harsh adversative experience of the VMI "rat line," the Commonwealth was obligated by the Equal Protection Clause to provide it for her. Further, since major programmatic differences exist between VWIL and VMI, VWIL could not satisfy the desires of the allegorical Jackie Jones.
Before submitting VWIL to an "intermediate scrutiny" analysis, the Fourth Circuit briefly discussed the notion of "separate but equal" schools in the context of gender classifications. Cases such as Sweatt v. Painter and Brown v. Board of Education direct that where no meaningful and relevant differences exist between two classes of persons, equal treatment is required by law. In the context of race, the law recognizes no real differences among persons. In the context of gender classifications, however, real differences can justify different treatment under some circumstances, provided that differences in treatment are sufficiently correlated to documented differences between men and women. The Fourth Circuit found the "separate but equal" analysis of Sweatt and Brown inapposite as applied to VMI and VWIL because relevant and meaningful differences could and did exist between males and females in the context of military education.
This Comment suggests that the Fourth Circuit was correct in distinguishing Sweatt and Brown. Reality, and not stigma, dictates that men and women are different from each other in many ways. In the context of single-gender military education, an educational methodology that yields positive results for one gender may prove ineffective when applied to the other.
For example, studies from both sides of the ideological spectrum indicate that most women learn and perform better in an environment where they are able to build self-confidence through meeting challenges and receiving positive reinforcement from their professors. Unlike men, most women do not enter college with over-inflated self-confidence and, thus, do not need to be "knocked down and rebuilt." If VMI is compelled to accept women, it will need to modify its adversative educational methodology to accommodate the distinctive psychological and sociological needs of women, much as the Army Academy at West Point needed to do following the integration of women in 1976. Colonel Patrick Toffler of West Point testified during trial in VMI I that, based on his observations at West Point, "the psychological and sociological differences between men and women are real differences, not stereotypes."
Moreover, it is undisputed that there are real physical performance differences between men and women. In VMI I, experts testified that the majority of women could not perform the routine physical fitness requirements mandated of all VMI cadets during the freshman "rat line" and daily physical training. Further, if VMI is ordered to become coeducational and female cadets are required to perform the same physical regimen as male cadets, it is predicted that female cadets will suffer approximately 300% more injuries than male cadets. Real differences exist between genders and were properly accounted for in the design and implementation of VWIL's educational methodology.
The Fourth Circuit began its "intermediate scrutiny" analysis of VWIL by reiterating an important finding in VMI I: specifically, the provision of a "single-gender college education may be considered a legitimate and important aspect of a public system of higher education." Single-sex education, reasoned the court, had achieved widespread pedagogical acceptance and praise and could be considered an "important governmental objective."
The Justice Department once again raised "stigma" as a defense. It argued that, notwithstanding VWIL or the merits of single-gender education, an all-male VMI could never constitute an important governmental objective. In refusing to integrate women at VMI, the Justice Department urged that the Commonwealth was "relying on false stereotypes and generalizations that women [were] not tough enough to succeed in VMI's rigorous, military style program."
In response, the Fourth Circuit acknowledged that some women might succeed in the strict adversative environment of VMI. However, no matter how physically or mentally tough an individual woman might be, her presence at VMI would fundamentally change the VMI experience and thereby deprive her of the very military education she sought. The court believed that continued maintenance of an all-male VMI will not perpetuate archaic stereotypes. Rather, an all-male VMI, as one of two parallel single-gender programs, will allow each gender to reap the benefits of a single-gender military education. Since Virginia's purpose for providing a single-gender military education is not motivated by stigma and is "within . . . the traditional governmental objective of providing citizens higher education," the Fourth Circuit held that VWIL satisfied the first prong of "intermediate scrutiny."
The Fourth Circuit is correct in finding single-gender education to be an "important governmental objective." Single-gender education provides an alternative to the mainstream in higher education; it facilitates educational diversity. The pressures of dating and inter-gender relationships are significantly decreased at single-gender institutions. "Men can study men, and women can examine women—more completely and undistractedly. And mature." Studies show that students of both genders become more academically involved and experience increased intellectual self-esteem in a single-sex environment.
Virginia successfully demonstrated an "extremely persuasive justification" for its gender-based classification. Men and women can, and should, be trained to lead as "citizen soldiers," but different methods of leadership training produce better results in each gender, particularly in a single-gender environment. The holistic VMI methodology, which can be implemented only in a single-gender environment, has produced leaders and men of good character for more than 150 years. It is worth preserving.
The remedial demands made by the Justice Department before the Fourth Circuit in VMI II reinforce the validity of the predicted VMI "catch-22." Under the Justice Department's remedial plan, physical modifications would be required at VMI's barracks to afford female cadets privacy in their living quarters. VMI would be required to make changes to its "rat line" to lessen the likelihood of cross-sexual confrontations. Changes would be mandated in VMI's athletic and physical fitness programs, and VMI would be required to create an affirmative action program to recruit female cadets, faculty, and administrators. In essence, the Justice Department's remedial plan demanded changes that would destroy VMI's holistic adversative methodology. The Commonwealth's refusal to admit women at VMI is therefore not premised on "archaic stereotypes" or "fixed notions" of a woman's place, but on realities governing single-gender education in a military environment.
The Fourth Circuit next evaluated the second prong of intermediate scrutiny. Specifically, the court assessed whether the Commonwealth's "means" of promoting single-gender education, through VMI and VWIL, "substantially advanced" the societal benefits of single-gender education. The second prong presented a unique problem for the Fourth Circuit. Once an important governmental objective requiring homogeneity in gender (i.e., single-gender education) was established, classification by gender would be "by definition necessary" for "substantially advancing" the objective. Hence, the second prong does not adequately test the "fairness" of the VMI/VWIL dichotomy as applied to each gender. Consequently, the Fourth Circuit held that where the legitimacy of a classification is premised on homogeneity of gender, a third prong must be added to the traditional "intermediate scrutiny" test.
The Fourth Circuit formulated the third prong as "an inquiry into the substantive comparability of the mutually exclusive programs provided to men and women." The court analyzed the educational benefits created for men through the educational methodology of VMI and compared them with the benefits that women would receive through the educational methodology of VWIL. Where gender classifications are premised on real differences between the sexes, parallel programs created to address those real differences would pass constitutional muster if the benefits created are "comparable in substance, but not in form and detail."
The stated educational goals of VMI and VWIL were identical and the educational missions nearly so. Both institutions sought "to teach discipline and prepare students for leadership," at identical levels of state funding. Although programmatic differences would exist between VMI and VWIL, comparable benefits would accrue equally to each gender through the different methodologies of the two schools. Accordingly, the Fourth Circuit held that the parallel single-gender programs established at VMI and VWIL satisfied the newly created third prong.
The Fourth Circuit's new third prong is a pragmatic approach to achieving fairness for both genders. If men are given the opportunity to reap the benefits of a single-gender military education, it is only fair that women be given the opportunity as well. Nevertheless, differences between the genders should allow different approaches to single-gender military programs, provided that each gender is afforded comparable benefits and neither gender is stigmatized by the classification. To insist that a state provide "benefits only when . . . provided in identical form to all of its citizens, regardless of whether they are similarly circumstanced, is justified only by a needless, and indeed baseless, demand for conformity."
Having analyzed VWIL according to its "modified intermediate scrutiny test" and having concluded that VWIL remedied any previous constitutional violation, the Fourth Circuit affirmed the district court's opinion and remanded the case to the district court with instructions to supervise strictly the implementation of VWIL.
Four days after approving Virginia's remedial plan in VMI II, the same panel of the Fourth Circuit heard The Citadel's appeal from the district court's ruling in Faulkner II. At trial in the district court, South Carolina attempted to distinguish the constitutional violation noted by the Fourth Circuit in VMI I by arguing that insufficient demand among females for a single-gender education in South Carolina justified providing The Citadel's education only to males. In response, the district court ruled, as a matter of law, that equal protection is a personal right and, thus, a lack of demand alone could never justify the provision of publicly funded single-gender education to only one gender.
In a decision handed down on April 13, 1995, the Fourth Circuit disagreed that a lack of demand could never justify providing a benefit to only one gender. However, the court effectively avoided further discussion of the issue by affirming the district court on another ground. Specifically, the Fourth Circuit approved "the district court's finding that the defendants [had] failed to present [sufficient] evidence supporting an absence of demand." Consequently, the Fourth Circuit affirmed the district court's determination that South Carolina violated Shannon Faulkner's equal protection rights in denying her access to a single-gender military education.
South Carolina once again fared poorly on the issue of remedy. The Fourth Circuit found it "difficult to understand why in 1992 . . . South Carolina did not consider VMI I to apply to it and, as Virginia did, begin the process of selecting a course to correct the problem." In consequence, the Fourth Circuit ordered The Citadel to admit Shannon Faulkner to its Corps of Cadets, unless the State could establish a parallel program (comporting with VMI II) by August 1995. South Carolina was given until fall 1996, to develop a parallel program for all other women desiring a Citadel-type education.
After two years of litigation, South Carolina was forced to face what it should have realized long before: the constitutional violation found in VMI I applied with equal force to The Citadel and required either the integration of women, the school's privatization, or the establishment of a parallel women's program. Judge Houck instructed The Citadel that any remedial program intended to include Shannon Faulkner would have to be implemented and approved (following a full evidentiary trial) by August 12, 1995.
South Carolina's hastily created remedial program, introduced as The South Carolina Institute of Leadership for Women (SCIL), was filed with Judge Houck on June 5, 1995. SCIL was designed to mirror Virginia's remedial plan, VWIL, which had been upheld by the Fourth Circuit in VMI II. After repeated warnings to Citadel attorneys that the submitted plan was too vague, Judge Houck ruled that he would not try the case until November 1995. The South Carolina Institute of Leadership would not be implemented in time to prevent Faulkner's admission to The Citadel. Shannon Faulkner had prevailed.
Accompanied by her parents and four U.S. Marshals, Shannon Faulkner reported to The Citadel on August 12, 1995, to take her place in The Citadel Corps of Cadets. She was twenty pounds overweight. On Monday, August 14, 1995, "knob hell week" began; the indoctrination of the 1995-96 entering class was underway. Shannon Faulkner, however, hardly participated in the experience she fought so hard to attain. Complaining of heat illness, she was in the infirmary by mid-morning of the first day. She remained in the infirmary complaining of stress-induced stomach problems for four days. On August 17, The Citadel announced that Faulkner had been medically cleared to rejoin her company the following morning. As the hours passed on August 18, Shannon Faulkner did not emerge from the school infirmary. Rumors began circulating that she was about to quit. Later that afternoon, Faulkner voluntarily resigned from The Citadel. Fighting to be heard over an approaching thunderstorm, Faulkner tried to explain her reasons for leaving. She alleged that the stress had overcome her. Specifically, she said "The past 2 ½ years [of court battle] came crashing down on me in an instant . . . . I don't think there's any dishonor in leaving. I think there's dis-justice in my staying and killing myself just for the political point." The Citadel's first female cadet had left.
In the aftermath of Faulkner's departure, feminists cheered Shannon Faulkner for her bravery. Conservatives derided her for "political" motives. Lost on many, however, was the fact that Faulkner II was not over. The Justice Department remained a plaintiff in the case, and South Carolina was still under a court order to have a parallel program for women (SCIL) established at Converse College by August 1996.
The Citadel's holistic single-gender military program is still very much in jeopardy. To succeed in keeping The Citadel all-male, South Carolina must demonstrate that SCIL offers South Carolina's female student population "comparable benefits" to those The Citadel offers the state's male population.
VMI II arrived at a very different Supreme Court than the Court that heard Hogan fourteen years ago. Three Justices remain from the Hogan Court: Chief Justice Rehnquist, Justice Stevens, and Justice O'Connor. The Rehnquist Court is known for its commitment to judicial restraint and majoritarianism and has frequently taken a narrow view of the Equal Protection Clause. However, the Rehnquist Court has continued to exert heightened scrutiny on gender classifications. Only eight Justices heard VMI II. Justice Clarence Thomas, whose son attends VMI, has recused himself from deciding the case.
It is difficult to forecast how the Court will decide VMI II. The Court often is unpredictable on equal protection issues. This unpredictability is exacerbated by the inherent ambiguity of "intermediate scrutiny" review.
J.E.B. v. Alabama ex rel. T.B. is the Supreme Court's most recent pronouncement on gender under the Equal Protection Clause, and it may provide guidance on how the Justices will vote on VMI II. J.E.B. held that gender-based peremptory challenges were unconstitutional. In reaching this decision, the Court reiterated the lesson of Hogan—specifically, that gender classifications which "ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women" violate the Equal Protection Clause. J.E.B. indicates that the Supreme Court's disposition of VMI II will likely hinge on whether the Supreme Court believes that VMI and The Citadel, as male-only schools, "perpetuate common stereotypes about men and women."
Had VMI lost and the specious notion taken root that the law requires men and women to be treated identically in every context, the next man rejected at a private women's college with a tax exemption or government subsidy would have been the next constitutional claimant.If the Supreme Court reverses the Fourth Circuit's disposition of United States v. Virginia, holistic single-gender programs at schools such as VMI, The Citadel, and VWIL will be destroyed. Both men and women will be prohibited from enjoying the benefits of a publicly funded single-gender military education. However, a decision ordering VMI and The Citadel to become coeducational could have further-reaching effects. Private women's colleges may be forced to become either coeducational or to forego all state and federal funds. Moreover, successful single-gender education programs in America's inner cities may be forced to return to a coeducational format as well.
If private women's colleges are denominated "state actors" by the courts, then they, like VMI and The Citadel, will be subject to "intermediate scrutiny" review under the Equal Protection Clause. Thus, feminists face a dilemma in addressing United States v. Virginia and Faulkner v. Jones. Some feminists adamantly support the rights of women to attend single-gender schools but, at the same time, believe that women should be able to attend college at all-male schools such as VMI and The Citadel. If The Citadel and VMI are proscribed from retaining single-gender admissions policies, then private women's colleges, as "state actors," would logically be prevented from maintaining discriminatory policies as well. Cynthia H. Tyson, President of Mary Baldwin College, aptly summarizes the nexus between single-gender institutions, whether public or private: "This is the reality . . . . The fates of single-sex colleges for both women and men are inextricably linked." If VMI and The Citadel fall, single-gender women's colleges may face integration as well.
Innovative single-gender programs in the inner city also may fall if the Supreme Court reverses the Fourth Circuit's disposition of United States v. Virginia. Acting upon statistics regarding crime and school dropout rates in the inner city and hoping to reduce crime and promote civic responsibility, school boards in some of America's larger cities have implemented single-gender education programs for young men and boys.
In 1991, the Detroit School Board formulated a plan to create single-gender schooling for boys and young men in the inner city. The proposed single-gender institutions, dubbed "male academies," were designed to help foster a sense of identity and community in young boys through the use of male teachers and a male mentor system. The male academies never got underway. In Garrett v. Board of Education, plaintiffs with school-age daughters were able to obtain an order enjoining the implementation of the male academies. Though recognizing that the male academies' purpose was an important one, the district court held that the Detroit School Board was not permitted to "override the rights of females to equal opportunities." The holistic educational methodology of the Male Academies, in essence, could not be offered to only one gender.
The legal issues in Garrett, United States v. Virginia, and Faulkner v. Jones were all quite similar. The constitutional violation in these cases was premised on the fact that males were given the opportunity to benefit from publicly funded single-gender education, while females were not. Moreover, like the Fourth Circuit in VMI I, the district court in Garrett implied that separate academies for males and females may remedy the constitutional violation. Accordingly, if the Fourth Circuit's remedial decision in United States v. Virginia remains good law, inner city school boards will be able to establish male academies to reach "at risk" males, as long as comparable programs are established to reach and address the needs of "at risk" females.
New York, Baltimore, and Milwaukee have implemented, or are planning to implement, holistic single-gender educational programs designed to reach "at risk" inner city youth. If the Supreme Court affirms the Fourth Circuit's VMI II approval of VWIL and VMI as parallel single-gender institutions, inner city school boards will be permitted to implement male academies and female academies. Innovative plans for combating crime and poverty in the inner cities will be allowed to go forward, and both genders will benefit accordingly.
The holistic education a cadet can receive at VMI and The Citadel is unique in today's society. This uniqueness comes from a carefully designed curriculum that can flourish only in a single-gender environment. Boys can learn to be men "more completely and undistractedly."
Nevertheless, as the Fourth Circuit recognized in United States v. Virginia and Faulkner v. Jones, pedagogically justified single-gender programs cannot be operated in a manner that violates the Constitution. If a state gives men the opportunity to benefit from a single-gender military education, it is appropriate that women be given the opportunity to benefit from such an education as well. Real differences between the genders, however, can and should lead to different pedagogical approaches in the context of single-gender military education. When a state designs two parallel single-gender military education programs and implements the programs in a manner designed to reach the same end result for both genders, it is difficult to see how the Equal Protection Clause could require more. As Justice Blackmun aptly stated in Hogan, "It is easy to go too far with rigid rules in this area of claimed sex discrimination, and to lose—indeed destroy—values that mean much to some people by forbidding the State to offer them a choice while not depriving others of an alternative choice."
The Supreme Court should heed the words of Justice Blackmun and affirm the Fourth Circuit's disposition of VMI II. The single-gender traditions at VMI and The Citadel should be permitted to continue.