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IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 94-1667, 94-1712
UNITED STATES OF AMERICA, Appellant,
V.
COMMONWEALTH OF VIRGINIA, et al., Appellees.
On Appeal from the United States District Court
for the Western District of Virginia
BRIEF OF AMICI CURIAE,
NATIONAL WOMEN'S LAW CENTER,
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN,
AMERICAN CIVIL LIBERTIES UNION, CALIFORNIA WOMEN'S LAW CENTER,
CENTER FOR WOMEN POLICY STUDIES,
CONNECTICUT WOMEN'S EDUCATION AND LEGAL FUND,
EQUAL RIGHTS ADVOCATES, FEDERALLY EMPLOYED WOMEN, INC.,
FEMINIST MAJORITY FOUNDATION, HUMAN RIGHTS CAMPAIGN FUND,
LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW,
NATIONAL ASSOCIATION FOR GIRLS & WOMEN IN SPORT,
NATIONAL ASSOCIATION OF COMMISSIONS FOR WOMEN,
NATIONAL COUNCIL OF NEGRO WOMEN,
NATIONAL EDUCATION ASSOCIATION,
NATIONAL GAY AND LESBIAN TASK FORCE,
NATIONAL HOOKUP OF BLACK WOMEN,
NATIONAL ORGANIZATION FOR WOMEN,
NOW LEGAL DEFENSE AND EDUCATION FUND,
NATIONAL WOMEN'S CONFERENCE COMMITTEE,
NATIONAL WOMEN'S PARTY, NORTHWEST WOMEN'S LAW CENTER,
TRIAL LAWYERS FOR PUBLIC JUSTICE,
WOMEN EMPLOYED, WOMEN'S LAW PROJECT,
WOMEN'S LEGAL DEFENSE FUND, and YWCA OF THE U.S.A.,
IN SUPPORT OF APPELLANT,
THE UNITED STATES OF AMERICA
Marcia Greenberger, Esq.
Ellen J. Vargyas, Esq.
NATIONAL WOMEN'S LAW CENTER
Suite 100
1616 P Street, N.W.
Washington, D.C.
(202) 328-5160
Robert N. Weiner, Esq.
Leigh McAfee, Esq.
Mark Eckenwiler, Esq.
Stefanie L. Raker, Esq.
(Counsel of Record)
ARNOLD & PORTER
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 872-6700
TABLE OF CONTENTS
Page
Section
TABLE OF AUTHORITIES
ii
STATEMENT OF THE CASE
2
SUMMARY OF ARGUMENT
5
ARGUMENT
8
I.
GENDER-BASED DISCRIMINATION THAT
DISADVANTAGES WOMEN AND RESTS
UPON STIGMATIZING STEREOTYPES
VIOLATES EQUAL PROTECTION
8
A. Development of Heightened Scrutiny
9
B. J.E.B.'s Invigorated Review
12
II.
THE REMEDY ADOPTED BY THE DISTRICT COURT
VIOLATES THE EQUAL PROTECTION CLAUSE
17
A. Impermissible Stereotypes
Pervade the Court's Decision
18
1. The decision below is expressly
based on sex-based stereotypes
18
2. The district court improperly
relied on expert evidence of group
characteristics to bolster
discriminatory conclusions
21
B. History of Both Race and Sex
Discrimination Demands Integration
23
C. Separate But Unequal Program Sets
Law Back More Than 100 Years
28
D. District Court Flouted This
Court's Opinion
30
CONCLUSION
33
TABLE OF AUTHORITIES
Page
Cases cited:
Batson V. Kentucky,
476 U.S. 79 (1986)
13
Brown V. Board of Education,
347 U.S. 483 (1953)
23,24,25,29
Califano V. Webster,
430 U.S. 313 (1977)
11
Craig V. Boren,
429 U.S. 190 (1976)
10,14
Frontiero V. Richardson,
411 U.S. 677 (1973)
11,21
Harris V. Forklift Sys.
114 S. Ct. 367 (1994)
16
J.E.B. V. Alabama ex rel. T.B.
1,2,5,6,7,8,9,12,13
114 S. Ct. 1419 (1994)
14,15,17,18,20,21,22
23,28,31,33
Kahn V. Shevin,
416 U.S. 351 (1974)
12
Kirchberg V. Feenstra,
450 U.S. 455 (1981)
6,10
McCabe V. Atchison, Topeka & Santa Fe Ry. Co.,
235 U.S. 151 (1914)
22
Mississippi University for Women V. Hogan,
458 U.S 718 (1982)
6,8,9,11,20,26,31
Orr V. Orr, 440 U.S. 268 (1979),
cert. denied, 444 U.S. 1060 (1980)
10
Palmore V. Sidoti,
466 U.S. 429 (1984)
16
Personnel Administrator of Mass. V. Feeney,
442 U.S. 256 (1979)
6
Plessy V. Ferguson,
163 U.S. 537 (1896)
7,29
- ii -
Reed V. Reed,
404 U.S. 71 (1971)
11
Schlesinger V. Ballard,
419 U.S. 498 (1975)
12
Stanton V. Stanton,
421 U.S. 7 (1975)
10
Strauder V. West Virginia,
100 U.S. 303 (1880)
20
Sweatt V. Painter,
349 U.S. 629 (1950)
28,29
United States V. Fordice,
112 S. Ct. 2727 (1992)
25,26
United States V. Hamilton,
850 F.2d 1038 (4th Cir. 1988),
cert. dismissed, 439 U.S. 1094 (1089) ,
and cert. denied, 493 U.S. 1069 (1990),
overruled by J.E.B., 114 S. Ct. 1419 (1994)
21
United States V. Louisiana,
718 F. Supp. 499 (E.D. La. 1989)
26
United States V. Virginia,
976 F.2d 890 (4th Cir. 1992)
2,7,16,17,21,30
cert. denied, 113 S. Ct. 2431 (1993)
31,32
United States V. Virginia,
No. 90-0126-R (W.D. Va. Apr. 29, 1994)
2
United States V. Virginia,
766 F. Supp. 1407 (W.D. Va. 1991)
18,22
University of Cal. Regents V. Bakke,
438 U.S. 265 (1978)
22
Weinberger V. Wiesenfeld,
420 U.S. 636 (1975)
11,14
Wengler V. Druggists Mut. Ins. Co.,
446 U.S. 142 (1980)
10
- iii -
Other Authorities Cited:
Blacks in America: A Long History,
Detroit Free Press, Feb. 1, 1987, at 4B
24
Celestine Bohlen, U.S. Rejects Virginia
Plan on Desegregation, Wash. Post,
June 19, 1982, at B1
27
Maj. Fred L. Borch,
America's First Black General and
Benjamin O. Davis, Jr.: American,
134 Mil. L. Rev. 245 (1991)
24
Department of Defense Appropriations
Authorization Act, 1976,
Pub. L. No. 94-106, § 803,
89 Stat. 537 (Oct. 7, 1975)
24
Ruth Bader Ginsburg,
Sex Equality and the Constitution:
The State of the Art,
14 Women's Rights Law Rptr. 361
(Spring/Fall 1992)
17
Negro Accepted at VMI,
Richmond Times-Dispatch, Feb. 15, 1968,
at 12B
24
Note, Beyond Batson: Eliminating
Gender-Based Peremptory Challenges,
105 Harv. L. Rev. 1920 (1992)
15
Myra and David Sadker,
Failing at Fairness: How America's
Schools Cheat Girls 15 (1994)
25,26
Discrimination Against Women:
Hearings on Section 805 of H.R. 16098
Before the Special Subcomm. on Education
of the House Comm. on Education and Labor,
91st Cong. 2d Sess. 299-300 (1970)
(Statement of Dr. Bernice Sandler)
26
David Tyack and Elisabeth Hansot,
Learning Together: A History of
Coeducation in American Public Schools
(1990)
25
- iv -
Amici Curiae, the National Women's Law Center, et
al. 1 submit this brief in support of appellant, the
United States of America.
The decision of the district court, allowing
continued sex segregation of the Virginia Military
Institute ("VMI") and offering women a pallid
alternative, is based on a stigmatizing stereotype --
that women are not tough enough for VMI. The opinion of
the district court in this matter is telling. It
identifies young women's purported lower level of
self-confidence, their lack of self-esteem, and the
danger of anorexia as justifications for the continued
exclusion of women from a VMI-type program.
Discrimination based on such stereotypes cannot
survive under the Equal Protection standard most
recently set forth, and strengthened, by the Supreme
Court in J.E.B. V. Alabama ex rel. T.B.. Indeed, far
from complying with this standard, the district court's
opinion retrogresses 100 years from modern equal
protection analysis. Separate but unequal is the
1
Statements of interest for amici are set forth in the
Motion for Leave to Participate as Amici Curiae,
submitted with this brief.
Amici gratefully acknowledge contributions to this
brief by law students working at the National Women's
Law Center and at Arnold & Porter: Jenifer Bosco, Jodi
Danis, Jared Goldstein, Caitlin Halligan, Susan Huhta,
Richard Katskee and Joel McElvain.
measure of the segregated proposal the court adopted.
That proposal is inadequate under J.E.B. and nearly 25
years of jurisprudence regarding the Fourteenth
Amendment's prohibition of sex discrimination. It is
inadequate under this Court's prior opinion in this
case. And it is inadequate as a matter of fundamental
fairness.
STATEMENT OF THE CASE
In 1992, this Court ruled that the Commonwealth
of Virginia could no longer maintain one state-run
military academy only for men. 2 The Court gave Virginia
a choice -- either start providing women a publicly-
funded military education (at VMI or in a program
parallel to it) or stop funding the Commonwealth's last
bastion of all-male education.
Last year, Virginia returned to court with a plan
amounting to nothing more than a dressed-up ROTC program
for women at Mary Baldwin College. 3 The Commonwealth
offered the classic (and long discredited) protectionist
rationale that it had women's best interests at heart in
refusing them the opportunity to be educated with men at
2
See United States V. Virginia, 976 F.2d 890 (4th Cir.
1992) (cited hereinafter as the "1992 Opinion"), cert.
denied, 113 S. Ct. 2431 (1993).
3
See United States V. Virginia, No. 90-0126-R (W.D.
Va. 1994) (Mem.) (cited hereinafter as "Mem. Op.")
- 2 -
VMI. It suggested that women need a "cooperative
method" of education that "reinforces self-esteem" (Mem.
Op. at 10), that women are "generally raised with a
lower self-image than men" (id. at 19, n.10), that
"anorexia is rampant among young college women" (id. at
19) and that a VMI-type program could make it worse.
The proposal accepted below suggests that all women thus
will be better off with a watered-down military academy
using none of VMI's methodology, offering none of its
programs, bestowing none of its prestige, and affording
none of its access to well-placed alumni.
In actuality, the plan, couched in the bland,
careful language of consultants and education experts,
rests on the stigmatizing notion that women cannot cope
with VMI's adversarial atmosphere and demanding
requirements. The proposed program would not provide
women with certain key aspects of the VMI experience,
such as the adversative educational approach, the
opportunity to train alongside those men with whom they
could serve as soldiers in the future, and the chance to
develop the kinds of professional and social ties that
provide influence and prestige to VMI's graduates. It
also does not include key aspects of the VMI methodology
that the Fourth Circuit specifically identified as
contributing to its unique educational system and
methodology. Specifically, the program omits:
- 3 -
(1) rigorous military training that goes
beyond the ROTC program, including
living by military etiquette and
regulations, wearing military
uniforms, residing in stark barracks,
eating in a mess hall, attending
daily reveille and flag ceremonies,
marching to meals in formation, and
attending classes taught by retired
members of the armed forces who must
be treated as superior officers;
(2) the "rat line," which encompasses the
imposition of physical rigor and
mental stress through military
drills, indoctrination, and frequent
punishments;
(3) rigorous physical education and
training throughout the year;
(4) the mission of producing "citizen
soldiers" by providing "undergraduate
education of the highest quality --
embracing engineering, science, and
the arts -- conducted in, and
facilitated by, the unique VMI system
of military discipline";
- 4 -
(5) a holistic program that integrates
leadership training; and
(6) a strict honor code with expulsion
the only punishment.
The proposal makes no allowance for the women who
can handle the VMI environment as well as some men do.
As the district court concluded when adopting the plan,
"simply because a small handful of women may desire a
mirror image VMI
does not mean that the
Commonwealth is constitutionally obliged to provide
such." Mem. Op. at 12. In other words, according to
the district court, fully qualified women are not
entitled to the same rights and benefits the
Commonwealth offers men.
SUMMARY OF ARGUMENT
The Supreme Court, in J.E.B. V. Alabama ex rel.
T.B., 114 S. Ct. 1419 (1994), recently amplified the
burden that states must bear to justify sex-based
classifications. The Court made it crystal clear that
it will not accept as a defense to gender-based
classifications "the very stereotype the law
condemns Id. at 1426 (citation omitted). Explaining
that "[u]nder our equal protection jurisprudence,
gender-based classifications require 'an exceedingly
persuasive justification' in order to survive
- 5 -
constitutional scrutiny" (id. at 1425) 4 the Court
demanded that such classifications bear a substantial
relationship to an important government purpose. Id. at
1425, n.6. The Court drew significant parallels between
the experiences of women and African-Americans and held
that its prohibition on stereotypes to justify sex-based
classifications is particularly pointed in cases where
women and minorities share similar burdens of historic
bias.
The Commonwealth's proposal, a diluted women's
"military program" at Mary Baldwin College adopted
without modification by the Court below, ostensibly
sought to cure the constitutional violation found by
this Court. The proposal is no cure, and it does not
meet the exacting inquiry followed in J.E.B.. It is
predicated on precisely the overbroad and stigmatizing
stereotypes the Supreme Court has expressly rejected as
inadequate to state the necessary "exceedingly
persuasive justification" for a sex-based
classification. Moreover, like the classification in
J.E.B., it is subject to a particularly exacting
scrutiny given the strong parallels between the history
of discrimination against women and African-Americans at
4
Citing Personnel Administrator of Mass. V. Feeney,
442 U.S. 256, 273 (1979) ; also citing Mississippi
University for Women V. Hogan, 458 U.S. 718, 724 (1982) ;
Kirchberg V. Feenstra, 450 U.S. 455, 461 (1981).
- 6 -
VMI, in military education and in education more
broadly, including Virginia's own educational system.
Indeed, the district court, which has freely
acknowledged the major differences between the two
programs, would turn the last hundred years of Equal
Protection jurisprudence on its head. The Court has
approved a "military academy" for women that is separate
but admittedly unequal, denying women the "unique
benefit[s] of VMI's type of education," 976 F.2d at 899,
and basing that denial on presumed feminine frailties.
Not even Plessy V. Ferguson, 163 U.S. 537 (1896),
embraced such a regressive standard.
Finally, the proposal does not meet the
requirements articulated by this Court in its 1992
Opinion. Previously, this Court allowed the possibility
that the continued exclusion of women from VMI might
satisfy the Fourteenth Amendment. J.E.B. dictates that
the Court revisit that tentative acceptance of
exclusion, particularly given the discriminatory program
proposed for women and the patronizing justifications
offered to support it. This Court should demand that
the Commonwealth develop an acceptable method to
integrate VMI or discontinue support of the institution.
- 7 -
ARGUMENT
I.
GENDER-BASED DISCRIMINATION THAT
DISADVANTAGES WOMEN AND RESTS
UPON STIGMATIZING STEREOTYPES
VIOLATES EQUAL PROTECTION
In J.E.B., the Supreme Court reexamined sex
discrimination under the Equal Protection Clause for the
first time since 1982. It emerged from this 12-year
hiatus with a vigorous reaffirmation that sex-based
classifications are subject to exacting scrutiny and
emphasized just how exacting that scrutiny must now be.
The Court applied the "heightened" standard of scrutiny
it had last enunciated in Mississippi University for
Women V. Hogan, 458 U.S 718, 724 (1982) -- that states
must have "exceedingly persuasive justification(s]" for
sex-based classifications. That burden is met only when
classifications serve "important governmental objectives
and that the discriminatory means employed" are
"substantially related to the achievement of those
objectives." Id. (citation omitted).
Moreover, it highlighted the rigorous burden
governments must meet to justify gender-based
classifications where there is a history of exclusion of
women, and where the classifications rest on and
perpetuate stereotypes and "gross generalizations. "
J.E.B., 114 S. Ct. at 1426-27. In enunciating this
demanding standard, the Court drew close parallels
- 8 -
between harms inflicted as a result of race and gender
discrimination. Indeed, the Court explicitly reserved
the question whether gender discrimination should be
accorded the same strict standard of review that applies
to race-based classifications.
A. Development of Heightened Scrutiny
Since 1971, the Supreme Court has applied a
"heightened" standard of scrutiny to gender-based
classifications. Prior to J.E.B., the Court's last
statement of its standard governing gender
discrimination was in 1982, when it ruled in Hogan that
the state could not exclude men from a public all-female
nursing school. Mississippi had argued that the single-
sex school provided students a diversified education.
But the Court held that the state's discriminatory
policy had to be very closely related to an important
government objective to provide an "exceedingly
persuasive justification" for the discrimination.
Hogan, 458 U.S. at 724. The Court demanded such a
justification to ensure that the classification rested
on reasoned analysis, not the application of
"traditional, often inaccurate, assumptions about the
proper roles of men and women." Id. at 726. Moreover,
it expressly recognized that efforts to exclude and
"protect" women are simply two sides of the same coin.
The Court held,
- 9 -
[t]hus, if the statutory objective is
to exclude or 'protect' members of one
gender because they are presumed to
suffer from an inherent handicap or to
be innately inferior, the objective
itself is illegitimate.
Id. at 725.
Under heightened scrutiny, the Court has
consistently struck down gender-based classifications
based on overbroad sex-based stereotypes. See Kirchberg
V. Feenstra, 450 U.S. 455 (1981) (statute making
husbands the "head and master" of household with sole
right to manage and dispose of jointly owned property
without the wife's consent unconstitutional due to
stereotype of women as dependents rather than heads of
households) ; Wengler V. Druggists Mut. Ins. Co., 446
U.S. 142 (1980) (law requiring men, but not women, to
show financial dependence on deceased spouse to recover
workers' compensation benefits declared unconstitutional
because based on stereotype of women as financially
dependent) ; Orr V. Orr, 440 U.S. 268 (1979)
(unconstitutional to order only men to pay alimony
following divorce; sex cannot be used as proxy for
need), cert. denied, 444 U.S. 1060 (1980) ; Craig V.
Boren, 429 U.S. 190 (1976) (unconstitutional to permit
women to purchase "nonintoxicating" beer at 18, men at
21, due to stereotypes of young women and men involved) i
see also Stanton V. Stanton, 421 U.S. 7 (1975) (women
- 10 -
reached majority at an earlier age than could men; held
unconstitutional because based on notion that women did
not need to prepare for careers) i Weinberger V.
Wiesenfeld, 420 U.S. 636 (1975) (unconstitutional to
permit widows, but not widowers, to collect "mothers'"
benefits under the Social Security Act because assumes
women do not support their families) ; Frontiero V.
Richardson, 411 U.S. 677 (1973) (unconstitutional to
require spouses of female, but not male, service members
to prove financial dependence to be eligible for spousal
benefits based on stereotype that devalued service of
women) ; Reed V. Reed, 404 U.S. 71 (1971) (statute that
preferred men to women as administrators of estates
unconstitutional; classification was arbitrary and
assumed men had more relevant experience).
The Court, however, has sustained sex-based
classifications in limited situations where they serve a
benign and compensatory purpose for women. Thus, the
Court has occasionally sanctioned denial of benefits to
men in order to compensate women for historical
disadvantage. See, e.g., Hogan, 458 U.S. at 728
(recognizing 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") ; see also
Califano V. Webster, 430 U.S. 313 (1977) (women
- 11 -
permitted to exclude more low-earning years for
computation of social security benefits to compensate
for historical discrimination in employment) ;
Schlesinger V. Ballard, 419 U.S. 498 (1975) (women naval
officers allowed longer time period than men to be
promoted prior to discharge for lack of promotion
because of fewer opportunities for promotion) i Kahn V.
Shevin, 416 U.S. 351 (1974) (upholding $500 property tax
exemption for widows but not widowers to cushion
5
disproportionately heavy impact of spousal loss)
B. J.E.B.'s Invigorated Review
In J.E.B., the Court revealed just how
"exceedingly persuasive" it would require a
justification for gender classifications to be in order
to pass constitutional muster. There, the state had
tried to secure a favorable jury in a child support case
5
For this reason, this case does not present the
question of the constitutionality of single sex
education for women where such education is designed to
redress the effects of historic discrimination or
disadvantage. This Court's holding that VMI's male-only
admissions policy is unconstitutional was based on its
rejection of Virginia's reliance on a policy of
educational diversity as a sufficient governmental
interest to justify the discrimination at issue and its
accompanying conclusion that "Virginia has failed to
articulate an important objective which supports the
provision of [VMI's] unique educational opportunity to
men only. Mem. Op. at 5. Virginia advanced no remedial
justification for its exclusion of women from VMI, as it
could not. A determination by this Court that VMI must
admit women will not affect the constitutional vitality
of women's education where a compensatory purpose is
served.
- 12 -
by using nine out of ten of its peremptory strikes to
remove male jurors, believing that female jurors would
sympathize more with the mother. An all-female jury was
impaneled. Alabama's courts upheld the state's actions,
ruling that the prohibition against race-based
peremptory strikes in Batson V. Kentucky, 476 U.S. 79
(1986) 6 did not extend to sex-based peremptory strikes.
The Supreme Court granted certiorari to settle a
split in the circuits -- the Ninth Circuit had extended
Batson to challenges based on gender; this Circuit and
the Fifth and Seventh Circuits had not. See J.E.B., 114
S. Ct. at 1422 n.1. The Supreme Court ruled that Batson
is properly applied to sex-based peremptory challenges.
The basis of the Court's opinion was that any
sex-based distinction resting on stereotypes is
unconstitutional: Alabama had argued that gender-based
peremptory challenges are appropriate because men may be
more sympathetic to the alleged father in a paternity
suit, while women might be more receptive to the
arguments of the mother. In other words, Alabama
assumed, as VMI did here, that women think alike and
that they think differently from men. The Court berated
that justification:
6
Batson held that the Equal Protection Clause demands
that jurors not be chosen based on racial stereotypes
rooted in historical prejudice.
- 13 -
We shall not accept as a defense to
gender-based peremptory challenges 'the
very stereotype the law condemns.'
J.E.B., 114 S. Ct. at 1426 (citation omitted). As
Justice Kennedy noted in his concurrence, but as the
lower court here failed to recognize, women, like
minorities, do not come before the Court as
representatives of a group, but as individuals. Id. at
1434. Constitutional laws apply to individuals and
their characteristics -- not to groups and their
collective attributes (id.), and certainly not when
those supposed attributes are hollow generalities.
Thus, the Court held:
Intentional discrimination on the basis
of gender by state actors violates the
Equal Protection Clause, particularly
where, as here, the discrimination
serves to ratify and perpetuate
invidious, archaic, and overbroad
stereotypes about the relative
abilities of men and women.
Id. at 1422.
Moreover, the Court held that it does not matter
whether some factual basis may underlie the stereotypes,
relying on Weinberger V. Weisenfeld, 420 U.S. 636, 645
(1975) (holding unconstitutional a classification in the
Social Security Act authorizing benefits to widows but
not to widowers, even though the justification for the
differential was "not entirely without empirical
support") and Craig V. Boren, 429 U.S. 190, 201 (1976)
- 14 -
(invalidating an Oklahoma law establishing different
drinking ages for men and women, even though the
evidence supporting the difference was "not trivial in a
statistical sense"). See J.E.B., 114 S. Ct. at 1427
n.11. As the Court reiterated,
The Equal Protection Clause, as
interpreted by decisions of this Court,
acknowledges that a shred of truth may
be contained in some stereotypes, but
requires that state actors look beyond
the surface before making judgments
about people that are likely to
stigmatize as well as to perpetuate
historical patterns of discrimination.
Id.
In addition, the Court squarely addressed the
many similarities between race and gender
discrimination, concluding that such parallels are
relevant in Equal Protection analysis. It noted that,
"[r]espondent seems to assume that gross generalizations
that would be deemed impermissible if made on the basis
of race are somehow permissible when made on the basis
of gender. Id. at 1427. The decision rejected that
assumption. Recognizing that "the similarities between
the experiences of racial minorities and women, in some
contexts, overpower [their] differences" (id. at 1425⁷),
the Court refused in J.E.B. to treat the two groups
7
Quoting Note, Beyond Batson: Eliminating Gender-Based
Peremptory Challenges, 105 Harv. L. Rev. 1920, 1921
(1992)
- 15 -
differently. It determined that, with respect to jury
service, women and African-Americans "share a history of
total exclusion, a history which came to an end for
women many years after the embarrassing chapter in our
history came to an end for African-Americans." 114 S.
Ct. at 1425. Given that parallel history of exclusion,
the Court refused to consign women to a second-class
status under the law and extended the protections it had
already provided on the basis of race.
of particular note, although the Court did not
need to use strict scrutiny to ban gender-based
peremptory challenges, it specifically left open the
question "whether classifications based on gender are
inherently suspect." Id. at 1425 n.6.; see also Harris
V. Forklift Sys., 114 S. Ct. 367, 373 (1994) (Ginsburg,
J., concurring) ("[I]t remains an open question whether
'classifications based on gender are inherently
8
suspect. '") (citation omitted)
8
Certainly, if strict scrutiny were to apply in this
case, there would be no argument that gender segregation
at VMI would not survive. Under strict scrutiny, the
Court demands that race-based classifications "be
justified by a compelling governmental interest and must
be 'necessary
to the accomplishment' of their
legitimate purpose." Palmore V. Sidoti, 466 U.S. 429,
432-33 (1984) (citations omitted). No such
justification has been raised, nor could it be. Indeed,
the only interest which has been advanced -- diversity -
- was rejected under mid-level scrutiny. 1992 Opinion,
976 F.2d at 899.
- 16 -
Regardless of the standard used and regardless of
any claimed underlying factual basis, J.E.B. outlaws the
use of stereotypes to justify sex-based classifications.
Particularly where, as here, women and African-Americans
have borne the brunt of similar historic bias,
classifications based on stereotypes perpetuate the
stigma of women as inferior to men. As Justice
Ginsburg, in an article published in 1992, recognized:
[R] Jeservation of any institution to
males is 'likely to be a witting or
unwitting device for preserving tacit
assumptions of male superiority,
assumptions for which women eventually
must pay.
II.
THE REMEDY ADOPTED BY THE DISTRICT COURT
VIOLATES THE EQUAL PROTECTION CLAUSE
In its 1992 Opinion, this Court called single-sex
education and training "pedagogically justifiable" (976
F.2d at 897) and left open whether exclusion of women
from VMI could be substantially related to any
constitutionally cognizable state goal. Given the
subsequent case history and the Supreme Court's
intervening decision in J.E.B., it has become clear that
the answer here is a resounding "no." Under J.E.B., the
state cannot use group generalizations to justify
segregation. It cannot exclude women from a state
9
Ruth Bader Ginsburg, Sex Equality and the
Constitution: The State of the Art, 14 Women's Rights
Law Rptr. 361, 365-66 (Spring/Fall 1992).
- 17 -
program based on the ostensible way they think. And it
cannot establish a single-sex program that rests on or
perpetuates stereotypes. This is particularly so given
the close and troubling parallels between the history of
discrimination on the basis of race and sex at VMI, in
military education, and in education in general,
including Virginia's system of higher education. The
decision of the district court in this case violates the
requirements of Equal Protection and must be reversed.
A. Impermissible Stereotypes Pervade the
Court's Decision
1. The decision below is expressly
based on sex-based stereotypes
The District Court's findings and its approval of
Virginia's proposal "serve[] to ratify and perpetuate
invidious, archaic, and overbroad stereotypes about the
relative abilities of men and women." J.E.B., 114 S.
Ct. at 1422. These improper and stigmatizing
stereotypes fatally infect both the proposal and the
district court's approval of it.
In justifying its exclusion of women from VMI,
the district court cited the testimony of the
Commonwealth's expert that VMI's adversative "model of
education is simply inappropriate for the vast majority
of women." United States V. Virginia, 766 F. Supp.
1407, 1413 (W.D. Va. 1991). It noted, for example, that
- 18 -
"[m]ost men perform far better than most women in
activities which require explosive power"; that the
"speed of movement in women is, on the average, slower
than in men"; that while men need conflict, women "tend
to thrive in a cooperative atmosphere in which the
teacher is emotionally connected with the students."
Id. at 1432, 1434. In attempting to justify the
proposed plan the district court cited the testimony of
one defense witness for the proposition that "most women
reaching college generally have less confidence than
men.' " Mem. Op. at 10. The court credited speculation
that "there would be little demand for a female VMI but
there would be much more significant demand for VWIL."
Id. at 19. And, the court relied on an elaborate theory
of female psychology -- involving anorexia, "emotional
stress," and self-discipline -- to justify its
conclusion that VMI's adversative educational model is
inappropriate for women. Id.
By excluding women from VMI and denying them any
semblance of a VMI-style education, the decision of the
court below necessarily determines that women are too
frail for harsh military training. For the "gentler
sex," a cooperative rather than an adversative teaching
method would be used, no serious military training would
be required, and daily physical training would not be
demanded. Further, no engineering course would be
- 19 -
offered. As in Hogan, where the Supreme Court found
that excluding men from an all-woman nursing school
perpetuated the myth that nursing is "women's work,
denying women an engineering major creates a
self-fulfilling prophecy.
Women's supposed inability to stomach "the
ugliness and depravity of trials" offered no
justification in J.E.B. for excluding them from juries;
likewise, the image of women as "too fragile and
virginal to withstand the polluted courtroom atmosphere"
failed to rise to the level of an "exceedingly
persuasive justification." J.E.B., 114 S. Ct. at 1423,
1425. At their core, the generalizations and
stereotypes relied on by the district court in this case
are the same as these historical arguments that kept
women from jury service. That portrait of young women
as diffident, anorexic, and emotionally vulnerable
furnishes no better (or different) a justification for
excluding them from a VMI education.
Under the guise of solicitude for women's
supposed differences and in a classic application of
those long-rejected efforts to justify discrimination
against women under the theory of protectionism, VMI's
plan instead places "a brand upon them, affixed by law,
an assertion of their inferiority." Strauder V. West
Virginia, 100 U.S. 303, 308 (1880). Rather than
- 20 -
recognizing that VMI's single-sex policies arise from
historical patterns of discrimination grounded in
impermissible stereotypes, the district court chose to
endorse those stereotypes. 10 But as in Frontiero, those
stereotypes "put women, not on a pedestal, but in a
cage." Frontiero, 411 U.S. at 684. They cannot justify
an entrenched policy of denying public educational
benefits based on nothing but the sex of the applicant.
2. The district court improperly relied on
expert evidence of group characteristics
to bolster discriminatory conclusions
The district court's attempted resort to expert
evidence to bolster its generalizations about women's
shortcomings cannot survive scrutiny. Such evidence of
pedagogical justifications for the Mary Baldwin program
10
Prior to J.E.B., this Court, too, has relied on
generalizations about the sexes in gender-based
constitutional analysis. For example, it cited
"[c]ommon human experience, common sense,
psychosociological studies, and public opinion polls
(United States V. Hamilton, 850 F.2d 1038, 1042 (4th
Cir. 1988), cert. dismissed, 439 U.S. 1094 (1089), and
cert. denied, 493 U.S. 1069 (1990), overruled by J.E.B.,
114 S. Ct. 1419 (1994)), in support of its conclusion
that gender-based peremptory strikes do not violate the
Fourteenth Amendment. Moreover, in its earlier opinion
in this case, this Court based, in part, its conclusion
that VMI may not necessarily have to admit women by
noting the differences between the sexes that "common
experience" and expert opinion recognize. 976 F.2d at
897. However, just as J.E.B. clarified that so-called
"common experience" -- or any other generalized
assumptions about differences between men and women --
cannot be used to support gender-based challenges to
jurors, so, too, it cannot be used to deny women the
opportunity to attend VMI.
- 21 -
is irrelevant -- only the rights of individuals, as
required under the governing constitutional analysis,
matter here.
For example, even if it were true that there is
relatively little demand for a female "military
institution" otherwise identical to VMI or that "most
women reaching college ... have less confidence than
men" (Mem. Op. at 10), that would be no justification
for the stigmatizing segregation of the proposed
program. It is no answer to argue, as VMI must, that
the adversative model is inappropriate for most women;
it likely is inappropriate for most men as well.
The Supreme Court in J.E.B. rejected the
"conjuring up" of statistical support for discrimination
for one simple reason: such illogic would eviscerate the
Equal Protection Clause. 114 S. Ct. at 1427 n.11. As
J.E.B. stressed, statistics and generalizations about
most women or group "tendencies" (766 F. Supp. at 1434),
cannot justify discrimination, because individual rights
are at the heart of Equal Protection guarantees. See
also University of Cal. Regents V. Bakke, 438 U.S. 265,
289 (1978) (constitutional rights, including those
delineated in Fourteenth Amendment, are personal) ;
McCabe V. Atchison, Topeka & Santa Fe Ry. Co., 235 U.S.
151, 161-62 (1914) ("It is the individual who is
entitled to the equal protection of the laws").
- 22 -
In Brown V. Board of Education, 347 U.S. 483, 494
nn.10-11 (1953), the Supreme Court implicitly
acknowledged that African-American children were in the
aggregate less educationally advanced than their white
peers. Under the reasoning used below in this case, the
Brown Court could freely have concluded that African-
American pupils would not thrive in the "rarefied"
atmosphere of white schools, and that their introduction
would harm the "special" experience of white students in
all-white schools. The Supreme Court rejected such
sophistry; this Court should do so as well.
B. History of Both Race and Sex
Discrimination Demands Integration
Arguments against exclusion of women from VMI due
to the resulting stigma are particularly weighty given
the strong parallels between the historic treatment of
women and African-American men at VMI, in military
education and in education more generally, including
Virginia's system of higher education. Under J.E.B.,
distinctions that cannot be made on the basis of race in
a situation where women and African-Americans have
suffered similar discrimination likewise cannot be made
on the basis of gender.
To begin with, VMI was not racially integrated
until 1968 -- fully fourteen years after the Supreme
- 23 -
Court's decision in Brown and 130 years after it was
11
established by the Commonwealth of Virginia.
Women,
of course, are still excluded. Thus, for nearly all of
VMI's history, it has categorically excluded African-
American men and all women. This shared experience of
exclusion is also reflected in the history of the United
States military academies. The first African-American
men did not graduate from military academies until mid-
century: from West Point in 1932 12 and from the U.S.
13
Naval Academy in 1949.
Congress did not open the
doors of the three major military academies to women
14
until 1976.
Moreover, African-Americans and women have long
faced many similar barriers to educational opportunity
more generally. In the early years of our history,
formal education was available only to white males.
Prior to the Civil War, the "[e]ducation of Negroes was
almost nonexistent, and practically all of the race were
11
See Negro Accepted at VMI, Richmond Times-Dispatch,
Feb. 15, 1968, at 12B.
12
Maj. Fred L. Borch, America's First Black General
and Benjamin O. Davis, Jr.: American, 134 Mil. L. Rev.
245, 247 (1991).
13
Blacks in America: A Long History, Detroit Free
Press, Feb. 1, 1987, at 4B.
14
Department of Defense Appropriations Authorization
Act, 1976, Pub. L. No. 94-106, S 803, 89 Stat. 537 (Oct.
7, 1975).
- 24 -
illiterate. H Brown, 347 U.S. at 490. Similarly, "[f]or
almost two centuries, American education, following
European traditions, barred girls from school. 15 For
example, "[i]n the early history of Massachusetts, and
long after provision for Public Free Schools had been
made
...
it was a common thing for boys only to attend
them.
,
Harvard College, the Latin grammar schools
that prepared young men for college, and most publicly
supported town English grammar schools admitted males
only. 16
Even as some educational opportunities began to
open up, major barriers continued to be imposed on the
basis of both race and sex. For example, in United
States V. Fordice, 112 S. Ct. 2727, 2732 (1992), the
Supreme Court described in detail the historical
development of the de jure segregation of the higher
education system of the state of Mississippi, which was
typical of education throughout the Southern and border
states and was devastating to the educational
opportunities of African-Americans. Women, too, in the
nineteenth century were largely consigned to separate
15
Myra and David Sadker, Failing at Fairness: How
America's Schools Cheat Girls 15 (1994).
16
David Tyack and Elisabeth Hansot, Learning Together:
A History of Coeducation in American Public Schools 13
(1990) (quoting Horace Mann, "A Few Thoughts on the
Powers and Duties of Women" 57 (1853))
- 25 -
17
institutions and programs with a second-class status.
Limitations of access to higher education for both women
and African-Americans have persisted well into the
twentieth century. See Fordice, 112 S. Ct. at 2732 (de
jure segregation of Mississippi higher education
continued until 1962 when the University of Mississippi
was integrated by court order) ; United States V.
Louisiana, 718 F. Supp. 499, 503 (E.D. La. 1989) ("[i]t
was not until some time after the enactment of the Civil
Rights Act of 1964 that the State of Louisiana
discontinued official recognition of state universities
as single race institutions"). Women were not admitted
to much of the Ivy League as well as to other
prestigious men's colleges and universities until the
1960s and 1970s. See also Discrimination Against Women:
Hearings on Section 805 of H.R. 16098 Before the Special
Subcomm. on Education of the House Comm. on Education
and Labor, 91st Cong., 2d Sess. 299-300 (1970)
(Statement of Dr. Bernice Sandler) (describing broad use
of sex-based quotas disadvantaging women in
17
See, e.g., Sadker and Sadker at 21-28 (describing
the development of separate women's education during the
nineteenth century as a response to women's exclusion
from existing opportunities; also describing the lack of
equality in emerging women's education) ; Hogan, 458 U.S.
at 727 n.13 (concluding that "in Mississippi, as
elsewhere in the country, women's colleges were founded
to provide some form of higher education for the
academically disenfranchised.")
- 26 -
undergraduate admissions at, among other institutions,
the University of North Carolina and the University of
Michigan, as well as at many graduate and professional
schools).
Indeed, the recent history of public higher
education in Virginia, itself, underscores the point.
The University of Virginia -- Virginia's flagship
institution of higher education and one of the most
distinguished universities in the country -- excluded
both African-Americans and women for most of its
history.
Until school segregation was declared
illegal in the 1950s, Virginia's
colleges were divided along racial
lines. Blacks were barred from 13
four-year colleges, including
the University of Virginia.
18
Women were not admitted to Virginia until 1970, when a
federal district court found that only sexual
19
integration could guarantee women equal protection.
18
Celestine Bohlen, U.S. Rejects Virginia's Plan on
Desegregation, Wash. Post, June 19, 1982, at B1.
19
Under the far more forgiving rational review
standard in use at the time, the district court held out
the theoretical possibility that separate facilities
with equivalent opportunities might be constitutional,
but held that the opportunities provided to men through
the University of Virginia could not be duplicated and,
accordingly, ordered the admission of women. Kirstein
V. University of Virginia, 309 F. Supp 184 (E.D. Va.
1970). The court based its decision in part on the
findings that many courses at the university, as well as
its "prestige factor,' were unavailable at other state
[Footnote continued on next page]
- 27 -
Where, as here, women and African-Americans have
faced similar histories of exclusion, J.E.B. demands
that classifications based on gender be rejected, just
as they would be rejected on the basis of race.
C. Separate But Unequal Program Sets
Law Back More Than 100 Years
The court below began its opinion with an
explicit acknowledgment that under Sweatt V. Painter,
349 U.S. 629 (1950), "separate but equal" treatment does
not suffice under the Equal Protection Clause. Having
recognized this crucial fact, however, the court then
remarkably concluded that because "separate but equal"
is unconstitutional and unattainable in this case, this
Court's prior order permits VMI to offer a separate and
unequal program to remedy its discrimination against
women:
[Footnote continued from previous page]
schools. Id. at 187. The court emphasized that the
state "may not now deny to women, on the basis of sex,
educational opportunities that are not available
elsewhere." Id. See also McLaurin V. Oklahoma State
Regents, 339 U.S. 637, 642 (1950) (not enough that an
African-American student was allowed to obtain a
doctoral degree; also had to be treated equally). The
same principle should apply here.
- 28 -
In other words, the United States reads the
Fourth Circuit opinion to require a
"separate but equal" institution.
The sophistry of the "separate but equal"
concept was roundly rejected in Sweatt V.
Painter, 349 U.S. 629 (1950)
Thus, if "separate but equal" is the
standard by which the Commonwealth's plan
must be measured, then it surely must fail
because, as the United States pointed out
time and time again during the trial, even
if all else were equal between VMI and
[VWIL], the VWIL program cannot supply those
intangible qualities of history, reputation,
tradition, and prestige that VMI has amassed
over the years.
Mem. Op. at 6-7 (emphasis supplied; footnote omitted).
Thus, notwithstanding its explicit recognition
that "the rationale of [Sweatt] applies to this case"
(Mem. Op. at 6), the district court proceeded to
determine the validity of the proposal under a lesser
standard completely at odds with Sweatt and Brown, as
well as over twenty years of jurisprudence regarding the
analysis of sex-based classifications under the
Fourteenth Amendment. Instead of recognizing that the
proposal's conceded inferiority marks it as inherently
unconstitutional, the district court asserted that this
deficiency somehow brings the Proposed Remedial Plan
into line with the Constitution's requirements --
reasoning, it appears, that because no separate program
could ever equal the benefits of VMI, then a clearly
inferior alternative will suffice. Even Plessy V.
- 29 -
Ferguson, 163 U.S. 537 (1896) (accepting separate but
equal accommodations as constitutional), offered more
protection than this chimerical approach.
Had the district court followed its reasoning to
a proper conclusion, it would have been compelled to
order the relief sought by the United States: The
admission of women to VMI as the sole appropriate means
of offering Virginia women equal treatment under the
law.
D. District Court Flouted This Court's Opinion
In 1992, this Court ordered the "defendants to
formulate, adopt, and implement a plan that conforms
with the Equal Protection Clause of the Fourteenth
Amendment." 976 F.2d at 900. The district court, in
approving the defendant's Proposed Remedial Plan,
misapplied this court's analysis and evaded its mandate.
This Court never stated that the Commonwealth was
"free" to establish any "parallel programs" or "parallel
institutions" nor that any such parallel facilities
could survive constitutional scrutiny. The Court merely
suggested that parallel programs might be an alternative
to admitting women to VMI. Indeed, the Court never
determined that there actually are any constitutionally
acceptable alternatives to admitting women short of
ending state support for VMI. Rather, in full
- 30 -
recognition of the Supreme Court's repeated admonition
that there must be a "direct, substantial relationship
between [the state's] objective and [the] means"
employed to achieve it (Hogan, 458 U.S. at 725), the
court simply stated, "we do not order that women be
admitted to VMI if alternatives are available." 976
F.2d at 900 (emphasis supplied). However, as the
Kirstein court recognized (under the rational basis
test) when it held that a parallel program might be
constitutional as a conceptual matter, it would be
impossible, in practice, to duplicate the University of
Virginia. Equally here, under J.E.B., it would be
impossible to duplicate VMI.
The Commonwealth chose to pursue, and the
district court to ratify, an option outside the Fourth
Circuit's mandate: to continue state-supported
discrimination against women by creating a watered down
"military institution" for women off the VMI campus and
outside the VMI methodology. However, this Court
strictly limited the type of parallel program that it
might find acceptable. It held that such a plan would
have to provide "the same mission and methodology as
VMI." 976 F.2d at 898. Moreover, in the Court's view,
in an all-female environment, only the physical training
aspect of VMI's program would have to be adjusted for
women:
- 31 -
Although it is readily apparent from
the evidence that the rigor of the
physical training at VMI is tailored to
males, in the context of a single- sex
female institution, it could be
adjusted without detrimental effect.
No other aspect of the program has been
shown to depend upon maleness rather
than single-genderedness.
Id. at 898 (emphasis supplied). Indeed, the Fourth
Circuit unequivocally concluded that "neither the goal
of producing citizen soldiers nor VMI's implementing
methodology is inherently unsuitable to women." Id. at
899.
But the district court rejected the idea that the
Fourteenth Amendment requires the Commonwealth to
provide the "unique benefits" of a VMI-type of education
to women. The district court erroneously stated that
only a "fragmented reading[]" of the 1992 Opinion could
support such a claim. Mem. Op. at 6. It took this
position even though this Court repeatedly stated in its
prior opinion that the constitutional issue at stake was
whether the Equal Protection Clause of the Fourteenth
Amendment permits the Commonwealth to offer the "unique
benefit[s] of VMI's type of education and training to
men and not to women." 976 F.2d at 898 (emphasis
supplied). Thus, the district court misunderstood
precisely what it is that "the Fourth Circuit's opinion
require[s] of a proposed plan in order to pass
constitutional muster." Mem. Op at 6.
- 32 -
The program offered at Mary Baldwin College
abandons VMI's "implementing methodology." It dilutes
far more than the rigor of physical training. There is
no adversative method, no rat line, no "hostile, spartan
environment," no "class system," not even an engineering
program.
A dainty imitation of the VMI program, that
abandons its methodology and offers few if any of its
benefits, that presents a paradigm of separation and
inequality, is not what this Court envisioned. Indeed,
it borders on recalcitrance and merits reversal.
CONCLUSION
As the district court stated, some men may indeed
march to the beat of a drum and some women to the melody
of a fife. Mem. Op. at 28. The symbolism may be an
appealing use of language. Its meaning and underlying
assumptions are not appealing. Not all men and women
march in lock-step -- some men and some women would
thrive under the rigors of VMI; some would prefer the
proposed program at Mary Baldwin. But the Commonwealth
may not shut all women out of VMI because it believes
that most of them could not, or would not wish to, cope
with that school's harsh methodology.
- 33 -
J.E.B. holds that classifications resting on and
perpetuating group generalizations and stigmatizing
stereotypes cannot withstand Equal Protection scrutiny,
particularly where, as here, women have borne the same
sorts of historic bias as have African-Americans. Far
from curing that problem, the proposal accepted by the
court below -- a second-rate, semi-military program at a
liberal arts school, a "separate but unequal" version of
VMI -- exacerbates the stigmatic harm.
No one would suggest that VMI will not change if
women are admitted. Certainly, racially segregated
educational institutions -- including VMI -- changed
when they admitted African-Americans. But preserving
VMI's exclusionary and discriminatory character on the
grounds that women are not good enough for VMI or that,
by their very presence will change VMI, can be no more
availing. As this Court has recognized, some women
(like some men) are strong enough, both mentally and
physically, to survive and thrive at VMI. If they are
not strong enough, they will fail. But they must be
given the chance to try. If women want to march to a
drum, as men do, they have a constitutional right to do
so.
- 34 -
Amici urge this Court to reverse the district
court and remand with orders to integrate VMI.
Respectfully submitted,
that N. Wine
Robert N. Weiner, Esq.
el. Kalick
Stefanie L. Raker
(Counsel of Record)
Dated: July 12, 1994
- 35 -
CERTIFICATE OF SERVICE
I hereby certify that I have served two copies
each of the foregoing Brief of Amici on the following
today via Federal Express, overnight delivery:
Counsel for United States:
Thomas Chandler
U.S. DEPARTMENT OF JUSTICE
Civil Rights Division
Constitution Avenue & 10th st., N.W.
P.O. Box 66078
Washington, D.C. 20035-6078
Counsel for Commonwealth of Virginia, et al.:
Griffin B. Bell
KING & SPAULDING
191 Peachtree Street
Atlanta, GA 30303
William B. Poff
WOODS, ROGERS & HAZLEGROVE
Dominion Tower, Suite 1400
10 S. Jefferson Street
Roanoke, VA 24011
Robert H. Patterson, Jr.
MCGUIRE, WOODS, BATTLE & BOOTHE
One James Center
Richmond, VA 23219
Sefance /. Kakek
Stefanie L. Raker
July 12, 1994
Nos. 94-1667 & 94-1717
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant
V.
COMMONWEALTH OF VIRGINIA, et al.,
Defendants-Appellees
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BRIEF FOR THE UNITED STATES AS APPELLANT
DEVAL L. PATRICK
Assistant Attorney General
JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys
Department of Justice
P.O. Box 66708
Washington, D.C. 20035-6708
TABLE OF CONTENTS
PAGE
STATEMENT REGARDING JURISDICTION
1
STATEMENT OF THE ISSUE
1
STANDARD OF REVIEW
2
STATEMENT OF THE CASE
2
A.
Procedural History
2
B.
Facts
4
1.
VMI's unique educational program
4
2.
Mary Baldwin College and the
Proposed Virginia Women's
Institute for Leadership
7
C.
The District Court's Decision
15
INTRODUCTION AND SUMMARY OF THE ARGUMENT
16
ARGUMENT:
I.
DEFENDANTS' PROPOSED REMEDIAL PLAN CREATING A
PARALLEL PROGRAM FOR WOMEN AT MARY BALDWIN
COLLEGE DOES NOT SATISFY DEFENDANTS'
OBLIGATION UNDER THE EQUAL PROTECTION CLAUSE
TO OFFER WOMEN VMI'S UNIQUE TYPE OF
EDUCATIONAL PROGRAM
19
A.
The Equal Protection Clause
Requires Defendants To Offer Women
VMI's Unique Educational
Methodology
19
B.
The VWIL Does Not Afford Women
VMI's Unique Educational
Methodology
29
C.
Defendants Cannot Justify Denying
Women The Benefits Of VMI's Unique
Educational Program On The Basis Of
The Purportedly Similar "Outcome"
Of VWIL's Educational Program
36
- i -
PAGE
II. THE COURT SHOULD ORDER VMI TO ADMIT WOMEN TO
REMEDY THE CONSTITUTIONAL VIOLATION
40
CONCLUSION
43
TABLE OF AUTHORITIES
CASES:
Brenden V. Independent Sch. Dist. 742,
477 F.2d 1292 (8th Cir. 1973)
21
Faulkner V. Jones, 10 F.3d 226 (4th Cir. 1993)
27-29
Force by Force V. Pierce City R-VI Sch. Dist.
570 F. Supp. 1020 (W.D. Mo. 1983)
21, 22-23
Freeman V. Pitts, 112 S. Ct. 1430 (1970)
27
Frontiero V. Richardson, 411 U.S. 677 (1984)
20
Hills V. Gautreaux, 425 U.S. 284 (1976)
27
Hoover V. Meiklejohn, 430 F. Supp. 164
(D. Colo. 1977)
21,23
J.E.B. V. Alabama ex rel. T.B., 114 S. Ct. 1419
(1994)
21, 22, 24
Kirstein V. Rector & Visitors of Univ. of Virginia,
309 F. Supp. 184 (E.D. Va. 1970)
27
McKissick V. Carmichael, 187 F.2d 949
(4th Cir.), cert. denied, 341 U.S. 951 (1951)
20
Mississipi Univ. for Women v. Hogan,
458 U.S. 718 (1982)
3, 22, 23
Missouri ex rel. Gaines V. Canada,
305 U.S. 337 (1938)
20, 24
Roberts V. United States Jaycee, 468 U.S. 609 (1984)
20
Sweatt V. Painter, 339 U.S. 629 (1950)
20
United States V. Commonwealth of Virginia,
766 F. Supp. 1407 (W.D. Va. 1991), vacated,
976 F.2d 890 (4th Cir. 1992), cert. denied,
13 S. Ct. 2431 (1993)
passim
- ii -
CASES (cont'd) :
PAGE
Yellow Springs Exempted Village Sch. Dist.
Bd. of Educ. V. Ohio High Sch. Athletic
Ass'n, 647 F.2d 651 (6th Cir. 1981)
21
CONSTITUTION AND STATUTES:
Equal Protection Clause of the
Fourteenth Amendment
1, 18, 19, 23, 24
Civil Rights at of 1964, Title IV,
42 U.S.C. 2000c-6
1
28 U.S.C. 1291
1
28 U.S.C. 1345
1
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 94-1667 & 94-1712
UNITED STATES OF AMERICA,
Plaintiff-Appellant
V.
COMMONWEALTH OF VIRGINIA, et al.,
Defendants-Appellees
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BRIEF FOR THE UNITED STATES AS APPELLANT
STATEMENT REGARDING JURISDICTION
The United States brought this suit pursuant to Title IV of
the Civil Rights Act of 1964, 42 U.S.C. 2000c-6. The district
court had jurisdiction under 28 U.S.C. 1345. The district court
entered its final order on April 29, 1994 (App. 330) 1 A notice
of appeal was timely filed on May 13, 1994 (App. 404). This
Court has jurisdiction under 28 U.S.C. 1291.
STATEMENT OF THE ISSUE
Whether the Commonwealth of Virginia's proposed remedial
plan creating a program for women at Mary Baldwin College, called
the Virginia Women's Institute for Leadership, satisfies the
Commonwealth's obligation under the Equal Protection Clause to
¹References to "App. " are to page numbers in the Joint
Appendix filed along with the United States' opening brief.
References to "R. " are to docket numbers on the district
court's docket sheet (which is included in the Joint Appendix at
App. 1-31).
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afford women the Virginia Military Institute's unique type of
educational program.
STANDARD OF REVIEW
The question whether the Commonwealth's proposed remedial
plan satisfies the Equal Protection Clause is a question of law
subject to plenary review.
STATEMENT OF THE CASE
This is the second appeal in this case, which challenges the
Virginia Military Institute's (VMI) male-only admissions policy.
In the first appeal, this Court held that defendants violated the
Equal Protection Clause by denying women "VMI's unique type of
program" and its "unique educational opportunity." United States
v. Commonwealth of Virginia (VMI), 976 F.2d 890, 892 (4th Cir.
1992), cert. denied, 113 S. Ct. 2431 (1993). The court suggested
that one remedial alternative might be to create a parallel
program or institution for women. Id. at 900. Following that
suggestion, the Commonwealth of Virginia has proposed to create
the "Virginia Women's Institute for Leadership" (VWIL) at Mary
Baldwin College (MBC). The district court approved that remedy,
and this appeal by the United States followed.
A. Procedural History
1. In March 1990, the United States filed suit against the
Commonwealth of Virginia, VMI, and others alleging that the
defendants discriminated on the basis of sex by limiting
admission to the four-year undergraduate program at VMI to males
(App. 32-39). The suit alleged that the discrimination violated
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the Equal Protection Clause of the Fourteenth Amendment, and
sought to permanently enjoin the defendants "from discriminating
on the basis of sex in the operation of VMI, including [its]
admission policies" (App. 35).
In April 1991, trial was held on the issue of liability. On
June 14, 1991, the district court issued its Memorandum Opinion
and Order finding for the defendants. United States V.
Commonwealth of Virginia (VMI), 766 F. Supp. 1407 (W.D. Va.
1991) The court held that the defendants met the test for
gender classifications set forth in Mississippi Univ. for Women
V. Hogan, 458 U.S. 718 (1982), and therefore justified the
exclusion of women from VMI.
2. This Court vacated and remanded. VMI, 976 F.2d 890.
The Court held that defendants had not justified offering the
unique VMI-type education to men and not to women. Although the
Court found a violation of the Equal Protection Clause, it
declined, "[i]n light of * * * the generally recognized benefit
that VMI provides," to "order that women be admitted to VMI if
alternatives are available." 976 F.2d at 900. The Court instead
"remand [ed] the case to the district court to give to the
Commonwealth the responsibility to select a course it chooses, so
long as the guarantees of the Fourteenth Amendment are
satisfied." Ibid. The Court stated that, consistently with its
opinion, "the Commonwealth might properly decide to admit women
to VMI and adjust the program to implement that choice, or it
might establish parallel institutions or parallel programs, or it
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might abandon state support of VMI, leaving VMI the option to
pursue its own policies as a private institution." Ibid.
The Court denied defendants' petition for rehearing and
suggestion for rehearing en banc. See ibid. The Supreme Court
denied defendants' petition for a writ of certiorari.
3. In September 1993, following this Court's mandate, the
defendants filed in the district court a proposed remedial plan
providing for the creation of the VWIL at Mary Baldwin College, a
private four-year college for women (App. 40-60). The United
States filed an opposition to defendants' proposed remedial plan
(App. 61-112). On February 9-15, 1994, an evidentiary hearing
was held on the remedial plan. On April 29, 1994, the court
issued its memorandum opinion and order approving defendants'
plan to create the VWIL (App. 330-403).
On May 13, 1994, the United States filed a notice of appeal
(App. 404). On May 25, 1994, defendants filed a cross-appeal
(App. 407).
B. Facts
1. VMI's unique educational program
a. This Court detailed the central attributes of VMI's
unique educational program in the first appeal, see VMI, 976 F.2d
at 893-894, and we addressed them at length in our brief as
appellant in that appeal. See Brief for the United States as
Appellant, No. 91-1690 at 6-13; see also VMI, 766 F. Supp. at
1415-1443. Accordingly, we summarize them only briefly here.
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VMI offers a unique educational method, based on the
adversative model, that emphasizes "physical rigor, mental
stress, absolute equality of treatment, absence of privacy,
minute regulation of behavior, and indoctrination of values."
VMI, 976 F.2d at 893. At the core of the program is the military
system, which "characterizes life at VMI." R. 50 at 6; see also
VMI, 976 F.2d at 894. The cadets at VMI "live within a military
framework; they wear the cadet uniform at the Institute, eat most
meals in the mess hall, live in a barracks, and regularly take
part in parades and drills." R. 50 at 7. Military training is
also "one of the basic goals that VMI seeks to promote in
fulfilling its mission of preparing leaders." VMI, 766 F. Supp.
at 1427. Further, the military regulations, etiquette, and
drills "furnish a rationale for the rigorous activities that are
features of the other VMI systems, including the comprehensive
regulation of behavior." Id. at 1424.
Several other components are central to VMI's unique
educational program: (1) the "rat line" -- the harsh treatment
given to entering students (rats), which includes a rigorous
physical training program, minute regulation of individual
behavior, frequent punishments, and training marches; (2) the
"class system" -- a peer system of assigning responsibilities to
each class of cadets, including supervision of cadets, tutoring,
and dispensation of rewards; (3) the "dyke system" -- whereby
each rat is assigned a first classman (senior) as a mentor in
order to relieve some of the stress of the rat line; (4) the
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honor code -- a stringently enforced code of conduct that entails
the single penalty of expulsion for an honor code violation; and
(5) barracks life -- with its spartan furnishings, lack of
privacy, and emphasis on egalitarian treatment. See generally
VMI, 976 F.2d at 893-894.
Each of these individual components are crucial to the VMI
experience, as the "various systems in place at VMI are
integrated and interdependent, and several of them cannot be
changed without materially affecting others." Id. at 894. It is
this particular educational system that prepares VMI graduates to
be "citizen-soldiers," namely, "educated and honorable men who
are suited for leadership in civilian life and who can provide
military leadership when necessary." VMI, 766 F. Supp. at 1425.
b. Some applicants apply for admission to VMI "because it
is known to be the most challenging military school in the United
States." Id. at 1421. Cadets also attend VMI "because of the
rigor of the experience, which represents a challenge and which
[they] believe [] will test [them] to the ultimate." Id. at 1426.
Cadets also appreciate certain attributes of VMI, including "the
openness and the fact that they hear very directly and very
candidly about their shortcomings as well as the things they do
well; * * * the intensity of the experience, and the extent that
it challenges them to be better," and "the absence of
distinctions between cadets, and the egalitarian environment."
Ibid. Finally, "[a]s a consequence of completing the rigorous
tasks, succeeding, and actually graduating from VMI, VMI cadets
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have a sense of having overcome almost impossible physical and
psychological odds. They have been put through great physical
pressures and hazards, and just to have made it yields a feeling
of tremendous accomplishment. II Ibid.
C. "The system of education at VMI is not offered elsewhere
in the United States." Id. at 1421. Therefore, " [w]omen are
denied a unique educational opportunity that is available only at
VMI. " Id. at 1432; see also VMI, 976 F.2d at 898 & n.8.
Nevertheless, it is not disputed that some women could do the
physical training and military drills required of VMI cadets,
pass the VMI physical fitness test, and do everything that
happens on the rat line. E.g., VMI, 766 F. Supp. at 1412 ("some
women are capable of all of the individual activities required of
VMI cadets") ; id. at 1438; VMI, 976 F.2d at 896; App. 352 ("This
is not to say that some women cannot succeed within a VMI type
methodology. The evidence at trial indicated that the VMI
methodology could be used to educate women and, in fact, some
women *** may prefer the VMI methodology to the VWIL
methodology. ").
2. Mary Baldwin College and the proposed Virginia
Women's Institute for Leadership
a. Mary Baldwin College, located in Staunton, Virginia, is
a private, women's liberal arts college founded in 1842 (App.
394, 399) Although historically the college anticipated that
most of its graduates would be wives and mothers (App. 641), in
the late 1960's and early 1970's it "broadened its curriculum to
include new options open to women in business and the professions
- 8 -
and developed an emphasis on career planning" (App. 395). There
are currently 600 undergraduate residential women students (App.
395). Another 600 students are in MBC's coeducational Adult
Degree Program (which is a non-residential program conducted at
branch facilities), and approximately 135 students are enrolled
in various other programs offered by MBC (App. 395-396). There
are currently eight male students at MBC who attend some classes
with traditional MBC undergraduate women (App. 382)
MBC offers 28 undergraduate majors in the arts, sciences,
business, and mathematics (App. 396). It does not offer a
bachelor of science degree, and does not have a math and science
focus (App. 403). Currently, about 15% of MBC students major in
mathematics or science (App. 403). There is no residential
engineering program (App. 396). MBC requires each student to
take an externship equivalent to three semester hours (App. 396).
There are 16 residence halls on the MBC campus, which
together house approximately 650 students (App. 399). No two
residential halls are alike. Traditional residence halls house
from approximately 40 to 160 students. They "are elegantly
equipped with brass chandeliers, plush carpeting and mahogany
furniture" (App. 399). Students also live in college-owned
apartment buildings and converted single-family dwellings (App.
399). There are also two theme houses for upperclass students,
one for honors students and one for community volunteers, both of
which are equipped with televisions, cable hook-ups, and
microwave ovens (App. 400). Residential life is designed to
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provide "an experience in flexibility, creativity, accountability
and compassion with goals of personal growth and development and
self-responsibility in the living community" (App. 397).
MBC has 73 full-time faculty and approximately 40 part-time
faculty; 68% of the faculty holds a Ph.D. (App. 396, 401-402).
It has an endowment of approximately $19 million. The average
combined SAT score of MBC entering freshmen is approximately 930
(App. 397) 2
MBC is not a military school. It has no tradition of
producing military leaders, or of training it students for the
military (App. 398). Although ROTC is available to MBC students
through the program at James Madison University, in the past
three years no MBC student has been commissioned. Currently,
there is one MBC student participating in ROTC (App. 398).
b. Prior to this Court's decision in the first appeal, MBC
was considerin the possibility of developing a leadership
program (App. 374) After the Court's decision (which then
raised the possibility of a state-sponsored VMI-type program for
women), The President of MBC (Cynthia Tyson) and its Dean (James
Lott) discussed the possibility of developing a program "for the
education and training of women citizen-soldiers" (App. 374-375)
Ultimately, the VWIL program was developed and approved by the
2To put these figures in context, 86% of VMI's faculty holds
a Ph.D.; VMI's endowment is $131 million (the largest endowment
on a per student basis of undergraduate institutions in the
country); and average combined SAT scores for entering cadets at
VMI is approximately 100 points higher than those for entering
MBC students (App. 397, 401-402).
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MBC faculty (App. 375) Subsequently, a MBC Task Force was
created to refine the program and plan for implementation (App.
376). On January 17, 1994, the Task Force, co-chaired by Dean
Lott and Dean of Students Heather Anne Wilson, issued a Status
Report that sets forth its conclusions and the programmatic
components of VWIL (App. 253-269, 376-377).
C. The VWIL plan offers a publicly-supported, single-sex
educational program with a mission to produce "citizen-soldiers,"
i.e., "women who are trained for leadership in both civilian and
military life" (App. 340). Since the Task Force "determined that
a military model and, especially VMI's adversative method, would
be wholly inappropriate for educating and training most women for
leadership roles," (App. 341), the program "proposes a
cooperative method which reinforces self-esteem rather than the
leveling process used by VMI" (App. 341). The Task Force
concluded that the VWIL program, although differing substantially
from the VMI program, would "produce the same or similar outcome
for women that VMI produces for men" (App. 341).
The central components of the proposed VWIL program include:
1. Military Training. The military program at VWIL will be
the pre-existing MBC ROTC program (App. 450). There are academic
classes, as well as organized lab activities, some of which may
be at the VMI facilities (to which MBC will provide
transportation). The total number of semester hours credit for
four years of ROTC is 12. A six week intensive summer camp
between the junior and senior years will provide externship
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credit for students seeking a commission (App. 383) VWIL
students will constitute a corps of cadets, and will become part
of the Virginia Corps of Cadets, which the plan proposes will be
established to consist of the all-female VWIL cadets, the all-
male VMI cadets, and the coed Virginia Tech cadets (App. 383).
Non-VWIL Mary Baldwin students are not precluded from taking ROTC
with the VWIL students (App. 496).
2. Academic Life. The general education requirements and
academic majors for VWIL students will be the same as those for
regular MBC students (App. 381). The admission standards for the
VWIL would also be the same as for the traditional MBC program
(App. 381). VWIL students, however, will also be required to
complete several specific types of courses, including a calculus
course, science courses with labs, and certain courses in
leadership theory (App. 381-382). Although a few male students
currently attend MBC, no male students will attend classes with
VWIL students. Non-VWIL Mary Baldwin students will otherwise be
able to participate in the leadership curriculum (App. 382, 635).
In addition to studying leadership theory, VWIL students
will be required to take a leadership externship, which will be
related to her major (App. 381). Although MBC already has an
externship program, the VWIL externship will provide "an
opportunity to experience and reflect on leadership in practice"
(App. 381). The student "may
*
*
*
be required to keep a journal
in which she analyzes and evaluates the leadership styles and
strategies she encounters in the externship" (App. 381). VWIL
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students will also participate in various seminars throughout the
semester, and organize a Leadership Speaker Series (App. 382)
Like non-VWIL MBC students, VWIL students will have the
opportunity to obtain an engineering degree only by participating
in the 3-2 program with Washington University in St. Louis (App.
382)
3. Physical Education and Training. This component of the
VWIL "is designed to enhance the student's level of physical
fitness, her ability to defend herself, her understanding of
health issues, her skill in developing cooperative strategies,
and her self confidence" (App. 260). VWIL students will be
required to take eight semesters of physical and health education
courses, which will include advanced fitness (a course designed
for VWIL students), swimming, tennis, golf, racquetball, and two
health courses (App. 384). Students will also be required to
take a course in self-defense, and to complete a fitness
assessment at the beginning of the first year and at the end of
all subsequent semesters (App. 384-385)
The MBC physical education department will develop a
Cooperative Confidence Building program (CCB) as a co-curricular
component. CCB will be held twice a week, and will consist of
physically and mentally challenging events, including obstacle
course, a rope course, and team building activities (App. 385)
Freshman will be required to participate in the CCB program
unless they are in varsity athletics; other VWIL students will
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participate in either varsity athletics, the CCB program, or a
personal workout program (App. 385).
4. Residence. Freshmen VWIL students will be required to
room together and live in a separate section of a MBC residence
hall (App. 387). They will be subject to some additional rules
concerning room neatness (rooms will be subject to spot
inspection), smoking, changing roommates, and required study
halls (App. 387). They will, however, be free to decorate their
rooms as they please, and there will be no limitations or
restrictions on what they may have in their rooms (App. 510).
Upperclass VWIL students will be required to live with other
VWIL students for at least one year in the VWIL House, a
residence hall that will also be the center of VWIL meetings and
activities (App. 388). The VWIL House will not be operated on a
military format (App. 388).
5. Co-curricular Activities. Other elements of the VWIL
program include a one-week wilderness-type orientation in the
summer before freshman year. Run by upperclass VWIL students, it
will provide the freshmen with a mentally and physically
challenging experience to foster bonding (App. 386-387). VWIL
students will also be mentored by upper class VWIL students (App.
389) Further, the upper class students will lead the VWIL
contingent of the Virginia Corps of Cadets, enforce regulation,
maintain esprit de corps, and play a central role in the VWIL
orientation and the CCB (App. 389). In addition, as MBC students
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VWIL participants will be encouraged to participate in MBC
activities and class functions (App. 387).
d. MBC proposes to offer the VWIL program pursuant to a
contract for services between MBC, the Commonwealth of Virginia,
and VMI (App. 52). The plan proposes that the Commonwealth fund
the contract for services by a payment to MBC for each Virginia
student enrolled in the program. As a result, the Commonwealth
would provide the same amount of financial support to MBC for in-
state cadets in the VWIL program that it provides to VMI on a per
full time equivalent student basis (App. 781).
The VMI Foundation will endow the VWIL program with a
permanent endowment of $5.4625 million, in addition to other
financial contributions (App. 392) The VMI Alumni Association
has pledged to support VWIL graduates by making its placement
services and networks available to VWIL graduates (App. 393-394).
e. MBC has made clear that VWIL will be a small subpart of
the college that "will take its place amid the other programs
that make up Mary Baldwin College" (App. 639). It has also made
clear that the VWIL will not affect its identity and traditions.
In a document produced by MBC and distributed to MBC alumnae, it
is stated that the school would not turn into a military school
but would "retain its identity" and " [d]aily life on campus would
not be any different" (App. 633) MBC officials also have stated
that the school's traditions, such as Apple Day, would continue
(App. 634) Further, when President Tyson presented the VWIL
concept to the MBC faculty in September 1993, the discussion
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about possibly having military marching and parades on the MBC
campus "was fraught with humor" (App. 482-483) Tyson testified
that she would never advocate having a military atmosphere at MBC
(App. 622)
MBC will develop a leadership program even if VWIL is not
approved as a remedy in this litigation. MBC would raise money
from other sources to pay for it, and the program would look a
lot like the VWIL program (App. 636).
C. The District Court's Decision
On April 29, 1994, the district court issued its order
approving defendants' plan to create the VWIL at Mary Baldwin
College. The court rejected the view that any separate program
for women must closely resemble the VMI program, but noted that
if this was the standard the United States would prevail because
the proposed plan "differs substantially from VMI" (App. 333-
334) Instead, the court concluded, a separate program could use
a different methodology and still be satisfactory if it attained
an "outcome" for women that is comparable to that received by
male graduates of VMI (App. 333-334). The court rested this
conclusion on its view that this Court's finding "that VMI
employed unique methods to teach young men was simply an added
dimension to the already pedagogically justifiable policy" of
single-gender education (App. 339)
The court thus examined the proposed program for women to
determine whether its educational methods would produce the same
or similar outcome for women that VMI produces for men. The
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court acknowledged that the educational method to be used would
not be VMI's adversative model, accepting the development Task
Force's finding that it would "be wholly inappropriate for
educating and training most women for leadership roles" (App.
341). The court stated that "[i]n lieu of the adversative
methods employed by VMI, the VWIL concept proposes a cooperative
method which reinforces self-esteem rather than the leveling
process used by VMI" (App. 341).
The court concluded that (App. 352) :
[T] he differences between VWIL and VMI are
justified pedagogically and are not based on
stereotyping. *** [T] he controlling legal
principles in this case do not require the
Commonwealth to provide a mirror image VMI
for women. Rather, it is sufficient that the
Commonwealth provide an all-female program
that will achieve substantially similar
outcomes in an all-female environment and
that there is a legitimate pedagogical basis
for the different means employed to achieve
the substantially similar ends. VWIL
satisfies the Fourth Circuit's requirement
that the Commonwealth adopt a parallel
program for women which takes into account
the differences and needs of each sex.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
This Court found that VMI's admissions policy denied women
the equal protection of the laws by denying them access to VMI's
unique educational methodology. The Court did not impose a
remedy for that violation, but remanded the case to the district
court, noting that there might be several possible remedies,
including establishing a parallel school or program for women
modeled on VMI's educational methodology. On remand, defendants
proposed a program for women at Mary Baldwin College.
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The proposed remedy is wholly inadequate, however, because
it does not correct the constitutional violation, i.e., the
denial to women of VMI's unique educational methodology. As the
district court recognized, the program "differs substantially"
from the educational program offered at VMI. Nevertheless, the
court decided the Commonwealth was not obligated to offer the VMI
program to women, and in doing SO accepted the Task Force's
finding that a VMI-type education is inappropriate for most
women.
The district court's conclusion is inconsistent with this
Court's prior decision, which specifically held that women could
participate in and benefit from a VMI-type education. It also
rests on impermissible generalizations and stereotypes. In
excluding women from VMI, defendants have discriminated against
women by relying on false stereotypes and generalizations -- that
women are not tough enough to succeed in VMI's rigorous,
military-style program. Instead of remedying that
discrimination, the remedial plan approved by the district court
perpetuates it by employing the same stereotypes and
generalizations to argue that even a separate program for women
should not utilize VMI's educational methodology. This separate
program carries the same stigmatizing message as VMI's original
exclusion of women -- that women simply are not up to the
challenge of VMI's demanding program.
The fact that most women might choose a different type of
educational program does not lessen the stigma and, in any event,
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is beside the point. A program based on generalizations about
women and education may stand or fall on its own merit, but it is
not a remedy for VMI's exclusion of women. The Equal Protection
Clause protects individuals, and prohibits the use of stereotypes
and generalizations to deny women benefits and opportunities not
thought desirable or suited for them. Indeed, there is no case
(decided under the heightened scrutiny standard) that has upheld
the denial of a valuable benefit to all women simply because some
task force or other group believes it is inappropriate for women.
The record makes clear that VMI is not for most people --
whether men or women. It is a special kind of education sought
by a small minority of students. Nevertheless, the fact remains
that men have the special educational opportunity available to
them and women do not, and that as a result VMI graduates have
been very successful in both public and private careers. This
suit was brought on behalf of those women who want to go to VMI
precisely because it is such a demanding and challenging school.
The remedial plan approved by the district court does nothing for
them.
After many months spent developing a program and conducting
a remedial hearing, we are no closer to vindicating the rights of
women than when this suit was filed. The proposed "parallel"
program and the extensive record in this case demonstrate that
VMI and the Commonwealth still do not have a policy of providing
VMI's unique educational methodology to men and women. They also
demonstrate that there is no separate program for women that will
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satisfy defendants' remedial obligation under the Equal
Protection Clause. The United States filed this lawsuit seeking
the admission of women to VMI. Notwithstanding this Court's
suggestion that women might theoretically be provided an equal
educational opportunity in a separate school, the Commonwealth
has not and, we believe, cannot offer to women in a separate
program what men get by attending VMI. Admitting women to VMI is
thus the only lawful and appropriate remedy in this case.
ARGUMENT
I
DEFENDANTS' PROPOSED REMEDIAL PLAN CREATING A PARALLEL
PROGRAM FOR WOMEN AT MARY BALDWIN COLLEGE DOES NOT SATISFY
DEFENDANTS' OBLIGATION UNDER THE EQUAL PROTECTION CLAUSE
TO OFFER WOMEN VMI'S UNIQUE TYPE OF EDUCATIONAL PROGRAM
A. The Equal Protection Clause Requires Defendants To
Offer Women VMI's Unique Educational Methodology
The district court approved the VWIL program, despite its
acknowledgement that it "differs substantially" from VMI (App.
333), based on its conclusion that VMI's educational methodology
is "inappropriate for most women" (e.g., App. 341). As a matter
of law, however, that conclusion cannot justify the Commonwealth
denying those women who this Court (and the district court) found
can succeed in VMI's type of educational program, equal access to
that type of program. Moreover, this Court made clear in its
previous decision that a constitutionally acceptable parallel
program for women must offer women VMI's unique educational
methodology.
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1. The Equal Protection Clause protects individuals from
being treated on the basis of group stereotyping. See, e.g.,
Sweatt v. Painter, 339 U.S. 629, 635 (1950) ("It is fundamental
that these [Equal Protection Clause] cases concern rights which
are personal and present. ) i Missouri ex rel. Gaines V. Canada,
305 U.S. 337, 351 (1938) As this Court stated in rejecting the
suggestion that it would be better for black law students
generally to go to an all-black school rather than a white
school: "The duty of the federal courts * * * is clear. We must
give first place to the rights of the individual citizen, and
when and where he seeks only equality of treatment before the
law, his suit must prevail. It is for him to decide in which
direction his advantage lies. " McKissick V. Carmichael, 187 F.2d
949, 954 (4th Cir.), cert. denied, 341 U.S. 951 (1951). Indeed,
the very purpose of the enhanced scrutiny afforded gender
classifications under the Equal Protection Clause is to ensure
that individuals not be denied opportunities and benefits based
on predominant group traits. See, e.g., Frontiero V. Richardson,
411 U.S. 677, 686-687 (1973) (plurality opinion of Justice
Brennan) ("statutory distinctions between the sexes often have
the effect of invidiously relegating the entire class of females
to inferior legal status without regard to the actual
capabilities of its individual members") i Roberts V. United
States Jaycees, 468 U.S. 609, 625 (1984). Thus, the VWIL does
nothing to vindicate the rights of the women (like Shannon
Faulkner at The Citadel) who have decided that their advantage
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lies in participating in VMI's rigorous, military-style
educational program. 3
The notion that the Commonwealth need not afford women a
VMI-type education because of an irrelevant stereotype about most
women is also fatally flawed because it rests the vindication of
individual women's constitutional rights on impermissible
stereotypes and generalizations. Recently, in J.E.B. V. Alabama
ex rel. T.B., 114 S. Ct. 1419 (1994), the Supreme Court addressed
whether the Equal Protection Clause prohibits the government from
making gender-based peremptory challenges. In holding that it
does, the Court emphasized that "gender-based classifications
require an exceedingly persuasive justification in order to
survive constitutional scrutiny." Id. at 1425 (internal
quotation marks omitted). The Court stated that it "consistently
has subjected gender-based classifications to heightened scrutiny
in recognition of the real danger that government policies that
professedly are based on reasonable considerations in fact may be
reflective of archaic and overbroad generalizations about
³Courts have emphasized the necessity of focusing on an
individual's capabilities, not on group generalizations, when
girls have sought to compete in contact sports that were
restricted to boys. See, e.g., Force by Force V. Pierce City R-
VI Sch. Dist., 570 F. Supp. 1020 (W.D. Mo. 1983) (court strikes
down prohibition on girls competing for a place on junior high
football team, stating that generalizations about the "typical"
female could not be used to preclude individual females from
trying out for the team on an equal basis with the males) i Hoover
V. Meiklejohn, 430 F. Supp. 164, 170 (D. Colo. 1977); Yellow
Springs Exempted Village Sch. Dist. Bd. of Educ. V. Ohio High
Sch. Athletic Ass'n, 647 F.2d 651, 662-666 (6th Cir. 1981)
(Jones, J., concurring in part and dissenting in part)
(discussing cases) ; Brenden V. Independent Sch. Dist. 742, 477
F.2d 1292, 1302 (8th Cir. 1973).
- 22 -
gender. " Id. at 1424 (internal quotation marks omitted). The
Court also stated that in many contexts blacks and women "share a
history of total exclusion," which "warrants the heightened
scrutiny we afford all gender classifications today. " Id. at
1425.4
The Court thus rejected the state's argument that gender was
an accurate predicator of juror's attitudes, stating:
Even if a measure of truth can be found in
some of the gender stereotypes used to
justify gender-based peremptory challenges,
that fact alone cannot support discrimination
on the basis of gender in jury selection. We
have made abundantly clear in past cases that
gender classifications that rest on
impermissible stereotypes violate the Equal
Protection Clause, even when some statistical
support can be conjured up for the
generalization.
Id. at 1427 n.11. The Court added that the Equal Protection
Clause "acknowledges that a shred of truth may be contained in
some stereotypes, but requires that state actors look beyond the
surface before making judgments about people that are likely to
stigmatize as well as to perpetuate historical patterns of
discrimination." Ibid.; see also Hogan, 458 U.S. at 725 n.10
("History provides numerous examples of legislative attempts to
exclude women from particular areas simply because legislators
believed women were less able than men to perform a particular
function "); Force by Force V. Pierce City R-VI School Dist., 570
"Indeed, the Court left open the question whether gender
classifications are inherently suspect. 114 S. Ct. at 1425 n.6.
The remedial plan here would, of course, fail under this
standard, as it does under J.E.B.'s heightened scrutiny standard.
- 23 -
F. Supp. 1020, 1029 (W.D. Mo. 1983) (the Equal Protection Clause
prohibits the "use of broad generalizations which[,] while
perhaps empirically supported as generalizations [,] do not hold
true for all members of a sex").
Thus, defendants cannot afford men, but not women, the
valuable benefit of VMI's unique educational methodology -- which
the record reflects some women (and some men) desire, could
succeed in, and would find appropriate⁵ -- based on "fixed
notions concerning the roles and abilities of males and females."
Hogan, 458 U.S. at 725.6 Just as defendants relied on
stereotypes to justify excluding women from VMI (i.e., because it
is thought too difficult for them), they now repeat the same
stereotypes to attempt to deny women the rigorous, VMI-type
educational program even in a separate all-women program. But
⁵The district court acknowledged that " [t]he evidence at
trial indicated that the VMI methodology could be used to educate
women and, in fact, some women * * * may prefer the VMI
methodology to the VWIL methodology" (App. 352).
'Thus, the generalization that men and women should be
educated and trained as leaders in a different manner cannot
justify denying women VMI's educational methodology. See App.
341 (district court finds women need an educational methodology
"which reinforces self-esteem, rather than the leveling process
of VMI") ; but see App. 821-849. The record makes clear that
whatever differences there may be between the genders in
approaches to learning, there are greater individual differences
within each gender. See, e.g. App. 821-823. Cf. Hoover V.
Meiklejohn, 430 F. Supp. at 170 ("If the purpose of the
exclusionary rule is the protection of health, safety and welfare
of the students, it is arbitrary to consider only the general
physiological differences between males and females as classes
without any regard for the wide range of individual variants
within each class. "). Thus, any generalized learning differences
that may exist between the genders cannot justify denying all
women VMI's unique educational methodology.
- 24 -
the Commonwealth's approach would permit states to exclude women
from jobs such as police officer, firefighter, or even lawyer,
but give women "parallel" jobs that are less rigorous, simply by
showing that most women are not as strong in certain respects as
most men. This is the very type of generalization the Court
condemned in J.E.B.'
2. Consistent with these principles, this Court made clear
in VMI that if defendants' attempt to remedy their constitutional
violation by creating a "parallel institution [] or parallel
'The Equal Protection Clause also precludes the Commonwealth
from justifying denying women VMI's unique educational program on
the basis of its conclusion that there is insufficient demand
among women for that type of education. In Missouri ex rel.
Gaines V. Canada, the Court squarely rejected the argument that
the state was not obligated to provide a legal education for
blacks (albeit in a separate facility) because there was a
limited demand for such an education, stating:
[Such an argument makes] the constitutional
right depend upon the number of persons who
may be discriminated against, whereas the
essence of the constitutional right is a
personal one.
It was as an individual that [petitioner] was
entitled to the equal protection of the laws,
and the State was bound to furnish him * * *
facilities for legal education substantially
equal to those which the State there afforded
for persons of the white race, whether or not
other negroes sought the same opportunity.
305 U.S. at 351 (internal quotation marks omitted). In any
event, the district court already found that there would be an
adequate demand among women for a VMI-type of education. See
VMI, 766 F. Supp. at 1437-1438; see also VMI, 976 F.2d at 894.
Thus, the court's statement that "there would be little demand
for a female VMI but there would be much more significant demand
for VWIL" (App. 350) is both contradicted by its own findings (at
least the first part of the statement), and legally irrelevant to
the adequacy of defendants' proposed remedial plan.
- 25 -
program []'", VMI, 976 F.2d at 900, the separate program for women
must offer VMI's unique educational methodology. The Court made
clear that women, like men, can benefit from VMI's unique
educational methodology. The Court stated, for example, that
"[i]t is not the maleness, as distinguished from femaleness, that
provides justification for the program.' Id. at 897. Thus,
although the Court concluded that the presence of women at VMI
would affect three aspects of VMI's program -- privacy, physical
training, and cross-sexual confrontations -- it emphasized that
" [t] he problems that could be anticipated by coeducation at VMI
*** would not be anticipated in an all-female program with the
same mission and methodology as that of VMI." Id. at 897-898
(emphasis added). The Court explained that although "physical
training at VMI is tailored to males, in the context of a single-
sex female institution, it could be adjusted without detrimental
effect. No other aspect of the program has been shown to depend
upon maleness rather than single-genderness." Id. at 898. This
conclusion is supported by the Court's finding that "neither the
goal of producing citizen soldiers nor VMI's implementing
methodology is inherently unsuitable to women." Id. at 899.8
With this background, the Court explained that the nature of
the constitutional violation was denying women "VMI's unique type
8Thus, although the Court concluded that the presence of
women would change the VMI program, those changes were the
justification for permitting a separate program for women, not
for making the separate program any different from VMI.
- 26 -
of program" and its unique educational "methodology." Id. at
892. The Court stated:
The parties agree that VMI offers a unique
combination of education and training that
makes a positive contribution offered by no
other institution. And the district court
found, apparently without exception from any
party, that "VMI's military program is
absolutely unique. No other school in
Virginia or in the United States, public or
private, offers the same kind of rigorous
military training as is available at VMI."
The decisive question in this case therefore
transforms to one of why the Commonwealth of
Virginia offers the opportunity only to men.
Id. at 898 (footnote omitted). The Court concluded that the
Commonwealth had not explained "why it offers the unique benefit
of VMI's type of education and training to men and not to women. "
Ibid. In numerous other instances the Court similarly emphasized
that the constitutional violation is denying women VMI's unique
educational program. E.g., id. at 899-900 (no evidence of a
state purpose for offering "the program" only to men).
In sum, the Court made clear that if the defendants chose,
as they have here, to offer an alternative program to women
instead of admitting them to VMI, the program must provide VMI's
unique educational methodology. Otherwise, the program would
"Thus, to say, as the district court does, that VMI's
educational methodology is simply an "added dimension" to the
single-gender program (App. 339), is to ignore the very essence
of VMI and why students want to go there.
- 27 -
not remedy the denial of VMI's unique educational program to
women. 10
3. This Court's opinion in Faulkner V. Jones, 10 F.3d 226
(4th Cir. 1993), supports this conclusion. In that case,
addressing Shannon Faulkner's interim admission to day classes at
The Citadel, the Court elaborated on the nature of separate
facilities that might be provided to men and women. Id. at 232.
Using the common sense example of public rest rooms, the Court
stated that when "a gender classification is justified by
acknowledged differences, identical facilities are not
necessarily mandated. Rather, the nature of the difference
dictates the type of facility permissible for each gender. "
Ibid. (hence urinals for men). The Court concluded that:
[t] herefore, any 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, the demand
(both in terms of quality and quantity), and
any other relevant factor. In the end,
distinctions in any separate facilities
provided for males and females may be based
¹⁰Requiring a parallel program for women to offer VMI's
educational methodology is consistent with the fundamental rule
that the court is "required to tailor the scope of the remedy to
fit the nature and extent of the * * * violation. " Hills V.
Gautreaux, 425 U.S. 284, 293-294 (1976) ; see also Freeman V.
Pitts, 112 S. Ct. 1430, 1445 (1992) ("the nature of the violation
determines the scope of the remedy") (internal quotation marks
omitted) i see generally Kirstein V. Rector & Visitors of Univ. of
Virginia, 309 F. Supp. 184, 187 (E.D. Va. 1970) (three-judge)
(Commonwealth violates women's equal protection rights by denying
them admission to University of Virginia; "Commonwealth * * * may
not now deny to women, on the basis of sex, educational
opportunities at the Charlottesville campus that are not afforded
in other institutions operated by the state").
- 28 -
on real differences between the sexes, both
in quality and quantity, SO long as the
distinctions are not based on stereotyped or
generalized perceptions of differences.
Ibid.
Following this language, it is plain that defendants might
offer a parallel program for women that provides different rest
room facilities and possibly a different physical training
program. But nothing in the opinion provides a basis for denying
women a rigorous military-type educational program. This Court
in Faulkner stated that "[w]hile providing a single-gender
military education was held to constitute an appropriately
important state purpose, [the Court] could find no state policy
justifying Virginia's decision to offer this unique type of
education only to men. No evidence was presented that women
might not also benefit from a program of military training
designed to produce women citizen soldiers." Id. at 232
(citation omitted; emphasis added)
Thus, while this Court gave defendants the opportunity to
prove that the violation could be remedied by providing a
separate program, it was clear that not just any single-sex
program would satisfy defendants' remedial obligation. VMI and
Faulkner make clear that to satisfy the Equal Protection Clause
such a program must be a military-style program with the central
attributes of VMI's program.
- 29 -
B. The VWIL Does Not Afford Women VMI's Unique
Educational Methodology
The district court found that the VWIL "differs
substantially from VMI" (App. 333-334). That finding is correct,
and it is dispositive. Since the VWIL does not provide for women
any of the central attributes of VMI's unique educational
program, it does not remedy defendants' violation of the Equal
Protection Clause.
The central differences between VMI's educational program
and the proposed VWIL can be summarized as follows, beginning
with the "six interrelated components" that characterize VMI's
"unique and intense" process called the "adversative" method.
VMI, 976 F.2d at 893.
a. Military Training. The military system characterizes
life at VMI, as cadets live within a military framework with its
attendant regulations, etiquette, and drills (see page 5, supra).
The military training is extremely rigorous, SO that "VMI alumni
are prepared to find the military benign in comparison with much
of what they experienced at VMI." VMI, 766 F. Supp. at 1427.
Although each cadet is required to participate in ROTC all four
years at VMI, ROTC operates independently of the other systems at
VMI. Id. at 1424.
By contrast, VWIL provides no military framework or training
for its students other than the pre-existing ROTC program, which
entails two hours per week for freshmen and sophomores, and four
hours per week for juniors and seniors (see pages 10-11, supra).
Indeed, VMI's 24-hour a day military life style was expressly
- 30 -
rejected (App. 471) Thus, unlike VMI, under the VWIL plan there
will be no military environment, including military lifestyle,
etiquette, and procedures (apart from ROTC training); students
will not have the opportunity to participate in a school-wide
system of military discipline; students will not be required to
wear uniforms during the school day (except during ROTC or
Virginia Corps of Cadets activities) i students will not
participate in daily marches and formations, reveille, and flag
ceremonies; and students will not be required to eat meals
together (App. 501-502, 582, 642-644)
Moreover, VWIL students will be in an environment -- Mary
Baldwin College, with its liberal arts, cooperative, nurturing
environment -- that is the very antithesis of VMI's military
atmosphere. Thus, for example, as first-year "rats" at VMI
celebrate "Breakout" (the end of rat training) by slogging
through the mud in their military uniforms, students at MBC will
be celebrating Apple Day. In short, VMI is a military-type
school, and VWIL is not. VWIL students' experience in ROTC will
not be comparable to the all-pervasive military experience of
VMI. 11
¹¹The comparative inadequacy of VWIL's military component
may be the result of Dean Lott's view that "what counts most [in
VWIL's military training] is the opportunity to be commissioned
in a service of [VWIL students'] choice" (App. 449-450). That is
not the case of VMI. At VMI, the military system characterizes
all of school life. A majority of VMI cadets do not have
military service as a vocational objective (R. 50 at 9). See
also R. 50 at 6 ("The role of VMI is not primarily to develop
career military men for the U.S. armed services.").
- 31 -
b. Barracks Life. At VMI, all cadets are required to live
in the barracks all four years. "Unlike most colleges, where the
library is central and the dormitories are peripheral, the most
important aspects of the VMI educational experience occur in the
barracks * * * [, which] are crucial to the VMI experience. VMI,
766 F. Supp. at 1423. As this Court explained:
The barracks life, described as important to
VMI's ethos of egalitarianism, is dictated by
the nature and functioning of the barracks.
Each class is assigned to one floor of the
four-story barracks structure and three to
five cadets are assigned to a room. The
rooms are stark and unattractive. There are
not locks on the doors and windows are
uncovered. Access to bathrooms is provided
by outside corridors visible to the
quadrangle, and there is a total lack of
privacy in the barracks, where cadets are
subjected to constant scrutiny and minute
regulation, all intended to foster cadet
equality and to induce stress.
VMI, 976 F.2d at 894 (emphasis omitted).
By contrast, only first-year VWIL students will live
together, and they will do SO in a section of a MBC residence
hall that will be consistent with the compassionate and
supportive MBC residence hall philosophy (App. 604). They will
be free to decorate their rooms as they please, and there will be
no restrictions on what they have in their rooms. They will be
subject to some additional regulations, but they are relatively
benign, such as keeping their rooms neat and not smoking.
Upperclass VWIL students will be required to live for one year in
the VWIL House (which will not be operated on a military format), ;
during other years nothing prevents them from living off campus.
- 32 -
In short, the residential facilities at VMI and MBC are on
opposite extremes with regard to privacy, self-expression, and
personal comfort (App. 818). Not surprisingly then, the district
court concluded that "[t]he residential life for VWIL students
will vary significantly from the residential life of VMI
students" (App. 343). See also App. 704-705 (VWIL will not
similarly provide for an absence of privacy).
C. Rat Line. VMI's rat line is the "harsh orientation
process to which all new cadets ('rats') are subjected to during
their first seven months at VMI." VMI, 976 F.2d at 893. As this
Court further explained, "[d]esigned to be comparable to the
Marine Corps' boot camp in terms of physical rigor and mental
stress, the rat line includes indoctrination, minute regulation
of individual behavior, frequent punishments, rigorous physical
education, and military drills." Ibid. Although this Court
found that VMI's "implementing methodology is [not] inherently
unsuitable to women," VMI, 976 F.2d at 900, defendants' proposed
remedial plan specifically provides that unlike VMI, the VWIL
will not utilize a rat line (App. 49). Indeed, while
acknowledging that the rat line "is integral to [VMI's] program"
(App. 620), MBC simultaneously rejects it for VWIL.
d. Class System and Dyke System. "The class system at VMI
is a system of privileges and responsibilities aimed at
developing the character and leadership of cadets." VMI, 766 F.
Supp. at 1422. "Each class has specific responsibilities," and
after "the rat line strips away cadets' old values and behaviors,
- 33 -
the class system teaches and reinforces through peer pressure the
values and behaviors that VMI exists to promote." Id. at 1422-
1423. The dyke system "is closely linked to the class system,
and is the arrangement by which each rat is assigned a first
classman [senior] as a mentor." Id. at 1423. As defendants have
asserted:
The class system epitomizes the unique
character of the VMI experience. Through the
class system, VMI organizes hierarchically
the peer pressure SO essential in shaping
individual and group behavior and values
during adolescence. The class system
inculcates the values and standards defined
by VMI as appropriate replacements for those
called into question by the rat experience.
*****
In addition to the rat line, the class and
dyke systems are the most significant
elements in supplying VMI men with the
qualities necessary for leadership in combat
* * *
R. 152 at 28, 30. Although the class and dyke system are SO
central to VMI, VWIL will simply have a mentoring requirement
(App. 460, 894-895).
e. Honor Code. VMI's honor code "is a stringently enforced
code of conduct applying to all aspects of life at VMI and
providing the single penalty of expulsion for its violation."
VMI, 976 F.2d at 894.¹² "The VMI honor code dominates all
facets of institutional life," and "is stringently enforced by an
honor court comprised of cadets elected from the upper two
classes." VMI, 766 F. Supp. at 1423. As defendants have
¹²The honor code provides that a cadet "does not lie, cheat,
steal nor tolerate those who do." VMI, 766 F. Supp. at 1423.
- 34 -
asserted, it "is one of the imperative sources of values at VMI"
(R. 152 at 31).
By contrast, VWIL students will be governed by the same
honor code that governs non-VWIL MBC students (App. 649).
Although that honor code prohibits the same conduct, it provides
for "minor" and "major" penalties to be decided by the Honor
Council (App. 649-650).
3. In addition to rejecting every component of the
adversative system, the VWIL differs from VMI in other key
respects. For example, VWIL will operate as a small subset of a
larger liberal arts institution, and will be fully integrated
into that institution (App. 639), one that has no tradition of
producing military leaders (App. 728). As a result, VWIL
students will be involved with non-VWIL MBC students in classes
and extracurricular activities, which will result in a different
kind of atmosphere and experience than at VMI.¹³ VWIL students,
for example, will not experience the same egalitarian environment
that defendants assert is a "fundamental aspect of the VMI
experience" (R. 152 at 21). In addition, VMI emphasizes
engineering, science, and mathematics, whereas VWIL emphasizes
arts and sciences and offers an engineering program only by
participating in a 3-2 program with Washington University in St.
Louis (App. 403). Further, VWIL will not offer its students an
"Analogously, the district court recognized in the
liability trial that the institutional environment of the VPI
Cadet Corps differs greatly from that of VMI because "only 2-3 %
of VPI students live in the Cadet Corps barracks, [and thus] the
military experience is more diffuse.' VMI, 766 F. Supp. at 1432.
- 35 -
opportunity for physical training that is comparable to that
provided men at VMI, where physical training is part of the daily
experience of the cadets (App. 899-900).
4. The VWIL not only fails to provide women with the same
educational methodology and experience of VMI, it offers little
that is not already offered to women at MBC. MBC currently
offers the same ROTC program that will be the military component
of the VWIL, virtually the same academic program, externships,
most of the same physical and health education, a leadership
program, and even a summer outward bound type program (App. 637-
638). Thus, VWIL more closely represents MBC than VMI; indeed,
Dean Lott called the VWIL program an "extension" of what MBC
already does (App. 472). Moreover, MBC was considering
developing a leadership program prior to this Court's decision in
VMI, and MBC's President testified that the VWIL plan is a
"natural evolution" of MBC's mission to educate women in a
single-sex environment (App. 617). This suggests that VWIL was
designed not SO much to offer women VMI's unique type of
educational program, but to fit into MBC's existing educational
program. See App. 436. Dean Lott testified, for example, that
the Task Force had to make certain that the program would be
consistent with MBC's "historical mission so that we couldn't
insert into Mary Baldwin something that would be VMI but would
not be Mary Baldwin" (App. 436).
In the final analysis, VWIL is fundamentally different from
VMI because it was not designed for women who want a military
- 36 -
style education, which is precisely what VMI offers (App. 693-
694) Moreover, while VMI was designed for the atypical man,
VWIL was designed for "most" women (App. 542). Indeed, Dean Lott
testified that, in his opinion, the VMI program is inappropriate
for most men (App. 542-543). (He also testified that there may
be some women for whom the adversative method of educational
would be optimal (App. 525) .) Dr. David Riesman, one of
defendants' experts, similarly testified that VMI's hostile,
spartan environment is not appropriate for most men (App. 676)
Thus, those who crafted the VWIL program made no effort to create
a program that would attract the type of women that would be
attracted to VMI in the first place, and thus who suffer the
violation of their Equal Protection rights because the
Commonwealth denies them a VMI-type education solely because of
their gender (App. 540)
C. Defendants Cannot Justify Denying Women The Benefits
Of VMI's Unique Educational Program On The Basis Of
The Purportedly Similar "Outcome" Of VWIL's
Educational Program
1. Since the VWIL is substantially different from VMI, it
is not surprising that the defendants argued below that " [t]he
opportunity to become citizen-soldiers, not the discrete
pedagogical means used to achieve that outcome, which includes a
24-hour a day military format, is the benefit women were denied"
(Defendants' Proposed Findings of Fact and Conclusions of Law at
22-23). But defendants know best of all that without their
particular pedagogical means their notion of being a citizen-
soldier rings hollow. They asserted in the liability trial that
- 37 -
If [t] he VMI concept of a 'citizen-soldier' is inextricably tied to
the distinctive method of education and character formation
employed at VMI" (R. 152 at 19). General Knapp, the
Superintendent of VMI, similarly testified that although other
institutions can produce citizen-soldiers, VMI's methodology was
unique (Tr. 64-65 (liability trial) ) 14
Thus, as defendants well know, the essence of VMI is its
extremely challenging, physically and mentally rigorous,
military-style educational program. Students who apply to VMI
obviously want that kind of educational experience, otherwise
they would not choose VMI. Indeed, the district court expressly
found in the trial on liability that students attend VMI "because
of the rigor of the experience, which represents a challenge and
which [they] believe [] will test [them] to the ultimate." VMI,
766 F. Supp. at 1426. The court also found, for example, that it
is "the intensity of the barracks-centered lifestyle that makes
VMI SO attractive to many applicants." Id. at 1414. See
generally pages 6-7, supra. Women who want to go VMI (like
Shannon Faulkner at The Citadel) also want that kind of
educational experience. In short, characterizing the crux of
what women are denied as the particular "outcome" of being a
"Defendants' derisive dismissal of the types of changes
West Point made when women were admitted also shows that VMI's
central focus is on methodology, since few would contend West
Point no longer produces men and women trained for leadership
positions in both civilian and military life. See Brief of
Appellees at 31-35, United States V. Virginia, No. 91-1690.
- 38 -
leader (or citizen-soldier) wholly fails to capture the essence
of the unique program that defendants SO vigorously defend.
2. In addition, a focus on outcomes, from drastically
different types of educational programs, provides far too
amorphous a standard by which to measure the vindication of
women's Equal Protection rights. The district court described
the outcomes as producing citizen-soldiers - - men and women
trained for leadership in both civilian and military life (App.
340). But most colleges would cite leadership training as a
goal. 15 One of defendants' expert witnesses (Richard
Richardson) similarly described VMI's outcomes as the "concept of
the educated and honorable man, * * * who is qualified to serve
the country both in times of peace and in times of war" (App.
737) Another of defendants' experts (Elizabeth Anne Fox-
Genovese) described the desired outcomes this way: "When I think
of outcomes, I think of * * * where one would like to see a
student at about 30 launched on her life, and
*
*
from
that
perspective, I think the outcome of the [VWIL] program will be in
important ways fully compatible to VMI" (App. 568) And Dean
Lott acknowledged that if outcomes are described in general
¹⁵E.g., Illinois Wesleyan University Catalog (1992-93) at 11
(mission is "to prepare our students for responsible citizenship
and leadership in a democratic society and global community") ;
see also VMI, 766 F. Supp. at 1430 (mission of the VPI Corps of
Cadets is to prepare men and women "to be effective leaders in
the varied work of military and civilian life"). The district
court found that despite its nearly identical mission, the VPI
Corps of Cadets was not sufficiently similar to VMI to avoid the
conclusion that "[w]omen are denied a unique educational
opportunity that is available only at VMI." Id. at 1432.
- 39 -
enough terms, a law school and a medical school could be said to
have the same outcomes (App. 527-528) 16 In short, using the
"broad umbrella" of the definition of a citizen-soldier to
develop the VWIL plan (App. 436), and gauging outcomes by the
generalized definition of that term (or, as defendants have
stated, by the "qualities associated with citizen-soldiers"
(Defendants' Proposed Findings of Fact and Conclusions of Law at
23) ) cannot provide a meaningful way of measuring whether the
plan affords women the unique education and training of the VMI
experience. 17
¹⁶VMI's mission is to produce "citizen-soldiers, educated
and honorable men who are suited for leadership in civilian life
and who can provide military leadership when necessary." VMI,
976 F.2d at 893. The stated mission of VWIL is also to produce
"citizen-soldiers," who are "educated and honorable women,
prepared for the varied work of civilian life, [and] qualified to
serve in the armed forces" (App. 380). The similarity of the
mission statements is not remarkable, since defendants seek to
justify the VWIL program not by showing how it actually provides
women the same type of educational program that VMI offers men,
but rather by asserting that the schools have the same mission
and thus will produce the same outcomes. But VMI's mission
statement goes on to state that "[t]o accomplish this result,
[VMI] shall provide to qualified young men undergraduate
education of [the] highest quality -- embracing engineering,
science, and the arts -- conducted in, and facilitated by, the
unique VMI system of military discipline." VMI, 766 F. Supp. at
1425 (emphasis added).
¹⁷A number of witnesses testified for the United States,
including Dr. Alexander Astin, that the outcomes of VMI and VWIL
would not be the same. See, e.g., App. 794-795, 905-906, 965-
967). Although defendants had experts testify to the contrary,
the United States objected to the qualifications of many of the
defendants' experts to testify to a comparison of outcomes (e.g.,
App. 588-589, 608-609). For example, neither Dean Lott nor
President Tyson had any experience in assessing whether two
institutions could produce comparable outcomes (App. 530, 534;
Tr. 375 (remedial trial) ) Moreover, there is an ipse dixit
quality to much of defendants' expert testimony on this matter
(continued
)
- 40 -
II
THE COURT SHOULD ORDER VMI TO ADMIT WOMEN
TO REMEDY THE CONSTITUTIONAL VIOLATION
This Court conditioned VMI's continued status as a state
supported all-male school on the Commonwealth remedying the
constitutional violation of affording men, but not women, the
benefits of VMI's unique educational program. The Court gave the
Commonwealth the responsibility to select a remedial course,
which "might" include establishing a parallel program for women.
VMI, 976 F.2d at 900. When the Court suggested this remedial
alternative, the record did not address whether a particular
program for women could approximate the VMI experience and its
attendant benefits, or even whether any program for women could
do so, since the parties had no occasion to address that issue.
This has now been done, and what may have been a theoretical
possibility is not, at least in this case, a practical reality.
A parallel and separate educational program cannot in this case
be equal.
Indeed, defendants, by their own admission, have made no
effort to provide for women the central attributes of VMI's
educational program. See, e.g., App. 49, 50. For example,
17 ( continued)
(e.g., App. 531 (Dean Lott testified that when he approved the
plan he "assumed that different methodologies could result in
similar outcomes") ) As a practical matter, it may be that it is
simply impossible to determine whether the outcomes would, in any
meaningful sense, be comparable (see App. 1009-1010, 1024-1025).
In any event, as a legal matter it is legal error to conclude
that predicted generalizations concerning an educational outcome
satisfy a women's right to access to VMI's unique educational
methodology.
- 41 -
defendants have expressly rejected offering women an adversative
model of education, although that is the model "on which the VMI
system is based." R. 152 at 19. The Commonwealth still does not
have a policy (much less a viable program) for providing a VMI-
type education to women. Since it would have been in the
defendants interest to do their best to create a program for
women that would approximate VMI, their failure to come anywhere
close to VMI's educational program is telling.
Defendants have vigorously defended VMI for over four years,
and in SO doing they have repeatedly emphasized the uniqueness of
its educational methodology, which has produced its rich heritage
and made it one of the nations most respected colleges (e.g., R.
152 at 24, 96-97) Indeed, that fact was the centerpiece of
defendants' defense of the program. They have asserted, for
example, that the "principal difference between VMI and other
state institutions that produce citizen-soldiers is the
methodology. The VMI methodology is unique" (R. 152 at 97).
They have also expounded that "VMI's dedication to honor, duty
and service makes it one of the nation's unique and most
respected colleges," that it "has provided the Commonwealth and
the nation with exemplary leaders in all fields," that it
"consistently appears on all lists of the nations finest colleges
while maintaining the spartan lifestyle of its corps of cadets
[and] offering quality education within the disciplined framework
of a military environment," and that it "is one of the greatest
assets of the Commonwealth of Virginia" (R. 152 at 18). The
- 42 -
district court likewise found that "VMI is sought out by some
applicants for admission because it is known to be the most
challenging military school in the United States, and because its
alumni are exceptionally close to the school." VMI, 766 F. Supp.
at 1421. The district court also concluded in its remedial
decision that "the VWIL program cannot supply those intangible
qualities of history, reputation, tradition, and prestige that
VMI has amassed over the years" (App. 338), which suggests that
there cannot really be a parallel program for women that offers
them the benefits of VMI's educational program.
Defendants now contend that VMI is not about a particular
methodology, but about a particular outcome -- producing citizen-
soldiers. They also suggest that it is really not SO hard to
produce citizen-soldiers, that the existing program at Mary
Baldwin College can be fine-tuned to accomplish that end, even
without incorporating any of the elements of VMI's educational
program that we were told make it SO unique and attractive.
It seems clear that the defendants will not -- indeed cannot
-- establish a program that gives women an education equal to
VMI. The only appropriate remedy is to order women admitted to
VMI. 18
¹⁸We recognized that this Court in VMI also suggested that
defendants might remedy their constitutional violation by
"abandon [ing] state support of VMI." 976 F.2d at 900.
Defendants have not elected to pursue this remedial option, but
instead sought to create a parallel program for women. Since
defendants have had their opportunity to select a remedy, and the
parallel program does not remedy the constitutional violation,
defendants must admit women to VMI.
- 43 -
CONCLUSION
The judgment of the district court should be reversed.
Since defendants have failed to select a course that "bring [s]
the circumstances into conformity with the Equal Protection
Clause," VMI, 976 F.2d at 900, the case should be remanded with
an order directing that VMI admit women.
Respectfully submitted,
DEVAL L. PATRICK
Assistant Attorney General
III & (if W
JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys
Civil Rights Division
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078
(202) 514-3728
REQUEST FOR ORAL ARGUMENT
The United States believes that oral argument would be
useful to this Court in resolving the issue on appeal.
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief for
the United States as Appellant were served by regular mail on the
following counsel of record:
Honorable James S. Gilmore, III, Esq.
(plus one copy of
William H. Hurd, Esq.
the Joint
Office of the Attorney General
Appendix)
101 North Eighth Street
Richmond, Virginia 23219
Robert H. Patterson, Jr., Esq.
(plus one copy of
Anne Marie Whittemore, Esq.
the Joint
William G. Broaddus, Esq.
Appendix)
J. William Boland, Esq.
McGuire, Woods, Battle & Boothe
One James Center
901 East Cary Street
Richmond, Virginia 23219
Griffin B. Bell, Esq.
William A. Clineburg, Jr., Esq.
King & Spalding
191 Peachtree Street
Atlanta, GA 30303
William B. Poff, Esq.
Woods, Rogers & Hazelgrove
Box 720
Roanoke, Virginia 24004
The E Cladh
Thomas E. Chandler
Attorney
This 12th day of July, 1994
Nos. 94-1667 & 94-1717
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant
V.
COMMONWEALTH OF VIRGINIA, et al.,
Defendants-Appellees
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
REPLY AND ANSWERING BRIEF FOR THE UNITED STATES
AS APPELLANT/CROSS-APPELLEE
DEVAL L. PATRICK
Assistant Attorney General
JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078
(202) 514-3728
TABLE OF CONTENTS
PAGE
ARGUMENT
1
CONCLUSION
19
TABLE OF AUTHORITIES
CASES:
Associated General Contractors V. City & County of San
Francisco, 813 F.2d 922 (9th Cir. 1987)
8
Craig v. Boren, 429 U.S. 190 (1976)
9
Faulkner V. Jones, 10 F.3d 226 (4th Cir. 1993)
3, 12, 13
Faulkner V. Jones, No. 2:93-488-2
(D.S.C. July 22, 1994)
13, 14
Faulkner V. Jones, No. 94-1978
(4th Cir. Aug. 12, 1994)
17
Force by Force V. Pierce City R-VI Sch. Dist.
570 F. Supp. 1020 (W.D.M. 1983)
7, 9
Hoover V. Meiklejohn, 430 F. Supp. 164
(D. Colo. 1977)
10
Metro Broadcasting, Inc. V. FCC, 497 U.S. 547 (1990)
9
Mississippi Univ. for Women V. Hogan,
458 U.S. 718 (1982)
8, 10
Missouri ex rel. Gaines V. Canada, 305 U.S. 337 (1938)
12, 13
Orr V. Orr, 440 U.S. 268 (1979)
9, 10
Parham V. Hughes, 441 U.S. 347 (1979)
10
United States V. Commonwealth of Virginia (VMI),
976 F.2d 890 (4th Cir. 1992), cert. denied,
113 S. Ct. 2431 (1993)
passim
United States V. Virginia, 766 F. Supp. 1407
(W.D. Va. 1991)
15, 16
Wengler V. Druggests Mutual Ins. Co.,
446 U.S. 142 (1980)
9
- i -
CONSTITUTION OF THE UNITED STATES:
PAGE
Fourteenth Amendment
17
Equal Protection Clause
4, 6
- ii -
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 94-1667 & 94-1717
UNITED STATES OF AMERICA,
Plaintiff-Appellant
V.
COMMONWEALTH OF VIRGINIA, et al.
Defendants-Appellees
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
REPLY AND ANSWERING BRIEF FOR THE UNITED STATES
AS APPELLANT/CROSS-APPELLEE
ARGUMENT
This brief responds to the arguments made by the
Commonwealth of Virginia, the Virginia Military Institute (VMI),
et al., in the Answering and Opening Brief of Appellees/Cross
Appellants.
1. It is not disputed that defendants' proposed remedy --
the all-female Virginia Women's Institute for Leadership (VWIL)
- - is substantially different from the educational program at
VMI. The government argued in its opening brief that, as a
result, the proposed remedy does not correct the constitutional
1/ References in this Reply Brief to "Br. " are to the
defendants/appellees' answering and opening brief. References to
"U.S. Br. " are to the opening Brief for the United States as
Appellant. References to "App. " are to the three-volume Joint
Appendix. References to "Tr. " are to the transcript of the
remedial trial where not included in the Joint Appendix.
References to "R. " are to docket numbers on the district court
docket sheet (See App. 1-31).
- 2 -
violation found by this Court -- i.e., offering men, but not
women, VMI's distinctive, military-style educational methodology.
United States V. Commonwealth of Virginia (VMI), 976 F.2d 890,
899 (4th Cir. 1992), cert. denied, 113 S. Ct. 2431 (1993). The
government also argued that, consistent with the Equal Protection
Clause, those differences cannot be justified on the basis that
VMI's unique educational methodology is thought inappropriate for
"most" women (U.S. Br. 19-28); that VWIL, although substantially
different from VMI, will produce a similar "outcome" (U.S. Br.
36-39) ; or that there is insufficient demand among women for a
VMI-type education (U.S. Br. 24 n.7).
Defendants respond that the issue is not whether they have
offered the unique VMI methodology to women, but rather whether
the proposed VWIL offers to women "a single-gender education that
offers the benefits provided to young men at VMI" (Br. 23). They
also assert (1) that consistent with the Constitution, they may
rely on predominant group traits to conclude that women, as a
whole, would not benefit from VMI's adversative methodology, and
(2) that "[e]ven in the absence of pedagogical reasons for
programmatic differences, gender differences in student demand
alone constitutionally justify the differences between VMI and
VWIL" (Br. 3) As set forth in our opening brief, and for
the following additional reasons, these arguments are unavailing.
2/ The district court did not rely on the alleged lack of demand
for an all-female VMI-type program in upholding defendants'
remedial plan.
- 3 -
a. Defendants first assert that If [t]he United States is
simply wrong in the argument that the constitutional violation
which must be remedied is the denial of the unique VMI
methodology to young women" (Br. 23). But this is precisely what
this Court held in VMI, and reiterated in Faulkner V. Jones, 10
F.3d 226 (4th Cir. 1993). See U.S. Br. 24-28 (addressing this
Court's decisions in those cases and mandate in VMI). For
example, this Court in VMI stated:
Although neither the goal of producing
citizen soldiers nor VMI's implementing
methodology is inherently unsuitable to
women, the Commonwealth has elected * * * to
maintain a system of education which offers
the program only to men. In the proceedings
below, Virginia had the opportunity to meet
its burden of demonstrating that it had made
an important and meaningful distinction in
perpetuating this condition. As the record
stands, however, evidence of a legitimate and
substantial state purpose is lacking.
976 F.2d at 899-900 (emphasis added; citation omitted).
There is, moreover, no basis for defendants' contrary
assertion that the relevant inquiry is whether VWIL offers women
the opportunity to achieve the same goals that VMI provides for
men. Although defendants recognize that "[u]nder well-
established remedial standards, the scope of the remedy is
determined by the nature and extent of the constitutional
violation" (Br. 22 (internal quotation marks omitted) ) they do
not look to the violation to justify the remedy, but instead
assert that the remedial plan itself passes the intermediate
level of scrutiny that applies to gender classifications (see,
e.q., Br. 23). This is so, we are told, because the "VWIL
- 4 -
methodology is 'substantially related' to the remedial purpose of
providing young women the opportunity to achieve the goals of
VMI" (Br. 37).
The remedial plan, however, is not an independent gender
classification that must be analyzed under the intermediate
scrutiny test. This Court has already held that offering VMI's
distinctive educational program to men but not to women violates
the Equal Protection Clause; the question now is whether the
proposed remedial plan cures that constitutional violation. The
Court in VMI suggested that a parallel institution or program
might do SO (but did not say that there necessarily is such a
program). 976 F.2d at 900. The Court also stated that " [t] he
problems that could be anticipated by coeducation at VMI * *
*
would not be anticipated in an all-female program with the same
mission and methodology as that of VMI." Id. at 898 (emphasis
added). It follows that in assessing whether the proposed
parallel program satisfies defendants' remedial obligation, the
proposed remedy must be compared to VMI's educational program to
determine if women are really getting that which defendants have
unlawfully denied them. As we have set forth in detail, the VWIL
not only "differs substantially from VMI" (as the district court
found (App. 333-334)), it does not provide women with any of the
central attributes of VMI's unique educational program. See U.S.
- 5 -
Br. 29-36; see also Br. 28 ("VWIL is not a military
school") 1/
b. Defendants' attempt to justify their failure to offer
women VMI's rigorous, military-style educational program on the
basis of comparable benefits (Br. 32-38). They assert that they
relied on experts to design "the optimum environment for the
single-gender education and training of women leaders" (Br. 33),
and that based on the predominant group traits of women the
adversative VMI methodology would not be beneficial to women but
the VWIL methodology would be (Br. 24-25, 32-38).
First, it is simply not true, as defendants suggest, that
VWIL was designed the way it was because of the intensive
studying and planning by educational professionals, and that the
Task Force had no pre-conceived approach to methodology. As
stated in our opening brief (U.S. Br. 35), Mary Baldwin College
(MBC) was considering developing a leadership program prior to
this Court's decision in VMI, and MBC's President testified that
the VWIL plan is a "natural evolution" of MBC's mission to
educate women in a single-sex environment (App. 617). Likewise,
3/ Defendants are wrong in asserting that it is the government's
position that the remedy "must replicate every aspect of VMI's
unique methodology" (Br. 23), and that "the mere existence of
differences between VMI and VWIL" renders VWIL unconstitutional
(Br. 27). As we have made clear, any proposed parallel program
must, at the least, be a military-style program with the central
attributes of VMI's program. See, e.g., U.S. Br. 28. Otherwise,
women are simply not getting as a remedy that which defendants
have unconstitutionally denied them. At the same time, the
government has recognized that a parallel program could take into
account matters such as privacy issues and actual physical
differences.
- 6 -
Dean Lott testified that the Task Force had to make certain that
the program would be consistent with MBC's "historical mission SO
that we couldn't insert into Mary Baldwin something that would be
VMI but would not be Mary Baldwin" (App. 436) Moreover, when
President Tyson presented the VWIL concept to the MBC faculty,
the discussion about possibly having military marching and
parades on the MBC campus "was fraught with humor" (App. 482-
483)
In any event, at the heart of defendants' argument is the
notion that men and women learn differently, and thus "VMI's
extreme adversative method would not accomplish for most young
women the goals of education and training" that VMI accomplishes
for men (Br. 33 (emphasis added) ) But that is not the point.
The Equal Protection Clause protects individuals, and does not
permit state actors to deny women a valuable benefit on the basis
of the stereotype that it is not thought appropriate for them.
See U.S. Br. 20-24. Thus, even if it were demonstrable that, as
a generalization, most men and most women learn differently, the
Equal Protection Clause forbids reliance on such generalizations
about character traits which, "while perhaps empirically
supported as generalizations -- do not hold true for all members
1/ Moreover, defendants' assertion that VWIL was designed by
experts in women's education (e.q., Br. 3) is greatly
exaggerated. The only expert involved in the remedial plan's
formulation was Dr. Richard Richardson (an expert in higher
education). For example, Dean Lott, co-chair of the Task Force,
testified that he was not one of the experts who determined what
components of VMI were appropriate for women (App. 536)
Similarly, neither Dr. Fox-Genovese nor Dr. Riesman were involved
in formulating the VWIL plan (see Tr. 284, 543-544).
- 7 -
of a sex. " Force by Force V. Pierce City R-VI Sch. Dist. 570 F.
Supp. 1020, 1029 (W.D. Mo. 1983) (emphasis omitted). Indeed, as
a generalization, the record is clear that the VMI-type education
is not the preferred approach for most women or most men (see,
e.g., Br. 36; U.S. Br. 36; App. 676), but nevertheless those
atypical men who might be attracted to such an education can get
one, while such women cannot.
It thus does not follow as a matter of logic (in addition to
as a matter of law) that, even assuming that as a generalization
men and women learn differently (a matter which we do not concede
(see generally App. 349 n.8)), a parallel program for women
should be substantially different from VMI. Both the men and the
women interested in a VMI-type education constitute a small,
self-selected subset of all men and women and, as noted above,
neither are typical of their gender. As Dr. Carol Nagy Jacklin
testified, there are greater individual differences within each
gender in approaches to learning than there are such differences
between each gender (App. 821-823). See U.S. Br. 23 n.6.
Indeed, if the Commonwealth were really concerned about offering
educational programs based on average or generalized learning
traits, VMI would not exist. Thus, the testimony of defendants'
experts that a parallel program for women need not include the
central attributes of VMI's rigorous program, since they would
not be suitable for most women, is beside the point (see Br. 33-
34). But see Tr. 1236, 1239, 1320 (testimony of Dr. Alexander
Astin that he is not aware of any developmental characteristics
- 8 -
of women that make an educational methodology that is appropriate
for men inappropriate for women; that there is no evidence that
women would respond differently than men in an environment that
had an absolute equality of treatment, induced mental stress, and
the minute regulation of behavior; and that there is no evidence
that an educational model that is beneficial to men would not be
beneficial to women)
Defendants seek to justify their reliance on group traits by
arguing that the intermediate scrutiny test permits them to make
"predictive judgments of group behavior based on substantial
evidence" (Br. 25). But under the heightened scrutiny applied to
gender classifications, the use of gender-based generalizations
can never be permissible to exclude and further stigmatize a
historically disadvantaged group, since in such cases it
reinforces "fixed notions concerning the roles and abilities" of
the group. Mississippi Univ. for Women V. Hogan, 458 U.S. 718,
725 (1982) And in those gender discrimination cases that
suggest that under intermediate scrutiny the challenged statute
need not be drawn as precisely as they might have been, the
challenged classification was intended to remedy past
discrimination against women. See, e.g., Associated General
Contractors V. City & County of San Francisco, 813 F.2d 922, 939-
942 (9th Cir. 1987). Indeed, defendants have no answer to the
fact that there is no case (decided under the heightened scrutiny
standard) that has upheld the denial of a valuable benefit to all
women simply because some task force or other group believes it
- 9 -
is inappropriate for most women. In addition, use of
generalizations in gender discrimination has routinely been
rejected when, as here, procedures such as individual
determinations can be made to determine whether the sex-centered
generalizations comport with fact. See, e.g., Wengler V.
Druggists Mut. Ins. Co., 446 U.S. 142, 151-152 (1980) ; Orr V.
Orr, 440 U.S. 268, 281-282 (1979) i Craig V. Boren, 429 U.S. 190,
199 (1976) ; Force by Force, 570 F. Supp. at 1028-1030
There is, moreover, an obviously patronizing message
implicit in defendants' argument -- that women should have access
to a VWIL-type education (a "feminine" leadership school), but
not a VMI-type education (a "masculine" leadership school),
because it would not be good for them to participate in a VMI-
type program. In other words, defendants maintain that they can
deny women a VMI-type education - - even those women that this
Court (and the district court) found can succeed in a VMI-type
program and might prefer it, see VMI, 976 F.2d at 896; App. 352
- - because it is for their own good. This argument, however, is
indistinguishable from asserting the discredited notion that
women's "need for special protection" justifies their exclusion
5/ Defendants cite Metro Broadcasting, Inc. V. FCC, 497 U.S. 547
(1990), to support their assertion that, under the intermediate
scrutiny test, they may rely on "predictive judgments" of group
behavior in fashioning their remedy (Br. 25-26). But permitting
Congress to use predictive judgments about group behavior in
enacting legislation to enhance diversity in broadcasting (by
including more minority groups) is far removed from using such
judgments to perpetuate historical discrimination against a
disfavored class by excluding them from a valuable benefit. See
497 U.S. at 579-584.
- 10 -
from a governmental benefit. Orr, 440 U.S. at 283; see also
Hogan, 458 U.S. at 725 ("if the statutory objective is to exclude
or 'protect' members of one gender because they are presumed to
suffer from an inherent handicap or to be innately inferior, the
objective itself is illegitimate") Parham V. Hughes, 441 U.S.
347, 354 (1979) (state cannot make overbroad generalizations
based on sex that "demean the ability or social status" of
women) ; Hoover V. Meiklejohn, 430 F. Supp. 164, 169 (D. Colo.
1977) ("Any notion that young women are SO inherently weak,
delicate or physically inadequate that the state must protect
them from the folly of participation in vigorous athletics is a
cultural anachronism unrelated to reality. ")
Finally, defendants are wrong in characterizing the
violation as, chiefly, the absence of a single-gender educational
program for women (e.g., Br. 21). As we have repeatedly noted,
the United States has never sought the creation of separate VMI-
type school for women (and defendants did not raise this
possibility at the liability trial). Rather, this case was
6/ Defendants repeatedly assert that its witnesses testified that
VWIL would be a good program, and that the United States has not
shown that the program would not be educationally beneficial.
See, e.g., Br. 2 (VWIL is "unique" and "innovative"), 37. That
point is irrelevant. VWIL may be a fine program that would
benefit women who participate in it. But SO too would many types
of programs. Nevertheless, defendants cannot remedy the denial
of women's right to the benefit of VMI's unique educational
program by giving them some other type of educational program.
That would be like saying that although the state denies women
admission to its only engineering school, it will create a
business school for them. This is especially inappropriate
where, as here, the exclusion of women is stigmatizing and the
record makes clear that some women can do everything that is
required at VMI. See 976 F.2d at 896.
- 11 -
brought SO that women, like men, could benefit from VMI's
distinctive and challenging educational program, and enjoy all of
the attendant benefits of graduating from that program (prestige,
job opportunities, etc.). To be sure, the Court did state that
single-gender education is pedagogically justifiable, 976 F.2d at
898, but that finding was relevant only to the Court's conclusion
that although defendants had not justified offering VMI's unique
educational program only to men, the Court would not order that
women be admitted to VMI if alternatives were available, id. at
900. That conclusion did not describe the core of what women
were deprived of, which the Court made clear was an educational
program with the same distinctive methodology as VMI. E.g., id.
at 898. Indeed, students want to go to VMI precisely because of
its extremely challenging, military-style educational experience
(see U.S. Br. 36-38)
I/ Defendants argued below, and the district court found (see
App. 333-334, 352), that although VWIL differs substantially from
VMI it will result in "outcomes" for women that are comparable to
those received by men at VMI. Defendants now focus on comparable
"benefits," not outcomes, although it is unclear whether the
change is one of nomenclature or theory. We argued in our
opening brief (U.S. Br. 38-39) that the focus on outcomes (i.e.,
becoming a citizen-soldier) was too amorphous a standard by which
to measure the vindication of women's Equal Protection rights.
The same holds for a focus on comparable "benefits." In any
event, defendants' attempt to show that VWIL, despite its
substantial differences from VMI, will produce the same benefits
is not persuasive (see Br. 28-32). For example, defendants
assert that although VWIL will not have VMI's single-sanction
honor code, VWIL's honor code will result in the same "character
development goal" (Br. 31 n.17). But defendants themselves have
shown that that is hardly possible. They argued during the
liability trial that its single-sanction honor code dominates all
facets of life at VMI, is one of VMI's "imperative sources of
values,' and is an important part of emphasizing "the absolute
(continued
)
- 12 -
C. Defendants argue that, apart from any other
justification for their remedial plan, "the lack of demand for an
all-female VMI is a wholly adequate justification for the remedy
proposed by the Commonwealth" (Br. 45). This argument is wrong.
As we have stated in our opening brief, the Equal Protection
Clause precludes justifying denying women VMI's unique
educational program on the basis of speculation that there would
be insufficient demand for that type of program. See U.S. Br. 24
n.7.ᵃ/ This Court's decision in Faulkner V. Jones, 10 F.3d 226
(4th Cir. 1993), does not suggest the contrary. Defendants
emphasize (Br. 43-44) language in Faulkner stating that an
analysis of separate facilities must take into account "the
demand (both in terms of quality and quantity) 11 10 F.3d at 232.
But this language cannot mean that demand can provide an excuse
for not providing an educational opportunity on an equal basis to
men and women. Rather, the language manifests the common sense
understanding that separate facilities need not, for example,
offer as many dorm rooms, classrooms, or physical education
facilities if there would not be enough women to use them.
1/ ( continued)
boundaries that separate the VMI community from the outside
world" (R. 152 at 31-32).
8/ Defendants assert that our reliance on Missouri ex rel. Gaines
V. Canada, 305 U.S. 337 (1938), is misplaced because that case
involves race and "has long been superseded by * * * strict
scrutiny" (Br. 44). But the fact that the law applied to racial
classifications has changed since that case was decided is
irrelevant. That case was decided in a time when separate
facilities for the races could be constitutional. In the instant
case, this Court's remand instructions presume the same thing in
the context of gender.
- 13 -
Indeed, the next sentence in Faulkner provides that "[i]n the
end, distinctions in any separate facilities provided for males
and females may be based on real differences between the sexes,
both in quality and quantity, SO long as the distinctions are not
based on stereotyped or generalized perceptions of differences."
Ibid. That language does not suggest that an assessment of
demand can determine, in the first place, whether those women who
desire a VMI-type educational program (and could succeed in one)
are entitled to have one.
The district court in Faulkner recently rejected The
Citadel's argument that South Carolina could justify denying
women single-gender educational opportunities because there is
insufficient demand for them. Faulkner V. Jones, No. 2:93-488-2
(D.S.C. July 22, 1994). The court first stated that " [t] he
defendants have called the court's attention to no case that
supports the proposition that lack of demand is a sufficient
justification for the State of South Carolina providing single-
sex education to men but not to women, " and a "thorough search by
this court has also failed to find any such precedent. " Slip op.
at 29.9/ The court also stated, after addressing the Supreme
Court's decision in Canada (see note 8, supra), that " [t]here is
no indication that the United States Supreme Court has done
anything to alter * * * the legal principal stated in [Canada].
To the contrary, it continues to clearly proclaim that those
9/ Likewise, defendants cite no cases to support their demand
argument.
- 14 -
rights created by the Equal Protection Clause *** are personal,
individual rights." Id. at 31. The court added that "[t]o
suggest that a lack of demand for a certain type of equal
protection can somehow justify the denial of another person's
constitutional right thereto undermines the express intent of the
Fourteenth Amendment. " Id. at 29. The court concluded that "the
policy of demand * * * does not justify the * * * policy of
providing a Citadel-type education to men and not to women. " Id.
at 31-32.
Since demand cannot, as a matter of law, justify denying
women a VMI-type of education, defendants' assertion (citing
several of their witnesses) that " [t] he Commonwealth reasonably
concluded that demand was inadequate to support a mirror-image
VMI for women" is irrelevant (Br. 41). In any event, even
assuming demand has any relevance to fashioning a remedy, the
assessment of demand cannot be based simply on the experiences of
West Point and Virginia Tech (see Br. 39-40 (discussing basis for
Dr. Richardson's conclusions regarding demand) ) Moreover, Dr.
Riesman, also relied upon by defendants, admitted that lack of
women in his Harvard Law School class was not due to a lack of
demand for such an education among women, but a result of
society's "clear assumption that law was a boy's game" (Tr. 519-
520). The same, of course, could be said for any lack of demand
by women for a VMI-type education.
Further, as Michael Kimmel testified (a government expert in
historical sociology and sociology of gender), historically
- 15 -
opponents of women's efforts to achieve equal opportunities in
higher education have argued, in part, that there was a lack of
demand for these opportunities (Tr. 939, 943) But, he
explained, the historical evidence shows that "demand is
impossible to assess in the absence of opportunity. Opportunity
creates demand and when the opportunities are available, the
demand is there" (App. 892) 10/ Thus, even if demand had any
bearing on this case, before the Commonwealth makes a decision as
important as banning all women from a VMI-type education (because
of the predilections of other women), it should at least be
required to make a realistic effort to gauge demand by, e.g.,
first "spread [ing] the word about the valuable education [an all-
women VMI] offers," just as it does with VMI. United States V.
Virginia, 766 F. Supp. 1407, 1436 (N.D. Va. 1991) 11/
In any event, the district court already decided that there
would be an adequate demand among women for a VMI-type education.
See U.S. Br. 24 n.7 (noting finding that VMI would be able to
achieve a 10% female enrollment). Defendants dismiss this
finding (see Br. 42 n.24), asserting that it relates to a VMI-
type program that would be coeducational, not one that would be
10/ This may be especially true where, as here, VMI actively
recruits students to encourage demand, but discourages demand
among women. See United States V. Virginia, 766 F. Supp. 1407,
1436 (W.D. Va. 1991)
11/ Defendants make the related argument that there would be a
substantial demand for VWIL (Br. 42). This assertion, like their
assertion that VWIL would be a good program, is irrelevant to
whether the proposed program satisfies defendants' remedial
obligation to offer women the benefits of VMI's unique
educational program. See note 6, supra.
- 16 -
all-female. But there is no basis for assuming (and no evidence
to support such an assumption) that the women who would want to
go to VMI do so because it would be co-educational. Rather, as
we have explained (see U.S. Br. 37), women who seek to go to VMI,
like the men who seek to go there, want the challenge of VMI's
rigorous, military-style educational program. See VMI, 766 F.
Supp. at 1421, 1426 (lists of reasons why students attend VMI do
not include because it is single-sex). In short, defendants seek
to use speculation over demand for a non-existent all-female VMI
(when they have not even proposed establishing such a school) to
obscure the fact that, as the district court found, there is
demand for a VMI-type education among women
At bottom, defendants argue that it does not make sense for
the Commonwealth to allocate its limited resources to create a
school - - a VMI-type school for women - - for what it assumes will
be a handful of students. But even if defendants are correct
that it would be impractical to create a separate VMI for women,
the result must be that they admit women to VMI, not that they
completely deny women access to VMI's unique methodology. And
12/ During the remedial proceedings, the district court ruled that
the government could not take additional discovery concerning
further demand among women for VMI, since it had already ruled
that there was demand by women for VMI. See generally VMI, 766
F. Supp. at 1437-1438. Thus, reliance on the district court's
findings concerning demand (during the liability phase of the
case) is particularly appropriate. Moreover, since defendants
never proposed a VMI for women, defendants' assertion that the
government never offered any evidence that there was demand for a
VMI for women is irrelevant. There is no reason why the
government should have tried to establish demand for something
that was not proposed as a possible remedy.
- 17 -
even if that (coeducation) "materially alter[s]" certain aspects
of VMI's current (all-male) program, see VMI, 976 F.2d at 899,
the rights guaranteed women under the Fourteenth Amendment to
equal protection outweigh the desire of state actors to preserve
one particular type of educational program, no matter how
successful that program might be. 13/ That conclusion is
reinforced by the fact that the exclusion of women from VMI
perpetuates the stereotype that women simply are not suited for a
vigorous, military-style education, and must be directed to the
nurturing environment of a Mary Baldwin College. "That such a
situation could be tolerated in the nineteenth century is not
surprising, but we are about to embark on the twenty-first."
Faulkner V. Jones, No. 94-1978 (Order granting motion to stay
pending appeal, 4th Cir. Aug. 12, 1994) (Hall, J., dissenting).
2. Defendants finally argue (Br. 49 n.28) that if this
Court concludes that their remedial plan is unconstitutional, the
Court should afford them the opportunity to modify the plan to
render it constitutional. We do not agree. As set forth in our
opening brief, the theoretical possibility of creating a
13/ Certainly this Court contemplated such a result in stating
that it would not order that women be admitted to VMI if
alternatives are available. VMI, 976 F.2d at 900. One of those
alternatives -- going private -- has not been pursued. This
Court's decision in VMI thus makes clear that if a satisfactory
parallel program is not established (and the Court did not assume
one could be, it just suggested one might), VMI must admit women.
Preserving VMI's all-male status is thus not something of such
paramount importance that it permits the Commonwealth to simply
wink at its constitutional obligation to provide equal
educational opportunities to women by offering a watered-down
substitute.
- 18 -
parallel program for women that would be equal to VMI is not, in
this case, a practical reality. See U.S. Br. 40-43. Moreover,
defendants have already modified their remedial plan once. The
January 17, 1994, Status Report substantially modified the
proposed remedial plan of September 1993. Cf. App. 40-58 with
App. 253-269. In addition, the constraints of Mary Baldwin
College make meaningful change in that location impossible (i.e.,
such as providing women the central VMI attributes of an all-
encompassing military environment and barracks life). This case
will be nearly five years old by the time this Court decides this
appeal. Defendants should not be permitted to further delay the
vindication of women's right to equal protection.
14/ Defendants filed a notice of appeal as cross-appellants. In
their brief as appellee/cross-appellant they state that they
filed the cross-appeal to preserve for possible Supreme Court
review the issue whether this Court erred in its liability
determination. See Br. 48. Since "[t]he Commonwealth accepts
the decision of this Court respecting liability as the law of the
case at this stage of the remedy proceedings, ibid, no response
by the government to their cross-appeal is necessary.
- 19 -
CONCLUSION
For the foregoing reasons, and for the reasons stated in our
opening Brief for the United States as Appellant, the judgment of
the district court should be reversed and the case remanded with
an order directing that VMI admit women.
Respectfully submitted,
DEVAL L. PATRICK
Assistant Attorney General
JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys
Civil Rights Division
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078
(202) 514-3728
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Reply and
Answering Brief For The United States As Appellant/Cross-Appellee
were served by regular mail on the following counsel of record:
Honorable James S. Gilmore, III, Esq.
William H. Hurd, Esq.
Office of the Attorney General
101 North Eighth Street
Richmond, VA 23219
Robert H. Patterson, Jr., Esq. (Federal Express)
Anne Marie Whittemore, Esq.
William G. Broaddus, Esq.
J. William Boland, Esq.
McGuire, Woods, Battle & Boothe
One James Center
901 East Cary Street
Richmond, VA 23219
Griffin B. Bell, Esq.
William A. Clineburg, Jr., Esq.
King & Spalding
191 Peachtree Street
Atlanta, GA 30303
William B. Poff, Esq.
Woods, Rogers & Hazelgrove
Box 720
Roanoke, VA 24004
RECCA
THOMAS E. CHANDLER
Attorney
This 23th day of August, 1994.