52 F. 3d 90 - United States v. Commonwealth of Virginia

The panel majority asserts that the Commonwealth must meet a three prong test: (1) the state's objective must be " 'legitimate and important,' " (2) there must be the " 'requisite direct, substantial relationship between objective and means,' " and (3) there must be "substantive comparability of the mutually exclusive programs provided to men and women." United States v. Commonwealth of Virginia, 44 F.3d 1229, 1235, 1237 (4th Cir.1995) (VMI II ) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982)). Assuming this is the correct constitutional standard,2 the panel majority's application of that standard to the facts of this case is confused and contrary to both law and logic.

First, the panel majority appears to identify as the Commonwealth's "legitimate and important" objective the provision of "single-gender education." See VMI II, 44 F.3d at 1237 (the first step is "whether the state's objective of providing single-gender education to its citizens may be considered a legitimate and important governmental objective"; the first inquiry is "whether single-gender education constitutes a legitimate and important governmental objective"). However, in Hogan the Supreme Court expressly held that the single-gender admissions policy of a state-supported nursing school violated the Equal Protection Clause. 458 U.S. at 731, 102 S.Ct. at 3339-40. The Hogan Court may, as the panel majority suggests, have left open the question of whether states could provide single-gender education "in other circumstances," but it clearly did not leave open the question of whether a state-supported single-gender educational program can be constitutionally justified simply because it is a single-gender program. The panel majority itself acknowledges that a "state may not establish a [gender-based] classification for admission ... unrelated to" the purpose of the sort of education that is being provided. VMI II, 44 F.3d at 1238 (emphasis in original). Indeed, it is for this reason that the majority notes that "a classification for ... [a music] conservatory defined by gender would probably not qualify as an appropriate classification." Id. Thus, simply providing single-gender education cannot constitute a state's legitimate and important objective for excluding one gender from a state-financed institution.3

Rather, there must be some reason why a single-gender state-supported institution is necessary to further an important governmental objective. Indeed, those seeking to justify a single-gender admission policy must "carry the burden of showing an 'exceedingly persuasive justification' " for it. Hogan, 458 U.S. at 724, 102 S.Ct. at 3336. There has been no such showing here. VMI's stated mission is to produce "citizen-soldiers, educated and honorable ... who are suited for leadership in civilian life and who can provide military leadership when necessary." United States v. Commonwealth of Virginia, 976 F.2d 890, 893 (4th Cir.1992) (VMI I ). Nothing suggests, let alone provides an "exceedingly persuasive justification," that VMI's male-only admissions policy and "sexually homogenous environment" are necessary to further this mission; indeed, the co-educational United States military academies graduate far more "citizen-soldiers, educated and honorable ... who are suited for leadership in civilian life and who can provide military leadership when necessary."

Furthermore, despite the panel majority's abundant rhetoric about "adversative" training, it never demonstrates the "requisite direct, substantial relationship" between VMI's asserted objective--producing "citizen soldiers, educated and honorable"--and the means employed to accomplish that objective. Again, the established experience at the United States military academies strongly suggests there is none. The military academies are apparently able to train soldiers, sailors, and pilots without the benefit of "adversative" training. It might even be argued that, since the military academies have abandoned "adversative" training, the provision of that training to VMI cadets, rather than preparing them to be leaders in today's Armed Forces, affirmatively disadvantages them for military leadership roles.

Assuming, however, that "adversative" training is both desirable and essential to the VMI program, then the proposed Mary Baldwin program, which does not include "adversative" training, cannot be "substantively comparable" to the VMI program. If "adversative" training is so critical to the VMI program that it virtually defines it, then a program without "adversative" training can never be "substantively comparable." Conversely, if the proposed program at Mary Baldwin is truly "substantively comparable" to the VMI program, then "adversative" training must not be critical to the VMI program, and so there is nothing to prevent the abolition of "adversative" training and admission of women to VMI.

Even leaving aside "adversative" training, how can a degree from a yet to be implemented supplemental program at Mary Baldwin be held "substantively comparable" to a degree from a venerable Virginia military institution that was established more than 150 years ago? As the majority acknowledges, in almost epic understatement, the alternative degree from Mary Baldwin "lacks the historical benefit and prestige of a degree from VMI." VMI II, 44 F.3d at 1241. People do not seek to attend VMI only for the course work or the citizenship and military training. At least as important is VMI's reputation, the opportunity to know and learn from other students, faculty, and graduates, and the ability to rely on those connections and friendships in later life. The proposed alternative program offers no remotely similar, let alone "substantively comparable," experience. Women need not be guaranteed equal "results" in this respect, but the Equal Protection Clause does require equal opportunity to obtain these results; that opportunity is being denied here.

The above constitutes a brief sketch of my problems with the panel majority's analysis. In addition, it is worth noting that the degree of judicial oversight required to implement the projected alternative program at Mary Baldwin makes clear how much remains to be accomplished before the proposed program--feeble as it is--can be converted into reality. In the meantime, VMI would continue its unconstitutional course of action. The district court, even with the supervisory assistance of this court, is simply not equipped to plan, inaugurate, and supervise a wholly novel military-leadership program within the ambience of a respected women's liberal arts college.

The panel majority notes that admission of women to VMI "would deny them the very benefit they sought" because the unique characteristics of VMI's program would be destroyed by coeducation. VMI II, 44 F.3d at 1233. No changes in VMI's curriculum and culture would be required, however, and its uniqueness would be fully preserved, if the Commonwealth simply ceased providing the substantial financial support it gives to VMI4 and proposes to give to the alternative program in order to preserve VMI. Conformity with constitutional requirements would thus be immediately achieved without any judicial involvement and at a substantial saving of taxpayers' money.

Finally, it well may be, as a few members of the task force apparently suggested, that many women do not wish to attend VMI where the intended purpose is "to break down individualism and to instill uniform values" by "grating egos and setting the aggressiveness of one person against another through conflict, egalitarianism, lack of privacy, and stress--both physical and mental." Id. at 1239. It seems equally probable that many men would not want to be educated in such an environment. No one is arguing that women--or men--should be forced to attend VMI. The question is can they constitutionally be denied that opportunity when the Commonwealth--with tax dollars from men and women--supports the institution. Recently the United States eliminated its rule excluding women from combat duty, explaining that the rule was an "armour-plated ceiling" preventing the advancement of women in the military. Several months ago, one of the first women fighter pilots was killed during a practice run. Anyone who is prepared to do combat for her country--indeed, to be killed in preparation for that combat--should be eligible to apply for what she perceives to be the best possible training. As long as the Commonwealth provides support for VMI, women should be given the opportunity to attend.

Judge HALL, Judge MURNAGHAN and Judge MICHAEL have authorized me to indicate that they join in this dissent.