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The Court's decision ordering the all-male Virginia Military Institute to admit women. By a 7-1 vote, the court said offering female cadets a separate program does not provide an equal education. "Women seeking and fit for a VMI-quality education cannot be offered anything less, under the state's obligation to afford them genuinely equal protection," Justice Ruth Bader Ginsburg wrote for the court. The ruling also will affect The Citadel, South Carolina's state military school, which has a similar all-male policy and a similar alternative program for women.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES
v.
VIRGINIA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 94-1941. Argued January 17, 1996-Decided June 26, 1996*
Virginia Military Institute (VMI) is the sole single-sex school among
Virginia's public institutions of higher learning. VMI's distinctive
mission is to produce "citizen-soldiers," men prepared for leadership
in civilian life and in military service. Using an "adversative method"
of training not available elsewhere in Virginia, VMI endeavors to
instill physical and mental discipline in its cadets and impart to them a
strong moral code. Reflecting the high value alumni place on their
VMI training, VMI has the largest per-student endowment of all
undergraduate institutions in the Nation. The United States sued
Virginia and VMI, alleging that VMI's exclusively male admission
policy violated the Fourteenth Amendment's Equal Protection
Clause. The District Court ruled in VMI's favor. The Fourth Circuit
reversed and ordered Virginia to remedy the constitutional violation.
In response, Virginia proposed a parallel program for women:
Virginia Women's Institute for Leadership (VWIL), located at Mary
Baldwin College, a private liberal arts school for women. The
District Court found that Virginia's proposal satisfied the
Constitution's equal protection requirement, and the Fourth Circuit
affirmed. The appeals court deferentially reviewed Virginia's plan
and determined that provision of single-gender educational options
was a legitimate objective. Maintenance of single-sex programs, the
court concluded, was essential to that objective. The court
recognized, however, that its analysis risked bypassing equal
protection scrutiny, so it fashioned an additional test, asking whether
VMI and VWIL students would receive ``substantively comparable''
benefits. Although the Court of Appeals acknowledged that the
VWIL degree lacked the historical benefit and prestige of a VMI
degree, the court nevertheless found the educational opportunities at
the two schools sufficiently comparable.
Held:
1. Parties who seek to defend gender-based government action must
demonstrate an "exceedingly persuasive justification" for that action.
E.g., Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724.
Neither federal nor state government acts compatibly with equal
protection when a law or official policy denies to women, simply
because they are women, full citizenship stature--equal opportunity to
aspire, achieve, participate in and contribute to society based on their
individual talents and capacities. To meet the burden of justification,
a State must show ``at least that the [challenged] classification serves
`important governmental objectives and that the discriminatory means
employed' are `substantially related to the achievement of those
objectives.'" Ibid., quoting Wengler v. Druggists Mutual Ins. Co.,
446 U. S. 142, 150. The justification must be genuine, not
hypothesized or invented post hoc in response to litigation. And it
must not rely on overbroad generalizations about the different talents,
capacities, or preferences of males and females. See, e.g.,
Weinberger v. Wiesenfeld, 420 U. S. 636, 643, 648. The
heightened review standard applicable to sex-based classifications
does not make sex a proscribed classification, but it does mean that
categorization by sex may not be used to create or perpetuate the
legal, social, and economic inferiority of women. Pp. 13-16.
2. Virginia's categorical exclusion of women from the educational
opportunities VMI provides denies equal protection to women. Pp.
17-29.
(a) Virginia contends that single-sex education yields important
educational benefits and that provision of an option for such
education fosters diversity in educational approaches. Benign
justifications proffered in defense of categorical exclusions,
however, must describe actual state purposes, not rationalizations for
actions in fact differently grounded. Virginia has not shown that
VMI was established, or has been maintained, with a view to
diversifying, by its categorical exclusion of women, educational
opportunities within the State. A purpose genuinely to advance an
array of educational options is not served by VMI's historic and
constant plan to afford a unique educational benefit only to males.
However well this plan serves Virginia's sons, it makes no provision
whatever for her daughters. Pp. 17-22.
(b) Virginia also argues that VMI's adversative method of training
provides educational benefits that cannot be made available,
unmodified, to women, and that alterations to accommodate women
would necessarily be so drastic as to destroy VMI's program. It is
uncontested that women's admission to VMI would require
accommodations, primarily in arranging housing assignments and
physical training programs for female cadets. It is also undisputed,
however, that neither the goal of producing citizen soldiers, VMI's
raison d'tre, nor VMI's implementing methodology is inherently
unsuitable to women. The District Court made ``findings'' on
``gender-based developmental differences'' that restate the opinions
of Virginia's expert witnesses about typically male or typically female
"tendencies." Courts, however, must take ``a hard look'' at
generalizations or tendencies of the kind Virginia pressed, for state
actors controlling gates to opportunity have no warrant to exclude
qualified individuals based on "fixed notions concerning the roles
and abilities of males and females." Mississippi Univ. for Women,
458 U. S., at 725. The notion that admission of women would
downgrade VMI's stature, destroy the adversative system and, with
it, even the school, is a judgment hardly proved, a prediction hardly
different from other "self-fulfilling prophec[ies], see id., at 730, once
routinely used to deny rights or opportunities. Women's successful
entry into the federal military academies, and their participation in the
Nation's military forces, indicate that Virginia's fears for VMI's
future may not be solidly grounded. The State's justification for
excluding all women from "citizen-soldier" training for which some
are qualified, in any event, does not rank as "exceedingly
persuasive." Pp. 22-29.
3. The remedy proffered by Virginia--maintain VMI as a male-only
college and create VWIL as a separate program for women--does not
cure the constitutional violation. Pp. 29-41.
(a) A remedial decree must closely fit the constitutional violation; it
must be shaped to place persons unconstitutionally denied an
opportunity or advantage in the position they would have occupied in
the absence of discrimination. See Milliken v. Bradley, 433 U. S.
267, 280. The constitutional violation in this case is the categorical
exclusion of women, in disregard of their individual merit, from an
extraordinary educational opportunity afforded men. Virginia chose
to leave untouched VMI's exclusionary policy, and proposed for
women only a separate program, different in kind from VMI and
unequal in tangible and intangible facilities. VWIL affords women
no opportunity to experience the rigorous military training for which
VMI is famed. Kept away from the pressures, hazards, and
psychological bonding characteristic of VMI's adversative training,
VWIL students will not know the feeling of tremendous
accomplishment commonly experienced by VMI's successful cadets.
Virginia maintains that methodological differences are justified by the
important differences between men and women in learning and
developmental needs, but generalizations about "the way women
are," estimates of what is appropriate for most women, no longer
justify denying opportunity to women whose talent and capacity
place them outside the average description. In myriad respects other
than military training, VWIL does not qualify as VMI's equal. The
VWIL program is a pale shadow of VMI in terms of the range of
curricular choices and faculty stature, funding, prestige, alumni
support and influence. Virginia has not shown substantial equality in
the separate educational opportunities the State supports at VWIL and
VMI. Cf. Sweatt v. Painter, 339 U. S. 629. Pp. 30-37.
(b) The Fourth Circuit failed to inquire whether the proposed remedy
placed women denied the VMI advantage in the position they would
have occupied in the absence of discrimination, Milliken, 433 U. S.,
at 280, and considered instead whether the State could provide, with
fidelity to equal protection, separate and unequal educational
programs for men and women. In declaring the substantially
different and significantly unequal VWIL program satisfactory, the
appeals court displaced the exacting standard developed by this Court
with a deferential standard, and added an inquiry of its own
invention, the "substantive comparability" test. The Fourth Circuit
plainly erred in exposing Virginia's VWIL plan to such a deferential
analysis, for "all gender-based classifications today" warrant
"heightened scrutiny." See J. E. B. v. Alabama ex rel. T. B., 511
U. S. 127, 136. Women seeking and fit for a VMI-quality education
cannot be offered anything less, under the State's obligation to afford
them genuinely equal protection. Pp. 37-41. 976 F. 2d 890,
affirmed; 44 F. 3d 1229, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, KENNEDY, SOUTER, and BREYER,
JJ., joined. REHNQUIST, C. J., filed an opinion concurring in the
judgment. SCALIA, J., filed a dissenting opinion. THOMAS, J.,
took no part in the consideration or decision of the case.
*Together with No. 94-2107, Virginia et al. v. United States, also on
certiorari to the same court.
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Wash-ington, D.C. 20543, of any
typographical or other formal errors, in order that corrections may be
made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 94-1941 AND 94-2107
UNITED STATES, PETITIONER
94-1941
v.
VIRGINIA ET AL.
VIRGINIA, ET AL., PETITIONERS
94-2107
v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT
[June 26, 1996]
JUSTICE GINSBURG delivered the opinion of the Court.
Virginia's public institutions of higher learning include an
incomparable military college, Virginia Military Institute (VMI). The
United States maintains that the Constitution's equal protection
guarantee precludes Virginia from reserving exclusively to men the
unique educational opportunities VMI affords. We agree.
Founded in 1839, VMI is today the sole single-sex school among
Virginia's 15 public institutions of higher learning. VMI's distinctive
mission is to produce "citizen-soldiers," men prepared for leadership
in civilian life and in military service. VMI pursues this mission
through pervasive training of a kind not available anywhere else in
Virginia. Assigning prime place to character development, VMI uses
an "adversative method" modeled on English public schools and once
characteristic of military instruction. VMI constantly endeavors to
instill physical and mental discipline in its cadets and impart to them a
strong moral code. The school's graduates leave VMI with
heightened comprehension of their capacity to deal with duress and
stress, and a large sense of accomplishment for completing the
hazardous course.
VMI has notably succeeded in its mission to produce leaders; among
its alumni are military generals, Members of Congress, and business
executives. The school's alumni overwhelmingly perceive that their
VMI training helped them to realize their personal goals. VMI's
endowment reflects the loyalty of its graduates; VMI has the largest
per-student endowment of all undergraduate institutions in the
Nation.
Neither the goal of producing citizen-soldiers nor VMI's
implementing methodology is inherently unsuitable to women. And
the school's impressive record in producing leaders has made
admission desirable to some women. Nevertheless, Virginia has
elected to preserve exclusively for men the advantages and
opportunities a VMI education affords.
From its establishment in 1839 as one of the Nation's first state
military colleges, see 1839 Va. Acts, ch. 20, VMI has remained
financially supported by Virginia and "subject to the control of the
[Virginia] General Assembly," Va. Code Ann. Section 23-92 (1993).
First southern college to teach engineering and industrial chemistry,
see H. Wise, Drawing Out the Man: The VMI Story 13 (1978) (The
VMI Story), VMI once provided teachers for the State's schools, see
1842 Va. Acts, ch. 24, Section 2 (requiring every cadet to teach in
one of the Commonwealth's schools for a 2-year period).1 Civil
War strife threatened the school's vitality, but a resourceful
superintendent regained legislative support by highlighting "VMI's
great potential[,] through its technical know-how," to advance
Virginia's postwar recovery. The VMI Story 47.
VMI today enrolls about 1,300 men as cadets.2 Its academic
offerings in the liberal arts, sciences, and engineering are also
available at other public colleges and universities in Virginia. But
VMI's mission is special. It is the mission of the school
"`to produce educated and honorable men, prepared for the varied
work of civil life, imbued with love of learning, confident in the
functions and attitudes of leadership, possessing a high sense of
public service, advocates of the American democracy and free
enterprise system, and ready as citizen-soldiers to defend their
country in time of national peril.'" 766 F. Supp. 1407, 1425 (WD
Va. 1991) (quoting Mission Study Committee of the VMI Board of
Visitors, Report, May 16, 1986).
In contrast to the federal service academies, institutions maintained
"to prepare cadets for career service in the armed forces," VMI's
program "is directed at preparation for both military and civilian life";
"[o]nly about 15% of VMI cadets enter career military service." 766
F. Supp., at 1432.
VMI produces its "citizen-soldiers" through "an adversative, or
doubting, model of education" which features "[p]hysical rigor,
mental stress, absolute equality of treatment, absence of privacy,
minute regulation of behavior, and indoctrination in desirable
values." Id., at 1421. As one Commandant of Cadets described it,
the adversative method "dissects the young student," and makes him
aware of his "limits and capabilities," so that he knows "how far he
can go with his anger, . . . how much he can take under stress, . . .
exactly what he can do when he is physically exhausted." Id., at
1421-1422 (quoting Col. N. Bissell).
VMI cadets live in spartan barracks where surveillance is constant
and privacy nonexistent; they wear uniforms, eat together in the mess
hall, and regularly participate in drills. Id., at 1424, 1432. Entering
students are incessantly exposed to the rat line, "an extreme form of
the adversative model," comparable in intensity to Marine Corps boot
camp. Id., at 1422. Tormenting and punishing, the rat line bonds
new cadets to their fellow sufferers and, when they have completed
the 7-month experience, to their former tormentors. Ibid.
VMI's "adversative model" is further characterized by a hierarchical
"class system" of privileges and responsibilities, a "dyke system" for
assigning a senior class mentor to each entering class "rat," and a
stringently enforced "honor code," which prescribes that a cadet
"`does not lie, cheat, steal nor tolerate those who do.'" Id., at 1422-
1423.
VMI attracts some applicants because of its reputation as an
extraordinarily challenging military school, and "because its alumni
are exceptionally close to the school." Id., at 1421. "[W]omen have
no opportunity anywhere to gain the benefits of [the system of
education at VMI]." Ibid.
In 1990, prompted by a complaint filed with the Attorney General by
a female high-school student seeking admission to VMI, the United
States sued the Commonwealth of Virginia and VMI, alleging that
VMI's exclusively male admission policy violated the Equal
Protection Clause of the Fourteenth Amendment. Id., at 1408.3
Trial of the action consumed six days and involved an array of expert
witnesses on each side. Ibid.
In the two years preceding the lawsuit, the District Court noted, VMI
had received inquiries from 347 women, but had responded to none
of them. Id., at 1436. "[S]ome women, at least," the court said,
"would want to attend the school if they had the opportunity." Id., at
1414. The court further recognized that, with recruitment, VMI
could "achieve at least 10% female enrollment"--"a sufficient `critical
mass' to provide the female cadets with a positive educational
experience." Id., at 1437-1438. And it was also established that
"some women are capable of all of the individual activities required
of VMI cadets." Id., at 1412. In addition, experts agreed that if
VMI admitted women, "the VMI ROTC experience would become a
better training program from the perspective of the armed forces,
because it would provide training in dealing with a mixed-gender
army." Id., at 1441.
The District Court ruled in favor of VMI, however, and rejected the
equal protection challenge pressed by the United States. That court
correctly recognized that Mississippi Univ. for Women v. Hogan,
458 U. S. 718 (1982), was the closest guide. 766 F. Supp., at
1410. There, this Court underscored that a party seeking to uphold
government action based on sex must establish an "exceedingly
persuasive justification" for the classification. Mississippi Univ. for
Women, 458 U. S., at 724 (internal quotation marks omitted). To
succeed, the defender of the challenged action must show "at least
that the classification serves important governmental objectives and
that the discriminatory means employed are substantially related to
the achievement of those objectives." Ibid. (internal quotation marks
omitted).
The District Court reasoned that education in "a single-gender
environment, be it male or female," yields substantial benefits. 766
F. Supp., at 1415. VMI's school for men brought diversity to an
otherwise coeducational Virginia system, and that diversity was
"enhanced by VMI's unique method of instruction." Ibid. If single-
gender education for males ranks as an important governmental
objective, it becomes obvious, the District Court concluded, that the
only means of achieving the objective "is to exclude women from the
all-male institution--VMI." Ibid.
"Women are [indeed] denied a unique educational opportunity that is
available only at VMI," the District Court acknowledged. Id., at
1432. But "[VMI's] single-sex status would be lost, and some
aspects of the [school's] distinctive method would be altered" if
women were admitted, id., at 1413: "Allowance for personal privacy
would have to be made," id., at 1412; "[p]hysical education
requirements would have to be altered, at least for the women," id.,
at 1413; the adversative environment could not survive unmodified,
id., at 1412-1413. Thus, "sufficient constitutional justification" had
been shown, the District Court held, "for continuing [VMI's] single-
sex policy." Id., at 1413.
The Court of Appeals for the Fourth Circuit disagreed and vacated
the District Court's judgment. The appellate court held: "The
Commonwealth of Virginia has not . . . advanced any state policy by
which it can justify its determination, under an announced policy of
diversity, to afford VMI's unique type of program to men and not to
women." 976 F. 2d 890, 892 (1992).
The appeals court greeted with skepticism Virginia's assertion that it
offers single-sex education at VMI as a facet of the State's
overarching and undisputed policy to advance "autonomy and
diversity." The court underscored Virginia's nondiscrimination
commitment: "`[I]t is extremely important that [colleges and
universities] deal with faculty, staff, and students without regard to
sex, race, or ethnic origin.'" Id., at 899 (quoting 1990 Report of the
Virginia Commission on the University of the 21st Century). "That
statement," the Court of Appeals said, "is the only explicit one that
we have found in the record in which the Commonwealth has
expressed itself with respect to gender distinctions." Ibid.
Furthermore, the appeals court observed, in urging "diversity" to
justify an all-male VMI, the State had supplied "no explanation for
the movement away from [single-sex education] in Virginia by public
colleges and universities." Ibid. In short, the court concluded, "[a]
policy of diversity which aims to provide an array of educational
opportunities, including single-gender institutions, must do more
than favor one gender." Ibid.
The parties agreed that "some women can meet the physical standards
now imposed on men," id., at 896, and the court was satisfied that
"neither the goal of producing citizen soldiers nor VMI's
implementing methodology is inherently unsuitable to women," id.,
at 899. The Court of Appeals, however, accepted the District
Court's finding that "at least these three aspects of VMI's program--
physical training, the absence of privacy, and the adversative
approach--would be materially affected by coeducation." Id., at 896-
897. Remanding the case, the appeals court assigned to Virginia, in
the first instance, responsibility for selecting a remedial course. The
court suggested these options for the State: Admit women to VMI;
establish parallel institutions or programs; or abandon state support,
leaving VMI free to pursue its policies as a private institution. Id., at
900. In May 1993, this Court denied certiorari. See 508 U. S. 946;
see also ibid. (opinion of SCALIA, J., noting the interlocutory
posture of the litigation).
In response to the Fourth Circuit's ruling, Virginia proposed a
parallel program for women: Virginia Women's Institute for
Leadership (VWIL). The 4-year, state-sponsored undergraduate
program would be located at Mary Baldwin College, a private liberal
arts school for women, and would be open, initially, to about 25 to
30 students. Although VWIL would share VMI's mission--to
produce "citizen-soldiers"--the VWIL program would differ, as does
Mary Baldwin College, from VMI in academic offerings, methods of
education, and financial resources. See 852 F. Supp. 471, 476-477
(WD Va. 1994).
The average combined SAT score of entrants at Mary Baldwin is
about 100 points lower than the score for VMI freshmen. See id., at
501. Mary Baldwin's faculty holds "significantly fewer Ph.D.'s
than the faculty at VMI," id., at 502, and receives significantly lower
salaries, see Tr. 158 (testimony of James Lott, Dean of Mary
Baldwin College), reprinted in 2 App. in Nos. 94-1667 and 94-1717
(CA4) (hereinafter Tr.). While VMI offers degrees in liberal arts, the
sciences, and engineering, Mary Baldwin, at the time of trial, offered
only bachelor of arts degrees. See 852 F. Supp., at 503. A VWIL
student seeking to earn an engineering degree could gain one,
without public support, by attending Washington University in St.
Louis, Missouri, for two years, paying the required private tuition.
See ibid.
Experts in educating women at the college level composed the Task
Force charged with designing the VWIL program; Task Force
members were drawn from Mary Baldwin's own faculty and staff.
Id., at 476. Training its attention on methods of instruction
appropriate for "most women," the Task Force determined that a
military model would be "wholly inappropriate" for VWIL. Ibid.;
see 44 F. 3d 1229, 1233 (CA4 1995).
VWIL students would participate in ROTC programs and a newly
established, "largely ceremonial" Virginia Corps of Cadets, id., at
1234, but the VWIL House would not have a military format, 852 F.
Supp., at 477, and VWIL would not require its students to eat meals
together or to wear uniforms during the school day, id., at 495. In
lieu of VMI's adversative method, the VWIL Task Force favored "a
cooperative method which reinforces self-esteem." Id., at 476. In
addition to the standard bachelor of arts program offered at Mary
Baldwin, VWIL students would take courses in leadership, complete
an off-campus leadership externship, participate in community
service projects, and assist in arranging a speaker series. See 44 F.
3d, at 1234.
Virginia represented that it will provide equal financial support for in-
state VWIL students and VMI cadets, 852 F. Supp., at 483, and the
VMI Foundation agreed to supply a $5.4625 million endowment for
the VWIL program, id., at 499. Mary Baldwin's own endowment is
about $19 million; VMI's is $131 million. Id., at 503. Mary
Baldwin will add $35 million to its endowment based on future
commitments; VMI will add $220 million. Ibid. The VMI Alumni
Association has developed a network of employers interested in
hiring VMI graduates. The Association has agreed to open its
network to VWIL graduates, id., at 499, but those graduates will not
have the advantage afforded by a VMI degree.
Virginia returned to the District Court seeking approval of its
proposed remedial plan, and the court decided the plan met the
requirements of the Equal Protection Clause. Id., at 473. The
District Court again acknowledged evidentiary support for these
determinations: "[T]he VMI methodology could be used to educate
women and, in fact, some women . . . may prefer the VMI
methodology to the VWIL methodology." Id., at 481. But the
"controlling legal principles," the District Court decided, "do not
require the Commonwealth to provide a mirror image VMI for
women." Ibid. The court anticipated that the two schools would
"achieve substantially similar outcomes." Ibid. It concluded: "If VMI
marches to the beat of a drum, then Mary Baldwin marches to the
melody of a fife and when the march is over, both will have arrived
at the same destination." Id., at 484.
A divided Court of Appeals affirmed the District Court's judgment.
44 F. 3d 1229 (CA4 1995). This time, the appellate court
determined to give "greater scrutiny to the selection of means than to
the [State's] proffered objective." Id., at 1236. The official
objective or purpose, the court said, should be reviewed
deferentially. Ibid. Respect for the "legislative will," the court
reasoned, meant that the judiciary should take a "cautious approach,"
inquiring into the "legitima[cy]" of the governmental objective and
refusing approval for any purpose revealed to be "pernicious." Ibid.
"[P]roviding the option of a single-gender college education may be
considered a legitimate and important aspect of a public system of
higher education," the appeals court observed, id., at 1238; that
objective, the court added, is "not pernicious," id., at 1239.
Moreover, the court continued, the adversative method vital to a VMI
education "has never been tolerated in a sexually heterogeneous
environment." Ibid. The method itself "was not designed to exclude
women," the court noted, but women could not be accommodated in
the VMI program, the court believed, for female participation in
VMI's adversative training "would destroy . . . any sense of decency
that still permeates the relationship between the sexes." Ibid.
Having determined, deferentially, the legitimacy of Virginia's
purpose, the court considered the question of means. Exclusion of
"men at Mary Baldwin College and women at VMI," the court said,
was essential to Virginia's purpose, for without such exclusion, the
State could not "accomplish [its] objective of providing single-gender
education." Ibid.
The court recognized that, as it analyzed the case, means merged into
end, and the merger risked "bypass[ing] any equal protection
scrutiny." Id., at 1237. The court therefore added another inquiry, a
decisive test it called "substantive comparability." Ibid. The key
question, the court said, was whether men at VMI and women at
VWIL would obtain "substantively comparable benefits at their
institution or through other means offered by the [S]tate." Ibid.
Although the appeals court recognized that the VWIL degree "lacks
the historical benefit and prestige" of a VMI degree, it nevertheless
found the educational opportunities at the two schools "sufficiently
comparable." Id., at 1241.
Senior Circuit Judge Phillips dissented. The court, in his judgment,
had not held Virginia to the burden of showing an "`exceedingly
persuasive [justification]'" for the State's action. Id., at 1247
(quoting Mississippi University for Women, 458 U. S., at 724). In
Judge Phillips' view, the court had accepted "rationalizations
compelled by the exigencies of this litigation," and had not
confronted the State's "actual overriding purpose." Ibid. That
purpose, Judge Phillips said, was clear from the historical record; it
was "not to create a new type of educational opportunity for women,
. . . nor to further diversify the Commonwealth's higher education
system[,]... but [was] simply . . . to allow VMI to continue to
exclude women in order to preserve its historic character and
mission." Ibid.
Judge Phillips suggested that the State would satisfy the
Constitution's equal protection requirement if it "simultaneously
opened single-gender undergraduate institutions having substantially
comparable curricular and extra-curricular programs, funding,
physical plant, administration and support services, and faculty and
library resources." Id., at 1250. But he thought it evident that the
proposed VWIL program, in comparison to VMI, fell "far short . . .
from providing substantially equal tangible and intangible educational
benefits to men and women." Ibid.
The Fourth Circuit denied rehearing en banc. 52 F. 3d 90 (1995).
Circuit Judge Motz, joined by Circuit Judges Hall, Murnaghan, and
Michael, filed a dissenting opinion.4 Judge Motz agreed with Judge
Phillips that Virginia had not shown an "`exceedingly persuasive
justification'" for the disparate opportunities the State supported.
Id., at 92 (quoting Mississippi Univ. for Women, 458 U. S., at
724). She asked: "[H]ow 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?" Id., at 93. "Women
need not be guaranteed equal `results,'" Judge Motz said, "but the
Equal Protection Clause does require equal opportunity... [and] that
opportunity is being denied here." Ibid.
The cross-petitions in this case present two ultimate issues. First,
does Virginia's exclusion of women from the educational
opportunities provided by VMI--extraordinary opportunities for
military training and civilian leadership development--deny to women
"capable of all of the individual activities required of VMI cadets,"
766 F. Supp., at 1412, the equal protection of the laws guaranteed
by the Fourteenth Amendment? Second, if VMI's "unique"
situation, id., at 1413--as Virginia's sole single-sex public institution
of higher education--offends the Constitution's equal protection
principle, what is the remedial requirement?
We note, once again, the core instruction of this Court's pathmarking
decisions in J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136-
137, and n. 6 (1994), and Mississippi Univ. for Women, 458 U. S.,
at 724 (internal quotation marks omitted): Parties who seek to defend
gender-based government action must demonstrate an "exceedingly
persuasive justification" for that action.
Today's skeptical scrutiny of official action denying rights or
opportunities based on sex responds to volumes of history. As a
plurality of this Court acknowledged a generation ago, "our Nation
has had a long and unfortunate history of sex discrimination."
Frontiero v. Richardson, 411 U. S. 677, 684 (1973). Through a
century plus three decades and more of that history, women did not
count among voters composing "We the People";5 not until 1920 did
women gain a constitutional right to the franchise. Id., at 685. And
for a half century thereafter, it remained the prevailing doctrine that
government, both federal and state, could withhold from women
opportunities accorded men so long as any "basis in reason" could be
conceived for the discrimination. See, e.g., Goesaert v. Cleary, 335
U. S. 464, 467 (1948) (rejecting challenge of female tavern owner
and her daughter to Michigan law denying bartender licenses to
females--except for wives and daughters of male tavern owners;
Court would not "give ear" to the contention that "an unchivalrous
desire of male bartenders to . . . monopolize the calling" prompted
the legislation).
In 1971, for the first time in our Nation's history, this Court ruled in
favor of a woman who complained that her State had denied her the
equal protection of its laws. Reed v. Reed, 404 U. S. 71, 73
(holding unconstitutional Idaho Code prescription that, among
"`several persons claiming and equally entitled to administer [a
decedent's estate], males must be preferred to females'"). Since
Reed, the Court has repeatedly recognized that neither federal nor
state government acts compatibly with the equal protection principle
when a law or official policy denies to women, simply because they
are women, full citizenship stature--equal opportunity to aspire,
achieve, participate in and contribute to society based on their
individual talents and capacities. See, e.g., Kirchberg v. Feenstra,
450 U. S. 455, 462-463 (1981) (affirming invalidity of Louisiana
law that made husband "head and master" of property jointly owned
with his wife, giving him unilateral right to dispose of such property
without his wife's consent); Stanton v. Stanton, 421 U. S. 7 (1975)
(invalidating Utah requirement that parents support boys until age 21,
girls only until age 18).
Without equating gender classifications, for all purposes, to
classifications based on race or national origin,6 the Court, in post-
Reed decisions, has carefully inspected official action that closes a
door or denies opportunity to women (or to men). See J. E. B., 511
U. S., at 152 (KENNEDY, J., concurring in judgment) (case law
evolving since 1971 "reveal[s] a strong presumption that gender
classifications are invalid"). To summarize the Court's current
directions for cases of official classification based on gender:
Focusing on the differential treatment or denial of opportunity for
which relief is sought, the reviewing court must determine whether
the proffered justification is "exceedingly persuasive." The burden
of justification is demanding and it rests entirely on the State. See
Mississippi Univ. for Women, 458 U. S., at 724. The State must
show "at least that the [challenged] classification serves `important
governmental objectives and that the discriminatory means employed'
are `substantially related to the achievement of those objectives.'"
Ibid. (quoting Wengler v. Druggists Mutual Ins. Co., 446 U. S.
142, 150 (1980)). The justification must be genuine, not
hypothesized or invented post hoc in response to litigation. And it
must not rely on overbroad generalizations about the different talents,
capacities, or preferences of males and females. See Weinberger v.
Wiesenfeld, 420 U. S. 636, 643, 648 (1975); Califano v. Goldfarb,
430 U. S. 199, 223-224 (1977) (STEVENS, J., concurring in
judgment).
The heightened review standard our precedent establishes does not
make sex a proscribed classification. Supposed "inherent
differences" are no longer accepted as a ground for race or national
origin classifications. See Loving v. Virginia, 388 U. S. 1 (1967).
Physical differences between men and women, however, are
enduring: "[T]he two sexes are not fungible; a community made up
exclusively of one [sex] is different from a community composed of
both." Ballard v. United States, 329 U. S. 187, 193 (1946).
"Inherent differences" between men and women, we have come to
appreciate, remain cause for celebration, but not for denigration of
the members of either sex or for artificial constraints on an
individual's opportunity. Sex classifications may be used to
compensate women "for particular economic disabilities [they have]
suffered," Califano v. Webster, 430 U. S. 313, 320 (1977) (per
curiam), to "promot[e] equal employment opportunity," see
California Federal Sav. & Loan Assn. v. Guerra, 479 U. S. 272,
289 (1987), to advance full development of the talent and capacities
of our Nation's people.7 But such classifications may not be used,
as they once were, see Goesaert, 335 U. S., at 467, to create or
perpetuate the legal, social, and economic inferiority of women.
Measuring the record in this case against the review standard just
described, we conclude that Virginia has shown no "exceedingly
persuasive justification" for excluding all women from the citizen-
soldier training afforded by VMI. We therefore affirm the Fourth
Circuit's initial judgment, which held that Virginia had violated the
Fourteenth Amendment's Equal Protection Clause. Because the
remedy proffered by Virginia--the Mary Baldwin VWIL program--
does not cure the constitutional violation, i.e., it does not provide
equal opportunity, we reverse the Fourth Circuit's final judgment in
this case.
The Fourth Circuit initially held that Virginia had advanced no state
policy by which it could justify, under equal protection principles, its
determination "to afford VMI's unique type of program to men and
not to women." 976 F. 2d, at 892. Virginia challenges that
"liability" ruling and asserts two justifications in defense of VMI's
exclusion of women. First, the Commonwealth contends, "single-
sex education provides important educational benefits," Brief for
Cross-Petitioners 20, and the option of single-sex education
contributes to "diversity in educational approaches," id., at 25.
Second, the Commonwealth argues, "the unique VMI method of
character development and leadership training," the school's
adversative approach, would have to be modified were VMI to admit
women. Id., at 33-36. We consider these two justifications in turn.
Single-sex education affords pedagogical benefits to at least some
students, Virginia emphasizes, and that reality is uncontested in this
litigation.8 Similarly, it is not disputed that diversity among public
educational institutions can serve the public good. But Virginia has
not shown that VMI was established, or has been maintained, with a
view to diversifying, by its categorical exclusion of women,
educational opportunities within the State. In cases of this genre, our
precedent instructs that "benign" justifications proffered in defense of
categorical exclusions will not be accepted automatically; a tenable
justification must describe actual state purposes, not rationalizations
for actions in fact differently grounded. See Wiesenfeld, 420 U. S.,
at 648, and n. 16 ("mere recitation of a benign [or] compensatory
purpose" does not block "inquiry into the actual purposes" of
government-maintained gender-based classifications); Goldfarb, 430
U. S., at 212-213 (rejecting government-proffered purposes after
"inquiry into the actual purposes") (internal quotation marks
omitted).
Mississippi Univ. for Women is immediately in point. There the
State asserted, in justification of its exclusion of men from a nursing
school, that it was engaging in "educational affirmative action" by
"compensat[ing] for discrimination against women." 458 U. S., at
727. Undertaking a "searching analysis," id., at 728, the Court
found no close resemblance between "the alleged objective" and "the
actual purpose underlying the discriminatory classification," id., at
730. Pursuing a similar inquiry here, we reach the same conclusion.
Neither recent nor distant history bears out Virginia's alleged pursuit
of diversity through single-sex educational options. In 1839, when
the State established VMI, a range of educational opportunities for
men and women was scarcely contemplated. Higher education at the
time was considered dangerous for women;9 reflecting widely held
views about women's proper place, the Nation's first universities
and colleges--for example, Harvard in Massachusetts, William and
Mary in Virginia--admitted only men. See E. Farello, A History of
the Education of Women in the United States 163 (1970). VMI was
not at all novel in this respect: In admitting no women, VMI followed
the lead of the State's flagship school, the University of Virginia,
founded in 1819.
"[N]o struggle for the admission of women to a state university," a
historian has recounted, "was longer drawn out, or developed more
bitterness, than that at the University of Virginia." 2 T. Woody, A
History of Women's Education in the United States 254 (1929)
(History of Women's Education). In 1879, the State Senate resolved
to look into the possibility of higher education for women,
recognizing that Virginia "`has never, at any period of her history,'"
provided for the higher education of her daughters, though she "`has
liberally provided for the higher education of her sons.'" Ibid.
(quoting 10 Educ. J. Va. 212 (1879)). Despite this recognition, no
new opportunities were instantly open to women.10
Virginia eventually provided for several women's seminaries and
colleges. Farmville Female Seminary became a public institution in
1884. See supra, at 3, n. 2. Two women's schools, Mary
Washington College and James Madison University, were founded
in 1908; another, Radford University, was founded in 1910. 766 F.
Supp., at 1418-1419. By the mid-1970's, all four schools had
become coeducational. Ibid.
Debate concerning women's admission as undergraduates at the main
university continued well past the century's midpoint. Familiar
arguments were rehearsed. If women were admitted, it was feared,
they "would encroach on the rights of men; there would be new
problems of government, perhaps scandals; the old honor system
would have to be changed; standards would be lowered to those of
other coeducational schools; and the glorious reputation of the
university, as a school for men, would be trailed in the dust." 2
History of Women's Education 255.
Ultimately, in 1970, "the most prestigious institution of higher
education in Virginia," the University of Virginia, introduced
coeducation and, in 1972, began to admit women on an equal basis
with men. See Kirstein v. Rector and Visitors of Univ. of Virginia,
309 F. Supp. 184, 186 (ED Va. 1970). A three-judge Federal
District Court confirmed: "Virginia 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
[S]tate." Id., at 187.
Virginia describes the current absence of public single-sex higher
education for women as "an historical anomaly." Brief for Cross-
Petitioners 30. But the historical record indicates action more
deliberate than anomalous: First, protection of women against higher
education; next, schools for women far from equal in resources and
stature to schools for men; finally, conversion of the separate schools
to coeducation. The state legislature, prior to the advent of this
controversy, had repealed "[a]ll Virginia statutes requiring individual
institutions to admit only men or women." 766 F. Supp., at 1419.
And in 1990, an official commission, "legislatively established to
chart the future goals of higher education in Virginia," reaffirmed the
policy "of affording broad access" while maintaining "autonomy and
diversity." 976 F. 2d, at 898-899 (quoting Report of the Virginia
Commission on the University of the 21st Century). Significantly,
the Commission reported:
"`Because colleges and universities provide opportunities for
students to develop values and learn from role models, it is extremely
important that they deal with faculty, staff, and students without
regard to sex, race, or ethnic origin.'" Id., at 899 (emphasis
supplied by Court of Appeals deleted).
This statement, the Court of Appeals observed, "is the only explicit
one that we have found in the record in which the Commonwealth
has expressed itself with respect to gender distinctions." Ibid.
Our 1982 decision in Mississippi Univ. for Women prompted VMI
to reexamine its male-only admission policy. See 766 F. Supp., at
1427-1428. Virginia relies on that reexamination as a legitimate basis
for maintaining VMI's single-sex character. See Reply Brief for
Cross-Petitioners 6. A Mission Study Committee, appointed by the
VMI Board of Visitors, studied the problem from October 1983 until
May 1986, and in that month counseled against "change of VMI
status as a single-sex college." See 766 F. Supp., at 1429 (internal
quotation marks omitted). Whatever internal purpose the Mission
Study Committee served--and however well-meaning the framers of
the report--we can hardly extract from that effort any state policy
evenhandedly to advance diverse educational options. As the District
Court observed, the Committee's analysis "primarily focuse[d] on
anticipated difficulties in attracting females to VMI," and the report,
overall, supplied "very little indication of how th[e] conclusion was
reached." Ibid.
In sum, we find no persuasive evidence in this record that VMI's
male-only admission policy "is in furtherance of a state policy of
`diversity.'" See 976 F. 2d, at 899. No such policy, the Fourth
Circuit observed, can be discerned from the movement of all other
public colleges and universities in Virginia away from single-sex
education. See ibid. That court also questioned "how one institution
with autonomy, but with no authority over any other state institution,
can give effect to a state policy of diversity among institutions."
Ibid. A purpose genuinely to advance an array of educational
options, as the Court of Appeals recognized, is not served by VMI's
historic and constant plan--a plan to "affor[d] a unique educational
benefit only to males." Ibid. However "liberally" this plan serves
the State's sons, it makes no provision whatever for her daughters.
That is not equal protection.
Virginia next argues that VMI's adversative method of training
provides educational benefits that cannot be made available,
unmodified, to women. Alterations to accommodate women would
necessarily be "radical," so "drastic," Virginia asserts, as to
transform, indeed "destroy," VMI's program. See Brief for Cross-
Petitioners 34-36. Neither sex would be favored by the
transformation, Virginia maintains: Men would be deprived of the
unique opportunity currently available to them; women would not
gain that opportunity because their participation would "eliminat[e]
the very aspects of [the] program that distinguish [VMI] from . . .
other institutions of higher education in Virginia." Id., at 34 (internal
quotation marks omitted).
The District Court forecast from expert witness testimony, and the
Court of Appeals accepted, that coeducation would materially affect
"at least these three aspects of VMI's program--physical training, the
absence of privacy, and the adversative approach." 976 F. 2d, at
896-897. And it is uncontested that women's admission would
require accommodations, primarily in arranging housing assignments
and physical training programs for female cadets. See Brief for
Cross-Respondent 11, 29-30. It is also undisputed, however, that
"the VMI methodology could be used to educate women." 852 F.
Supp., at 481. The District Court even allowed that some women
may prefer it to the methodology a women's college might pursue.
See ibid. "[S]ome women, at least, would want to attend [VMI] if
they had the opportunity," the District Court recognized, 766 F.
Supp., at 1414, and "some women," the expert testimony
established, "are capable of all of the individual activities required of
VMI cadets," id., at 1412. The parties, furthermore, agree that
"some women can meet the physical standards [VMI] now impose[s]
on men." 976 F. 2d, at 896. In sum, as the Court of Appeals stated,
"neither the goal of producing citizen soldiers," VMI's raison d'tre,
"nor VMI's implementing methodology is inherently unsuitable to
women." Id., at 899.
In support of its initial judgment for Virginia, a judgment rejecting all
equal protection objections presented by the United States, the
District Court made "findings" on "gender-based developmental
differences." 766 F. Supp., at 1434-1435. These "findings" restate
the opinions of Virginia's expert witnesses, opinions about typically
male or typically female "tendencies." Id., at 1434. For example,
"[m]ales tend to need an atmosphere of adversativeness," while
"[f]emales tend to thrive in a cooperative atmosphere." Ibid. "I'm
not saying that some women don't do well under [the] adversative
model," VMI's expert on educational institutions testified,
"undoubtedly there are some [women] who do"; but educational
experiences must be designed "around the rule," this expert
maintained, and not "around the exception." Ibid. (internal quotation
marks omitted).
The United States does not challenge any expert witness estimation
on average capacities or preferences of men and women. Instead, the
United States emphasizes that time and again since this Court's
turning point decision in Reed v. Reed, 404 U. S. 71 (1971), we
have cautioned reviewing courts to take a "hard look" at
generalizations or "tendencies" of the kind pressed by Virginia, and
relied upon by the District Court. See O'Connor, Portia's Progress,
66 N. Y. U. L. Rev. 1546, 1551 (1991). State actors controlling
gates to opportunity, we have instructed, may not exclude qualified
individuals based on "fixed notions concerning the roles and abilities
of males and females." Mississippi Univ. for Women, 458 U. S.,
at 725; see J. E. B., 511 U. S., at 139, n. 11 (equal protection
principles, as applied to gender classifications, mean state actors may
not rely on "overbroad" generalizations to make "judgments about
people that are likely to . . . perpetuate historical patterns of
discrimination").
It may be assumed, for purposes of this decision, that most women
would not choose VMI's adversative method. As Fourth Circuit
Judge Motz observed, however, in her dissent from the Court of
Appeals' denial of rehearing en banc, it is also probable that "many
men would not want to be educated in such an environment." 52 F.
3d, at 93. (On that point, even our dissenting colleague might
agree.) Education, to be sure, is not a "one size fits all" business.
The issue, however, is not whether "women--or men--should be
forced to attend VMI"; rather, the question is whether the State can
constitutionally deny to women who have the will and capacity, the
training and attendant opportunities that VMI uniquely affords. Ibid.
The notion that admission of women would downgrade VMI's
stature, destroy the adversative system and, with it, even the
school,11 is a judgment hardly proved,12 a prediction hardly
different from other "self-fulfilling prophec[ies]," see Mississippi
Univ. for Women, 458 U. S., at 730, once routinely used to deny
rights or opportunities. When women first sought admission to the
bar and access to legal education, concerns of the same order were
expressed. For example, in 1876, the Court of Common Pleas of
Hennepin County, Minnesota, explained why women were thought
ineligible for the practice of law. Women train and educate the
young, the court said, which
"forbids that they shall bestow that time (early and late) and labor, so
essential in attaining to the eminence to which the true lawyer should
ever aspire. It cannot therefore be said that the opposition of courts
to the admission of females to practice . . . is to any extent the
outgrowth of . . . `old fogyism[.]' . . . [I]t arises rather from a
comprehension of the magnitude of the responsibilities connected
with the successful practice of law, and a desire to grade up the
profession." In re Application of Martha Angle Dorsett to Be
Admitted to Practice as Attorney and Counselor at Law (Minn. C. P.
Hennepin Cty., 1876), in The Syllabi, Oct. 21, 1876, pp. 5, 6
(emphasis added).
A like fear, according to a 1925 report, accounted for Columbia Law
School's resistance to women's admission, although
"[t]he faculty . . . never maintained that women could not master
legal learning . . . . No, its argument has been... more practical. If
women were admitted to the Columbia Law School, [the faculty]
said, then the choicer, more manly and red-blooded graduates of our
great universities would go to the Harvard Law School!" The
Nation, Feb. 18, 1925, p. 173.
Medical faculties similarly resisted men and women as partners in the
study of medicine. See R. Morantz-Sanchez, Sympathy and Science:
Women Physicians in American Medicine 51-54, 250 (1985); see
also M. Walsh, "Doctors Wanted: No Women Need Apply" 121-122
(1977) (quoting E. Clarke, Medical Education of Women, 4 Boston
Med. & Surg. J. 345, 346 (1869) ("`God forbid that I should ever
see men and women aiding each other to display with the scalpel the
secrets of the reproductive system . . . .'")); cf. supra, at 18-19, n.
9. More recently, women seeking careers in policing encountered
resistance based on fears that their presence would "undermine male
solidarity," see F. Heidensohn, Women in Control? 201 (1992);
deprive male partners of adequate assistance, see id., at 184-185; and
lead to sexual misconduct, see C. Milton et al., Women in Policing
32-33 (1974). Field studies did not confirm these fears. See
Women in Control? supra, at 92-93; P. Bloch & D. Anderson,
Policewomen on Patrol: Final Report (1974).
Women's successful entry into the federal military academies,13 and
their participation in the Nation's military forces,14 indicate that
Virginia's fears for the future of VMI may not be solidly
grounded.15 The State's justification for excluding all women from
"citizen-soldier" training for which some are qualified, in any event,
cannot rank as "exceedingly persuasive," as we have explained and
applied that standard.
Virginia and VMI trained their argument on "means" rather than
"end," and thus misperceived our precedent. Single-sex education at
VMI serves an "important governmental objective," they maintained,
and exclusion of women is not only "substantially related," it is
essential to that objective. By this notably circular argument, the
"straightforward" test Mississippi Univ. for Women described, see
458 U. S., at 724-725, was bent and bowed.
The State's misunderstanding and, in turn, the District Court's, is
apparent from VMI's mission: to produce "citizen-soldiers,"
individuals
"`imbued with love of learning, confident in the functions and
attitudes of leadership, possessing a high sense of public service,
advocates of the American democracy and free enterprise system, and
ready . . . to defend their country in time of national peril.'" 766 F.
Supp., at 1425 (quoting Mission Study Committee of the VMI Board
of Visitors, Report, May 16, 1986).
Surely that goal is great enough to accommodate women, who today
count as citizens in our American democracy equal in stature to men.
Just as surely, the State's great goal is not substantially advanced by
women's categorical exclusion, in total disregard of their individual
merit, from the State's premier "citizen-soldier" corps.16 Virginia, in
sum, "has fallen far short of establishing the `exceedingly persuasive
justification,'" Mississippi Univ. for Women, 458 U. S., at 731, that
must be the solid base for any gender-defined classification.
In the second phase of the litigation, Virginia presented its remedial
plan--maintain VMI as a male-only college and create VWIL as a
separate program for women. The plan met District Court approval.
The Fourth Circuit, in turn, deferentially reviewed the State's
proposal and decided that the two single-sex programs directly
served Virginia's reasserted purposes: single-gender education, and
"achieving the results of an adversative method in a military
environment." See 44 F. 3d, at 1236, 1239. Inspecting the VMI and
VWIL educational programs to determine whether they "afford[ed] to
both genders benefits comparable in substance, [if] not in form and
detail," id., at 1240, the Court of Appeals concluded that Virginia
had arranged for men and women opportunities "sufficiently
comparable" to survive equal protection evaluation, id., at 1240-
1241. The United States challenges this "remedial" ruling as
pervasively misguided.
A remedial decree, this Court has said, must closely fit the
constitutional violation; it must be shaped to place persons
unconstitutionally denied an opportunity or advantage in "the position
they would have occupied in the absence of [discrimination]." See
Milliken v. Bradley, 433 U. S. 267, 280 (1977) (internal quotation
marks omitted). The constitutional violation in this case is the
categorical exclusion of women from an extraordinary educational
opportunity afforded men. A proper remedy for an unconstitutional
exclusion, we have explained, aims to "eliminate [so far as possible]
the discriminatory effects of the past" and to "bar like discrimination
in the future." Louisiana v. United States, 380 U. S. 145, 154
(1965).
Virginia chose not to eliminate, but to leave untouched, VMI's
exclusionary policy. For women only, however, Virginia proposed
a separate program, different in kind from VMI and unequal in
tangible and intangible facilities.17 Having violated the
Constitution's equal protection requirement, Virginia was obliged to
show that its remedial proposal "directly address[ed] and relate[d] to"
the violation, see Milliken, 433 U. S., at 282, i.e., the equal
protection denied to women ready, willing, and able to benefit from
educational opportunities of the kind VMI offers. Virginia described
VWIL as a "parallel program," and asserted that VWIL shares VMI's
mission of producing "citizen-soldiers" and VMI's goals of
providing "education, military training, mental and physical
discipline, character . . . and leadership development." Brief for
Respondents 24 (internal quotation marks omitted). If the VWIL
program could not "eliminate the discriminatory effects of the past,"
could it at least "bar like discrimination in the future"? See
Louisiana, 380 U. S., at 154. A comparison of the programs said to
be "parallel" informs our answer. In exposing the character of, and
differences in, the VMI and VWIL programs, we recapitulate facts
earlier presented. See supra, at 2-5, 8-9.
VWIL affords women no opportunity to experience the rigorous
military training for which VMI is famed. See 766 F. Supp., at
1413-1414 ("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."); id., at 1421 (VMI "is known to be the most
challenging military school in the United States"). Instead, the
VWIL program "deemphasize[s]" military education, 44 F. 3d, at
1234, and uses a "cooperative method" of education "which
reinforces self-esteem," 852 F. Supp., at 476.
VWIL students participate in ROTC and a "largely ceremonial"
Virginia Corps of Cadets, see 44 F. 3d, at 1234, but Virginia
deliberately did not make VWIL a military institute. The VWIL
House is not a military-style residence and VWIL students need not
live together throughout the 4-year program, eat meals together, or
wear uniforms during the school day. See 852 F. Supp., at 477,
495. VWIL students thus do not experience the "barracks" life
"crucial to the VMI experience," the spartan living arrangements
designed to foster an "egalitarian ethic." See 766 F. Supp., at 1423-
1424. "[T]he most important aspects of the VMI educational
experience occur in the barracks," the District Court found, id., at
1423, yet Virginia deemed that core experience nonessential, indeed
inappropriate, for training its female citizen-soldiers.
VWIL students receive their "leadership training" in seminars,
externships, and speaker series, see 852 F. Supp., at 477, episodes
and encounters lacking the "[p]hysical rigor, mental stress, . . .
minute regulation of behavior, and indoctrination in desirable values"
made hallmarks of VMI's citizen-soldier training, see 766 F. Supp.,
at 1421.18 Kept away from the pressures, hazards, and
psychological bonding characteristic of VMI's adversative training,
see id., at 1422, VWIL students will not know the "feeling of
tremendous accomplishment" commonly experienced by VMI's
successful cadets, id., at 1426.
Virginia maintains that these methodological differences are "justified
pedagogically," based on "important differences between men and
women in learning and developmental needs," "psychological and
sociological differences" Virginia describes as "real" and "not
stereotypes." Brief for Respondents 28 (internal quotation marks
omitted). The Task Force charged with developing the leadership
program for women, drawn from the staff and faculty at Mary
Baldwin College, "determined that a military model and, especially
VMI's adversative method, would be wholly inappropriate for
educating and training most women." 852 F. Supp., at 476
(emphasis added). See also 44 F. 3d, at 1233-1234 (noting Task
Force conclusion that, while "some women would be suited to and
interested in [a VMI-style experience]," VMI's adversative method
"would not be effective for women as a group") (emphasis added).
The Commonwealth embraced the Task Force view, as did expert
witnesses who testified for Virginia. See 852 F. Supp., at 480-481.
As earlier stated, see supra, at 24, generalizations about "the way
women are," estimates of what is appropriate for most women, no
longer justify denying opportunity to women whose talent and
capacity place them outside the average description. Notably,
Virginia never asserted that VMI's method of education suits most
men. It is also revealing that Virginia accounted for its failure to
make the VWIL experience "the entirely militaristic experience of
VMI" on the ground that VWIL "is planned for women who do not
necessarily expect to pursue military careers." 852 F. Supp., at 478.
By that reasoning, VMI's "entirely militaristic" program would be
inappropriate for men in general or as a group, for "[o]nly about 15%
of VMI cadets enter career military service." See 766 F. Supp., at
1432.
In contrast to the generalizations about women on which Virginia
rests, we note again these dispositive realties: VMI's "implementing
methodology" is not "inherently unsuitable to women," 976 F. 2d, at
899; "some women . . . do well under [the] adversative model," 766
F. Supp., at 1434 (internal quotation marks omitted); "some women,
at least, would want to attend [VMI] if they had the opportunity," id.,
at 1414; "some women are capable of all of the individual activities
required of VMI cadets," id., at 1412, and "can meet the physical
standards [VMI] now impose[s] on men," 976 F. 2d, at 896. It is on
behalf of these women that the United States has instituted this suit,
and it is for them that a remedy must be crafted,19 a remedy that will
end their exclusion from a state-supplied educational opportunity for
which they are fit, a decree that will "bar like discrimination in the
future." Louisiana, 380 U. S., at 154.
In myriad respects other than military training, VWIL does not
qualify as VMI's equal. VWIL's student body, faculty, course
offerings, and facilities hardly match VMI's. Nor can the VWIL
graduate anticipate the benefits associated with VMI's 157-year
history, the school's prestige, and its influential alumni network.
Mary Baldwin College, whose degree VWIL students will gain,
enrolls first-year women with an average combined SAT score about
100 points lower than the average score for VMI freshmen. 852 F.
Supp., at 501. The Mary Baldwin faculty holds "significantly fewer
Ph.D.'s," id., at 502, and receives substantially lower salaries, see
Tr. 158 (testimony of James Lott, Dean of Mary Baldwin College),
than the faculty at VMI.
Mary Baldwin does not offer a VWIL student the range of curricular
choices available to a VMI cadet. VMI awards baccalaureate degrees
in liberal arts, biology, chemistry, civil engineering, electrical and
computer engineering, and mechanical engineering. See 852 F.
Supp., at 503; Virginia Military Institute: More than an Education 11
(Govt. exh. 75, lodged with Clerk of this Court). VWIL students
attend a school that "does not have a math and science focus," 852 F.
Supp., at 503; they cannot take at Mary Baldwin any courses in
engineering or the advanced math and physics courses VMI offers,
see id., at 477.
For physical training, Mary Baldwin has "two multi-purpose fields"
and "[o]ne gymnasium." Id., at 503. VMI has "an NCAA
competition level indoor track and field facility; a number of multi-
purpose fields; baseball, soccer and lacrosse fields; an obstacle
course; large boxing, wrestling and martial arts facilities; an 11-laps-
to-the-mile indoor running course; an indoor pool; indoor and
outdoor rifle ranges; and a football stadium that also contains a
practice field and outdoor track." Ibid.
Although Virginia has represented that it will provide equal financial
support for in-state VWIL students and VMI cadets, id., at 483, and
the VMI Foundation has agreed to endow VWIL with $5.4625
million, id., at 499, the difference between the two schools' financial
reserves is pronounced. Mary Baldwin's endowment, currently
about $19 million, will gain an additional $35 million based on future
commitments; VMI's current endowment, $131 million--the largest
per-student endowment in the Nation--will gain $220 million. Id., at
503.
The VWIL student does not graduate with the advantage of a VMI
degree. Her diploma does not unite her with the legions of VMI
"graduates [who] have distinguished themselves" in military and
civilian life. See 976 F. 2d, at 892-893. "[VMI] alumni are
exceptionally close to the school," and that closeness accounts, in
part, for VMI's success in attracting applicants. See 766 F. Supp.,
at 1421. A VWIL graduate cannot assume that the "network of
business owners, corporations, VMI graduates and non-graduate
employers . . . interested in hiring VMI graduates," 852 F. Supp., at
499, will be equally responsive to her search for employment, see 44
F. 3d, at 1250 (Phillips, J., dissenting) ("the powerful political and
economic ties of the VMI alumni network cannot be expected to
open" for graduates of the fledgling VWIL program).
Virginia, in sum, while maintaining VMI for men only, has failed to
provide any "comparable single-gender women's institution." Id., at
1241. Instead, the Commonwealth has created a VWIL program
fairly appraised as a "pale shadow" of VMI in terms of the range of
curricular choices and faculty stature, funding, prestige, alumni
support and influence. See id., at 1250 (Phillips, J., dissenting).
Virginia's VWIL solution is reminiscent of the remedy Texas
proposed 50 years ago, in response to a state trial court's 1946 ruling
that, given the equal protection guarantee, African Americans could
not be denied a legal education at a state facility. See Sweatt v.
Painter, 339 U. S. 629 (1950). Reluctant to admit African
Americans to its flagship University of Texas Law School, the State
set up a separate school for Herman Sweatt and other black law
students. Id., at 632. As originally opened, the new school had no
independent faculty or library, and it lacked accreditation. Id., at
633. Nevertheless, the state trial and appellate courts were satisfied
that the new school offered Sweatt opportunities for the study of law
"substantially equivalent to those offered by the State to white
students at the University of Texas." Id., at 632 (internal quotation
marks omitted).
Before this Court considered the case, the new school had gained "a
faculty of five full-time professors; a student body of 23; a library of
some 16,500 volumes serviced by a full-time staff; a practice court
and legal aid association; and one alumnus who ha[d] become a
member of the Texas Bar." Id., at 633. This Court contrasted
resources at the new school with those at the school from which
Sweatt had been excluded. The University of Texas Law School had
a full-time faculty of 16, a student body of 850, a library containing
over 65,000 volumes, scholarship funds, a law review, and moot
court facilities. Id., at 632-633.
More important than the tangible features, the Court emphasized, are
"those qualities which are incapable of objective measurement but
which make for greatness" in a school, including "reputation of the
faculty, experience of the administration, position and influence of
the alumni, standing in the community, traditions and prestige." Id.,
at 634. Facing the marked differences reported in the Sweatt
opinion, the Court unanimously ruled that Texas had not shown
"substantial equality in the [separate] educational opportunities" the
State offered. Id., at 633. Accordingly, the Court held, the Equal
Protection Clause required Texas to admit African Americans to the
University of Texas Law School. Id., at 636. In line with Sweatt,
we rule here that Virginia has not shown substantial equality in the
separate educational opportunities the State supports at VWIL and
VMI.
When Virginia tendered its VWIL plan, the Fourth Circuit did not
inquire whether the proposed remedy, approved by the District
Court, placed women denied the VMI advantage in "the position they
would have occupied in the absence of [discrimination]." Milliken,
433 U. S., at 280 (internal quotation marks omitted). Instead, the
Court of Appeals considered whether the State could provide, with
fidelity to the equal protection principle, separate and unequal
educational programs for men and women.
The Fourth Circuit acknowledged that "the VWIL degree from Mary
Baldwin College lacks the historical benefit and prestige of a degree
from VMI." 44 F. 3d, at 1241. The Court of Appeals further
observed that VMI is "an ongoing and successful institution with a
long history," and there remains no "comparable single-gender
women's institution." Ibid. Nevertheless, the appeals court declared
the substantially different and significantly unequal VWIL program
satisfactory. The court reached that result by revising the applicable
standard of review. The Fourth Circuit displaced the standard
developed in our precedent, see supra, at 13-16, and substituted a
standard of its own invention.
We have earlier described the deferential review in which the Court
of Appeals engaged, see supra, at 10-11, a brand of review
inconsistent with the more exacting standard our precedent requires,
see supra, at 13-16. Quoting in part from Mississippi Univ. for
Women, the Court of Appeals candidly described its own analysis as
one capable of checking a legislative purpose ranked as "pernicious,"
but generally according "deference to [the] legislative will." 44 F.
3d, at 1235, 1236. Recognizing that it had extracted from our
decisions a test yielding "little or no scrutiny of the effect of a
classification directed at [single-gender education]," the Court of
Appeals devised another test, a "substantive comparability" inquiry,
id., at 1237, and proceeded to find that new test satisfied, id., at
1241.
The Fourth Circuit plainly erred in exposing Virginia's VWIL plan to
a deferential analysis, for "all gender-based classifications today"
warrant "heightened scrutiny." See J. E. B., 511 U. S., at 136.
Valuable as VWIL may prove for students who seek the program
offered, Virginia's remedy affords no cure at all for the opportunities
and advantages withheld from women who want a VMI education
and can make the grade. See supra, at 31-36.20 In sum, Virginia's
remedy does not match the constitutional violation; the State has
shown no "exceedingly persuasive justification" for withholding
from women qualified for the experience premier training of the kind
VMI affords.
A generation ago, "the authorities controlling Virginia higher
education," despite long established tradition, agreed "to innovate
and favorably entertain[ed] the [then] relatively new idea that there
must be no discrimination by sex in offering educational
opportunity." Kirstein, 309 F. Supp., at 186. Commencing in 1970,
Virginia opened to women "educational opportunities at the
Charlottesville campus that [were] not afforded in other [State-
operated] institutions." Id., at 187; see supra, at 20. A federal court
approved the State's innovation, emphasizing that the University of
Virginia "offer[ed] courses of instruction . . . not available
elsewhere." 309 F. Supp., at 187. The court further noted: "[T]here
exists at Charlottesville a `prestige' factor [not paralleled in] other
Virginia educational institutions." Ibid.
VMI, too, offers an educational opportunity no other Virginia
institution provides, and the school's "prestige"--associated with its
success in developing "citizen-soldiers"--is unequaled. Virginia has
closed this facility to its daughters and, instead, has devised for them
a "parallel program," with a faculty less impressively credentialed
and less well paid, more limited course offerings, fewer
opportunities for military training and for scientific specialization.
Cf. Sweatt, 339 U. S., at 633. VMI, beyond question, "possesses
to a far greater degree" than the VWIL program "those qualities
which are incapable of objective measurement but which make for
greatness in a . . . school," including "position and influence of the
alumni, standing in the community, traditions and prestige." Id., at
634. Women seeking and fit for a VMI-quality education cannot be
offered anything less, under the State's obligation to afford them
genuinely equal protection.
A prime part of the history of our Constitution, historian Richard
Morris recounted, is the story of the extension of constitutional rights
and protections to people once ignored or excluded.21 VMI's story
continued as our comprehension of "We the People" expanded. See
supra, at 29, n. 16. There is no reason to believe that the admission
of women capable of all the activities required of VMI cadets would
destroy the Institute rather than enhance its capacity to serve the
"more perfect Union."
For the reasons stated, the initial judgment of the Court of Appeals,
976 F. 2d 890 (CA4 1992), is affirmed, the final judgment of the
Court of Appeals, 44 F. 3d 1229 (CA4 1995), is reversed, and the
case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
Justice Thomas took no part in the consideration or decision of this
case.
==============================================
==========
SUPREME COURT OF THE UNITED STATES
Nos. 94-1941 AND 94-2107
UNITED STATES, PETITIONER
94-1941
v.
VIRGINIA ET AL.
VIRGINIA, ET AL., PETITIONERS
94-2107
v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT
[June 26, 1996]
CHIEF JUSTICE REHNQUIST, concurring in judgment. The Court
holds first that Virginia violates the Equal Protection Clause by
maintaining the Virginia Military Institute's (VMI's) all-male
admissions policy, and second that establishing the Virginia
Women's Institute for Leadership (VWIL) program does not remedy
that violation. While I agree with these conclusions, I disagree with
the Court's analysis and so I write separately.
Two decades ago in Craig v. Boren, 429 U. S. 190, 197 (1976), we
announced that "[t]o withstand constitutional challenge, . . .
classifications by gender must serve important governmental
objectives and must be substantially related to achievement of those
objectives." We have adhered to that standard of scrutiny ever since.
See Califano v. Goldfarb, 430 U. S. 199, 210-211 (1977); Califano
v. Webster, 430 U. S. 313, 316-317 (1977); Orr v. Orr, 440 U. S.
268, 279 (1979); Caban v. Mohammed, 441 U. S. 380, 388 (1979);
Davis v. Passman, 442 U. S. 228, 234-235, 235, n. 9 (1979);
Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 273
(1979); Califano v. Westcott, 443 U. S. 76, 85 (1979); Wengler v.
Druggists Mutual Ins. Co., 446 U. S. 142, 150 (1980); Kirchberg v.
Feenstra, 450 U. S. 455, 459-460 (1981); Michael M. v. Superior
Court, Sonoma Cty., 450 U. S. 464, 469 (1981); Mississippi Univ.
for Women v. Hogan, 458 U. S. 718, 724 (1982); Heckler v.
Mathews, 465 U. S. 728, 744 (1984); J. E. B. v. Alabama ex rel. T.
B., 511 U. S. ___, ___, n.6 (slip op., at 10, n.6) (1994). While the
majority adheres to this test today, ante, at 6, 15, it also says that the
State must demonstrate an "`exceedingly persuasive justification'" to
support a gender-based classification. See ante, at 6, 11, 12, 13, 15,
16, 28, 29, 39. It is unfortunate that the Court thereby introduces an
element of uncertainty respecting the appropriate test.
While terms like "important governmental objective" and
"substantially related" are hardly models of precision, they have more
content and specificity than does the phrase "exceedingly persuasive
justification." That phrase is best confined, as it was first used, as an
observation on the difficulty of meeting the applicable test, not as a
formulation of the test itself. See, e.g., Feeney, supra, at 273
("[T]hese precedents dictate that any state law overtly or covertly
designed to prefer males over females in public employment require
an exceedingly persuasive justification"). To avoid introducing
potential confusion, I would have adhered more closely to our
traditional, "firmly established," Hogan, supra, at 723; Heckler,
supra, at 744, standard that a gender-based classification "must bear
a close and substantial relationship to important governmental
objectives." Feeney, supra, at 273.
Our cases dealing with gender discrimination also require that the
proffered purpose for the challenged law be the actual purpose. See
ante, at 15, 18. It is on this ground that the Court rejects the first of
two justifications Virginia offers for VMI's single-sex admissions
policy, namely, the goal of diversity among its public educational
institutions. While I ultimately agree that the State has not carried the
day with this justification, I disagree with the Court's method of
analyzing the issue.
VMI was founded in 1839, and, as the Court notes, ante, at 18-19,
admission was limited to men because under the then-prevailing view
men, not women, were destined for higher education. However
misguided this point of view may be by present-day standards, it
surely was not unconstitutional in 1839. The adoption of the
Fourteenth Amendment, with its Equal Protection Clause, was nearly
30 years in the future. The interpretation of the Equal Protection
Clause to require heightened scrutiny for gender discrimination was
yet another century away.
Long after the adoption of the Fourteenth Amendment, and well into
this century, legal distinctions between men and women were
thought to raise no question under the Equal Protection Clause. The
Court refers to our decision in Goesaert v. Cleary, 335 U. S. 466
(1948). Likewise representing that now abandoned view was Hoyt
v. Florida, 368 U. S. 57 (1961), where the Court upheld a Florida
system of jury selection in which men were automatically placed on
jury lists, but women were placed there only if they expressed an
affirmative desire to serve. The Court noted that despite advances in
women's opportunities, the "woman is still regarded as the center of
home and family life." Id., at 62.
Then, in 1971, we decided Reed v. Reed, 404 U. S. 71, which the
Court correctly refers to as a seminal case. But its facts have nothing
to do with admissions to any sort of educational institution. An
Idaho statute governing the administration of estates and probate
preferred men to women if the other statutory qualifications were
equal. The statute's purpose, according to the Idaho Supreme Court,
was to avoid hearings to determine who was better qualified as
between a man and a woman both applying for letters of
administration. This Court held that such a rule violated the
Fourteenth Amendment because "a mandatory preference to members
of either sex over members of the other, merely to accomplish the
elimination of hearings" was an "arbitrary legislative choice
forbidden by the Equal Protection Clause." Id., at 76. The brief
opinion in Reed made no mention of either Goesaert or Hoyt.
Even at the time of our decision in Reed v. Reed, therefore, Virginia
and VMI were scarcely on notice that its holding would be extended
across the constitutional board. They were entitled to believe that
"one swallow doesn't make a summer" and await further
developments. Those developments were 11 years in coming. In
Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982), a
case actually involving a single-sex admissions policy in higher
education, the Court held that the exclusion of men from a nursing
program violated the Equal Protection Clause. This holding did place
Virginia on notice that VMI's men-only admissions policy was open
to serious question.
The VMI Board of Visitors, in response, appointed a Mission Study
Committee to examine "the legality and wisdom of VMI's single-sex
policy in light of" Hogan. 766 F. Supp. 1407, 1427 (WD Va.
1991). But the committee ended up cryptically recommending
against changing VMI's status as a single-sex college. After three
years of study, the committee found "`no information'" that would
warrant a change in VMI's status. Id., at 1429. Even the District
Court, ultimately sympathetic to VMI's position, found that "[t]he
Report provided very little indication of how [its] conclusion was
reached" and that "the one and one-half pages in the committee's final
report devoted to analyzing the information it obtained primarily
focuses on anticipated difficulties in attracting females to VMI." Ibid.
The reasons given in the report for not changing the policy were the
changes that admission of women to VMI would require, and the
likely effect of those changes on the institution. That VMI would
have to change is simply not helpful in addressing the
constitutionality of the status after Hogan.
Before this Court, Virginia has sought to justify VMI's single-sex
admissions policy primarily on the basis that diversity in education is
desirable, and that while most of the public institutions of higher
learning in the State are coeducational, there should also be room for
single-sex institutions. I agree with the Court that there is scant
evidence in the record that this was the real reason that Virginia
decided to maintain VMI as men only.* But, unlike the majority, I
would consider only evidence that postdates our decision in Hogan,
and would draw no negative inferences from the State's actions
before that time. I think that after Hogan, the State was entitled to
reconsider its policy with respect to VMI, and to not have earlier
justifications, or lack thereof, held against it.
Even if diversity in educational opportunity were the State's actual
objective, the State's position would still be problematic. The
difficulty with its position is that the diversity benefited only one sex;
there was single-sex public education available for men at VMI, but
no corresponding single-sex public education available for women.
When Hogan placed Virginia on notice that VMI's admissions policy
possibly was unconstitutional, VMI could have dealt with the
problem by admitting women; but its governing body felt strongly
that the admission of women would have seriously harmed the
institution's educational approach. Was there something else the
State could have done to avoid an equal protection violation? Since
the State did nothing, we do not have to definitively answer that
question.
I do not think, however, that the State's options were as limited as
the majority may imply. The Court cites, without expressly
approving it, a statement from the opinion of the dissenting judge in
the Court of Appeals, to the effect that the State could have
"simultaneously opened single-gender undergraduate institutions
having substantially comparable curricular and extra-curricular
programs, funding, physical plant, administration and support
services, and faculty and library resources." Ante, at 11-12 (internal
quotation marks omitted). If this statement is thought to exclude
other possibilities, it is too stringent a requirement. VMI had been in
operation for over a century and a half, and had an established,
successful and devoted group of alumni. No legislative wand could
instantly call into existence a similar institution for women; and it
would be a tremendous loss to scrap VMI's history and tradition. In
the words of Grover Cleveland's second inaugural address, the State
faced a condition, not a theory. And it was a condition that had been
brought about, not through defiance of decisions construing gender
bias under the Equal Protection Clause, but, until the decision in
Hogan, a condition which had not appeared to offend the
Constitution. Had Virginia made a genuine effort to devote
comparable public resources to a facility for women, and followed
through on such a plan, it might well have avoided an equal
protection violation. I do not believe the State was faced with the
stark choice of either admitting women to VMI, on the one hand, or
abandoning VMI and starting from scratch for both men and women,
on the other.
But, as I have noted, neither the governing board of VMI nor the
State took any action after 1982. If diversity in the form of single-
sex, as well as coeducational, institutions of higher learning were to
be available to Virginians, that diversity had to be available to women
as well as to men.
The dissent criticizes me for "disregarding the four all-women's
private colleges in Virginia (generously assisted by public funds)."
Post, at 32. The private women's colleges are treated by the State
exactly as all other private schools are treated, which includes the
provision of tuition-assistance grants to Virginia residents. Virginia
gives no special support to the women's single-sex education. But
obviously, the same is not true for men's education. Had the State
provided the kind of support for the private women's schools that it
provides for VMI, this may have been a very different case. For in so
doing, the State would have demonstrated that its interest in
providing a single-sex education for men, was to some measure
matched by an interest in providing the same opportunity for women.
Virginia offers a second justification for the single-sex admissions
policy: maintenance of the adversative method. I agree with the
Court that this justification does not serve an important governmental
objective. A State does not have substantial interest in the
adversative methodology unless it is pedagogically beneficial. While
considerable evidence shows that a single-sex education is
pedagogically beneficial for some students, see 766 F. Supp., at
1414, and hence a State may have a valid interest in promoting that
methodology, there is no similar evidence in the record that an
adversative method is pedagogically beneficial or is any more likely
to produce character traits than other methodologies.
The Court defines the constitutional violation in this case as "the
categorical exclusion of women from an extraordinary educational
opportunity afforded to men." Ante, at 30. By defining the violation
in this way, and by emphasizing that a remedy for a constitutional
violation must place the victims of discrimination in "`the position
they would have occupied in the absence of [discrimination],'" ibid.,
the Court necessarily implies that the only adequate remedy would be
the admission of women to the all-male institution. As the foregoing
discussion suggests, I would not define the violation in this way; it is
not the "exclusion of women" that violates the Equal Protection
Clause, but the maintenance of an all-men school without providing
any--much less a comparable--institution for women.
Accordingly, the remedy should not necessarily require either the
admission of women to VMI, or the creation of a VMI clone for
women. An adequate remedy in my opinion might be a
demonstration by Virginia that its interest in educating men in a
single-sex environment is matched by its interest in educating women
in a single-sex institution. To demonstrate such, the State does not
need to create two institutions with the same number of faculty
PhD's, similar SAT scores, or comparable athletic fields. See ante,
at 34-35. Nor would it necessarily require that the women's
institution offer the same curriculum as the men's; one could be
strong in computer science, the other could be strong in liberal arts.
It would be a sufficient remedy, I think, if the two institutions
offered the same quality of education and were of the same overall
calibre.
If a state decides to create single-sex programs, the state would, I
expect, consider the public's interest and demand in designing
curricula. And rightfully so. But the state should avoid assuming
demand based on stereotypes; it must not assume a priori, without
evidence, that there would be no interest in a women's school of civil
engineering, or in a men's school of nursing.
In the end, the women's institution Virginia proposes, VWIL, fails
as a remedy, because it is distinctly inferior to the existing men's
institution and will continue to be for the foreseeable future. VWIL
simply is not, in any sense, the institution that VMI is. In particular,
VWIL is a program appended to a private college, not a self-standing
institution; and VWIL is substantially underfunded as compared to
VMI. I therefore ultimately agree with the Court that Virginia has not
provided an adequate remedy.
* The dissent equates our conclusion that VMI's "asserted interest in
promoting diversity" is not "`genuine,'" with a "charge" that the
diversity rationale is "a pretext for discriminating against women."
Post, at 15, 15-16. Of course, those are not the same thing. I do not
read the Court as saying that the diversity rationale is a pretext for
discrimination, and I would not endorse such a proposition. We may
find that diversity was not the State's real reason without suggesting,
or having to show, that the real reason was "antifeminism," post, at
16. Our cases simply require that the proffered purpose for the
challenged gender classification be the actual purpose, although not
necessarily recorded. See ante, at 15, 18. The dissent also says that
the interest in diversity is so transparent that having to articulate it is
"absurd on its face." Post, at 29. Apparently, that rationale was not
obvious to the Mission Study Committee which failed to list it among
its reasons for maintaining VMI all-men admission policy.
SUPREME COURT OF THE UNITED STATES
Nos. 94-1941 AND 94-2107
UNITED STATES, PETITIONER
94-1941
v.
VIRGINIA ET AL.
VIRGINIA, ET AL., PETITIONERS
94-2107
v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT
[June 26, 1996]
JUSTICE SCALIA, dissenting.
Today the Court shuts down an institution that has served the people
of the Commonwealth of Virginia with pride and distinction for over
a century and a half. To achieve that desired result, it rejects
(contrary to our established practice) the factual findings of two
courts below, sweeps aside the precedents of this Court, and ignores
the history of our people. As to facts: it explicitly rejects the finding
that there exist "gender-based developmental differences" supporting
Virginia's restriction of the "adversative" method to only a men's
institution, and the finding that the all-male composition of the
Virginia Military Institute (VMI) is essential to that institution's
character. As to precedent: it drastically revises our established
standards for reviewing sex-based classifications. And as to history:
it counts for nothing the long tradition, enduring down to the present,
of men's military colleges supported by both States and the Federal
Government.
Much of the Court's opinion is devoted to deprecating the closed-
mindedness of our forebears with regard to women's education, and
even with regard to the treatment of women in areas that have nothing
to do with education. Closed-minded they were--as every age is,
including our own, with regard to matters it cannot guess, because it
simply does not consider them debatable. The virtue of a democratic
system with a First Amendment is that it readily enables the people,
over time, to be persuaded that what they took for granted is not so,
and to change their laws accordingly. That system is destroyed if the
smug assurances of each age are removed from the democratic
process and written into the Constitution. So to counterbalance the
Court's criticism of our ancestors, let me say a word in their praise:
they left us free to change. The same cannot be said of this most
illiberal Court, which has embarked on a course of inscribing one
after another of the current preferences of the society (and in some
cases only the counter-majoritarian preferences of the society's law-
trained elite) into our Basic Law. Today it enshrines the notion that
no substantial educational value is to be served by an all-men's
military academy--so that the decision by the people of Virginia to
maintain such an institution denies equal protection to women who
cannot attend that institution but can attend others. Since it is entirely
clear that the Constitution of the United States--the old one--takes no
sides in this educational debate, I dissent.
I shall devote most of my analysis to evaluating the Court's opinion
on the basis of our current equal-protection jurisprudence, which
regards this Court as free to evaluate everything under the sun by
applying one of three tests: "rational basis" scrutiny, intermediate
scrutiny, or strict scrutiny. These tests are no more scientific than
their names suggest, and a further element of randomness is added
by the fact that it is largely up to us which test will be applied in each
case. Strict scrutiny, we have said, is reserved for state
"classifications based on race or national origin and classifications
affecting fundamental rights," Clark v. Jeter, 486 U. S. 456, 461
(1988) (citation omitted). It is my position that the term
"fundamental rights" should be limited to "interest[s] traditionally
protected by our society," Michael H. v. Gerald D., 491 U. S. 110,
122 (1989) (plurality opinion of SCALIA, J.); but the Court has not
accepted that view, so that strict scrutiny will be applied to the
deprivation of whatever sort of right we consider "fundamental." We
have no established criterion for "intermediate scrutiny" either, but
essentially apply it when it seems like a good idea to load the dice.
So far it has been applied to content-neutral restrictions that place an
incidental burden on speech, to disabilities attendant to illegitimacy,
and to discrimination on the basis of sex. See, e.g., Turner
Broadcasting System, Inc. v. FCC, 512 U. S. ___, ___ (1994) (slip
op., at 38); Mills v. Habluetzel, 456 U. S. 91, 98-99 (1982); Craig
v. Boren, 429 U. S. 190, 197 (1976).
I have no problem with a system of abstract tests such as rational-
basis, intermediate, and strict scrutiny (though I think we can do
better than applying strict scrutiny and intermediate scrutiny
whenever we feel like it). Such formulas are essential to evaluating
whether the new restrictions that a changing society constantly
imposes upon private conduct comport with that "equal protection"
our society has always accorded in the past. But in my view the
function of this Court is to preserve our society's values regarding
(among other things) equal protection, not to revise them; to prevent
backsliding from the degree of restriction the Constitution imposed
upon democratic government, not to prescribe, on our own authority,
progressively higher degrees. For that reason it is my view that,
whatever abstract tests we may choose to devise, they cannot
supersede--and indeed ought to be crafted so as to reflect--those
constant and unbroken national traditions that embody the people's
understanding of ambiguous constitutional texts. More specifically,
it is my view that "when a practice not expressly prohibited by the
text of the Bill of Rights bears the endorsement of a long tradition of
open, widespread, and unchallenged use that dates back to the
beginning of the Republic, we have no proper basis for striking it
down." Rutan v. Republican Party of Ill., 497 U. S. 62, 95 (1990)
(SCALIA, J., dissenting). The same applies, mutatis mutandis, to a
practice asserted to be in violation of the post-Civil War Fourteenth
Amendment. See, e.g., Burnham v. Superior Court of Cal., County
of Marin, 495 U. S. 604 (1990) (plurality opinion of SCALIA, J.)
(Due Process Clause); J. E. B. v. Alabama ex rel. T. B., 511 U. S.
127, 156-163 (SCALIA, J., dissenting) (Equal Protection Clause);
Planned Parenthood of S. E. Pa. v. Casey, 505 U. S. 833, 979-984,
1000-1001 (1992) (SCALIA, J., dissenting) (various alleged
"penumbras").
The all-male constitution of VMI comes squarely within such a
governing tradition. Founded by the Commonwealth of Virginia in
1839 and continuously maintained by it since, VMI has always
admitted only men. And in that regard it has not been unusual. For
almost all of VMI's more than a century and a half of existence, its
single-sex status reflected the uniform practice for government-
supported military colleges. Another famous Southern institution,
The Citadel, has existed as a state-funded school of South Carolina
since 1842. And all the federal military colleges--West Point, the
Naval Academy at Annapolis, and even the Air Force Academy,
which was not established until 1954--admitted only males for most
of their history. Their admission of women in 1976 (upon which the
Court today relies, see ante, at 27-28, nn. 13, 15), came not by court
decree, but because the people, through their elected representatives,
decreed a change. See, e.g., Pub. L. 94-106, Section 803(a), 89
Stat. 537-538 (1975). In other words, the tradition of having
government-funded military schools for men is as well rooted in the
traditions of this country as the tradition of sending only men into
military combat. The people may decide to change the one tradition,
like the other, through democratic processes; but the assertion that
either tradition has been unconstitutional through the centuries is not
law, but politics-smuggled-into-law.
And the same applies, more broadly, to single-sex education in
general, which, as I shall discuss, is threatened by today's decision
with the cut-off of all state and federal support. Government-run
nonmilitary educational institutions for the two sexes have until very
recently also been part of our national tradition. "[It is]
[c]oeducation, historically, [that] is a novel educational theory. From
grade school through high school, college, and graduate and
professional training, much of the Nation's population during much
of our history has been educated in sexually segregated classrooms."
Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 736 (1982)
(Powell, J., dissenting); see id., at 736-739. These traditions may of
course be changed by the democratic decisions of the people, as they
largely have been.
Today, however, change is forced upon Virginia, and reversion to
single-sex education is prohibited nationwide, not by democratic
processes but by order of this Court. Even while bemoaning the
sorry, bygone days of "fixed notions" concerning women's
education, see ante, at 18-19, and n. 10, 20-21, 25-27, the Court
favors current notions so fixedly that it is willing to write them into
the Constitution of the United States by application of custom-built
"tests." This is not the interpretation of a Constitution, but the
creation of one.
To reject the Court's disposition today, however, it is not necessary
to accept my view that the Court's made-up tests cannot displace
longstanding national traditions as the primary determinant of what
the Constitution means. It is only necessary to apply honestly the
test the Court has been applying to sex-based classifications for the
past two decades. It is well settled, as JUSTICE O'CONNOR stated
some time ago for a unanimous Court, that we evaluate a statutory
classification based on sex under a standard that lies "[b]etween th[e]
extremes of rational basis review and strict scrutiny." Clark v. Jeter,
486 U. S., at 461. We have denominated this standard "intermediate
scrutiny" and under it have inquired whether the statutory
classification is "substantially related to an important governmental
objective." Ibid. See, e.g., Heckler v. Mathews, 465 U. S. 728,
744 (1984); Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142,
150 (1980); Craig v. Boren, 429 U. S., at 197.
Before I proceed to apply this standard to VMI, I must comment
upon the manner in which the Court avoids doing so.
Notwithstanding our above-described precedents and their "`firmly
established principles,'" Heckler, supra, at 744 (quoting Hogan,
supra, at 723), the United States urged us to hold in this case "that
strict scrutiny is the correct constitutional standard for evaluating
classifications that deny opportunities to individuals based on their
sex." Brief for United States in No. 94-2107, p. 16. (This was in
flat contradiction of the Government's position below, which was, in
its own words, to "stat[e] unequivocally that the appropriate standard
in this case is `intermediate scrutiny.'" 2 Record, Doc. No. 88, p. 3
(emphasis added).) The Court, while making no reference to the
Government's argument, effectively accepts it.
Although the Court in two places recites the test as stated in Hogan,
see ante, at 6, 15, which asks whether the State has demonstrated
"that the classification serves important governmental objectives and
that the discriminatory means employed are substantially related to
the achievement of those objectives," 458 U. S., at 724 (internal
quotation marks omitted), the Court never answers the question
presented in anything resembling that form. When it engages in
analysis, the Court instead prefers the phrase "exceedingly
persuasive justification" from Hogan. The Court's nine invocations
of that phrase, see ante, at 6, 11, 12, 13, 15, 16, 28, 29, 39, and
even its fanciful description of that imponderable as "the core
instruction" of the Court's decisions in J. E. B. v. Alabama ex rel. T.
B., 511 U. S. 127 (1994), and Hogan, supra, see ante, at 13, would
be unobjectionable if the Court acknowledged that whether a
"justification" is "exceedingly persuasive" must be assessed by
asking "[whether] the classification serves important governmental
objectives and [whether] the discriminatory means employed are
substantially related to the achievement of those objectives." Instead,
however, the Court proceeds to interpret "exceedingly persuasive
justification" in a fashion that contradicts the reasoning of Hogan and
our other precedents.
That is essential to the Court's result, which can only be achieved by
establishing that intermediate scrutiny is not survived if there are
some women interested in attending VMI, capable of undertaking its
activities, and able to meet its physical demands. Thus, the Court
summarizes its holding as follows:
"In contrast to the generalizations about women on which Virginia
rests, we note again these dispositive realities: VMI's implementing
methodology is not inherently unsuitable to women; some women do
well under the adversative model; some women, at least, would want
to attend VMI if they had the opportunity; some women are capable
of all of the individual activities required of VMI cadets and can meet
the physical standards VMI now imposes on men." Ante, at 33
(internal quotation marks, citations, and punctuation omitted,
emphasis added).
Similarly, the Court states that "[t]he State's justification for
excluding all women from `citizen-soldier' training for which some
are qualified... cannot rank as `exceedingly persuasive'. . . ." Ante,
at 28.1
Only the amorphous "exceedingly persuasive justification" phrase,
and not the standard elaboration of intermediate scrutiny, can be
made to yield this conclusion that VMI's single-sex composition is
unconstitutional because there exist several women (or, one would
have to conclude under the Court's reasoning, a single woman)
willing and able to undertake VMI's program. Intermediate scrutiny
has never required a least-restrictive-means analysis, but only a
"substantial relation" between the classification and the state interests
that it serves. Thus, in Califano v. Webster, 430 U. S. 313 (1977)
(per curiam), we upheld a congressional statute that provided higher
Social Security benefits for women than for men. We reasoned that
"women . . . as such have been unfairly hindered from earning as
much as men," but we did not require proof that each woman so
benefited had suffered discrimination or that each disadvantaged man
had not; it was sufficient that even under the former congressional
scheme "women on the average received lower retirement benefits
than men." Id., at 318, and n. 5 (emphasis added). The reasoning
in our other intermediate-scrutiny cases has similarly required only a
substantial relation between end and means, not a perfect fit. In
Rostker v. Goldberg, 453 U. S. 57 (1981), we held that selective-
service registration could constitutionally exclude women, because
even "assuming that a small number of women could be drafted for
noncombat roles, Congress simply did not consider it worth the
added burdens of including women in draft and registration plans."
Id., at 81. In Metro Broadcasting, Inc. v. FCC, 497 U. S. 547,
579, 582-583 (1990), overruled on other grounds, Adarand
Constructors, Inc. v. Pena, 515 U. S. ___, ___-___ (1995) (slip
op., at 25-26), we held that a classification need not be accurate "in
every case" to survive intermediate scrutiny so long as, "in the
aggregate," it advances the underlying objective. There is simply no
support in our cases for the notion that a sex-based classification is
invalid unless it relates to characteristics that hold true in every
instance.
Not content to execute a de facto abandonment of the intermediate
scrutiny that has been our standard for sex-based classifications for
some two decades, the Court purports to reserve the question
whether, even in principle, a higher standard (i.e., strict scrutiny)
should apply. "The Court has," it says, "thus far reserved most
stringent judicial scrutiny for classifications based on race or national
origin . . . ," ante, at 14, n. 6 (emphasis added); and it describes our
earlier cases as having done no more than decline to "equat[e] gender
classifications, for all purposes, to classifications based on race or
national origin," ante, at 14 (emphasis added). The wonderful thing
about these statements is that they are not actually false--just as it
would not be actually false to say that "our cases have thus far
reserved the `beyond a reasonable doubt' standard of proof for
criminal cases," or that "we have not equated tort actions, for all
purposes, to criminal prosecutions." But the statements are
misleading, insofar as they suggest that we have not already
categorically held strict scrutiny to be inapplicable to sex-based
classifications. See, e.g., Heckler v. Mathews, 465 U. S. 728
(1984) (upholding state action after applying only intermediate
scrutiny); Michael M. v. Superior Court, Somoma Cty., 450 U. S.
464 (1981) (same) (plurality and both concurring opinions); Califano
v. Webster, 430 U. S. 313 (1977) (same) (per curiam). And the
statements are irresponsible, insofar as they are calculated to
destabilize current law. Our task is to clarify the law--not to muddy
the waters, and not to exact over-compliance by intimidation. The
States and the Federal Government are entitled to know before they
act the standard to which they will be held, rather than be compelled
to guess about the outcome of Supreme Court peek-a-boo.
The Court's intimations are particularly out of place because it is
perfectly clear that, if the question of the applicable standard of
review for sex-based classifications were to be regarded as an
appropriate subject for reconsideration, the stronger argument would
be not for elevating the standard to strict scrutiny, but for reducing it
to rational-basis review. The latter certainly has a firmer foundation
in our past jurisprudence: Whereas no majority of the Court has ever
applied strict scrutiny in a case involving sex-based classifications,
we routinely applied rational-basis review until the 1970's, see, e.g.,
Hoyt v. Florida, 368 U. S. 57 (1961); Goesaert v. Cleary, 335 U.
S. 464 (1948). And of course normal, rational-basis review of sex-
based classifications would be much more in accord with the genesis
of heightened standards of judicial review, the famous footnote in
United States v. Carolene Products Co., 304 U. S. 144 (1938),
which said (intimatingly) that we did not have to inquire in the case at
hand
"whether prejudice against discrete and insular minorities may be a
special condition, which tends seriously to curtail the operation of
those political processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more searching
judicial inquiry." Id., at 152-153, n. 4.
It is hard to consider women a "discrete and insular minorit[y]"
unable to employ the "political processes ordinarily to be relied
upon," when they constitute a majority of the electorate. And the
suggestion that they are incapable of exerting that political power
smacks of the same paternalism that the Court so roundly condemns.
See, e.g., ante, at 18-20, 25-28 (and accompanying notes).
Moreover, a long list of legislation proves the proposition false. See,
e.g., Equal Pay Act of 1963, 29 U. S. C. Section 206(d); Title VII
of the Civil Rights Act of 1964, 42 U. S. C. Section 2000e-2; Title
IX of the Education Amendments of 1972, 20 U. S. C. Section
1681; Women's Business Ownership Act of 1988, Pub. L. 100-533,
102 Stat. 2689; Violence Against Women Act of 1994, Pub. L. 103-
322, Title IV, 108 Stat. 1902.
With this explanation of how the Court has succeeded in making its
analysis seem orthodox--and indeed, if intimations are to be believed,
even overly generous to VMI--I now proceed to describe how the
analysis should have been conducted. The question to be answered,
I repeat, is whether the exclusion of women from VMI is
"substantially related to an important governmental objective."
It is beyond question that Virginia has an important state interest in
providing effective college education for its citizens. That single-sex
instruction is an approach substantially related to that interest should
be evident enough from the long and continuing history in this
country of men's and women's colleges. But beyond that, as the
Court of Appeals here stated: "That single-gender education at the
college level is beneficial to both sexes is a fact established in this
case." 44 F. 3d 1229, 1238 (CA4 1995) (emphasis added).
The evidence establishing that fact was overwhelming--indeed,
"virtually uncontradicted" in the words of the court that received the
evidence, 766 F. Supp. 1407, 1415 (WD Va. 1991). As an initial
matter, Virginia demonstrated at trial that "[a] substantial body of
contemporary scholarship and research supports the proposition that,
although males and females have significant areas of developmental
overlap, they also have differing developmental needs that are deep-
seated." Id., at 1434. While no one questioned that for many
students a coeducational environment was nonetheless not
inappropriate, that could not obscure the demonstrated benefits of
single-sex colleges. For example, the District Court stated as
follows:
"One empirical study in evidence, not questioned by any expert,
demonstrates that single-sex colleges provide better educational
experiences than coeducational institutions. Students of both sexes
become more academically involved, interact with faculty frequently,
show larger increases in intellectual self-esteem and are more
satisfied with practically all aspects of college experience (the sole
exception is social life) compared with their counterparts in
coeducational institutions. Attendance at an all-male college
substantially increases the likelihood that a student will carry out
career plans in law, business and college teaching, and also has a
substantial positive effect on starting salaries in business. Women's
colleges increase the chances that those who attend will obtain
positions of leadership, complete the baccalaureate degree, and aspire
to higher degrees." Id., at 1412.
See also id., at 1434-1435 (factual findings). "[I]n the light of this
very substantial authority favoring single-sex education," the District
Court concluded that "the VMI Board's decision to maintain an all-
male institution is fully justified even without taking into
consideration the other unique features of VMI's teaching and
training." Id., at 1412. This finding alone, which even this Court
cannot dispute, see ante, at 17, should be sufficient to demonstrate
the constitutionality of VMI's all-male composition.
But besides its single-sex constitution, VMI is different from other
colleges in another way. It employs a "distinctive educational
method," sometimes referred to as the "adversative, or doubting,
model of education." 766 F. Supp., at 1413, 1421. "Physical rigor,
mental stress, absolute equality of treatment, absence of privacy,
minute regulation of behavior, and indoctrination in desirable values
are the salient attributes of the VMI educational experience." Id., at
1421. No one contends that this method is appropriate for all
individuals; education is not a "one size fits all" business. Just as a
State may wish to support junior colleges, vocational institutes, or a
law school that emphasizes case practice instead of classroom study,
so too a State's decision to maintain within its system one school that
provides the adversative method is "substantially related" to its goal
of good education. Moreover, it was uncontested that "if the state
were to establish a women's VMI-type [i.e., adversative] program,
the program would attract an insufficient number of participants to
make the program work," 44 F. 3d, at 1241; and it was found by the
District Court that if Virginia were to include women in VMI, the
school "would eventually find it necessary to drop the adversative
system altogether," 766 F. Supp., at 1413. Thus, Virginia's options
were an adversative method that excludes women or no adversative
method at all.
There can be no serious dispute that, as the District Court found,
single-sex education and a distinctive educational method "represent
legitimate contributions to diversity in the Virginia higher education
system." Id., at 1413. As a theoretical matter, Virginia's educational
interest would have been best served (insofar as the two factors we
have mentioned are concerned) by six different types of public
colleges--an all-men's, an all-women's, and a coeducational college
run in the "adversative method," and an all-men's, an all-women's,
and a coeducational college run in the "traditional method." But as a
practical matter, of course, Virginia's financial resources, like any
State's, are not limitless, and the Commonwealth must select among
the available options. Virginia thus has decided to fund, in addition to
some 14 coeducational 4-year colleges, one college that is run as an
all-male school on the adversative model: the Virginia Military
Institute.
Virginia did not make this determination regarding the make-up of its
public college system on the unrealistic assumption that no other
colleges exist. Substantial evidence in the District Court
demonstrated that the Commonwealth has long proceeded on the
principle that "`[h]igher education resources should be viewed as a
whole--public and private'"--because such an approach enhances
diversity and because "`it is academic and economic waste to permit
unwarranted duplication.'" Id., at 1420-1421 (quoting 1974 Report
of the General Assembly Commission on Higher Education to the
General Assembly of Virginia). It is thus significant that, whereas
there are "four all-female private [colleges] in Virginia," there is only
"one private all-male college," which "indicates that the private sector
is providing for th[e] [former] form of education to a much greater
extent that it provides for all-male education." 766 F. Supp., at
1420-1421. In these circumstances, Virginia's election to fund one
public all-male institution and one on the adversative model--and to
concentrate its resources in a single entity that serves both these
interests in diversity--is substantially related to the State's important
educational interests.
The Court today has no adequate response to this clear demonstration
of the conclusion produced by application of intermediate scrutiny.
Rather, it relies on a series of contentions that are irrelevant or
erroneous as a matter of law, foreclosed by the record in this case, or
both.
1. I have already pointed out the Court's most fundamental error,
which is its reasoning that VMI's all-male composition is
unconstitutional because "some women are capable of all of the
individual activities required of VMI cadets," 766 F. Supp., at 1412,
and would prefer military training on the adversative model. See
supra, at 6-9. This unacknowledged adoption of what amounts to (at
least) strict scrutiny is without antecedent in our sex-discrimination
cases and by itself discredits the Court's decision.
2. The Court suggests that Virginia's claimed purpose in maintaining
VMI as an all-male institution--its asserted interest in promoting
diversity of educational options--is not "genuin[e]," but is a pretext
for discriminating against women. Ante, at 22; see ante, at 17-22.
To support this charge, the Court would have to impute that base
motive to VMI's Mission Study Committee, which conducted a 3-
year study from 1983 to 1986 and recommended to VMI's Board of
Visitors that the school remain all-male. The Committee, a majority
of whose members consisted of non-VMI graduates, "read materials
on education and on women in the military," "made site visits to
single-sex and newly coeducational institutions" including West
Point and the Naval Academy, and "considered the reasons that other
institutions had changed from single-sex to coeducational status"; its
work was praised as "thorough" in the accreditation review of VMI
conducted by the Southern Association of Colleges and Schools.
See 766 F. Supp., at 1413, 1428; see also id., at 1427-1430
(detailed findings of fact concerning the Mission Study Committee).
The Court states that "[w]hatever internal purpose the Mission Study
Committee served--and however well-meaning the framers of the
report--we can hardly extract from that effort any state policy
evenhandedly to advance diverse educational options." Ante, at 22.
But whether it is part of the evidence to prove that diversity was the
Commonwealth's objective (its short report said nothing on that
particular subject) is quite separate from whether it is part of the
evidence to prove that anti-feminism was not. The relevance of the
Mission Study Committee is that its very creation, its sober 3-year
study, and the analysis it produced, utterly refute the claim that VMI
has elected to maintain its all-male student-body composition for
some misogynistic reason.
The Court also supports its analysis of Virginia's "actual state
purposes" in maintaining VMI's student body as all-male by stating
that there is no explicit statement in the record "`in which the
Commonwealth has expressed itself'" concerning those purposes.
Ante, at 18, 21 (quoting 976 F. 2d 890, 899 (CA4 1992)); see also
ante, at 7. That is wrong on numerous grounds. First and foremost,
in its implication that such an explicit statement of "actual purposes"
is needed. The Court adopts, in effect, the argument of the United
States that since the exclusion of women from VMI in 1839 was
based on the "assumptions" of the time "that men alone were fit for
military and leadership roles," and since "[b]efore this litigation was
initiated, Virginia never sought to supply a valid, contemporary
rationale for VMI's exclusionary policy," "[t]hat failure itself renders
the VMI policy invalid." Brief for United States in No. 94-2107, at
10. This is an unheard-of doctrine. Each state decision to adopt or
maintain a governmental policy need not be accompanied--in
anticipation of litigation and on pain of being found to lack a relevant
state interest--by a lawyer's contemporaneous recitation of the State's
purposes. The Constitution is not some giant Administrative
Procedure Act, which imposes upon the States the obligation to set
forth a "statement of basis and purpose" for their sovereign acts, see
5 U. S. C. Section 553(c). The situation would be different if what
the Court assumes to have been the 1839 policy had been enshrined
and remained enshrined in legislation--a VMI charter, perhaps,
pronouncing that the institution's purpose is to keep women in their
place. But since the 1839 policy was no more explicitly recorded
than the Court contends the present one is, the mere fact that today's
Commonwealth continues to fund VMI "is enough to answer [the
United States'] contention that the [classification] was the `accidental
by-product of a traditional way of thinking about females.'" Michael
M., 450 U. S., at 471, n. 6 (plurality opinion) (quoting Califano v.
Webster, 430 U. S. 313, 320 (1977)) (internal quotation marks
omitted).
It is, moreover, not true that Virginia's contemporary reasons for
maintaining VMI are not explicitly recorded. It is hard to imagine a
more authoritative source on this subject than the 1990 Report of the
Virginia Commission on the University of the 21st Century to the
Governor and General Assembly (1990 Report). As the parties
stipulated, that report "notes that the hallmarks of Virginia's
educational policy are `diversity and autonomy.'" Stipulations of
Fact, at 37, reprinted in Lodged Materials from the Record 64
(Lodged Materials). It said: "The formal system of higher education
in Virginia includes a great array of institutions: state-supported and
independent, two-year and senior, research and highly specialized,
traditionally black and single-sex." 1990 Report, quoted in relevant
part at Lodged Materials 64-65 (emphasis added).2 The Court's
only response to this is repeated reliance on the Court of Appeals'
assertion that "`the only explicit [statement] that we have found in the
record in which the Commonwealth has expressed itself with respect
to gender distinctions'" (namely, the statement in the 1990 Report
that the Commonwealth's institutions must "deal with faculty, staff,
and students without regard to sex") had nothing to do with the
purpose of diversity. Ante, at 7, 21 (quoting 976 F. 2d, at 899).
This proves, I suppose, that the Court of Appeals did not find a
statement dealing with sex and diversity in the record; but the
pertinent question (accepting the need for such a statement) is
whether it was there. And the plain fact, which the Court does not
deny, is that it was.
The Court contends that "[a] purpose genuinely to advance an array
of educational options . . . is not served" by VMI. Ante, at 22. It
relies on the fact that all of Virginia's other public colleges have
become coeducational. Ibid.; see also ante, at 3, n. 2. The apparent
theory of this argument is that unless Virginia pursues a great deal of
diversity, its pursuit of some diversity must be a sham. This fails to
take account of the fact that Virginia's resources cannot support all
possible permutations of schools, see supra, at 14-15, and of the fact
that Virginia coordinates its public educational offerings with the
offerings of in-state private educational institutions that the
Commonwealth provides money for its residents to attend and
otherwise assists--which include four women's colleges.3
Finally, the Court unreasonably suggests that there is some pretext in
Virginia's reliance upon decentralized decisionmaking to achieve
diversity--its granting of substantial autonomy to each institution with
regard to student-body composition and other matters, see 766 F.
Supp., at 1419. The Court adopts the suggestion of the Court of
Appeals that it is not possible for "one institution with autonomy, but
with no authority over any other state institution, [to] give effect to a
state policy of diversity among institutions." Ante, at 22 (internal
quotation marks omitted). If it were impossible for individual human
beings (or groups of human beings) to act autonomously in effective
pursuit of a common goal, the game of soccer would not exist. And
where the goal is diversity in a free market for services, that tends to
be achieved even by autonomous actors who act out of entirely
selfish interests and make no effort to cooperate. Each Virginia
institution, that is to say, has a natural incentive to make itself
distinctive in order to attract a particular segment of student
applicants. And of course none of the institutions is entirely
autonomous; if and when the legislature decides that a particular
school is not well serving the interest of diversity--if it decides, for
example, that a men's school is not much needed--funding will
cease.4
3. In addition to disparaging Virginia's claim that VMI's single-sex
status serves a state interest in diversity, the Court finds fault with
Virginia's failure to offer education based on the adversative training
method to women. It dismisses the District Court's "`findings' on
`gender-based developmental differences'" on the ground that
"[t]hese `findings' restate the opinions of Virginia's expert
witnesses, opinions about typically male or typically female
`tendencies.'" Ante, at 23 (quoting 766 F. Supp., at 1434-1435).
How remarkable to criticize the District Court on the ground that its
findings rest on the evidence (i.e., the testimony of Virginia's
witnesses)! That is what findings are supposed to do. It is
indefensible to tell the Commonwealth that "[t]he burden |