United States v. Virginia (VMI) (1996)

Key Takeaway:

The Supreme Court held that the Virginia Military Institute violated the Equal Protection Clause of the Fourteenth Amendment by not allowing women into the school.  The Court also held that the creation of a similar school for women did not remedy the constitutional violation.  Justice Ginsburg first held, under the intermediate scrutiny standard, that Virginia did not have an exceedingly persuasive justification for denying women entry.  The “exceedingly persuasive justification” standard is the intermediate scrutiny test: the action serves an important government objective and that the method used is substantially related to that objective.  Justice Ginsburg then holds that the remedial measure also fails.  After a lengthy and fact intensive discussion, Just Ginsburg explains how the newly created, female school is not equal to VMI, and thus not equal.

Key Quotes:

“To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment for 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.  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.’  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.” (citations omitted).

“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.”

UNITED STATES v. VIRGINIA

Supreme Court of the United States, 1996

518 U.S. 515

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.

I

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 public 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.

II

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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.

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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.  ***---***

A divided Court of Appeals affirmed the District Court’s judgment.

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III

The cross-petitions in this suit 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?

IV

 We note, once again, the core instruction of this Court’s pathmarking decisions in J.E.B. v. Alabama ex rel. T. B., and Mississippi Univ. for Women, (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. 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, 93 S.Ct., at 1769–1770. 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. 163 (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 for 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.’ ” 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.

 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 Fed. 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.

V

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 (internal quotation marks omitted). We consider these two justifications in turn.

A

 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 Commonwealth. 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., (“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., (rejecting government-proffered purposes after “inquiry into the actual purposes” (internal quotation marks omitted)).

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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 Commonwealth’s sons, it makes no provision whatever for her daughters. That is not equal protection.

B

 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.

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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.

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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 2277, 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 Heidensohn, 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 Commonwealth’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, 102 S.Ct., at 3336–3337, was bent and bowed.

The Commonwealth’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 Commonwealth’s great goal is not substantially advanced by women’s categorical exclusion, in total disregard of their individual merit, from the Commonwealth’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, 102 S.Ct., at 3340, that must be the solid base for any gender-defined classification.

VI

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 Commonwealth’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

 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, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (internal quotation marks omitted). The constitutional violation in this suit 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.”

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B

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.

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C

 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 Commonwealth 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 2275–2276, 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 2273–2274, a brand of review inconsistent with the more exacting standard our precedent requires, see supra, at 2275–2276. 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, 114 S.Ct., at 1425. 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 2282–2286.²⁰ In sum, Virginia’s remedy does not match the constitutional violation; the Commonwealth has shown no “exceedingly persuasive justification” for withholding from women qualified for the experience premier training of the kind VMI affords.

VII

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 2278. A federal court approved the Commonwealth’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, 70 S.Ct., at 850. Women seeking and fit for a VMI-quality education cannot be offered anything less, under the Commonwealth’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 2282, 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 is affirmed, the final judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.