|Mississippi University for Women v. Hogan
[ O'Connor ]
[ Burger ]
[ Blackmun ]
[ Powell ]
Mississippi University for Women v. Hogan
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
JUSTICE POWELL, with whom JUSTICE REHNQUIST joins, dissenting.
The Court's opinion bows deeply to conformity. Left without honor -- indeed, held unconstitutional -- is an element of diversity that has characterized much of American education and enriched much of American life. The Court, in effect, holds today that no State now may provide even a single institution of higher learning open only to women students. It gives no heed to the efforts of the State of Mississippi to provide abundant opportunities for young men and young women to attend coeducational institutions, and none to the preferences of the more than 40,000 young women who, over the years, have evidenced their approval of an all-women's college by choosing Mississippi University for Women (MUW) over seven coeducational universities within the State. The Court decides today that the Equal Protection Clause makes it unlawful for the State to provide women with a traditionally popular and respected choice of educational environment. It does so in a case instituted by one man, who represents no class, and whose primary concern is personal convenience.
It is undisputed that women enjoy complete equality of opportunity in Mississippi's public system of higher education. Of the State's 8 universities and 16 junior colleges, all except MUW are coeducational. At least two other Mississippi universities would have provided respondent with the nursing curriculum that he wishes to pursue. [n1] No other [p736] male has joined in his complaint. The only groups with any personal acquaintance with MUW to file amicus briefs are female students and alumnae of MUW. And they have emphatically rejected respondent's arguments, urging that the State of Mississippi be allowed to continue offering the choice from which they have benefited.
Nor is respondent significantly disadvantaged by MUW's all-female tradition. His constitutional complaint is based upon a single asserted harm: that he must travel to attend the state-supported nursing schools that concededly are available to him. The Court characterizes this injury as one of "inconvenience." Ante at 724, n. 8. This description is fair and accurate, though somewhat embarrassed by the fact that there is, of course, no constitutional right to attend a state-supported university in one's home town. Thus the Court, to redress respondent's injury of inconvenience, must rest its invalidation of MUW's single-sex program on a mode of "sexual stereotype" reasoning that has no application whatever to the respondent or to the "wrong" of which he complains. At best, this is anomalous. And ultimately, the anomaly reveals legal error -- that of applying a heightened equal protection standard, developed in cases of genuine sexual stereotyping, to a narrowly utilized state classification that provides an additional choice for women. Moreover, I believe that Mississippi's educational system should be upheld in this case even if this inappropriate method of analysis is applied.
Coeducation, historically, 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. At the college level, for instance, until recently, some of the most prestigious colleges and universities [p737] -- including most of the Ivy League -- had long histories of single-sex education. As Harvard, Yale, and Princeton remained all-male colleges well into the second half of this century, the "Seven Sister" institutions established a parallel standard of excellence for women's colleges. Of the Seven Sisters, Mount Holyoke opened as a female seminary in 1837 and was chartered as a college in 1888. Vassar was founded in 1865, Smith and Wellesley in 1875, Radcliffe in 1879, Bryn Mawr in 1885, and Barnard in 1889. Mount Holyoke, Smith, and Wellesley recently have made considered decisions to remain essentially single-sex institutions. See Carnegie Commission on Higher Education, Opportunities for Women in Higher Education 70-75 (1973) (Carnegie Report), excerpted in B. Babcock, A. Freedman, E. Norton, & S. Ross, Sex Discrimination and the Law 1013, 1014 (1975) (Babcock). Barnard retains its independence from Columbia, its traditional coordinate institution. Harvard and Radcliffe maintained separate admissions policies as recently as 1975. [n2]
The sexual segregation of students has been a reflection of, rather than an imposition upon, the preference of those subject to the policy. It cannot be disputed, for example, that the highly qualified women attending the leading women's colleges could have earned admission to virtually any college of their choice. [n3] Women attending such colleges have chosen [p738] to be there, usually expressing a preference for the special benefits of single-sex institutions. Similar decisions were made by the colleges that elected to remain open to women only. [n4]
The arguable benefits of single-sex colleges also continue to be recognized by students of higher education. The Carnegie Commission on Higher Education has reported that it
favor[s] the continuation of colleges for women. They provide an element of diversity . . . and [an environment in which women] generally . . . speak up more in their classes, . . . hold more positions of leadership on campus, . . . and . . . have more role models and mentors among women teachers and administrators.
Carnegie Report, quoted in K. Davidson, R. Ginsburg, & H. Kay, Sex-Based Discrimination 814 (1975 ed.). A 10-year empirical study by the Cooperative Institutional Research Program of the American Counsel of Education and the University of California, Los Angeles, also has affirmed the distinctive benefits of single-sex colleges and universities. As summarized in A. Astin, Four Critical Years 232 (1977), the data established that
[b]oth [male and female] single-sex colleges facilitate student involvement in several areas: academic, interaction with faculty, and verbal aggressiveness. . . . Men's and women's colleges also have a positive effect on intellectual self-esteem. Students at single-sex colleges are more satisfied than students at coeducational colleges [p739] with virtually all aspects of college life. . . . The only area where students are less satisfied is social life. [n5]
Despite the continuing expressions that single-sex institutions may offer singular advantages to their students, there is no doubt that coeducational institutions are far more numerous. But their numerical predominance does not establish -- in any sense properly cognizable by a court -- that individual preferences for single-sex education are misguided or illegitimate, or that a State may not provide its citizens with a choice. [n6]
The issue in this case is whether a State transgresses the Constitution when -- within the context of a public system that offers a diverse range of campuses, curricula, and educational [p740] alternatives -- it seeks to accommodate the legitimate personal preferences of those desiring the advantages of an all-women's college. In my view, the Court errs seriously by assuming -- without argument or discussion -- that the equal protection standard generally applicable to sex discrimination is appropriate here. That standard was designed to free women from "archaic and overbroad generalizations. . . ." Schlesinger v. Ballard, 419 U.S. 498, 508 (1975). In no previous case have we applied it to invalidate state efforts to expand women's choices. Nor are there prior sex discrimination decisions by this Court in which a male plaintiff, as in this case, had the choice of an equal benefit.
The cases cited by the Court therefore do not control the issue now before us. In most of them, women were given no opportunity for the same benefit as men. [n7] Cases involving male plaintiffs are equally inapplicable. In Craig v. Boren, 429 U.S. 190"]429 U.S. 190 (1976), a male under 21 was not permitted to buy beer anywhere in the State, and women were afforded no choice as to whether they would accept the "statistically measured but loose-fitting generalities concerning the drinking [p741] tendencies of aggregate groups." Id. at 209. A similar situation prevailed in 429 U.S. 190 (1976), a male under 21 was not permitted to buy beer anywhere in the State, and women were afforded no choice as to whether they would accept the "statistically measured but loose-fitting generalities concerning the drinking [p741] tendencies of aggregate groups." Id. at 209. A similar situation prevailed in Orr v. Orr, 440 U.S. 268, 279 (1979), where men had no opportunity to seek alimony from their divorced wives, and women had no escape from the statute's stereotypical announcement of "the State's preference for an allocation of family responsibilities under which the wife plays a dependent role. . . ." [n8]
By applying heightened equal protection analysis to this case, [n9] the Court frustrates the liberating spirit of the Equal Protection Clause. It prohibits the States from providing women with an opportunity to choose the type of university they prefer. And yet it is these women whom the Court regards as the victims of an illegal, stereotyped perception of the role of women in our society. The Court reasons this way in a case in which no woman has complained, and the only complainant is a man who advances no claims on behalf of anyone else. His claim, it should be recalled, is not that he is being denied a substantive educational opportunity, or even the right to attend an all-male or a coeducational college. [p742] See Brief for Respondent 24. [n10] It is only that the colleges open to him are located at inconvenient distances. [n11]
The Court views this case as presenting a serious equal protection claim of sex discrimination. I do not, and I would sustain Mississippi's right to continue MUW on a rational basis analysis. But I need not apply this "lowest tier" of scrutiny. I can accept for present purposes the standard applied by the Court: that there is a gender-based distinction that must serve an important governmental objective by means that are substantially related to its achievement. E.g., Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980). The record in this case reflects that MUW has a historic position in the State's educational system dating back to 1884. More than 2,000 women presently evidence their preference for MUW by having enrolled there. The choice is [p743] one that discriminates invidiously against no one. [n12] And the State's purpose in preserving that choice is legitimate and substantial. Generations of our finest minds, both among educators and students, have believed that single-sex, college-level institutions afford distinctive benefits. There are many persons, of course, who have different views. But simply because there are these differences is no reason -- certainly none of constitutional dimension -- to conclude that no substantial state interest is served when such a choice is made available.
In arguing to the contrary, the Court suggests that the MUW is so operated as to "perpetuate the stereotyped view of nursing as an exclusively women's job." Ante at 729. But as the Court itself acknowledges, ante at 720, MUW's School of Nursing was not created until 1971 -- about 90 years after the single-sex campus itself was founded. This hardly supports a link between nursing as a woman's profession and MUW's single-sex admission policy. Indeed, MUW's School of Nursing was not instituted until more than a decade after a separate School of Nursing was established at the coeducational University of Mississippi at Jackson. See University of Mississippi, 1982 Undergraduate Catalog 162. The School of Nursing makes up only one part -- a relatively small part [n13] -- of MUW's diverse modern university campus and curriculum. The other departments on the MUW campus offer a typical range of degrees [n14] and a typical range of subjects. [n15] [p744] There is no indication that women suffer fewer opportunities at other Mississippi state campuses because of MUW's admission policy. [n16]
In sum, the practice of voluntarily chosen single-sex education is an honored tradition in our country, even if it now rarely exists in state colleges and universities. Mississippi's accommodation of such student choices is legitimate because it is completely consensual, and is important because it permits students to decide for themselves the type of college education they think will benefit them most. Finally, Mississippi's policy is substantially related to its long-respected objective. [n17] [p745]
A distinctive feature of America's tradition has been respect for diversity. This has been characteristic of the peoples from numerous lands who have built our country. It is the essence of our democratic system. At stake in this case, as I see it, is the preservation of a small aspect of this diversity. But that aspect is by no means insignificant, given our heritage of available choice between single-sex and coeducational institutions of higher learning. The Court answers that there is discrimination -- not just that which may be tolerable, as for example between those candidates for admission able to contribute most to an educational institution and those able to contribute less -- but discrimination of constitutional dimension. But, having found "discrimination," the Court finds it difficult to identify the victims. It hardly can claim that women are discriminated against. A constitutional case is held to exist solely because one man found it inconvenient to travel to any of the other institutions made available to him by the State of Mississippi. In essence, he insists that he has a right to attend a college in his home community. This simply is not a sex discrimination case. The Equal Protection Clause was never intended to be applied to this kind of case. [n18]
[T]wo other Mississippi universities offered coeducational programs leading to a Bachelor of Science in Nursing -- the University of Southern Mississippi in Hattiesburg, 178 miles from Columbus; and the University of Mississippi in Jackson, 147 miles from Columbus. . . .
Brief for Respondent 3. See also Tr. of Oral Arg. 8.
2. The history, briefly summarized above, of single-sex higher education in the Northeast is duplicated in other States. I mention only my State of Virginia, where, even today, Hollins College, Mary Baldwin College, Randolph Macon Woman's College, and Sweet Briar College remain all-women's colleges. Each has a proud and respected reputation of quality education.
3. It is true that, historically, many institutions of higher education -- particularly in the East and South -- were single-sex. To these extents, choices were by no means universally available to all men and women. But choices always were substantial, and the purpose of relating the experience of our country with single-sex colleges and universities is to document what should be obvious: generations of Americans, including scholars, have thought -- wholly without regard to any discriminatory animus -- that there were distinct advantages in this type of higher education.
4. In announcing Wellesley's decision in 1973 to remain a women's college, President Barbara Newell said that
[t]he research we have clearly demonstrates that women's colleges produce a disproportionate number of women leaders and women in responsible positions in society; it does demonstrate that the higher proportion of women on the faculty, the higher the motivation for women students.
Carnegie Report, in Babcock, at 1014. Similarly rejecting coeducation in 1971, the Mount Holyoke Trustees Committee on Coeducation reported that "the conditions that historically justified the founding of women's colleges" continued to justify their remaining in that tradition. Ibid. .
5. In this Court, the benefits of single-sex education have been asserted by the students and alumnae of MUW. One would expect the Court to regard their views as directly relevant to this case:
[I]n the aspect of life known as courtship or mate-pairing, the American female remains in the role of the pursued sex, expected to adorn and groom herself to attract the male. Without comment on the common sense or equities of this social arrangement, it remains a sociological fact.
An institution of collegiate higher learning maintained exclusively for women is uniquely able to provide the education atmosphere in which some, but not all, women can best attain maximum learning potential. It can serve to overcome the historic repression of the past, and can orient a woman to function and achieve in the still male-dominated economy. It can free its students of the burden of playing the mating game while attending classes, thus giving academic, rather than sexual, emphasis. Consequently, many such institutions flourish, and their graduates make significant contributions to the arts, professions and business.
Brief for Mississippi University for Women Alumnae Association as Amicus Curiae 2-3.
[T]he Constitution does not require that a classification keep abreast of the latest in educational opinion, especially when there remains a respectable opinion to the contrary. . . . Any other rule would mean that courts, and not legislatures, would determine all matters of public policy.
Williams v. McNair, 316 F.Supp. 134, 137 (SC 1970) (footnote omitted), summarily aff'd, 401 U.S. 951 (1971).
7. See Kirchberg v. Feenstra, 450 U.S. 455, 456 (1981) (invalidating statute "that gave husband, as '‘head and master' of property jointly owned with his wife, the unilateral right to dispose of such property without his spouse's consent"); Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 147 (1980) (invalidating law under which the benefits "that the working woman can expect to be paid to her spouse in the case of her work-related death are less than those payable to the spouse of the deceased male wage earner"); Stanton v. Stanton, 421 U.S. 7 (1975) (invalidating statute that provided a shorter period of parental support obligation for female children than for male children); Weinberger v. Wiesenfeld, 420 U.S. 636, 645 (1975) (invalidating statute that failed to grant a woman worker "the same protection which a similarly situated male worker would have received"); Frontiero v. Richardson, 411 U.S. 677, 683 (1973) (invalidating statute containing a "mandatory preference for male applicants"); Reed v. Reed, 404 U.S. 71, 74 (1971) (invalidating an "arbitrary preference established in favor of males" in the administration of decedent's estates).
8. See also Caban v. Mohammed, 441 U.S. 380 (1979) (invalidating law that both denied men the opportunity -- given to women -- of blocking the adoption of his illegitimate child by means of withholding his consent, and did not permit men to counter the statute's generalization that the maternal role is more important to women than the paternal role is to men).
9. Even the Court does not argue that the appropriate standard here is "strict scrutiny" -- a standard that none of our "sex discrimination" cases ever has adopted. Sexual segregation in education differs from the tradition, typified by the decision in Plessy v. Ferguson, 163 U.S. 537 (1896), of "separate but equal" racial segregation. It was characteristic of racial segregation that segregated facilities were offered, not as alternatives to increase the choices available to blacks, but as the sole alternative. MUW stands in sharp contrast. Of Mississippi's 8 public universities and 16 public junior colleges, only MUW considers sex as a criterion for admission. Women consequently are free to select a coeducational education environment for themselves if they so desire; their attendance at MUW is not a matter of coercion.
10. The Court says that "any gender-based classification provides one class a benefit or choice not available to the other class. . . ." Ante at 731, n. 17. It then states that the issue
is not whether the benefited class profits from the classification, but whether the State's decision to confer a benefit only upon one class by means of a discriminatory classification is substantially related to achieving a legitimate and substantial goal.
Ibid. (emphasis added). This is not the issue in this case. Hogan is not complaining about any benefit conferred upon women. Nor is he claiming discrimination because Mississippi offers no all-male college. As his brief states: "Joe Hogan does not ask to attend an all-male college which offers a Bachelor of Science in Nursing; he asks only to attend MUW." Brief for Respondent 24. And he asks this only for his personal convenience.
11. Students in respondent's position, in
being denied the right to attend the State college in their home town, are treated no differently than are other students who reside in communities many miles distant from any State supported college or university. The location of any such institution must necessarily inure to the benefit of some and to the detriment of others, depending upon the distance the affected individuals reside from the institution.
Heaton v. Bristol, 317 S.W.2d 86, 99 (Tex.Civ.App.1958), cert. denied, 359 U.S. 230 (1959), quoted in Williams v. McNair, 316 F.Supp. at 137.
"Such a plan (i.e., giving the student a choice of a ‘single-sex' and coeducational institutions) exalts neither sex at the expense of the other, but, to the contrary, recognizes the equal rights of both sexes to the benefit of the best, most varied system of higher education that the State can supply."
Williams v. McNair, supra, at 138, n. 15, quoting Heaton v. Bristol, supra, at 100.
13. For instance, the School of Nursing takes up 15 pages of MUW's 234-page course catalog. See Mississippi University for Women, 81/82 Bulletin 185-200.
14. E.g., Bachelor of Arts; Bachelor of Science; Master of Arts; Master of Science. See id. at 40. MUW also offers special preprofessional programs in law, dentistry, medicine, pharmacy, physical therapy, and veterinary medicine. Ibid.
15. MUW's Bulletin in its Table of Contents lists the following subjects (offered in its School of Arts and Sciences): Air Force ROTC; Art; Behavioral Sciences; Biological Sciences; Business and Economics; Cooperative Education; English and Foreign Languages; Health, Physical Education, Recreation, and Dance; History, Journalism and Broadcasting; Mathematics; Music; Physical Sciences; and Speech Communication. See id. at 3.
16. For instance, the catalog for the coeducational University of Mississippi lists in its general description the "Sarah Isom Center for Women's Studies," which is described as
dedicated to the development of curriculum and scholarship about women, the dissemination of information about their expanding career opportunities, and the establishment of mutual support networks for women of all ages and backgrounds.
University of Mississippi, 1982 Undergraduate Catalog 13-14. This listing precedes information about the University's Law and Medical Centers. Id. at 14-15.
17. The Court argues that MUW's means are not sufficiently related to its goal because it has allowed men to audit classes. The extent of record information is that men have audited 138 courses in the last 10 years. Brief for Respondent 21. On average, then, men have audited 14 courses a year. MUW's current annual catalog lists 913 courses offered in one year. See Mississippi University for Women, 81/82 Bulletin passim.
It is understandable that MUW might believe that it could allow men to audit courses without materially affecting its environment. MUW charges tuition, but gives no academic credit for auditing. The University evidently is correct in believing that few men will choose to audit under such circumstances. This deviation from a perfect relationship between means and ends is insubstantial.
18. The Court, in the opening and closing sentences and note 7 of its opinion, states the issue in terms only of a "professional nursing school" and
decline[s] to address the question of whether MUW's admissions policy, as applied to males seeking admission to schools other than the School of Nursing, violates the Fourteenth Amendment.
This would be a welcome limitation if, in fact, it leaves MUW free to remain an all-women's university in each of its other schools and departments -- which include four schools and more than a dozen departments. Cf. nn. 13-15, supra. The question the Court does not answer is whether MUW may remain a women's university in every respect except its School of Nursing. This is a critical question for this University and its responsible board and officials. The Court holds today that they have deprived Hogan of constitutional rights because MUW is adjudged guilty of sex discrimination. The logic of the Court's entire opinion, apart from its statements mentioned above, appears to apply sweepingly to the entire University. The exclusion of men from the School of Nursing is repeatedly characterized as "gender-based discrimination," subject to the same standard of analysis applied in previous sex discrimination cases of this Court. Nor does the opinion anywhere deny that this analysis applies to the entire University.457 U.S. 800, 818 (1982). The Court today leaves in doubt the reach of its decision.