[ Scalia ]
[ Ginsburg ]
[ Rehnquist ]
Nos. 94-1941 and 94-2107
UNITED STATES, PETITIONER 94-1941 v. VIRGINIA
et al. VIRGINIA, et al., PETITIONERS 94-2107
on writs of certiorari to the united states court of appeals for the fourth circuit
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. [n.*] 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.