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what argument did virginia make in the vmi case that the court said was not compelling

As Virginia notes, if a program restricted to one sex is necessarily unconstitutional unless there is a parallel program restricted to the other sex, "the opinion in Hogan could have ended with its first footnote, which observed that 'Mississippi maintains no other single-sex public university or college.'" 3 The Commonwealth provides tuition assistance, scholarship grants, guaranteed loans, and work-study funds for residents of Virginia who attend private colleges in the Commonwealth. Support for senior military colleges", City of Akron v. Akron Center for Reproductive Health, Ayotte v. Planned Parenthood of New England. [5] However, VMI's Board of Visitors had already voted 9–8 to admit women and did not revisit the issue after the law was amended. Virginia next argues that VMI's adversative method of training provides educational benefits that cannot be made available, unmodified, to women. given in this litigation. As the Court of Appeals summarized it, "the record supports the district court's findings that at least these three aspects of VMI's programphysical training, the absence of privacy, and the adversative approach-would be materially affected by coeducation, leading to a substantial change in the egalitarian ethos that is a critical aspect of VMI's training." "Racial discrimination in state-operated schools is barred by the Constitution and '[i]t is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.'" Moreover, a long list of legislation proves the proposition false.

Since it is entirely clear that the Constitution of the United States--the district court. Department, said VMI's system was a "stereotypically male form of asked Justice Anthony M. Kennedy. Any 2 T. Woody, A History of Women's Education in the United States 254 (1929) (History of Women's Education). 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." include four women's colleges. It is also virtually meaningless. with that "equal protection" our society has always accorded in the past. at 1413. Supp., at 1415 (emphasis added). VWIL students thus do not experience the "barracks" life "crucial to the VMI experience," the spartan living arrangements designed to foster an "egalitarian ethic." U.S. 464 (1981) (same) (plurality and both concurring opinions); Califano 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. Id., at 1434.

rigorous as VMI and does not use an "adversative" approach. Cross Petitioners in No. said, is reserved for state "classifications based on race or national "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." Id., at 1421. L. 94-106, §803(a), 89 Stat.

The court further noted: "[T]here exists at Charlottesville a 'prestige' factor. 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. 546-558. of Education, National Center for Education Statistics, Digest of Education Statistics, p. 38 and Note (1993)). the highest level of judicial scrutiny to government classifications 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."

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). (1996).

clear shot at justifying some sort of single sex public education. 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. And it is uncontested that women's admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets. 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 476. 23. 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. Ins. of Ed., 267 F. Supp. governmental interest and be narrowly tailored to meet that interest in Bray v. Lee, 337 F. Supp.

an all male school; it would cease being all male as soon as she entered. Indeed, the Court indicates that if any program restricted to one sex is "uniqu[e]," it must be opened to members of the opposite sex "who have the will and capacity" to participate in it. We may find that diversity was not the Commonwealth's real reason without suggesting, or having to show, that the real reason was "antifeminism," post, at 580. (The proof

Rather than create separate judgeships, Congress stipulated that each circuit court panel would consist of two justices of the Supreme Court and the local U.S. district court judge. 1238 (CA4 1995) (emphasis added). ther 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.

colleges into state actors, but whether the government itself would And the rationale of today's decision is sweeping: for sexbased classifications, a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny. The Department of Justice, which sued Virginia in 1990 seeking to 94-2107, at 35-37 (discussing Rendell Baker of VMI cadets," 766 F. in the functions and attitudes of leadership, possessing a high sense of U.S. 91, 98-99 (1982); Craig v. Boren, 429

766 F. To summarize the Court's current directions for cases of official classification based on gender: Focusing on the differen-. 44 F.3d 1229, 1238 (CA4 1995) (emphasis added). Ante, at 33-34 (quoting Virginia did not make this determination regarding the make up Closedminded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not. ought to have been either disbarred or committed. 20, VMI has remained financially supported by Virginia and "subject to. See 44 F. 3d, at 1234. . "Educators and policymakers are turning more and more frequently to of Virginia, quoted in 766 F. 94-2107, at 38 (quoting Mississippi Univ. they left us free to change. (See Education Week, Jan. 17, 1996.). VMI's present methods of training

on speech, to disabilities attendant to illegitimacy, and to discrimination University, Virginia Commonwealth University, Virginia Polytechnic Institute view of the world, which the Court proceeds to support with (1) references 2689; Violence Against Women Act of 1994, Pub. 65,000 volumes, scholarship funds, a law review, and moot court facilities. District Leadership - Curriculum, Instruction, Assessment, PD Her diploma does not unite her with the legions of VMI "graduates [who] have distinguished themselves" in military and civilian life. Money scrutiny standard in this case would survive the Government's loss in the (internal quotation marks omitted). See A. Scott, The Southern Lady: From Pedestal to Politics, 1830-1930, p. 82 (1970). See ante, at 25, n. 11; 27-28, and n. 15; 34, . It is beyond question that Virginia has an important state interest institutions--including single sex colleges--through low cost building

past discrimination--and thus, presumably, limited to girls. It dismisses the District Court's " `findings' on `gender It relies on the fact that all of Virginia's other public colleges 1995) (Tuition Assistance Grant Act); §§23-38.30 in Virginia's reliance upon decentralized decisionmaking to achieve diversity--its Naval Academy, and "considered the reasons that other institutions had Id., 5, 6 (emphasis added). Maintenance of single-sex programs, the court concluded, was essential to that objective.

See supra, at 6-9. under its reasoning today: not even, for example, a football or wrestling It is beyond question that Virginia has an important state interest in providing effective college education for its citizens. Justice Clarence Thomas, whose son was enrolled at VMI at the time, recused himself. 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. Id., at 1429. See, e. g., § 803(a), 89 Stat. Ante, at 564. Supp., at 1434). program could pass muster under the highest judicial test. "We address specifically and only an educational opportunity recognized ... as 'unique.'" pp. them, cannot alter the reality. some women interested in attending VMI, capable of undertaking its at 4. It is only necessary to apply honestly the test the Court has been applying to sex-based classifications for the past two decades. Supp., at 1420. See id., at 1250 (Phillips, J., dissenting). Originally providing instruction in "English, Latin, Greek, French, and piano" in a "home atmosphere," R. Sprague, Longwood College: A History 7-8, 15 (1989) (Longwood College), Farmville Female Seminary became a public institution in 1884 with a mission to train "white female teachers for public schools," 1884 Va. Acts, ch. Amendments of 1972 and stating that "[t]he economic effect of direct and U.S. 313 (1977) (same) (per curiam). Reluctant to admit African-Americans to its flagship University of Texas Law School, the State set up a separate school for Heman Sweatt and other black law students. 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. are misleading, insofar as they suggest that we have not already categorically "Does not take advantage of another's helplessness or ignorance and assumes that no gentleman will take advantage of him. While Rehnquist agreed that this specific situation was unconstitutional, he felt that Virginia's separate-but-equal system could be acceptable if it had been implemented more diligently so that the quality of education between institutions was roughly comparable. But VMI's mission is special. I do not know whether the men of VMI lived by this code; perhaps not. 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 …

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