United States v. Virginia

UNITED STATES v. VIRGINIA et al.

No. 94-1941. Argued 17, 1996 January June Decided 1996* *Together 94-2107, with No. States, et al. v. United also on certiorari to the same court. Stevens, Court, which of the opinion J., Ginsburg, delivered Rehnquist, JJ., Breyer, joined. Souter, Kennedy, O’Connor, SCALIA, 558. p. post, judgment, in the concurring opinion J., filed C. in the part no J., Thomas, took post, p. opinion, dissenting

J., filed case. of the or decision consideration States United cause Bender Paul argued General Solicitor were briefs him With both cases. L.T. Patrick, Cornelia Attorney General Days, Assistant Chandler. E. Thomas Silver, Dunsay and Pillará, Jessica for briefs filed and cause Olson B. argued Theodore 94-2107. in No. and petitioners 94-1941 No. respondents III, Attorney Gilmore S. James were briefs himWith Attorney Hurd, Deputy H. William Virginia, of General Pat H. Arp, Robert Jarrett Hungar, D. G. Thomas General, Broaddus, G. Whittemore, William Marie Jr., Anne terson, Cline-burg, A. William Bell, and B. Boland, William J. Griffin † Jr. for filed were 94-1941 No. reversal urging curiae amici of †Briefs of General Attorney Jr., Curran, Joseph J.by al. et Maryland State General, by and Attorney Baida, Assistant H. Andrew and Maryland, Margery follows: jurisdictions respective their for General Attorneys Ginsburg delivered opinion of the Court.

Justice Virginia’s public higher institutions of learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserv- ing exclusively to unique men the opportunities educational agree. affords. We Bronster S. Hawaii, Scott Harshbarger of Massachusetts, Frankie Sue Del Papa Nevada, C.Sebastian Aloot of the Northern Islands, Mariana and Theodore R. Kulongoski of Oregon; for the Employment Law Center al. by et Patricia A. Shiu Kurtz; and Judith and for the National Women’s Law Center al. Weiner, et Robert N. by Marcia D. Greenberger, Sara L. Mandelbaum, Janet Gallagher, Mary Wyckoff,Steven R. Shapiro, and Susan Deller Ross. amici curiae urging affirmance in No. 94-1941 were filed for

Briefs the State of South Carolina et by al. Charles Condon, Molony Attorney General, Ashworth, Treva Deputy Attorney General, P. Kenneth Wooding- ton, Senior Assistant General, Attorney Reginald I. Lloyd, Assistant At- General, torney Cooke, M. Jr.; Dawes and for Kenneth E. Clark et al. by James C. Roberts and GeorgeA. Somerville. Briefs of amici curiae were filed both cases for the State Wyoming et al. by Hill, William U. Attorney General of Wyoming, Thomas W.Cor- bett, Jr., Attorney General of Pennsylvania, and Bradley Cavedo; B. for Bennett et White; College al. by Wendy S. for the for Center Military Readiness et al. by Mellissa Wells-Petry Lorence; W. Jordan for the Employment Law Center al. by et Patricia A. Shiu Kurtz; Judith

the Independent Women’s Forum et al. by K. Anita Blair C. and Douglas Welty; for Mary Baldwin College by Craig T. Merritt and Richard K. Willard; for the South Carolina Institute of Leadership for Women by Farnsworth; Julianne for Wells College et al. Lascell; David M. Women’s Inc., Schools Together, et al. by John C. and Thomas Danforth Walsh; C. and for Nancy Mellette by Valorie K. Vojdik, Henry Weisburg, Coe, E. Suzanne and Robert R. Black.

Briefs of amici curiae were filed in No. 94-1941 for the American Association of University Professors et al. by Joan E. Bertin and Ann Franke; H. Rhonda Cornum et al. by Allan L. Gropper. Kolb, Daniel F. Hansell, Herbert J. Saunders, C. Paul Redlich, Norman Arnwine, Barbara R. Henderson, Thomas J. and Richard T.Seymour filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae in No. 94-2107.

I school single-sex today sole 1839, VMI in Founded learning. higher of institutions public Virginia’s among “citizen-soldiers,” produce tois mission distinctive VMI’s military in and life leadership civilian in prepared men train- through pervasive mission pursues VMI service. As- Virginia. in else anywhere available ing kind of a uses development, VMI character place to prime signing schools public English modeled method” “adversative con- VMI military instruction. of characteristic once and in discipline mental and physical to instill stantly endeavors The code. strong moral a them impart to and cadets its comprehen- heightened with VMI leave graduates school’s and stress, duress deal to capacity of their sion hazardous completing accomplishment large sense course. produce lead- to mission its notably succeeded has VMI Members generals, military are alumni among its ers; alumni school’s executives. business Congress, helped training VMI their overwhelmingly perceive endowment goals. VMI’s personal their realize them largest has VMI graduates; its loyalty reflects institu- undergraduate public all endowment per-student Nation. in the tions nor citizen-soldiers producing goal of Neither inherently unsuitable methodology is implementing VMI’s producing record impressive school’s And women. Nev- women. some desirable admission made has leaders exclusively preserve has elected ertheless, education VMI opportunities advantages men affords.

II A first Nation’s one establishment From Acts, ch. Va. colleges, see military state “subject Virginia supported financially remained 521 the control of the [Virginia] General Assembly,” Va. Code §23-92 (1993). Ann. First southern college to teach engi- neering and industrial chemistry, see H. Wise, Drawing Out the Man: (1978) (The The VMI Story 13 VMI Story), VMI provided once teachers for the Commonwealth’sschools, see 1842 §2 Va. Acts, ch. 24, (requiring every cadet to teach in one of the Commonwealth’s schools 2-year for a period).1 Civil War strife threatened the school’s vitality, but a re- superintendent sourceful regained legislative support by highlighting great “VMI’s potential!,] through its technical know-how,” to advance Virginia’s postwar recovery. The Story VMI 47.

VMI today enrolls about 1,300 men as cadets.2 Its aca- demic offerings in the liberal arts, sciences, and engineering are also available at public other colleges and universities in Virginia. But VMI’smission is special. It is the mission of the school “ produce ‘to educated and honorable prepared men,

the varied work of civil life, imbued with love of learn- ing, confident in the functions and attitudes of leader- ship, possessing high public sense of service, advocates of the American democracy enterprise free system, ready as citizen-soldiers to defend country their 1During War, Civil school teaching became a field dominated by women. Scott, See A. The Southern Lady: From Pedestal to Politics, (1970). 1830-1930, p. 82 2Historically, most of Virginia’s public colleges and universities were single sex; by the mid-1970’s, however, all except VMI had become co (WD educational. 1407, 1418-1419 766 Supp. 1991). Va. For example, Virginia’s legislature incorporated Farmville Female Seminary Associa 1839, tion in year VMI opened. Acts, 1839 Va. ch. 167. Originally providing instruction in “English, Latin, Greek, French, and piano” in a “home atmosphere,” R. Sprague, Longwood A College: 7-8, History (1989) (Longwood College), Farmville Female Seminary public became a institution in 1884 with a mission to train “white female teachers for public schools,” 1884 Acts, Va. ch. 311. The school became Longwood College 1949, Longwood 136, College and introduced id., 1976, coeducation at (WD F. Supp. peril.”’ national

time Committee Study Mission 1991) (quoting Va. 1986). 16, May Visitors, Report, of Board institutions academies, service federal to contrast In in service career cadets “to prepare maintained at preparation directed “is program forces,” VMI’s armed of 15% about “[o]nly life”; civilian and military both at F. Supp., service.” military career enter cadets VMI 1432. adversa- “an through “citizen-soldiers” its VMI produces “[phys- features which education” of model doubting, or tive, treatment, equality absolute stress, mental rigor, ical indoc- and behavior, regulation minute of privacy, absence Com- one As 1421. Id., at values.” desirable in trination method adversative it, described of Cadets mandant aware him makes student,’” young “'dissects far “‘how knows he so and capabilities,’” “‘limits his under take can he much how . . . anger, his can go he is he physically when do can he what exactly . . . stress, Bissell). N. Col. (quoting 1421-1422 Id., at exhausted.’” is surveillance where barracks in spartan live cadets eat uniforms, wear nonexistent; they and privacy constant drills. participate hall, regularly mess together ex- incessantly are students Entering 1432. 1424, Id., at adversative form extreme “an line, rat to the posed camp. boot Corps Marine intensity model,” comparable bonds line rat and punishing, Tormenting 1422. Id., they when and, sufferers fellow their cadets new tormen- former their experience, 7-month completed Ibid. tors. aby characterized further model” “adversative VMI’s responsibilities, of privileges system” “class hierarchical each mentor class a senior assigning system” a “dyke code,” “honor enforced stringently and a “rat,” class entering “ nor cheat, steal lie, ‘does cadet prescribes which 1422-1423. Id., do.’” who those tolerate VMI attracts applicants some because of reputation an extraordinarily challenging military school, and “because its alumni are exceptionally close to the school.” Id., at “[W]omen have no opportunity anywhere gain [the benefits of system of education VMI].” Ibid.

B In prompted by a complaint filed with the Attorney General high-school female student seeking admission to VMI, the United States sued the Commonwealth of Vir- ginia and VMI, alleging that VMI’s exclusively male ad- policy mission violated Equal Protection Clause of the Fourteenth Amendment. Id., at 1408.3 Trial of the action days consumed six array involved an expert witnesses on each side. Ibid. years

In the two preceding the lawsuit, the District Court noted, VMI had inquiries received from 347 women, but had responded to none of them. Id., at “[S]ome 1436. women, at least,” the said, court “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 positive a educational ex- perience.” Id., at 1437-1438. And it was also established that “some women are capable of all of the individual activi- required ties of VMI cadets.” Id., at 1412. In addition, ex- perts 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 provide would training in dealing with a mixed-gender army.” Id., at 1441.

The District Court ruled in favor of VMI, however, and rejected equal the protection challenge pressed by the United States. That court correctly recognized that Missis sippi Univ. Women Hogan, v. 458 (1982), U. S. for 718 was

3The District Court allowed the VMI Foundation and the VMI Alumni Association to intervene as defendants. 766 F. Supp., at 1408. this Court There, 1410. Supp., at F. guide. closest ac- government uphold seeking to party that underscored persuasive “exceedingly an establish must sex based tion Mississippi Univ. for classification.

justification” omitted). marks (internal quotation atS.,U. Women,458 show must challenged action defender succeed, the To governmen- important serves the classification that least “at employed discriminatory means that objectives tal objec- those achievement substantially related are omitted). marks Ibid, (internal quotation tives.” single- “a education reasoned Court District yields substantial female,” ormale it environment, be gender men school VMI’s 1415. Supp., at benefits. coeducational otherwise diversity to brought unique by VMI’s “enhanced diversity was system, education single-gender If Ibid. instruction.” method objective, governmental important anas ranks males only concluded,that Court District obvious, becomes from women exclude to“is objective achieving the means Ibid. institution —VMI.” all-male opportu- unique educational [indeed] denied are “Women ac- District VMI,” only available nity status single-sex “[VMI’s] But Id., knowledged. distinctive [school’s] aspects, some lost, be would id., admitted, were if altered,” would method be have to would privacy personal “Allowance 1413: would requirements education “[pjhysical 1412; id., at made,” 1413; at id., women,” least altered, to be id., unmodified, survive could environment adversative justification” constitutional “sufficient Thus, 1412-1413. continuing “for held, Court District shown, been had Id., policy.” single-sex [VMI’s] disagreed and Circuit Fourth Appeals The court appellate The judgment. Court’s District vacated advanced .. not. Virginia has Commonwealth “The held: determination, justify can by which policy any state under an policy announced of diversity, to afford VMI’s unique type program to men and not to women.” 976 (1992). F. 2d 890, 892 appeals

The greeted court skepticism with Virginia’s as- sertion that it single-sex offers education at VMI as a facet of the Commonwealth’soverarching undisputed policy to advance “autonomy and diversity.” The court underscored “ Virginia’s nondiscrimination ‘[I]t commitment: is extremely important [colleges and universities] deal with faculty, staff, and students regard without sex, race, or ethnic origin.’” Id., at (quoting Report Commission on the University of the Century). 21st “That statement,” the Appeals Court of said, only “is the explicit one that we have found in the record in which the Common- wealth expressed itself respect gender distinc- tions.” 976 F. 2d, at 899. Furthermore, appeals court observed, urging “diversity” justify an all-male VMI, the Commonwealth supplied had explanation “no for the movement away [single-sex from education] in Virginia by public colleges and universities.” Ibid. short, In the court “[a] concluded, policy diversity provide which aims to array of opportunities, educational including single-gender institutions, must do more than favor gender.” one Ibid. parties agreed that “some women can meet physi- cal standards imposed now on men,” id., at 896,and the court was satisfied that “neither goal of producing citizen sol- diers nor VMI’s implementing methodology is inherently un- suitable to women,” id., at 899. The Appeals, Court of how- ever, accepted the District finding Court’s that “at least these aspects three of VMI’sprogram physical training, the — privacy, absence of and the approach adversative —would materially affected coeducation.” Id., at 896-897. Re- manding the appeals case, the court assigned Virginia, in the first instance, responsibility for selecting a remedial course. The suggested court options these for the Common- wealth: Admit women to VMI; parallel establish institutions

526 free VMI leaving support, state abandon or or programs; In Id., 900. at institution. aas private its policies

pursue 946; U. S. 508 See certiorari. denied 1993, this May interlocutory ibid, J., noting Scalia, of (opinion also see litigation). of posture C pro- Virginia ruling, Circuit’s Fourth response In Insti- Women’s women: for program a parallel

posed state-sponsored 4-year, The (VWIL). Leadership for tute Baldwin Mary at located would program undergraduate would women, and school arts liberal a private College, Although students. 30 25 about initially, be open, “citizen- produce mission —to VMI’s share would VWIL Mary does differ, as would program VWIL soldiers” —the methods offerings, academic VMI from College, Baldwin F. Supp. See resources. financial education, 1994). Va. (WD 476-477 Mary at entrants score SAT combined average VMI score than lower points is about Baldwin holds faculty Baldwin’s id., at Mary 501. See freshmen. id., VMI,” at faculty than D.’s Ph. fewer “significantly Tr. salaries, see lower significantly receives 502, and at College), Baldwin Mary Lott, Dean of James (testimony (here- (CA4) 94-1717 94-1667 in Nos. 2in App. reprinted arts, liberal degrees offers Tr.). While inafter trial, time Baldwin, Mary sciences, engineering, F. Supp., See degrees. of arts bachelor only offered de- an engineering earn seeking student A VWIL 503. attending support, without one, public could gain gree two years, Missouri, for Louis, in St. University Washington ibid. See tuition. private required paying composed level college at the educating Experts program; the VWIL designing charged Force Task own Baldwin’s Mary from drawn were members Force Task attention Training Id., staff. faculty women,” “most appropriate instruction methods Task Force determined that a military model would be “wholly inappropriate” for VWIL. Ibid.; see 44 F. 3d 1229, (CA4 1995). VWIL students would participate in programs ROTC newly a established, “largely ceremonial” Corps of Cadets, id., at 1234,but the VWIL House would not have a military format, 852 Supp., at 477, and VWIL would not require its students to eat together meals or to wear uni- during forms the schoolday,id., at 495. In lieu of VMI’sad- versative method, the VWIL Task Force coopera- favored “a tive method which reinforces self-esteem.” Id., at 476. In addition to the standard bachelor of program arts offered at Mary Baldwin, VWIL students would take courses in leader- ship, complete an off-campus leadership externship, partici- pate in community projects, service and assist in arranging speaker a' series. See 44 F. 3d, at 1234. Virginia represented that it provide will equal financial support for in-state VWIL students and VMI cadets, 852 F. Supp., at 483, and the VMI agreed Foundation supply a $5.4625million endowment for the program, VWIL id., at Mary 499. Baldwin’s own endowment is about $19 million; VMI’s is $131 million. Id., at Mary 503. Baldwin will add $35 million to its endowment based on future commitments; VMI will add $220million. Ibid. The VMI Alumni Associ- ation has developed a network employers interested in hiring graduates. VMI The Association agreed open its network to graduates, VWIL id., at gradu- but those ates will not have the advantage afforded degree. VMI

D Virginia returned to the District Court seeking approval proposed plan, remedial and the court decided the plan requirements met the of the Equal Protection Clause. Id., at 473. The District again Court acknowledged eviden-

tiary support for these “[T]he determinations: VMI method- ology could be used to educate women and, in fact, some VWIL methodology to prefer may . . . prin- legal “controlling But Id., methodology.” Com- require “do decided, District ciples,” women.” image VMI mirror provide monwealth would schools two anticipated court Ibid. con- It Ibid. outcomes.” substantially similar “achieve Mary then drum, aof beat the to marches VMI “If cluded: march the when fife melody aof the marches Baldwin destination.” same the arrived will both over, is 484. Id., Court’s District the affirmed Appeals of divided A appel- the 1995). time, (CA4 This 3d 44 F.

judgment. selec- scrutiny the “greater give determined court late objec- proffered [Commonwealth’s] the than means of tion the purpose, or objective official The 1236. Id., at tive.” Re- deferentially. Ibid. reviewed be said, should court meant reasoned, court the will,” “legislative the spect for inquir- approach,” “cautious take should judiciary the objective governmental the of “legitimacy]” the ing into “perni- be revealed purpose any approval refusing Ibid. cious.” educa- college single-gender of a option “[Providing the aspect important legitimate considered may be tion court appeals the education,” higher system public a “not added, court the objective, 1238; id., at observed, continued, the court Moreover, the id., at pernicious,” never “has education VMI ato vital sexually method adversative environment.” heterogeneous a tolerated been to exclude designed not “was itself method The Ibid. accommo- could noted, but court women,” female believed, court program, VMI dated destroy training “would adversative VMI’s participation relationship permeates still decency that any sense ... Ibid. sexes.” between Vir- legitimacy deferentially, the determined, Having means. question considered court purpose, ginia’s Exclusion of “men Mary Baldwin College and women at VMI,” the court said, was essential to Virginia’s purpose, for without such exclusion, the Commonwealth could not “accomplish [its] objective of providing single-gender educa- tion.” Ibid. The court recognized that, analyzed as it the case, means merged into end, and merger risked “bypass[ing] any

equal protection scrutiny.” Id., at 1237. The court there- fore added another inquiry, a decisive test it called “sub- stantive comparability.” Ibid. 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 [S]tate.” Ibid. Al- though appeals recognized court that the VWIL degree “lacks the historical benefit prestige” of a degree, 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 Com- monwealth’s action. Id., at 1247(quoting Mississippi Univ. 724). Women, 458 S., U. at In Judge Phillips’ view, the

court had accepted “rationalizations compelled by the exi- gencies of litigation,” this and had not confronted the Com- monwealth’s “actual overriding purpose.” 44 3d, F. at 1247. purpose, That Judge Phillips said, was clear from the his- torical record; it was “not to create a type new of educational opportunity for women, . . . nor to further diversify higher Commonwealth’s system[,] education . . [was] . but simply ... to allow VMI to continue to exclude women in preserve order to its historic character and mission.” Ibid.

Judge Phillips suggested that the Commonwealth would satisfy the equal protection Constitution’s requirement if it “simultaneously opened single-gender undergraduate in- stitutions having substantially comparable curricular and programs, extra-curricular funding, physical plant, adminis- 530 re- library and faculty and services, and support

tration evident thought he But Id., at 1260. sources.” “far VMI, fell comparison program, VWIL proposed tangible substantially equal from providing . . . short Ibid. women.” men benefits educational intangible 90 3dF. 52 en banc. rehearing denied Circuit Fourth The Hall, Judges Circuit Motz, joined Judge Circuit (1995). Judge opinion.4 dissenting a filed Michael, Murnaghan, shown not had Virginia Phillips Judge agreed Motz dispar- justification’” persuasive “‘exceedingly Id., supported. Commonwealth ate opportunities 724). Women, S.,U. Mississippi Univ. for (quoting imple- be a yet from degree can “[H]ow asked: She ‘sub- held Baldwin Mary program supplemental mented venerable from a degree comparable’ stantively years than more established was institution military be guaranteed need “Women 3d, at ago?” ” Protection the Equal “but said, Motz Judge ‘results,’ equal that opportu- [and] opportunity... equal require does Clause Ibid. here.” denied being nity I I I is- ultimate two suit present cross-petitions from women exclusion Virginia’s First, does sues. extraordinary by VMI — provided opportunities educational leadership civilian training military opportunities individ- all “capable development deny— 1412, F. Supp., 766 cadets,” required activities ual Four- guaranteed laws protection equal situation, “unique” if VMI’s Second, Amendment? teenth institution public sole single-sex id., Virginia’s 1413—as rehear against banc, voted four 4 en case to rehear voted judges Six re permits Rule local Circuit’s Fourth recused. were three ing, judges Circuit’s of the majority of a vote only banc hearing en See recusals. 13) regard without (currently service active regular n. 91, 3d, higher education—offends the equal Constitution’s protec- tion principle, what is requirement? remedial

IV We note, again, once 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 (1994), 6n. and Mississippi Univ. (internal Women,458 U. S., at 724 quotation marks omit ted): Parties who seek to gender-based defend government action must demonstrate an “exceedingly persuasive justifi cation” for that action.

Today’s skeptical scrutiny of officialaction denying rights opportunities or based on responds sex to volumes history. As a plurality of this Court acknowledged generation ago, “our Nation has had long history unfortunate of sex discrimination.” Frontiero v. Richardson, 411 U. S. (1973). Through a century plus three decades and more of that history, women did not count among voters composing “We the People”;6 not until 1920did gain women a constitu- tional 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 opportunities accorded long men so any “basis in reason” could be conceived for the discrimination. g., See, e. Goesaert Cleary, v. (1948) U. S. 464, 467 (rejecting chal- lenge of female tavern owner and her daughter to Michigan law denying bartender licenses except for wives females— daughters of male tavern owners; Court “give would not ear” to the contention that “an unchivalrous desire male

6As Thomas Jefferson stated the view prevailing when the Constitution was new: “Were our State a pure democracy .. . there yet would be excluded from

their deliberations ... [w]omen, who, to prevent depravation of morals and ambiguity of issue, could not mix promiscuously the public meetings of men.” Letter from Thomas Jefferson to Samuel Kercheval (Sept. 5,1816), in 10 Writings of Thomas (P. Jefferson 45-46, n. 1 1899). Ford ed.

532 prompted calling” monopolize ... to

bartenders legislation). history, Nation’s in our time first for 1971, In her that complained who woman aof favor ruled Court Reed laws. itsof protection the equal her denied had State Code Idaho unconstitutional (holding 73 71, S.U. 404 Reed, v. claiming persons “‘several that, among prescription estate], males decedent’s [a administer to entitled equally has Court Reed, the ”). Since to females’ be preferred must state govern- nor federal neither that recognized repeatedly principle protection equal with compatibly acts ment because women, simply to denies policy or official lawa when opportunity equal citizenship full women, stature — are they society contribute achieve, participate aspire, e. See, g., capacities. talents individual their on based (affirm- (1981) 455, 462-468 U. S. Feenstra, 450 v. Kirchberg “head husband made that law Louisiana invalidity ing him wife, giving his owned jointly of property master” wife’s his without such property dispose right unilateral (invalidating (1975) 7S. Stanton, 421 U. v. consent); Stanton age until boys support that parents requirement Utah 18). age until only girls all purposes, classifications, gender equating Without Court, origin,6 national race or on based classifications action official inspected carefully has decisions, in post-Reed (or to opportunity denies or a door closes concur- J., S., at (Kennedy, B., 511 U. E. J. men). See “revealfs] since evolving (case law in judgment) ring invalid”). are classifications gender strong presumption of- cases directions current the Court’s summarize To the differen- Focusing on gender: based classification ficial scrutiny judicial stringent most reserved far thus observed Term last but origin, or national on race based classifications in fact.” “fatal inevitably classifications of such scrutiny strict (internal (1995) 200, 237 Peña, S. U. Constructors, Inc. v. Adarand omitted). marks quotation tial treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The justification burden of is demanding and it entirely rests on the State. See Mississippi Univ. 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 Ibid, achievement objectives.’” of those (quot- ing Wengler Druggists v. Mut. Ins. Co., 446 U. S. 142, 150 (1980)). justification The genuine, must be hypothesized not or post invented in response hoc to litigation. And it must rely not generalizations overbroad about the different tal- ents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld, 420 U. S. 636, (1975); 643, 648 v. Goldfarb, 430 (1977) U. S. 199, Califano 223-224 (Ste- J., concurring judgment). vens, heightened review standard precedent our establishes does not make a proscribed sex Supposed classification. “in- herent differences” are longer no accepted ground as a race or origin national classifications. Loving See v. Vir- ginia, (1967). 388 U. S. 1 Physical differences between men and women, however, are enduring: “[T]he two sexes are not fungible; a community up made exclusively of [sex] one different from a community composed of both.” Ballard v.

United States, (1946). 329 U. S. 187, 193

“Inherent differences” between men and women, we appreciate, come to remain cause for celebration, but not for denigration of the members of either sex or for artificial con- straints on an individual’s opportunity. Sex classifications may be used to compensate women particular “for economic [they have] disabilities suffered,” v. Webster, 430 Califano (1977) U. S. 313, 320 (per curiam), “promot[e] equal em- ployment opportunity,” see Fed. Sav. & Loan California Assn. v. Guerra, 479 U. S. (1987), 272, 289 to advance full development of the talent capacities of our peo- Nation’s once used, they may classifications such But

pie.7 or perpetuate create S., U. Goesaert, 335 were, see women. inferiority economic social, the legal, review against case record Measuring shown conclude we described, just standard all excluding justification” persuasive “exceedingly no VMI. afforded training citizen-soldier from judgment, initial Circuit’s Fourth affirm therefore We Fourteenth violated had Virginia that held which rem- Because Clause. Protection Equal Amendment’s pro- VWIL Baldwin Mary Virginia by edy proffered —the does i.e., it violation, the constitutional cure not gram —does Cir- Fourth reverse we opportunity, equal not provide case. final judgment cuit’s

V ad- had Virginia that held initially Circuit Fourth under equal could justify, it which state policy no vanced VMI’s afford “to determination its principles, protection 976 women.” not and men of program type unique and ruling “liability” challenges Virginia 2d, 892. F. exclusion of VMI’s in defense two justifications asserts opportunities 7 in educational diversity urged amici Several single-sex pursuit governmental appropriate altogether is an Indeed, is diversity. such importantly contribute can schools perpetuate, than rather dissipate, “to schools single-sex of some mission Private Twenty-six Brief See classifications.” gender traditional Com question not doWe Curiae Amici as Colleges Women’s op educational diverse support evenhandedly to prerogative monwealth’s opportunity educational an only specifically address We portunities. “unique,” Appeals Court District by the recognized available 892, opportunity 2d, 1432; F. 1413, Supp., see sole institute, Commonwealth’s military premier Virginia’s only at Women Univ. Mississippi Cf. college. or university public single-sex other no maintains (1982) (“Mississippi 720, 1n. S.U. Hogan, v. faced Thus, arewe college. or university public single-sex undergraduate equal’ but ‘separate provide can States whether question females.”). males institutions women. First, the Commonwealth “single-sex contends, ed- provides ucation important educational benefits,” Brief for Cross-Petitioners 20, option and the single-sex education contributes to “diversity in approaches,” educational id., at 25. Second, the argues, Commonwealth unique “the method of development character and leadership training,” the school’s approach, adversative would have to be modified were VMI to (internal admit women. Id., at quota- 33-36 omitted). tion marks We consider justifications these two in turn.

A Single-sex education pedagogical affords benefits to at least some students, Virginia emphasizes, reality and that litigation.8 uncontested in this Similarly, it disputed is not that diversity among public educational institutions can public serve the good. But has not shown that VMI was established, or has been maintained, with a view to diversifying, by categorical exclusion women, ed- opportunities ucational within the Commonwealth. In cases of genre, this precedent our instructs “benign” justifi- proffered cations in categorical defense of exclusions will accepted not automatically; justification a tenable must purposes, describe actual state not rationalizations for ac- 8On point, the dissent sees fire where there is no flame. See post, 596-598, at 598-600. “Both men and women can benefit a from single-sex education,” the District Court recognized, although “the beneficial effects” education, of such added, the court “are apparently stronger among women among than men.” 766 Supp., at 1414. The United States does not challenge that recognition. & C. Cf. Jencks D. Riesman, The Academic (1968): Revolution 297-298 pluralistic

“The argument for preserving all-male colleges is uncom- fortably similar the pluralistic argument for preserving all-white col- .... leges The all-male college would be relatively easy to defend if it emerged from a world in which women were established as fully equal to men. But it does not. It is therefore likely to be a witting or unwit- ting device for preserving tacit assumptions of male superiority assump- — tions for which women must eventually pay.”

536 420 Wiesenfeld, See differently grounded. fact

tions [or] a benign of recitation (“mere 16 n. and 648, at S., U. the into “inquiry block does purpose” compensatory gender-based of government-maintained purposes” actual (rejecting 212-213 at S.,U. classifications); Goldfarb, ac- the into “inquiry after purposes government-proffered omitted)). marks (internal quotation tual purposes” in point. immediately Women Univ. Mississippi for of exclusion of asserted, in justification State There “ed- was engaging school, that a nursing from men discrimi- for “compensat[ing] action” affirmative ucational a Undertaking 727. S., at U. women.” against nation close no found id., 728, analysis,” “searching actual “the objective” alleged “the between resemblance id., classification,” discriminatory underlying purpose same reach we here, inquiry similar Pursuing conclusion. Virginia’s out bears history distant nor recent Neither educational single-sex through diversity pursuit alleged established Commonwealth when In options. men opportunities educational VMI, range education Higher contemplated. scarcely was reflecting women;9 dangerous considered was time influential School, whose Medical Harvard H. Clarke Edward Dr. most editions, perhaps was through Education, went book, Sex educa higher community opposing medical from speaker well-known of hard effects physiological maintained He women. tion the devel with interfere would boys competition and academic study Education Clarke, Sex in E. See organs. reproductive girls’ opment is a sexes two (“identical education id., at 127 (1873); 38-89, 62-63 against, protests physiology humanity, that God before crime Educa in and Mind in Maudsley, Sex H. over”); also see weeps experience fail they ambition, that nor not (“It girls (1874) is 17 tion it but settings], coeducational [in race intellectual to run generally entails which health and strength to their cost they do asserted perform adequate them incapacitates even suffering, and life-long Their Females sex.”); Meigs, C. of their functions natural of the ance educational “mental of weeks (after six (1848) or five Diseases menstruation” of habit . . . the “lose would woman healthy discipline,” widely held views about proper place, women’s the Nation’s colleges first universities and example, in Harvard Mas- —for William Mary sachusetts, Virginia only —admitted men. See History Farello, E. A of the Education of Women (1970). in the United States 163 VMI was not at all novel respect: in this admitting In no women, VMI followed the lead of the Commonwealth’s flagship school, University Virginia, founded

“[N]o struggle for the admission of women to a state uni- versity,” a historian has longer recounted, “was out, drawn developed or more bitterness, than University that at the Virginia.” 2 Woody, T. A History of Women’sEducation in (1929) the United Education). States 254 (History of Women’s In 1879,the State Senate resolved to look possibility into the higher education for women, recognizing any period “‘has never, at history,”’ provided her for the “ higher education of daughters, her though liberally she ‘has ” provided Ibid, higher for the education of her (quot- sons.’ ing (1879)). 10 Educ. J. Va. 212 Despite recognition, no opportunities new instantly were open to women.10 Virginia eventually provided for several women’sseminar- colleges. ies Seminary Farmville Female pub- became a lic institution in 1884. supra, See at 521,n. 2. Two women’s Mary Washington schools, College and James Madison Uni- versity, were founded in 1908;another, University, Radford was founded in Supp., 1910. 766 F. By 1418-1419. mid-1970’s,all four schools had become coeducational. Ibid.

Debate concerning women’s undergraduates admission at the main university past continued century’s well midpoint. arguments Familiar were rehearsed. If women and suffer numerous ills as a result of depriving her body for the sake of mind). her 10Virginia’s Superintendent of Public Instruction dismissed the coeduca “ ”

tional idea as ‘repugnant the prejudices of the people’ and proposed a female college similar quality Girton, Smith, or Vassar. History of Women’s Education 254 (quoting Dept, Interior, 1 Report of Commis sioner of Education, H. R. Doc. No. Sess., 58th (1904)). Cong., 2d 538 the on encroach they “would feared, was admitted, it

were government, of problems be new would men; there rights of to be system would honor old scandals; the perhaps coed- other of those lowered be would changed; standards univer- the of reputation glorious the and schools; ucational the dust.” in trailed men, would for school sity, aas 255. Education History of Women’s of institution prestigious most 1970, “the Ultimately, in Virginia, University of Virginia,” in higher education women admit began 1972, in and, coeducation introduced v. Rector Kirstein men. See equal basis on (ED Va. Supp. F. Virginia, 309 Univ. Visitors of of confirmed: District 1970). three-judge Federal A of basis on the women, deny to may now “Virginia campus the Charlottesville opportunities sex, educational by the operated institutions other not afforded are 187. Id., [S]tate.” single-sex public absence current Virginia describes anomaly.” “an historical women for higher education in- record historical But Cross-Petitioners Brief protec- First, than anomalous: more deliberate action dicates next, schools education; higher against women tion schools stature equal resources from far to coed- schools separate finally, conversion men; advent prior to legislature, state ucation. requiring statutes “[a]ll repealed controversy, had women.” only or men admit institutions individual “leg- commission, 1990, an official in And Supp., at 1419. F. higher edu- goals of future to chart islatively established “ affording broad 'of policy reaffirmed Virginia,” cation ” 976 diversity.’ “autonomy maintaining while access” Virginia Commission Report of the (quoting 2d, 898-899 Significantly, Century). 21st University reported: commission opportuni- provide universities colleges and

“‘Because role learn from develop values for students ties models, it extremely is important they deal with faculty, staff, and students regard without to sex, race, or origin.”’ ethnic Id., at (emphasis supplied by deleted). Appeals Court of

This statement, the Court Appeals observed, only' “is the explicit one that we have found in the record in which the expressed Commonwealth has itself respect with gender distinctions.” Ibid. Our 1982 decision in Mississippi Univ. Women

prompted VMI to reexamine its male-only policy. admission Supp., See 766 F. Virginia 1427-1428. relies on that legitimate reexamination as a basis for maintaining VMI’s single-sex Reply character. See Brief for Cross-Petitioners 6. A Study Mission appointed Committee, by the VMI Board Visitors, problem studied the from October 1983 May until 1986,and in that month against counseled “change of VMI single-sex status as a college.” See Supp., (internal quotation omitted). marks Whatever inter- purpose nal Study the Mission Committee served—and how- ever meaning well report framers of the hardly can—we extract from that any effort policy commonwealth even- handedly to advance diverse options. educational As the District Court observed, the analysis Committee’s “primarily focuse[d] anticipated difficulties in attracting females VMI,” report, and the supplied overall, “very little indication th[e] of how conclusion was reached.” Ibid.

In sum, we persuasive find no evidence in this record that male-only VMI’s policy admission “is furtherance of a policy state of ‘diversity.’” See 976 F. 2d, at 899. No such policy, the Fourth Circuit observed, can be discerned from the movement of public all other colleges and universities in Virginia away single-sex from education. See ibid. That questioned court also “how one institution autonomy, but with no authority any over other state institution, can give effect to a policy state of diversity among institutions.” Ibid. A purpose genuinely to array advance an of educa- is not recognized, of Appeals

tional options, “af- plan plan constant historic VMI’s —a served Ibid. to males.” only benefit educational a unique for[d] the Commonwealth’s serves this plan “liberally” However for her daughters. whatever no provision it makes sons, protection. equal That

B method adversative VMI’s argues next made cannot benefits educational provides training accommo- Alterations to women. unmodified, available, “drastic,” Vir- so “radical,” be necessarily would women date pro- VMI’s “destroy,” transform, indeed asserts, as ginia sex Neither 34-36. Cross-Petitioners Brief See gram. maintains: transformation, Virginia the favored be would currently opportunity unique deprived would Men opportunity that not gain would them; women available ás- very “eliminat[e] would participation their because other ... from [VMI] distinguish that program [the] pects Id., at 34. in Virginia.” education of higher institutions testi- witness expert from forecast Court District The coeducation that accepted, of Appeals Court mony, VMI’s aspects three these least “at affect materially would of privacy, absence training, program physical — is un- itAnd 896-897. at 2d, F. approach.” adversative accommoda- would require admission women’s contested and physi- assignments housing arranging tions, primarily Brief See cadets. female training programs cal how- undisputed, is also It 29-30. 11, Cross-Respondent educate be used could methodology “the ever, that al- even Court District Supp., F. women.” methodology it to may prefer some lowed women, ibid. “[S]ome See pursue. might college women’s the opportu- had if they [VMI] to attend want least, would Supp., F. recognized, District nity,” “are established, testimony the expert women,” “some capable of all of the individual required activities of VMI cadets,” id., at parties, 1412. The agree furthermore, “some women can meet physical [VMI] standards now impose[s] on men.” 976 2d, at 896. In sum, as the Court Appeals stated, “neither goal of producing citizen sol- diers,” VMI’s raison d’etre, “nor VMI’s implementing meth- odology is inherently unsuitable to women.” Id., at 899. support In of its judgment initial for Virginia, judg-

ment rejecting equal protection all 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 opinions of Vir- ginia’s expert opinions witnesses, about typically male or typically female “tendencies.” Id., at 1434. example, For “[m]ales tend to need an atmosphere of adversativeness,” “[fjemales while tend to thrive cooperative in a atmosphere.” Ibid. “I’m saying that some women don’t do well under [the] adversative model,” expert VMI’s on educational insti- tutions testified, “undoubtedly there are [women] some who do”; but experiences educational must be designed “around the rule,” expert maintained, and not “around the excep- Ibid, (internal tion.” quotation omitted). marks

The United States does challenge not any expert witness estimation on average capacities preferences or of men and women. Instead, the United emphasizes States that time again and since this Court’s turning point decision in Reed v.

Reed, (1971), 404 U. S. 71 we have cautioned reviewing courts to take a “hard generalizations look” at or “tendencies” of pressed the kind by Virginia, and upon by relied the District Court. See O’Connor, Progress, Portia’s 66 N. Y. U. L. Rev. (1991). 1546, 1551 State actors gates controlling opportu to nity, we have may instructed, not qualified exclude individu als based on “fixed notions concerning the roles and abilities of males and females.” Mississippi Univ. Women, 458 U. atS., 725;see B., J. E. 511 S.,U. at 139, (equal n. 11 protec principles, tion applied gender to classifications, mean

542 to generalizations “overbroad” on rely not may actors state perpetu- ... to likely are that people about “judgments

make discrimination”). of patterns historical ate most that decision, this of assumed, purposes bemay It As method. adversative VMI’s choose not would women dissent in her however, observed, Motz Judge Circuit Fourth is it banc, en rehearing denial of Appeals’ the from educated to be want would men “many that also probable (On that point, 93. 3d, at F. 52 environment.” such Education, agree.) might colleague dissenting our even issue, how- The business. all” fits size a “one is not sure, be forced be men —should “women —or whether is not ever, Common- whether is rather, question VMI”; attend will have who to women deny constitutionally can wealth opportunities attendant and training and capacity, Ibid. affords. uniquely VMI downgrade would women that admission notion The it, and, with system adversative destroy stature, VMI’s a prediction hardly proved,12 ais school,11 judgment even made were kind 11 the same Forecasts 566, 598-599, post, See See, academies. military federal to the women admission regarding the House 2 of No. Subcommittee before al. et H. R. on Hearings g., e. (state (1975) Sess., 137 2d Cong., Services, 93d Armed Committee Academy) Force Air S. of U. Clark, Superintendent A. P. Gen. of Lt. ment will cadets of female introduction judgment (“It considered my (statement of Hon. id., atmosphere.”); vital inevitably erode Point to West (“Admitting Army) of the Secretary Callaway, H. H. atmosphere— Spartan . . . Academy. change irrevocably would surely product final producing important —would is so which disappear.”). probability in all diluted, would witness expert testimony (describing at 1413 Supp., See find eventually women, it would admit were “[I]f Riesman: David sys adopt altogether, system adversative drop the necessary students.”). Such support nurturing more provides tem full toward progress women’s attended, impeded, judgments in 1879 Speaking history. our Nation’s throughout stature citizenship State females, example, education of higher support pro- proposed legislation recounted Nelson Smith T. C. Senator hardly different from other “self-fulfillingprophecies],” see Mississippi Univ. Women, 458 U. S., at 730, once rou- tinely deny used to rights opportunities. or When women first sought admission to the bar and legal access to educa- tion, concerns the same order expressed. were For exam- ple, in 1876,the Court of CommonPleas of Hennepin County, explained Minnesota, why women thought were ineligible for practice of law. Women train and educate the young, the court said, which “forbids they shall bestow late) (early time

and labor, so essential in attaining to the eminence to which the true lawyer should aspire. ever It cannot therefore said that opposition of courts to the admission of females to practice ... any is to extent the outgrowth of . . . fogyism[.]’ ‘old [I]t . . . arises rather from comprehension of the magnitude responsi of the bilities connected with the practice successful of law, and grade desire up profession.” In Application re Angle Martha Dorsett to Be Admitted to Practice as Attorney (Minn. and Counselor at Law C. Hennepin P. Cty., 1876),in Syllabi, The Oct. pp. 21, 1876, (empha added). sis A like fear, according report, a 1925 accounted for Colum- bia Law School’sresistance to women’s admission, although

“[t]he faculty . . . never maintained that women could legal master learning .... argument its No, been . . . practical. more If women were admitted to teet the rights property of women had encountered resistance. 10 Educ. J. (1879). Va. 213 A Senator opposing the measures objected that “there [was] no formal call for the [legislation],” and “depicted in burning elo- quence the terrible consequences such laws would produce.” Ibid. legislation passed, a year or so later, its sponsor, C. Smith, T. reported that “not one of [the forecast “terrible consequences”] has or ever will happen, even unto the sounding of Gabriel’s trumpet.” Ibid. See also supra, at 537-538.

544 the then said, faculty] School, [the Law Columbia

the of our graduates red-blooded and manly more choicer, School!” Law Harvard to the would go universities great 1925, 18, p. Feb. Nation, as women and men resisted similarly faculties Medical Morantz-Sanchez, R. See medicine. of study the in partners Med- American in Physicians Women Science: and Sympathy Wanted: “Doctors Walsh, M. also see (1985); 250 51-54, icine Clarke, E. (1977) (quoting 121-122 Apply” Need No Women 345, J. Surg. Med. & 4 Boston Women, of Education Medical and men see ever I should forbid (“‘God (1869) 346 se- the scalpel display other each aiding women supra, 536- at ”)); cf. . .’ . . system reproductive crets in policing careers seeking recently, More n. 9. 537, their presence fears on based resistance encountered Heidensohn, see solidarity,” male “undermine would ade- partners male (1992); deprive 201 in Control? Women mis- sexual lead to and 184-185; id., at assistance, see quate (1974). 32-33 in Policing al., Women et Milton C. conduct, see Heidensohn, See fears. these confirm did studies Field on Policewomen Anderson, D.& Bloch supra, at 92-93; P. (1974). Report Final Patrol: academ military federal into entry successful Women’s military the Nation’s in participation their ies,13 future fears Virginia’s forces,14 indicate federal every at 13 class of their top graduated cadets Women et Cornum Rhonda Colonel Lieutenant Brief for See academy. military Women on Advisory Committee 25; Defense 11, cf. n. Curiae Amici al. Women Performance Integration Services, Report (1992). Point West (reporting 5-9 Cornum, supra, Rhonda Colonel for Lieutenant Brief mili of women performance courageous contributions vital Three-Star Rank 1st Woman Nominates Mintz, President see tary); Presi (announcing A19, col. 27,1996, p. Post, Mar. General, Washington to rank Mutter Carol Major General Corps of Marine nomination dent’s planning); manpower corps head will General; Mutter of Lieutenant Post, Mar. Guard, Washington Old Era A New Tousignant, may not be solidly grounded.15 The justi Commonwealth’s fication for excluding all women from “citizen-soldier” train ing for which some qualified, are any event, cannot rank as “exceedingly persuasive,” as we explained and ap plied that standard.

Virginia and VMI trained argument their on “means” rather than “end,” and misperceived thus precedent. our Single-sex education at VMI serves an “important govern- objective,” mental they maintained, and exclusion of women only is not “substantially related,” it is essential to that ob- jective. By this notably argument, circular the “straightfor- ward” test Mississippi Univ. Women described, see 458 S.,U. at 724-725, was bent and bowed.

The Commonwealth’s misunderstanding and, in turn, the District apparent Court’s, is from VMI’s produce mission: “citizen-soldiers,” individuals

“ ‘imbued with love of learning, confident in the func- tions and attitudes of leadership, possessing high sense public service, advocates of the American democracy enterprise free system, ready ... to defend their country in time of peril.’” national Supp., 1425 (quoting Mission Study Committee of the VMI Board of Report, 1986). Visitors, May 16, Surely goal great is enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the Commonwealth’s 1996, p. Cl, col. 2 (reporting admission of Sergeant Heather Johnsen to elite Infantry unit that keeps round-the-clock vigil at Tomb of the Un- knowns in Arlington National Cemetery). 15 Inclusion of women in where, settings traditionally, they were not wanted inevitably entails period of adjustment. As one West Point cadet squad leader recounted: “[T]he classes of ’78 and ’79 see the women women, but the classes of ’80 and ’81 see them as classmates.” U. S. Military Academy, A. Vitters, Report of Admission of Women (Project II) (1978) (internal Athena quotation omitted). marks cate- by women’s substantially advanced goal

great merit, individual their disregard of in total exclusion, gorical corps.16 “citizen-soldier” premier Commonwealth’s from establishing the short far fallen sum, “has Virginia, ” Mississippi Univ.for justification,’ persuasive ‘exceedingly base solid must atS., 458 U. Women, classification. any gender-defined

t-H <4 presented litigation, phase second In college and male-only aas plan remedial —maintain plan The women. program separate aas VWIL create turn, Circuit, Fourth approval. District met proposal Commonwealth’s deferentially reviewed directly served programs single-sex two decided education, and single-gender purposes: Virginia’s reasserted mili ain method adversative anof results “achieving the Inspecting 1236, 1239. at 3d, See tary environment.” determine programs educational VWIL and the VMI compara benefits genders both [ed] to they “afford whether at id., detail,” and form [if] not substance, ble arranged had concluded Appeals the Court comparable” “sufficiently opportunities women and men 1240-1241. id., evaluation, protection equal to survive per ruling as “remedial” challenges this States United The misguided. vasively school The change. notable another managed successfully VMI Story VMI The See cadets African-American first its

admitted or flag Confederate “Dixie,” salute sing longer (students no 347-349 events). As sports ceremonies Lee E. Robert of General tomb “retention on program noted, established Court District support social-cultural academic offer designed cadets” black student tradition-oriented white dominantly of a “minority members re “special maintains school 1436-1437. Supp., 766 F. body.” found, had “has which, District blacks” program cruitment Id., mission.” accomplishing method VMI’s effect little, any, if at 1437.

A A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped place persons unconstitutionally denied an opportunity or advantage in position “the they would have occupied in the absence of [discrimination].” See Milliken v. Bradley, 433 U. S. 267, (1977) (internal quotation omitted). marks The consti- tutional violation in this suit is the categorical exclusion of women from an extraordinary educational opportunity af- forded men. A proper remedy for an unconstitutional ex- clusion, we have explained, aims to [so “eliminate far pos- sible] the discriminatory effects of past” and to “bar like discrimination in the future.” Louisiana v. United States, 380 U. (1965). S. 145, 154

Virginia chose not to eliminate, but to leave untouched, VMFs exclusionary policy. For women only, however, Vir- ginia proposed a separate program, different in kind from VMI and unequal in tangible and intangible facilities.17 Having violated the equal Constitution’s protection require- ment, Virginia was obliged to show that its pro- remedial posal “directly addressed] relate[d] to” the violation, see Milliken, 433 S.,U. at 282, i. e., equal protection denied ready, willing, and able to benefit from educational

17As earlier observed, see supra, at 529, Judge Phillips, in dissent, meas ured Virginia’s plan against a paradigm arrangement, one that “could sur vive equal protection scrutiny”: single-sex schools with “substantially comparable curricular and extra-curricular programs, funding, physical plant, administration and support services, . . . faeulty[,] and library re sources.” 44 F. 3d 1229, (CA4 1250 1995). Cf. Lee, v. Bray 337 F. Supp. (Mass. 934 1972) (holding inconsistent with the Equal Protection Clause admission of males to Boston’s Boys Latin School with a test score of 120 or higher (up to a top 200) score of while requiring score, a on the same test, of at least 133 for admission of females to Girls Latin School, but not ordering coeducation). Measuring VMI/VWIL against the paradigm, Judge said, Phillips “reveals how far short the [Virginia] plan falls from providing substantially equal tangible and intangible educational benefits to men and women.” 44 3d, F. at 1250.

548 described Virginia offers. VMI kind the of opportunities VWIL asserted and program,” “parallel as a

VWIL and “citizen-soldiers” producing of mission VMI’s shares training, men military “education, providing of goals VMI’s leadership de and . . . character discipline, physical tal (internal quotation 24 Respondents Brief velopment.” “eliminate not could program omitted). VWIL the If marks “bar least at could past,” the discriminatory effects the Louisiana, 380 See future”? the discrimination like “par be said programs the comparison A 154. S., at U. of, and character the exposing In answer. our informs allel” recapitu we programs, VWIL VMI the in, differences 520-523, 526-527. at supra, See presented. earlier facts late the experience opportunity no affords VWIL 766 See famed. isVMI training for which military rigorous or in Virginia (“No school other 1413-1414 at Supp., F. kind same the offers private, or public States, United VMI.”); at id., at available is training as military rigorous military challenging most (VMI known “is 1421 program VWIL States”). Instead, United in the school 1234, and 3d, 44 F. education, military “deemphasize[s]” reinforces “which education method” “cooperative a uses 476. Supp., at F. self-esteem,” cere- “largely in ROTC participate students VWIL 1234,but 3d, at F. Cadets, see Corps of Virginia monial” military insti- VWIL make not deliberately did residence military-style a not House VWIL tute. 4-year throughout together live not need students VWIL during the uniforms wear or together, meals eat program, students VWIL 495. Supp., F. schoolday. See “crucial life “barracks” experience do thus designed arrangements living spartan experience,” VMI 1423- Supp., See ethic.” “egalitarian foster educa- aspects important “[T]he most District barracks,” occur experience tional found, id., at yet 1423, Virginia deemed that core experience

nonessential, indeed inappropriate, for training its female citizen-soldiers.

VWIL students receive their “leadership training” in sem- inars, externships, speaker series, see 852 F. Supp., at episodes and encounters lacking the “[p]hysical rigor, mental stress, . . . regulation minute of behavior, and in- doctrination in desirable values” made hallmarks of VMI’s citizen-soldier training, see 766 F. Supp., at 1421.18 Kept away from pressures, hazards, and psychologicalbonding characteristic of VMI’s adversative training, see id., at 1422, VWIL students will not know the “feeling of tremendous accomplishment” commonlyexperienced by VMI’s successful cadets, id., at 1426.

Virginia maintains that these methodological differences “justified are pedagogically,” based on “important differ- ences between men and women in learning and develop- mental needs,” “psychological and sociological differences” Virginia describes as “real” and “not stereotypes.” Brief for Respondents (internal quotation omitted). marks The Task Force charged with developing the leadership pro- gram for women, drawn from the staff and faculty at Mary Baldwin College, “determined that a military model and, especially VMI’s adversative method, would wholly inap- propriate for educating and training most women.” F. Supp., at added). 476 (emphasis See also 3d, 1233-1234 (noting Task Force conclusion that, while “some women would be suited to [a interested in VMI-style experience],” VMI’sadversative method “would not be effec- tive for group” as a added)). (emphasis The Com- 18Both programs include an honor system. Students at VMI ex are pelled forthwith for honor code violations, see 766 F. Supp., 1423; system for VWIL students, see 852 F. Supp., 496-497, is less severe, see Tr. 414-415 (testimony of Mary Baldwin College Cynthia President Tyson).

550 expert as did view, Force Task embraced

monwealth Supp., F. 852 Virginia. See for testified who witnesses 480-481. at generalizations 541-542, at supra, stated, see earlier As appropriate is of what are,” estimates way women “the about to opportunity denying justify longer women, no most for outside place them capacity and talent whose women asserted never Virginia Notably, description. average also is It men. most suits education method VMI’s make to failure for accounted Virginia revealing that . experience entirely militaristic “the experience VWIL who women for planned “is VWIL ground that on VMI” 852 military careers.” pursue expect to necessarily not do “entirely milita- reasoning, VMI’s By that 478. Supp., at F. general inmen for inappropriate be would program ristic” enter cadets VMI 15% “[o]nly about for group, aasor 1432. Supp., at F. 766 See military service.” career on which women about generalizations to contrast In realities: dispositive these again note we rests, “inherently un- methodology” is “implementing VMI’s do ... women 899; “some at 2d, F. 976 women,” suitable 1434 at Supp., F. 766 model,” [the] adversative under well least, women, omitted); “some marks (internal quotation opportunity,” they had if [VMI] attend want would individual of the of all capable are women “some 1414; id., at “can id., cadets,” required activities men,” on impose[s] now [VMI] standards physical meet women of these behalf It 2d, them isit suit, instituted States United their end will remedy that crafted,19 remedy must nec alterations undoubtedly require would to VMI Admitting women living sex other from privacy sex of each members afford essary training programs. physical of the aspects adjust arrangements, (aca §4342 C. U. S. following 27-29; note cf. Petitioner Brief See Naval, Military, admitted standards other demic exclusion from a state-supplied educational opportunity for they which are fit, a decree that will “bar like discrimination in the future.” Louisiana, 380 S.,U. at 154.

B myriad In respects other than military training, VWIL quálify does not equal. as VMTs VWIL’s body, student fac- ulty, offerings, course and hardly facilities match VMTs. Nor can graduate the VWIL anticipate the benefits associ- ated with 157-year VMI’s history, the school’sprestige, and its influential alumni network.

Mary College, Baldwin degree whose VWIL students will gain, first-year enrolls women with an average combined SAT score points about 100 lower average than the score for VMI freshmen. 852 Supp., F. at 501. Mary Baldwin faculty “significantly holds fewer Ph. D.’s,” id., at 502, and substantially receives lower salaries, see Tr. (testimony of James Lott, Mary Dean of College), Baldwin than the faculty at VMI.

Mary Baldwin does not offer a VWIL range student the of curricular choices available to a VMI cadet. VMI awards baccalaureate degrees in liberal arts, biology, chemistry, civil engineering, electrical computer and engineering, and me- engineering. chanical See 852 Supp., F. Virginia 503; Mil- itary (Govt. Institute: More than an Education 11 exh. 75, Air and Force Academies “shall be the same as those required for male individuals, except for those minimum essential adjustments in such standards required because of physiological differences between male and individuals”). female Experience shows such adjustments are manage- able. See U. S. Military A. Academy, Vitters, Kinzer, N. Adams, & J. Re- port of Admission of Women (Project I-IV) (1977-1980) Athena (4-year longitudinal study of the admission of women Point); to West Defense Ad- visory Committee on Women Services, Report on the Integration and Performance of Women (1992). at West Point 17-18 a Court). attend students VWIL

lodged Clerk focus,” science and a math “does school any Mary Baldwin take they cannot 503; Supp., at physics and math advanced or engineering courses at 477. id., see offers, VMI courses multi- “two has Mary Baldwin training, physical For VMI at 503. Id., gymnasium.” “[o]ne and fields” purpose facil- field and track level indoor competition “an NCAA has and baseball, soccer fields; multi-purpose ity; number a wrestling boxing, large course; an obstacle fields; lacrosse run- indoor 11-laps-to-the-mile facilities; an arts martial and ranges; rifle outdoor indoor pool; indoor ning course; field practice contains also stadium football Ibid. track.” outdoor provide will represented Although students VWIL support for in-state equal financial agreed Foundation the VMI and 483, at id., cadets, difference 499, id., million, $5.4625 with VWIL endow pronounced. reserves financial schools’ the two between million, will currently about $19 endowment, Mary Baldwin’s commitments; future based million $35 additional gain public largest million—the endowment, $131 current VMI’s gain $220 Nation—will in the endowment college per-student 503. Id., million. advantage graduate with does student VWIL her not unite diploma does degree. Her a VMI distinguished them- [who] have “graduates legions of VMI 892- 2d, at F. See life. military civilian in selves” school,” close exceptionally are “[VMI] alumni 893. in success part, for VMI’s accounts, in closeness A VWIL Supp., F. See applicants. attracting own- business “network assume cannot graduate employ- non-graduate graduates corporations, ers, Supp., at F. graduates,” hiring VMI interested ... ers employment, search to her responsive equally bewill see 44 3d, at 1250 J., (Phillips, (“the dissenting) powerful political and economic ties of the VMI alumni network cannot expected open” for graduates of the VWIL fledgling program).

Virginia, sum, while maintaining VMI for men only, has failed to provide any “comparable single-gender women’s Id., at 1241. institution.” Instead, the Commonwealth has created a VWIL program fairly appraised as a “pale shadow” of VMI in terms of the range curricular choices and faculty stature, funding, prestige, alumni support and influence. id., See at 1250 J., (Phillips, dissenting).

Virginia’s VWIL solution is reminiscent of the remedy Texas proposed 50 years ago, response a state trial court’s 1946 ruling that, given the equal protection guaran- tee, African-Americans could not be denied a legal education at a state Sweatt v. Painter, 339 U. S. 629 See facility. (1950). Reluctant to admit African-Americans to its flagship of Texas University Law School, the State set aup separate school for Heman Sweatt and other black law students. Id., at 632. As originally opened, the new school had no inde- pendent or faculty library, it lacked accreditation. Id., at 633. Nevertheless, the state trial and appellate courts were satisfied that the new school offered Sweatt opportuni- ties for the study law “substantially equivalent to those offered State to white students at the University Id., Texas.” (internal at 632 quotation omitted). marks

Before this Court considered the case, the new school had gained “a of five faculty full-time professors; a student body of 23; a of library some 16,500 volumes serviced aby full-time staff; a practice court and aid legal association; and one alum- nus 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 ex- cluded. The of University Texas Law School had a full-time of 16, faculty a student of body 850, a library over containing moot and review, lawa funds, scholarship volumes, 65,000 632-633. Id., at facilities. court em the Court features, tangible the than important More objec incapable of are which qualities “those are phasized, school, in a greatness” make which but measurement tive including admin the of experience faculty, the of “reputation standing in alumni, the influence and position istration, Fac 634. at Id., prestige.” and community, traditions the opinion, Sweatt in the reported differences ing marked the “sub shown not had Texas unanimously ruled the Court opportunities” educational [separate] the equality stantial held, the Court Accordingly, at 633. Id., offered. the State African- admit required Texas Clause Equal Protection the Id., at School. Law University Texas the Americans Virginia has here rule Sweatt, we with line In 636. educational separate the equality substantial shown not C VWIL and VMI. supports Commonwealth opportunities Circuit Fourth plan, the VWIL tendered When approved remedy, proposed whether inquire did advantage VMI denied placed Court, District absence occupied in they would position “the (internal quo- S., 433 U. Milliken, [discrimination].” con- Appeals omitted). Court Instead, marks tation fi- provide, could Commonwealth whether sidered unequal and separate principle, protection equal delity to the women. men programs educational degree VWIL “the acknowledged that Circuit Fourth The benefit historical College lacks Baldwin Mary from 3d, VMI.” degree from of a prestige ongoing “an is observed Appeals further re- there history,” and long awith institution successful institution.” women’s single-gender “comparable no mains substan- declared court appeals Nevertheless, Ibid. sat- program unequal VWIL significantly tially different isfactory. The court reached that result revising ap- plicable standard of review. The Fourth Circuit displaced the standard developed in precedent, our supra, see at 532- 534, and substituted a standard of its own invention.

We have earlier described the deferential review in which Appeals Court of engaged, see supra, at 528-529, a brand of review inconsistent with the more exacting standard our precedent requires, supra, see at 532-534. Quoting part from Mississippi Univ. Women, the Court of Appeals candidly described its analysis own capable one of check- ing legislative purpose ranked as “pernicious,” gener- but ally according “deference [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 [single-gender education],” the Court Appeals devised another test, a “substantive com- parability” inquiry, id,., at 1237, proceeded to find that new test satisfied, id., at 1241.

The Fourth Circuit plainly erred in exposing Virginia’s VWIL plan to a analysis, deferential gender-based “all today” classifications warrant “heightened scrutiny.” See B., J. E. 511 U. S., at 136. Valuable as may VWIL prove students who seek program Virginia’s offered, remedy affords no cure at all for the opportunities and advantages withheld from women who want a VMI education and can grade. make supra, See at 549-554.20 In Virginia’s sum, 20Virginia’s prime concern, it appears, is that “placfing] men and women into the adversative relationship inherent in the VMI program . . . would destroy, at least for that period of the adversative training, any sense of decency that still permeates the relationship between the sexes.” 44 F. 3d, 1239; see supra, at 540-546. It is an ancient and familiar fear. Compare In re Goodell, Lavinia (1875) Wis. (denying female applicant’s motion for admission to the bar of court, Wisconsin Supreme Court explained: “Discussions are habitually necessary in courts of justice, which are unfit for female ears. The presence habitual of women at these would tend to relax the public sense of decency and propriety.”), with Levine, Closing Comments, 6 Law & (1988) Inequality 41 (presentation at the Com- violation; the constitutional match not does

remedy justifica- persuasive “exceedingly no shown monwealth the experi- for women qualified from withholding for tion” affords. kind the of training ence premier VII Virginia controlling authorities “the ago, A generation tradition, agreed established long education,” despite higher relatively [then] entertained] favorably innovate “to of- in sex discrimination no be must there that idea new at F. Supp., Kirstein, opportunity.” educational fering “edu- women opened 1970, Virginia in Commencing 186. that campus Charlottesville at opportunities cational institutions.” [state-operated] in other afforded not [were] approved court federal A 538. at supra, 187; see Id., Univer- that innovation, emphasizing Commonwealth’s avail- not ... of instruction courses “offer[ed] of Virginia sity further court The F. Supp., able elsewhere.” factor a ‘prestige’ at Charlottesville exists “[T]here noted: 17,1987) Colo.,July Springs, Conference, Colorado Judicial Circuit Eighth omitted): (footnotes opportunity equal afforded be should whether questioned “Plato Ironically, society. Platonic of Rulers elite those guardians, become na- women’s Republic, government, of system undemocratic most con- seriously questioned. not was guardians serve ability tive all candidates which class exercise wrestling and over was cern training mental physical rigorous participate, had guardianship in ac- And of guardian. status exalted to attain prerequisites were in the conducted were classes exercise custom, those Greek cord naked- women’s clothe would virtue their concluded Plato nude. talent of deprived thereby not would society Platonic ness gender.” mere reasons citizens qualified Plato Dialogues 2 The women, see equality on the text full Plato’s For to ancient bound 1953). Virginia, transl., ed. 4th (B. Jowett 302-312 programs, training” mental physical “rigorous custom Greek on “the draw necessary accommodations make readily more could 550-551, n. 19. supra, Cf. citizens.” qualified [all] talent [not paralleled in] other educational institutions.” Ibid. VMI, too, offers an opportunity educational no other Vir-

ginia provides, institution and the “prestige” school’s —asso- ciated with its success in developing “citizen-soldiers”—is unequaled. Virginia has closed this facility daughters to its and, instead, has devised for them a “parallel program,” with faculty less impressively credentialed and paid, less well more limited offerings, course opportunities fewer for mili- tary training and for specialization. scientific Cf. Sweatt, 339 S.,U. beyond 633. VMI, question, “possesses to fara greater degree” than the program VWIL qualities “those which incapable are objective of measurement but which greatness make for in a . . . school,” including “position and influence of the alumni, standing in the community, tra- prestige.” ditions and Id., at 634. seeking Women and fit for a VMI-quality education cannot be anything offered less, under the obligation Commonwealth’s genu- them afford inely equal protection. prime

A part of history the of our Constitution, historian Richard Morris recounted, story is the of the extension of rights constitutional protections people ignored once or excluded.21 story VMI’s continued as comprehen- our sion of People” “We expanded. the supra, See at 532, n. Morris, 21 R. The Forging of Union, the 1781-1789, p. (1987); id., 193 see 191, setting out letter to a friend from (later patriot Massachusetts President) second Adams, John on the subject of qualifications for voting

in his home State: “[I]t is dangerous to open so fruitful a source of controversy and alterca- tion as would opened by attempting to alter the qualifications voters; of there will be no end of it. New claims arise; will women will demand a vote; lads from twelve to twenty-one will think their rights not enough to; attended and every man who has not a farthing, will demand an equal voice with other, any in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level.” Letter from John Adams to James Sullivan (May 1776), in 9 Works of John (C. Adams 1854). 378 Adams ed. admission believe reason no is

There would cadets required activities all capable capacity enhance than rather Institute destroy Union.” perfect “more serve

[*] ^{[*] [*]} the Court judgment initial stated, reasons For final affirmed, is 1992), (CA4 2dF. of Appeals, 1995), (CA4 3d 44 F. of Appeals, the Court judgment further proceedings is remanded case reversed, opinion. consistent ordered. sois It or consideration no part took Thomas Justice cases. of these decision the judgment. concurring Rehnquist, Justice

Chief Pro the Equal violates Virginia first holds Insti Military maintaining Clause tection second policy, admissions all-male (VMI’s) tute’s Leadership Institute Women’s the Virginia establishing IWhile violation. that remedy does (VWIL) program Court’s with disagree I conclusions, these with agree write separately. Iso analysis I 190, 197 S.U. Boren, 429 v. Craig ago decades Two chal constitutional withstand “[t]o announced (1976), we important serve must by gender classifications ... lenge, related substantially must objectives governmental adhered We objectives.” those to achievement v. Gold See since. ever scrutiny Califano standard Webster, 430 v. (1977); 210-211 199, Califano U. S. 430 farb, (1979); 268, 279 S.U. Orr, 440 v.Orr (1977); 313, 316-317 S.U. v. Davis (1979); 388 380, S.U. Mohammed, 441 v. Caban Personnel (1979); 9 235, n. 234-235, 228, S.U. Passman, 442 (1979); 256, 273 S.U. Feeney, v. Mass. Administrator v. Westcott,443 (1979); U. S. 76, 85 Califano Wenglerv. Drug gists Mut. Ins. Co., 446 U. (1980); S. Kirchberg v. Feenstra, 450 U. 455, S. (1981); 459-460 Michael Supe M. v. rior Court, Cty., Sonoma 450 U. S. (1981); 464, 469 Missis sippi Univ. Women Hogan, v. (1982); U. S. 718, 724 Heckler v. Mathews, 465 bama ex rel. T.B., 511 U. (1984); U. S. 728, 744 J. E. B. v. Ala (1994). S. 127, 137,n. 6 While the majority adheres to this today, test ante, 524, 533, it also “ says that the Commonwealth must demonstrate an ‘exceed ingly persuasive justification’” to support gender-based classification. See ante, at 524, 529, 530, 531, 533, 534, 545, 546, 556. It is unfortunate that the thereby introduces an element of uncertainty respecting appropriate test. While terms “important like governmental objective” and “substantially related” are hardly precision, models of they have more content ceedingly persuasive justification.” specificity than does phrase “ex- phrase That is best con- fined, as it was first used, as an observation on the difficulty meeting the applicable test, not as a formulation of the test itself. g., See, e. Feeney, supra, (“[Tjhese at 273 prece- dents any dictate that state law overtly or covertly designed prefer males over females in public employment require an exceedingly persuasive justification”). To avoid intro- ducing potential confusion, I would have adhered more closely to our “firmly traditional, Hogan, established,” supra, at 723; supra, Heckler, at 744, standard gender-based that a classification “must bear a close and substantial relationship important governmental objectives.” Feeney, supra, at Our cases dealing gender discrimination require also proffered purpose for the challenged law be actual purpose. See ante, at 533, 535-536. It is on this ground that the rejects Court the first justifications of two Virginia offers for single-sex VMI’s admissions policy, namely, goal the of diversity among public its educational institutions. While I ultimately agree that the Common- I dis- justification, day with this the carried not

wealth issue. the analyzing of method the Court’s with agree ante, notes, Court the as and, 1839, in founded was the under because men to limited was 536-537, admission at then-prevailing destined were women, men, not view view point of this misguided However higher education. unconsti- surely was standards, it present-day may be Amend- Fourteenth the adoption of The 1839. in tutional years nearly 30 Clause, was Protection Equal with ment, Equal Protection interpretation The future. in gender discrimina- scrutiny for heightened require to Clause away. century yet another was tion Amendment, Fourteenth adoption of Long after men between legal century, distinctions into well and under question no raise to thought were women decision our to refers Court The Clause. Equal Protection repre- (1948). Likewise S. Cleary, U. v. Goesaert in Florida, 368 Hoyt v. was view abandoned senting now system of Florida a upheld (1961), Court where 57S.U. placed on automatically were men which selection jury they ex- only if there placed were women but lists, jury noted Court The serve. desire affirmative pressed “woman opportunities, women’s despite advances Id., family life.” home center as the regarded still 71, which S. Reed, U. v. Reed decided we Then, facts itsBut case. a seminal as correctly refers the Court of educational any sort admissions nothing to do administration governing statute Idaho An institution. other if to men preferred probate estates purpose, statute’s equal. were statutory qualifications hearings to avoid was Court, Supreme Idaho according the a man between qualified better was who determine This administration. letters applying both woman Amend- Fourteenth violated rule such held either to members preference mandatory “a because ment sex over members of the other, merely to accomplish the elimination of hearings,” was an “arbitrary legislative choice forbidden Equal Protection Clause.” Id., at 76. The opinion brief in Reed made no mention of either Goesaert Hoyt. or

Even at the time 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 develop- ments years were 11 in coming. In Mississippi Univ. for Hogan, Women v. supra, a case actually involving single- sex policy admissions higher education, the Court held that the exclusion of men from a nursing program violated Equal Protection Clause. This holding place did Vir- ginia on notice that VMI’s men-only policy admissions was open to question. serious The VMI Board of Visitors, in response, appointed a Mis- Study sion Committee to examine “the legality and wisdom single-sex VMI’s policy light Hogan. of” 766 Supp. (WD 1991). 1407, 1427 Va. But the committee up ended cryptically recommending against changing VMI’s status as single-sex college. years After three study, the commit- “ ” tee found ‘noinformation’ that would warrant a change VMI’s status. Id., 1429. Even the District Court, ulti- mately sympathetic to position, VMI’s “[t]he found that Re- port provided very little indication [its] how conclusion was reached” and “[t]he one and pages one-half in the report committee’s final devoted analyzing the information it obtained primarily focuses anticipated difficulties in at- tracting females to VMI.” Ibid. The given reasons in report for not changing policy were the changes admission of women to VMI require, would and the likely effect of changes those on the institution. That VMI would change have to is simply helpful in addressing the consti- tutionality of the status after Hogan. justify VMI’s sought to Virginia has Court, this Before that basis on the primarily policy admissions

single-sex most while that desirable, is diversity in education Common learning the in higher public institutions the for room also be should coeducational, there are wealth there, that the Court with agree I institutions. single-sex reason real the was that record the in evidence is scant But, only.* as men maintain Virginia decided that that only evidence consider I would majority, the hnlike nega no draw would Hogan, and decision our postdates before actions Commonwealth’s the from inferences tive Commonwealth Hogan, the after that think I time. that VMI, respect to policy with its reconsider entitled was thereof, held lack or justifications, earlier to have not against it. the were opportunity educational diversity in if Even the Commonwealth’s objective, actual Commonwealth’s difficulty The problematic. be still would position sex; there one only diversity benefited the that is position VMI, at for men available education public single-sex was available education public single-sex corresponding no but that notice on placed Hogan When women. for interest “asserted VMI’s that conclusion our equates dissent *The ” “ diversity that “charge” awith ‘genuine,’ not diversity” promoting Post, 579- women.” against discriminating for pretext is “a rationale not read doI thing. same not course, are those Of 580. discrimination, and pretext ais diversity rationale that saying diversity was that find mayWe a proposition. such not endorse I would having or suggesting, without reason real Commonwealth’s not cases Our at 580. “antifeminism,” post, was reason real show, that classi- gender challenged purpose proffered that require simply See recorded. necessarily not although purpose, the actual fication diversity interest says also dissent ante, 535-536. Post, its face.” is “absurd it articulate having transparent is so Study Mission obvious was rationale Apparently, VMI’s maintaining its reasons among list failed to which Committee policy. admissions all-men policy VMI’s admissions possibly was unconstitutional, VMI could have dealt problem with the by admitting women; governing but its body strongly felt that the admission of seriously would have harmed the institution’s edu- approach. cational Was there something else the Common- wealth could have done to equal avoid protection viola- tion? Since the Commonwealth nothing, did we do not have to definitively question. answer that

I do not think, however, that the options Commonwealth’s were as limited as the majority may imply. The Court cites, expressly without approving it, a opinion statement from the of dissenting the judge in the Appeals, Court of to the effect that the Commonwealth could have “simultaneously opened single-gender undergraduate having institutions substan- tially comparable curricular and programs, extra-curricular funding, physical plant, administration and support services, faculty and library (inter- resources.” Ante, at 529-530 quotation omitted). nal marks If this thought is statement to possibilities, exclude other it stringent is too requirement. a operation had been in for over century a and a half, and an had established, successful, and group devoted of alumni. legislative No wand instantly could call into existence a similar institution for women; and it would be a tremendous scrap loss history VMI’s In tradition. the words Grover Cleveland’s inaugural second address, the Common- wealth faced a theory. condition, not a And it awas con- dition that brought had been about, through not defiance construing decisions gender bias Equal under the Pro- tection Clause, but, until the Hogan, in decision a condition that had appeared to offend the Constitution. Had Vir- ginia genuine made a effort comparable public devote re- sources facility ato for women, and through followed on such plan, might it well equal have protection avoided an viola- tion. I do not believe the Commonwealth was faced with the stark choice of either admitting women to VMI, on the for starting scratch from abandoning VMI hand, or

one other. the women, men both of VMI board governing noted, neither I have as But, If di- 1982. after any action took the Commonwealth nor coeducational, aswell as single-sex, form versity Vir- available to be learning were higher institutions well as available to be diversity had ginians, men. toas all- four “disregarding forme criticizes dissent The by assisted (generously Virginia colleges in private women’s colleges private women’s funds).” Post, at public other exactly all by the Commonwealth treated are provision includes which treated, are schools private Virginia residents. grants of tuition-assistance education. single-sex women’s to the support special gives no education. men’s not true same obviously, But support for kind provided Commonwealth Had may VMI, provides schools women’s private doing, Com- soin For case. very different been have pro- interest demonstrated would monwealth measure some towas men single-sex education viding a opportunity same providing interest matched women. single-sex ad- justification a second Virginia offers I method. adversative maintenance policy: missions an serve not does justification this that the Court agree with have not does A State objective. governmental important methodology unless adversative in interest substantial evidence considerable While beneficial. pedagogically it is beneficial pedagogically is education single-sex a that shows a hence 1414, Supp., students, see some methodol- promoting in interest valid may a have State adver- record evidence similar is no ogy, there any more isor beneficial pedagogically method sative methodologies. other than traits character likely produce

II The Court defines the constitutional violation in these cases as categorical “the exclusion of women from an extraordinary educational opportunity afforded to men.” Ante, By at 547. defining the violation in way, by emphasizing that remedy for a constitutional violation place must the victims of discrimination in position “‘the they would occupied in the [discrimina- absence of ” tion],’ ibid., the Court necessarily implies only that the ade- quate remedy would be the admission of women to the all- male institution. As the foregoing suggests, discussion I would not define the violation way; in this it is not the “exclu- sion of women” that Equal violates the Protection Clause, but the maintenance of an all-men school providing without any comparable less for women. —much —institution Accordingly, remedy should necessarily require either the admission of women to VMI or the creation of a VMI clone for women. adequate An remedy my opinion might be a by demonstration Virginia that its interest in edu-

cating single-sex men in a environment is matched interest in educating single-sex women in a institution. To demonstrate such, the Commonwealth does not need to cre- ate two institutions with the same faculty number of D.’s, Ph.

similar SAT comparable scores, or athletic fields. ante, See at 551-552. Nor would it necessarily require women’s institution offer the same curriculum as the men’s; one strong could be computer science, the other could be strong in liberal arts. It would be a remedy, sufficient I think, if the two institutions offered the quality same education and were of the same overall caliber.

aIf State decides to single-sex create programs, the State expect, would, I consider public’s interest and demand in designing curricula. rightfully And so. But the State assuming should avoid demand based on stereotypes; it must not priori, assume a without evidence, that there would be inor engineering, civil of school women’s ain interest

no nursing. of school a men’s proposes, Virginia institution women’s end, the the In to distinctly inferior it is remedy, because as a VWIL, fails for the to be continue will existing institution men’s the the any sense, not, simply is VWIL future. foreseeable program ais VWIL particular, In is. that institution institution; self-standing a college, not private ato appended compared to as substantially underfunded is VWIL Vir- that agree with the ultimately I therefore VMI. remedy. adequate an provided not has ginia dissenting. Scalia, Justice served that institution down shuts Today the Court pride and Virginia with of Commonwealth of people To achieve half. a century and over distinction prac- our established (contrary to rejects result, it desired sweeps aside below, courts two findings of tice) factual history our ignores Court, and precedents finding that rejects the explicitly It facts: toAs people. sup- differences” developmental “gender-based exist there method “adversative” of the Virginia’s restriction porting all-male finding that institution, only men’s (VMI) es- Military Institute of the composition It precedent: to As character. institution’s sential reviewing standards established our drastically revises history: counts It to And classifications. sex-based present, to. the enduring down tradition, long nothing the States both supported colleges military men’s (cid:127) Government. Federal deprecating is devoted opinion the Court’s of Much women’s regard with forebears our closed-mindedness treatment regard to with even education, and Closed- education. with do nothing to areas own, including our age is, every they were—as minded simply does it because guess, cannot matters regard

consider them debatable. The virtue of a democratic system with a First Amendment is that it enables the readily people, over time, to be persuaded what took they for granted is not so, and to their change laws That accordingly. system if destroyed the smug assurances of each are age removed from the democratic process and written into the Constitu- tion. toSo counterbalance the Court’s criticism of our an- let cestors, me a word in say their praise: left They us free to change. same cannot be said of this most illiberal Court, which has embarked on a course of one inscribing after another of the current preferences (and of the society in some cases only countermajoritarian preferences of the society’s elite) law-trained into our Basic Law. Today enshrines the notion that no substantial educational value is to be served by all-men’s military academy —so by .decision people to Virginia maintain such an institu- tion denies equal protection women who cannot attend 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 I shall devote most of my analysis evaluating

Court’s on the opinion basis of our current equal protection jurisprudence, which regards this Court as free to evaluate under the everything sun by one of applying three tests: “ra tional basis” scrutiny, intermediate or strict scrutiny, scru tiny. These tests are no more scientific than their names suggest, a further element of randomness is added by the fact that it is largely up us which test will be applied in each case. Strict we have scrutiny, said, is reserved for state “classifications based on race or national origin classifications affecting fundamental Clark v. Jeter, rights,” 486 U. (citation (1988) S. omitted). It is my position that the term “fundamental rights” should be limited “in terest[s] traditionally protected our society,” Michael H. opinion of (1989) (plurality 110, 122 U. S. 491D.,

v. Gerald view, so that accepted that J.); but Scalia, whatever deprivation applied scrutiny will strict estab- have no We “fundamental.” consider right we of sort essen- either, but scrutiny” “intermediate criterion lished the dice. load to good idea a like seems it it when tially apply that restrictions to content-neutral applied been it has far So attendant to disabilities speech, on burden incidental place of sex. the basis to discrimination illegitimacy, and FCC, 512 v. Inc. System, Broadcasting e.g., Turner See, 98-99 91, U. Habluetzel, 456 S. (1994); v.Mills 662 622, U. S. (1982); (1976). 190, 197 S. Boren, U. Craig v. such tests of abstract system awith problem no I have (though scrutiny strict intermediate, and basis, rational scrutiny strict applying than better do can we think I it). Such like feel we scrutiny whenever intermediate restric new evaluating whether are essential formulas pri upon constantly imposes society changing a that tions soci our protection” “equal that comport with conduct vate my view past. But in the always accorded ety has re society’s values our preserve is to this Court of function to revise not protection, equal things) (among other garding degree restriction of backsliding from prevent them; to government, upon democratic imposed Constitution de higher authority, progressively own on our prescribe, abstract that, whatever my view is it reason grees. For supersede they cannot devise, may choose —and we tests constant toas so be crafted ought to indeed reflect—those people’s embody traditions national and unbroken spe More texts. ambiguous constitutional understanding of expressly practice not “when my view cifically, it endorse Rights bears ofBill of the by text prohibited unchal widespread, and open, of long tradition aof ment Republic, of beginning back lenged that dates use v. Rutan striking down.” it proper basis no we (1990) J., 62, 95 S. Ill., 497 U. Party (Scalia, Republican dissenting). applies, The same mutatis prac mutandis, to a tice asserted to be in post-Civil violation of the War Four teenth g., See, Amendment. e. Superior Burnham v. County Cal., (1990) Marin, 495 U. S. 604 (plurality opin (Due

ion Clause); Process J. E. B. v. Alabama J.) Scalia, (1994) ex B., rel. T. 127, 156-163 U. S. J., dissent (Scalia, ing) (Equal Clause); Protection Planned Parenthood of Casey, Southeastern Pa. v. U. S. 979-984, 1000-1001 (1992) (various dissenting) alleged “penumbras”). (Scalia, J., The all-male constitution of squarely VMI comes within a governing such tradition. by Founded the Commonwealth in 1839 and continuously maintained it since, always VMI has only admitted men. regard And in that has not been unusual. For almost all of VMI’s more than century and a half of existence, single-sex status reflected practice uniform for government-supported military col- leges. Another famous Southern institution, The Citadel, has existed as a state-funded school of South Carolina since 1842. And all the military federal colleges Point, —West the Naval Academy Annapolis, even the Air Force Academy, which was not established until 1954—admitted only males for most history. of their Their admission of (upon in which the today Court relies, see 15) ante, at 544-545, 13, nn. by came not court decree, but people, because the through their representatives, elected § decreed change. e.g., 803(a), See, 89 Stat. 537, note §4342. following 10 U. S. C. In other words, the tradition having of government-funded military schools for men is as well rooted in the country traditions of this as the tradition of sending only men military into people combat. may decide to change the one tradition, like the through other, processes; democratic but the assertion that either tradition has been through unconstitutional the centuries not is law, but politics-smuggled-into-law.

And applies, the same broadly, more single-sex educa- general, tion in which, as I shall discuss, is by threatened sup federal state all of cutoff decision today’s institutions educational woranilitary Government-run port. been part also recently very until sexes two for the historically, [c]oeducation, is] “[It tradition. national of our school From grade theory. educational novel is a [that] and professional and graduate school, college, high through our of much during population Nation’s of the much training, class segregated sexually educated been history Hogan, U. S. v. Women Mississippi Univ. rooms.” id., see dissenting); J., (Powell, 736-739. (1982) 718, 736 democratic by be changed course ofmay traditions These have been. largely as they of the people, decisions rever- Virginia, upon forced is however, change Today, nationwide, by not is prohibited education single-sex sion while Even this Court. order but processes democratic concern- notions” “fixed days bygone sorry, bemoaning 537- 10, n. 536-537, and ante, education, see women’s ing fixedly so notions current favors 542-544, the United the Constitution into them write willing it is This “tests.” custom-built by application States one. creation Constitution, but aof interpretation I I is not however, today, disposition Court’s reject To tests made-up Court’s view my to accept necessary the pri- traditions national longstanding displace cannot is It means. the Constitution what determinant mary been the test honestly to apply necessary only dec- two the past classifications sex-based applying some stated settled, as O’Connor Justice It is well ades. statutory evaluate we Court, that a unanimous ago time “[be- lies standard under sex based classification scru- strict review basis rational extremes th[e] tween denomi- haveWe at 461. Jeter, 486 U. S., Clark v. tiny.” it under scrutiny” “intermediate this standard nated “sub- is classification statutory whether inquired stantially related important governmental objective.” Ibid. g., See, e. Heckler v. Mathews, 465 U. S. 728,

(1984);Wengler Druggists v. Mut. Co., Ins. 446 U. S. 142, 150 (1980);Craig v. Boren, 429 S.,U. at 197. (cid:127) proceed Before I apply this standard to VMI, I must upon comment the manner in which the Court doing avoids so. Notwithstanding our precedents above-described “ ” ‘firmly their principles,’ established supra, Heckler, at 744 (quoting Hogan, supra, 723), the United urged States us to hold in litigation “that scrutiny strict is the correct constitutional standard for evaluating classifications. that deny opportunities to individuals based on their sex.” Brief for United States (This in No. p. 94-2107, was in flat contradiction of the position Government’s below, which was, in its own words, “stat[e] unequivocally ap- that the propriate standard in this case is scrutiny.’” ‘intermediate 2 Record, Doc. p. added).) No. (emphasis The Court, while making no reference to the argument, Government’s effectively accepts it.

Although the Court places in two recites the test as stated see ante, Hogan, at 524, 532-533, which asks whether the State has demonstrated “that the classification impor- serves governmental tant objectives and that the discriminatory means employed are substantially related to the achievement objectives,” of those (internal S., U. at 724 quotation omitted), marks the Court never question answers the pre- sented anything resembling that form. When engages analysis, the Court prefers instead phrase “exceed- ingly persuasive justification” Hogan. from The Court’s nine invocations of phrase, see ante, at 524, 529, 530, 531, 533, 534, 545, 546, 556, and even its descrip- fanciful tion imponderable as “the core instruction” of the Court’s decisions in J. E. B. v. Alabama ex rel. T. B., supra, Hogan, supra, see ante, at 531, would unobjection- if able the Court acknowledged that “justification” ivhether a persuasive” “exceedingly must be assessed asking

572 governmental important serves classification the

“[whether] employed discriminatory means the [whether] and objectives objec- those achievement the to substantially related are interpret to proceeds the Court however, Instead, tives.” con- that fashion ain justification” persuasive “exceedingly precedents. other our Hogan and reasoning of the tradicts only be can result, which the Court’s to essential is That scrutiny not is intermediate establishing that achieved attending interested women some are if there survived meet able activities, and undertaking its capable VMI, hold- its summarizes Court Thus, the demands. physical follows: ing as women about generalizations contrast “In re- dispositive these again note we rests,

which inher- is methodology implementing VMI’s alities: under well do women some women; ently unsuitable would least, at women, model; some adversative some opportunity; they had if VMI attend want re- activities individual all capable are women stand- physical meet can and cadets quired of VMI (internal 550 Ante, at men.” imposes on now VMI ards em- omitted; punctuation citations, marks, quotation added). phasis justi- “[t]he Commonwealth’s states Similarly, train- ‘citizen-soldier’ from women excluding all

fication ‘exceed- rank cannot ... qualified are some which ing 545.1 Ante, at .”.. ingly persuasive’. citizen- producing goal sum..., neither (“In ante, at Accord, in is methodology implementing d’etre, VMI’s nor raison

soldiers, VMI’s omitted; empha marks (internal quotation to women” herently unsuitable can Commonwealth is whether (“[T]he question ante, added)); at sis training capacity, will who deny to constitutionally ante, 547-548 affords”); uniquely VMI opportunities attendant ready, to women denied been] [has protection “equal (the “violation” kind of the opportunities educational from benefit able willing, 541-542, gen- supra, stated, see (“As earlier ante, offers”); Only amorphous “exceedingly persuasive justification” phrase, and not the standard elaboration of intermediate scrutiny, can be made yield this conclusion that VMI’s single-sex composition is unconstitutional because there exist (or, several women one would have to conclude under the Court’s reasoning, woman) single a willing and able to undertake program. VMI’s Intermediate scrutiny has required never a analysis, least-restrictive-means only but “substantial relation” between the classification and the state interests that it serves. Thus, in v. Webster, 430 Califano (1977) U. S. 313 curiam), (per upheld we 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 require did not proof that each woman so benefited had suffered discrimination or that each disadvantaged man had not; it was sufficient that even under the congres- former sional scheme “women on the average received lower retire- ment benefits than men.” Id., at 318, and (emphasis n. 5 added). The reasoning in our other intermediate-scrutiny cases has similarly required only a substantial relation be- tween end perfect means, not a fit. In Rostker v. Gold- berg, (1981), 453 S.U. 57 we held that selective-service regis- tration could constitutionally exclude women, because even “assuming that a small number of women could be drafted for noncombat Congress roles, 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. (1990), 579, 582-583 overruled grounds, other Adarand Constructors, Inc. Peña, v. 515 U. S. (1995), 200, we held that a classification need every accurate “in case” to survive scrutiny intermediate so long as, “in aggregate,” it advances the underlying eralizations about ‘the way women estimates of what is appropriate are/ for women, most no longer justify denying opportunity to women whose talent and capacity place them outside the average description”). cases our support simply no is There objective. re- unless invalid classification a sex-based

notion every instance. true in hold characteristics lates in abandonment a de to execute content Not facto sex-based standard our been scrutiny termediate purports decades, the Court two some classifications higher principle, whether, even question reserve Court “The apply. scrutiny) should (i. strict e., standard scru judicial stringent most reserved says, “thus it has,” far origin .,” .. national or race on based tiny classifications for ear our added); it describes (emphasis 6 532, n. ante, “equat[e] to decline than more no having done as cases lier classifications to purposes, all classifications, gender for (emphasis 532 ante, at origin,” national or race based is that statements thing these about added). The wonderful actually be not it would just as actually not they are false— ‘be reserved far thus have cases “our say that to false criminal proof standard doubt’ reasonable yond a pur all actions, tort equated not have “we cases,” or are statements But prosecutions.” criminal to poses, already not we suggest they as misleading, insofar to sex- inapplicable scrutiny be to strict held categorically Mathews, 465 v. g., Heckler e. See, classifications. based only applying after action (1984)(upholding state 728 S.U. Court, So Superior M. v. scrutiny); Michael intermediate concur (1981) both (plurality S. Cty,, U. moma (per cu supra Webster, v. (same); opinions) ring Califano insofar irresponsible, are riam) (same). the statements And task Our law. current destabilize they calculated are waters, muddy law—not clarify the to States The by intimidation. overcompliance exact they act to know entitled are before Government Federal compelled be than rather held, be they will which standard peek-a-boo. Supreme outcome guess about place be- out particularly are intimations Court’s applica- of the question that, if clear perfectly is it cause ble standard of review for sex-based classifications were to as an regarded appropriate subject reconsideration, the stronger argument would be not for the stand- elevating ard to strict but for scrutiny, reducing to rational-basis review. The latter has a certainly firmer foundation in our past jurisprudence: Whereas no of the majority Court has ever strict applied in a case scrutiny sex-based involving classifications, we routinely applied rational-basis review g., see, e. Hoyt v. Florida, 368 U. until the 1970’s, 57S. (1961); Goesaert v. Cleary, (1948). U. S. 464 And of course nor- mal, rational-basis review of sex-based classifications would be much more in accord with the genesis heightened standards of judicial review, the famous footnote in United States v. Carolene Products Co., 304 U. S. 144 (1938), which said (intimatingly) we did not have to inquire the case at hand

“whether prejudice against discrete and insular minori- ties be a may special condition, which tends to seriously curtail the of operation those political ordi- processes be narily relied upon protect minorities, and which call for may more correspondingly searching judicial Id., inquiry.” 152-153, n. 4. is

It hard to consider women a “discrete and insular minor- it[y]” unable the employ “political processes ordinarily be relied upon,” when they constitute a of the elec majority torate. And the suggestion that are they of incapable exert that ing political power smacks of the same paternalism that the Court so g., roundly condemns. See, e. ante, at 536-537, (and 542-546 notes). accompanying Moreover, a list of long legislation g., proves proposition false. See, e. Equal Pay Act 1963, 29 § U. S. C. 206(d); Title VII of the Civil Act

Rights of 1964, 42 U. S. C. §2000e-2; Title IX of the Edu cation Amendments of 1972, 20 U. § S. C. 1681; Women’s Busi

ness Act of Ownership 1988, Pub. L. 100-533, 102 Stat. 2689;

576 103-322, Title L. 1994,Pub. ofAct Against Women

Violence Stat. IV,

III in succeeded has Court howof explanation this With if intima- indeed, orthodox—and analysis seem making its VMI—I overly generous even believed, to be are tions been have analysis should how describe proceed to now is repeat, I answered, to be question The conducted. “substantially isVMI from exclusion whether objective.” governmental important to an related A important state an that question beyond isIt citi- college education effective providing interest substan- approach is instruction single-sex That zens. enough from evident should interest to that tially related country of men’s history continuing long Appeals as the that, beyond colleges. But women’s college education single-gender “That stated: here in this established is a sexes to both beneficial fact level added). 1995) (CA4 (emphasis 1229, 3dF. case.” overwhelming— was establishing fact that evidence court words “virtually uncontradicted” indeed, (WD Va. Supp. 766 F. evidence, received trial Virginia demonstrated matter, 1991). initial As an scholarship and contemporary body of “[a] substantial although males that, proposition supports research they overlap, developmental areas significant females deep- are needs developmental differing also that questioned one no 1434. While Id., seated.” nonetheless was environment coeducational many students demonstrated obscure not could inappropriate, not District example, the colleges. For single-sex benefits follows: stated questioned evidence, study in empirical “One pro- colleges single-sex expert, demonstrates any vide better experiences educational than coeducational institutions. Students of both sexes become more academically involved, interact faculty frequently, larger show increases in intellectual self-esteem and are more satisfied with practically aspects all of college ex- (the perience exception life) sole is social compared with their counterparts in coeducational institutions. At- tendance at an all-male college substantially increases the likelihood that a carry student will out plans career in law, business college teaching, and also has a sub- positive stantial on starting effect salaries in business. colleges Women’s increase the chances that those who attend will positions obtain of leadership, complete the degree, baccalaureate aspire higher degrees.” Id., (factual See id., also at 1434-1435 findings). “[I]n light very substantial authority favoring single-sex educa-

tion,” the District Court concluded that “the YMI Board’s decision to maintain an all-male justified institution fully even taking without into consideration the unique other fea- tures of teaching VMI’s and training.” Id., at 1412. This finding alone, which even this Court dispute, cannot see ante, at 535,should be sufficient to demonstrate the constitutional- ity of VMI’s composition. all-male

But single-sex besides its constitution, VMI is different from other colleges in way. another employs It a “distinc- tive educational method,” sometimes referred as the “ad- versative, or doubting, model of education.” Supp., 766 at 1413, 1421. “Physical rigor, mental stress, absolute equality of treatment, absence of privacy, regulation minute of behavior, and indoctrination in desirable values are salient attributes of the VMI experience.” educational Id., at 1421. No one contends that this method is appropriate for all individuals; education is not a “one size fits all” busi- ness. Just as a may State wish support junior colleges, vocational institutes, or a law school emphasizes case

578 decision a State’s too so study, of classroom instead

practice the that provides school one its system within to maintain its goal to related” “substantially is method adversative the “if that uncontested it was Moreover, education. good e., adversa- [i. VMI-type a women’s establish to were state insufficient an attract would the program tive] program, 3d, work,” the program make to of participants number Vir- if that Court District the by found it was and 1241; even- “would school the VMI, in women include were ginia alto- system adversative the drop necessary find tually were options Thus, Virginia’s F. Supp., gether,” adversa- no or excludes that method adversative an at all. method tive Court District that, as dispute no serious be can There educational distinctive education found, single-sex diversity contributions legitimate “represent method a theo- As Ibid. system.” education higher Virginia have would interest educational matter, Virginia’s retical men- we factors two as the (insofar served best been col- of public types different concerned) six are tioned coeducational and a all-women’s, an all-men’s, leges —an all-men’s, an method,” “adversative in the run college “tra- run college coeducational all-women’s, an Vir- course, matter, aas practical But method.” ditional limitless, not State’s, are any like resources, financial ginia’s available among select must Commonwealth in addition fund, decided has thus Virginia options. run that college one colleges, 4-year coeducational some the Virginia model: adversative on school all-male Institute. Military regarding this determination make did as- unrealistic on college system its public make-up evidence Substantial exist. colleges other no sumption Commonwealth demonstrated District “ education ‘[hjigher the principle proceeded long and pri- public as a viewed whole — should resources vate’”—because such an approach enhances diversity and because “‘it is academic and economic waste permit to ” duplication.’ unwarranted Id., at 1420-1421(quoting 1974 Report of the General Assembly Commission Higher on Education to the General Assembly of Virginia). It is thus significant that, whereas there are “four private all-female [colleges] Virginia,” only there is private “one all-male col- lege,” which “indicates that private sector is providing th[e] [former] form of education to a greater much extent provides that it for all-male education.” 766 Supp., F. 1420-1421. In these Virginia’s circumstances, election to public fund one all-male institution and one on the adversa- tive model—and to concentrate its resources in single a en- tity that serves both these interests in diversity substan- —is tially related to the important Commonwealth’s educational interests.

B The today Court adequate no response to this clear demonstration of the produced conclusion by application of intermediate scrutiny. Rather, it relies on a series of con- tentions that are irrelevant or erroneous as a matter of law, by foreclosed the record in litigation, this or both.

1. I have already pointed out the Court’s most fundamen- tal error, which is its reasoning that VMI’s composi- all-male tion is unconstitutional because “some capable women are all of the individual required activities of VMI cadets,” 766 Supp., at 1412, prefer and would military training on adversative model. See supra, at 571-574. This unac- knowledged adoption (at least) what amounts strict scrutiny is without antecedent in our sex-discrimination cases and itself discredits the Court’s decision. 2. The suggests Court Virginia’s purpose claimed

maintaining VMI as an all-male institution —its asserted in- terest in promoting diversity of options educational not—is “genuin[e],” but pretext is a for discriminating against women. Ante, at 539;see ante, at 535-540. support To motive base impute that would

charge, the 3-year conducted Committee, which Study Mission VMI’s Board VMI’s recommended and to 1986 study from committee, all male. remain school Visitors gradu- non-VMI consisted members whose majority mili- on education materials “read ates, newly coeducational single-sex visits site tary,” “made Academy, Naval Point including West institutions” had institutions other reasons “considered work its status”; coeducational single-sex from changed of review accreditation “thorough” the in praised was Colleges and of Association Southern by the conducted VMI id., also see 1428; 1413, Supp., See Schools. concerning Mis- fact of findings (detailed 1427-1430 “[w]hatever that Committee). states Court The Study sion served— Study Committee Mission purpose internal report framers meaning the —we well however and pol- any commonwealth effort that from hardly extract can options.” educational diverse advance evenhandedly to icy prove evidence of the part isit whether But 539. Ante, (its short objective the Commonwealth’s diversity was that sepa- quite is subject) particular that nothing on said report that prove evidence part is it whether from rate Study Mission of the relevance not. was antifeminism study, 3-year sober creation, its very its is Committee claim utterly refute produced analysis com- student-body all-male its maintain elected has VMI reason. misogynistic some position “actual Virginia’s analysis its supports also The Court all body as student maintaining VMI’s in purposes” state in statement explicit no is there stating that by (cid:127)male ” itself’ “ expressed Commonwealth which ‘in record (quoting 535, 539 Ante, at purposes. concerning those That ante, at 1992)); also (CA4 see F. 2d im- foremost, First grounds. numerous wrong on purposes” “actual statement explicit such plication is needed. The adopts, in effect, argument of the United States that since the exclusion of women from VMI in 1839 was based on “assumptions” of the time “that men alone were fit military and leadership roles,” and “[bjefore since litigation was initiated, never sought supply a valid, contemporary rationale for VMI’s exclusionary policy,” “[t]hat failure itself renders the VMI policy invalid.” Brief for United States No. 94-2107, at 10. This anis unheard-of doctrine. Each state decision to adopt or maintain a governmental policy need not be accom- panied anticipation litigation pain —in of being found to lack a relevant state lawyer’s con- interest — temporaneous recitation of the purposes. State’s The Con- stitution is giant not some Administrative Procedure Act, imposes which upon the States the obligation to set forth a “statement of basis purpose” for their sovereign Acts, §553(c). see 5 U. S. C. The situation would be different if what the Court assumes to have been the 1839 policy had been enshrined and remained legislation enshrined —a perhaps, charter, pronouncing that the pur- institution’s pose keep is to place. in their But since the 1839 policy was no explicitly more recorded than the Court con- present tends the is, one the mere fact today's that Common- wealth continues to fund enough “is [the to answer States’] United contention that the [classification]was the by-product ‘accidental of a way traditional of thinking about ” females.’ Michael M., 450 U. S., 471, at (plurality n. 6 opin- ion) (quoting 320) (internal v. Webster,430 S., U. at Califano quotation omitted). marks It is, moreover, not true Virginia’s that contemporary rea- sons for maintaining VMI are explicitly not recorded. It is imagine hard a more authoritative source subject on than the Report 1990 of Virginia the Commission on the Uni- versity (1990 of the Century 21st Report). parties As the stipulated, report that “notes that the Virginia’s hallmarks of policy educational are ‘diversity autonomy.’” and Stipula- 582 the from Lodged Materials in reprinted 37, Fact of

tions system Materials). formal “The said: It (Lodged 64 Record array in- of great a includes Virginia in education higher of two-year and independent, and state-supported stitutions: traditionally black specialized, highly and research senior, part at in relevant quoted Report, 1990 single-sex.” and added).2 Court’s (emphasis 64-65 Lodged Materials of the Court on reliance repeated is to this response only that [statement] explicit only “‘the that assertion Appeals’ the Commonwealth in which record in the found we distinctions’” gender respect with expressed itself Common- the that Report the in (namely, statement the stu- faculty, staff, and with “deal must institutions wealth’s the sex”) nothing with to do had regard to without dents 2d, (quoting 976 Ante, at diversity. of purpose Appeals of Court suppose, that 899). I proves, This diversity in and dealing sex find statement not did need (accepting question pertinent but record; plain And statement) there. was it whether is such was. deny, is does which the fact, demon record in the evidence other by supported statement This institutions, Virginia private public both reference strating, in diversity pluralism heritage its ‘“rich to foster actively seeks Constitu on Commission Virginia Report education,”’ 1969 higher Vir 58; that Materials Lodged part in relevant Revision, quoted tional “ being] [as system Virginia characteristic special ‘[o]ne views ginia ” relevant Education, quoted Higher Plan diversity,’ view Commonwealth’s 64; Materials Lodged part public aas be viewed should whole — resources education “[h]igher “ system a dual inherent diversity needs ‘Virginia private” —because ” Commission Assembly General of the Report education,’ 1974 higher in 766 quoted Virginia, Assembly General Education Higher for 1990- Initiatives 1991). Budget See (WD also Va. 1407, 1420 Supp. 21,1989) (June Education Higher Council of State (for this be noted should It 3,n. Initiatives), quoted infra. (Budget reports discussion) official these later my crucial will point educational the Commonwealth’s footnote, regard here, text and quoted one. unitary private system public —as — The Court contends that “[a] purpose genuinely advance array educational options ... is not served” by VMI. Ante, at 539-540. It relies on the fact that all of Virginia’s other public colleges become Ibid,.; coeducational. see also ante, at 521, n. 2. The apparent theory this argu- ment is that unless Virginia pursues a deal great of diversity, pursuit some diversity must be a sham. This fails to take account of the fact that Virginia’s resources cannot sup- all port possible permutations of supra, schools, see at 578, and of the fact that Virginia coordinates its public educa- tional with the offerings offerings in-state private educa- tional institutions the Commonwealth provides money for its residents to attend and otherwise assists —which in- clude four women’s colleges.3 Finally, the Court unreasonably suggests there is

some pretext Virginia’s reliance upon decentralized deci- 3The provides Commonwealth tuition assistance, scholarship grants, guaranteed loans, and work-study funds for residents of Virginia who at tend private colleges in the See, Commonwealth. e. g., Va. Code Ann. §§23-38.11 (1993 to 23-38.19 1995) (Tuition and Supp. Assistance Grant Act); §§23-38.30 to 23-38.44:3 (Virginia Student Assistance Authorities); Va. Code §§23-38.45 Ann. (1993) to 23-38.53 (College Scholarship Assist Act); §§23-38.53:1 ance to 23-38.53:3 (Virginia Scholars §§23- Program); 38.70, 23-38.71 (Virginia Work-Study Program). These programs involve substantial expenditures: for example, Virginia appropriated $4,413,750 (not counting federal earmarked) funds it also for the College Scholarship Assistance Program for both 1997, 1996and and for the Tuition Assistance Grant Program appropriated $21,568,000for 1996 $25,842,000 for 1997. See 1996 Va. Appropriations Act, ch. 1, § pt. 160. In addition, as the parties stipulated in the District Court, the Common- wealth provides other financial support and assistance to private institu- including single-sex colleges through tions — state-funded low-cost loans, building — contracts, services and other programs. See, g.,e. Va. Code §§23-30.39 Ann. (1993) (Educational to 23.30.58 Act). Facilities Authority The State Council of Higher Education for Virginia, in a 1989 document not created for purposes of this litigation but introduced evidence, into has described these various programs as a “means by which the Common- wealth can provide funding to its independent institutions, thereby helping to maintain a diverse system of higher education.” Budget Initiatives of substantial granting diversity achieve to

sionmaking —its student-body to regard with institution to each autonomy at 1419. F. Supp., see matters, other and composition of Appeals Court the of suggestion the adopts Court The but autonomy, with institution “one for is not it possible that institution, give [to] state other any over authority no with institutions.” among diversity of policy a state to effect omitted). If it were marks Ante, at 539 (internal quotation human of (or groups beings human individual for impossible a common of effective pursuit autonomously act to beings) where And exist. would soccer of the game goal, tends services, that market a free diversity is goal out of act who actors autonomous even by achieved be to cooperate. no effort make and interests selfish entirely incen a natural is to say, institution, Each a particular attract in order distinctive itself make tive of the none course of And applicants. student of segment the legisla when entirely and autonomous; if is institutions serving well is not school a particular decides ture a men’s decides, example, it diversity of interest —if cease.4 will funding much is not school needed — and of diverse policy Commonwealth’s with Court, unfamiliar The local tradi of state careless any event institutions, independent to ‘“the reference quoting Virginians forgiven tions, must ante, at See Virginia. University of the campus’” Charlottesville VMI, though than even older institution Virginia, University universities, College Commonwealth’s another old as not as known, not as of Charlottesville portion occupies Mary, William were a if even importantly, More grounds.” as “the but “campus,” campus,” Charlottesville “the specify be no need would there “campus,” of Indiana campus Indianapolis or Bloomington refer might one perhaps is which university systems Unlike University. University of (e. State g., York in New those familiar, such as more of Illinois (University Buffalo), Illinois or Binghamton New York of Califor (University California Chicago), ator Urbana-Champaign only one there California, Berkeley), University of or nia, Angeles, Los near lived (because Jefferson Thomas happens It Virginia. University known, it is Virginians many To Charlottesville. there) located to be 3. In addition to disparaging Virginia’s claim that VMI’s single-sex status serves a state interest in diversity, the Court finds fault Virginia’s with failure to offer education based on the adversative training method to women. It dis- “ misses the District Court’s ‘findings’ ‘gender-based de- velopmental differences’” ground on the “[t]hese ‘find- ings’ restate the opinions Virginia’s expert witnesses, opinions about typically male or typically female ‘tenden- ” cies.’ Ante, at 541 (quoting 766 F. Supp., 1434-1435). How remarkable to criticize the District Court on ground that its findings (i. rest on the evidence e., the testimony of Virginia’s witnesses)! That is what findings are supposed to do. It is indefensible to tell the “[t]he Commonwealth that justification burden of is demanding and it rests entirely on [you],” ante, at 533, and then ignore the District Court’s findings because they rest on the put evidence forward particularly when, as the District Commonwealth— “[t]he Court said, evidence in the ease ... virtually uncon- tradicted,” 766 F. Supp., at 1415 added). (emphasis Ultimately, in fact, the Court does deny not the evidence supporting these findings. See ante, at 541-546. It instead makes evident that the parties litigation this could have saved great themselves a deal of time, expense trouble, by omitting a trial. The Court simply dispenses with evidence submitted at trial —it never says that a single find- ing of the District Court is clearly erroneous—in favor of the Justices’ own view of the world, which the proceeds Court to support (1) references to observations of someone simply, as “the University,” which suffices to distinguish it from the Com- monwealth’s other institutions offering 4-year college instruction, which include Christopher Newport College, Clinch Valley College, the College of William and Mary, George Mason University, James Madison University, Longwood College, Mary Washington University, Norfolk State Univer- sity, Old Dominion University, Radford University, Virginia Common- wealth University, Virginia Polytechnic Institute and State University, Virginia State University and, course, VMI. — expert, nor educational even nor witness, a is not who participated or record reviewed judge who even merely dissented who judge rather but below,

judgment litiga- this rehear decision Appeals’ from nonevidentiary (2) citations 542, ante, see banc, en tion Court, this filed briefs curiae amicus as such materials (3) historical various 14, and 544-545, nn. ante, at see support Virginia’s demonstrate designed anecdotes Justices reminds currently constituted as ante, at 542-544. days,” see old “bad litigation approach say tomuch too is not It evidence treating the But sham. a trial rendered reach Court necessary for absolutely is irrelevant example, contested, single witness aNot conclusion. evi- persuasive’ ‘exceedingly body of “substantial Virginia’s benefit female, and male both students, some . . . dence [f]or those “[that] and college” single-sex attending a from a college is single-sex a to attend opportunity students, the profes- and academic better lead likely to one, valuable Even 1411-1412. Supp., at F. achievement.” sional ‘believer himself “called witness expert States’ United ” philo- “personal, his although was education,’ single-sex educational-benefit of “born one preference,” sophical pro- should education single-sex “that considerations,” 1412. Id., sector.” private only vided District Virginia, and contends Court The 4. by “train- precedent,” our “misperceived erred, Court, ante, ‘end,’” than rather ‘means’ on argument ing] their to is which mission,” “VMI’s focuses Court The confident learning, of love “imbued individuals produce high leadership, possessing attitudes functions democracy American of the advocates service, public sense their defend ready ... system, enterprise free Supp., peril.” national time country in Board the VMI Study Committee Mission (quoting Report, Visitors, 1986). May 16, “Surely,” the says, goal “that great is enough to accommodate women.” Ante, at 545.

This is lawmaking by indirection. What the Court de- scribes as “VMI’smission” is no less the mission of all Vir- ginia colleges. Which of them would the Old Dominion continue to they fund if did not aim to create individuals “imbued with love of learning, right etc.,” down to being ready “to defend their country in time of peril”? national It can be up summed as “learning, leadership, and patriotism.” To be general sure, those educational values are described in a particularly martial fashion in VMI’smission statement, in accordance with the military, adversative, and all-male character of the institution. But imparting those values in e., in a military, fashion —i. adversative, all-male envi- ronment —is the distinctive mission of VMI. And as I have (and discussed both found), courts below that mission is not “great enough to accommodate women.” analysis Court’s at least has the benefit of producing foreseeable Applied results. generally, it means that when- ever a State’s objective ultimate “great enough to accom- (as modate women” it always be), will then the State will be held to Equal violated the Protection Clause if it re- stricts to men even one means by pursues which it that ob- jective matter how few —no women are pursu- interested in ing objective the by that means, no matter how much the single-sex program will have to be changed if both sexes are admitted, and no matter how beneficial program that theretofore been its to participants.

5. The argues Court that VMI would not have to change very much if it were to admit g., women. See, e. ante, at 540-542. The principal response argument to that is that it is irrelevant: If single-sex VMI’s status is substantially related government’s the important objectives, educational as I have demonstrated above and as the Court refuses dis- no debate be should There inquiry. the concludes that cuss, re- be would VMI much” “how over judiciary federal the that whether and admitted it change if quired change. much” “too constitute

would cer- would Court relevant, the were a debate such ifBut as found District losing side. the tainly on be of the key elements that establishes “[T]he evidence follows: bar- on focus system, educational VMI adversative distinc- the and altered, fundamentally be life, would racks were if VMI thwarted, be would system of ends tive necessary to changes make and females admit forced Supp., at interests.” and needs their accommodate analysis detailed Court’s District Changes that personal allowances new include required be would found coverings and doors locked barracks, such in the privacy of approach VMI’s from detract would windows, which “contradict behavior, student of details minute regulating scrutiny subject to constantly everyone is that principle ap- egalitarian “total impair VMI’s and else,” everyone by alike”; “treated be must every student which under proach” re- would which program, training physical changes pro- current of aggressiveness intensity “[t]he duce respects in other modifications various gram”; life. student permeates that program training adversative Appeals the Court As 1435-1443. 1412-1413, id., See find- court’s district supports record it, “the summarized program— of VMI’s aspects three these least ings that adversative privacy, training, absence physical coeducation, by materially affected be approach—would that ethos egalitarian change in the leading to substantial 2d, 896-897. 976 F. training.” VMI’s aspect critical ais amply below, courts findings two these face In the conclusion resulting evidence, by the supported admitted if fundamentally altered would “[t]he notion pronounces simply this Court women, admission of women would downgrade VMI’s stature, de stroy adversative system and, with it, even the school, a judgment hardly proved.” Ante, (footnote at 542 omitted). The point about “downgrad[ing] VMI’s stature” is a straw man; no one has made any such claim. The point about “de stroy[ing] adversative system” is false; simply the Dis trict Court not only “[ejvidence stated that supports theory,” but specifically concluded that while “[without a doubt” VMI could assimilate women, “it is without equally doubt that VMI’s present methods of training education would have to be changed” aby “move from away its adver- sative new cadet system.” 766 F. at Supp., 1413, and 8,n. 1440. And the point about “destroy[ing] school,” de pending upon what that ambiguous phrase is intended to mean, is either false or else sets a standard much higher than VMI had to meet. It sufficed to establish, as the District Court stated, that VMI would be “significantly different” upon admission of women, 766 F. at Supp., 1412, and “would eventually find it necessary drop adversative system altogether,” id., at 1413.5 5The Court’s do-it-yourself approach to factfinding, which throughout is contrary to our well-settled rule that we will not “undertake to review concurrent findings of fact two courts below in the absence of a very obvious and exceptional showing error,” Graver Tank & Mfg. Co. v. Linde Air Co., Products 336 U. (1949) S. 271, 275 (and cited), cases is exem plified by its invocation of the experience of the federal military academies to prove that not much change would occur. See ante, 542, 11; n. 544- 545, 15; and n. 550-551, n. 19. In fact, the District Court noted that “the West Point experience” supported the theory that a coeducational VMI would have to “adopt a system,” [different] for West Point found neces sary upon becoming coeducational to “move away” from its adversative system. 766 F. Supp., 1413, 1440. “Without a doubt... VMI’s present methods of training and education would have to be changed as West Point’s were.” Id., 8;n. accord, 976 2d 890, (CA4 1992) 896-897 (upholding District Court’s findings that “the unique characteristics of program,” VMI’s including its “unique methodology,” “would be destroyed by coeducation”).

590 analogue” “all-women’s precise aof Finally, absence v. Women Univ. Mississippi In for is irrelevant.

to constitutional no (1982), attached we 718 S.U. 458 Hogan, As nursing school. all-male anof absence to significance neces- is sex one restricted program aif notes, Virginia program parallel ais there unless sarily unconstitutional Hogan could in opinion “the sex, other restricted ‘Mis- that observed which footnote, first ended have university or public single-sex other no sissippi maintains p. 38 94-2107, ” No. in Cross-Petitioners for Brief college.’ supra, Hogan, v. Women Mississippi Univ. (quoting 1). 720, n. VMI, analogue to female-only precise nois Although there Virginia litigation during this created (VWIL), state-funded a Leadership Institute Women’s I have College. Mary Baldwin by run program all-women’s our is, under because VWIL nothing about said far thus charac- all-male VMFs long as irrelevant, so test, established goal. state important an “substantially related” is ter shows itof treatment Court’s and exists, now VWIL But is. today’s decision reaching far how educators professional designed carefully was VWIL young women. educating experience long who “difference ais there proposition rejects the program woman,” and man destinies spheres respective designed (1873), is 130, Wall. State, v. Bradwell substan achieve will program all-female an “provide environ VMI’s] all-female [to outcomes tially similar holding 1994). After (WD Va. 471, 481 Supp. ment,” 852 making submitted was evidence voluminous where trial concluded District fact, findings of detailed different basis pedagogical legitimate ais “there sub- VWIL] achieve [by VMI employed means stantially similar ends.” Ibid. The Court Appeals un- dertook detailed review of the record and affirmed. (CA4 1995).6 F. 3d 1229 But it Mary Baldwin College, which runs VWIL, that has made point most succinctly: “It would possible have been to develop the VWIL program to closely more resemble VMI, with adver- sative techniques associated with the rat line and barracks-like living quarters. Simply replicating an existing program would required have far thought, less research, and expertise. educational But such a facile approach would produced have paper program with no real prospect of successful implementation.” Brief for Mary Baldwin College as Amicus Curiae 5.

It is worth noting that none of the United States’ own ex- perts in the phase remedial litigation willing was testify that VMI’s adversative method was an appropriate methodology for educating women. This Court, however, does not care. though Even VWIL was carefully designed by professional educators who have experience tremendous in the area, and survived the test of litigation, adversarial the Court simply declares, with no basis in the evidence, that 6The Court is incorrect in suggesting that the Court of Appeals applied a “deferential” “brand of review inconsistent with the more exacting standard our precedent requires.” Ante, at 555. That court “inquir[ed] (1) whether the state’s objective is ‘legitimate and important,’ (2) whether ‘the requisite direct, substantial relationship between objective and means present,’” is 3d, 44 F. at 1235 (quoting Mississippi Univ. for Women v. Hogan, 458 718, U. S. (1982)). 725 To sure, such review is “deferential” to a degree that the Court’s new standard not, is it is intermediate scrutiny. (The Court cannot evade this point or prove Court of Appeals too deferential by stating that that court an “devised test, other a ‘substantive comparability’ ante, inquiry,’” at 555 (quoting 44 3d, at 1237), for as that court explained, its “substantive comparability” inquiry was an “additional step” that it engrafted on “th[e] traditional ibid, test” of intermediate scrutiny, (emphasis added).) generalizations,” “‘overbroad’ acted professionals

these 542, 550. ante,

C concur- to the response in appropriate are words fewA is basis aon unconstitutional finds which rence, expense only but the Court’s than moderate more three offers concurrence implausible. more being even record,” evidence “scant there First, reasons: offering was educational diversity of ante, at “Scant” maintaining VMI. Virginia’s reason real cited I term. imprecise being an advantage educa- higher goal for diversity as a statements clearest Higher Plan Report, the tion by the prepared Initiatives Budget Education, Re- the Virginia, for Education Higher of Council State Educa- Higher on Assembly Commission General the of port Re- the Virginia, Assembly of General to the tion Revision. Constitutional Virginia Commission of port nois There 3. 583, n. 2,n. 581-582, supra, See (as concurrence rejects one contrary, once evidence rightly days when founding in VMI’s does) of relevance different. were education toward attitudes as rejecting foreclose enough conceivably not this Is regard- determination Court’s District clearly erroneous diver- educational objective Commonwealth’s ing “the absurd isit since Especially Supp., sity”? Com- that prove “evidence” demand even face itson military acad- men’s maintaining a reason monwealth’s distinctive academy provides military men’s emy that diversity). (i. fosters e., experience educational type One have? the Commonwealth would purpose other What diversity is type this does, argue, may women—but toward hostility indulge only to designed concurrence, by the rejected explicitly point, separate ais dis- mentioned I have evidence refuted amply cussing the opinion.7 Court’s What is now under discus- sion—the concurrence’s making central to the disposition of this litigation the supposedly “scant” evidence maintained VMI in order to offer a diverse expe- educational rience—is rather like making crucial to the lawfulness of the United States Army record “evidence” purpose that its is to do legal battle. A culture forgotten that has the concept ipsa loquitur res deserves the fate that it today decrees for VMI.

Second, the concurrence dismisses out of hand what it calls Virginia’s justification “second single-sex admissions policy: maintenance of the adversative method.” Ante, at 564. The concurrence reasons that justification “this does not important serve an governmental objective” because, whatever the may record show about the pedagogical bene- single-sex fits of education, “there is no similar evidence in the record that an adversative method is pedagogically bene- any ficial or is likely more produce character traits than other methodologies.” Ibid. That is simply wrong. See, g., (factual e. 766 F. Supp., at 1426 findings concerning charac- ter produced traits by VMI’s adversative methodology); (factual id., at 1434 findings concerning benefits many college-age men of an approach adversative general). In reality, the pedagogical benefits of VMI’s ap- adversative proach were only proved, but given were a litiga- this tion. The reason the applicant woman prompted who suit wanted to enter VMI was assuredly not that she wanted go to to an all-male school; it would being cease all-male as 7The concurrence states that it “read[s] the Court” not “as saying that the diversity rationale is a pretext” for discriminating against women, but as saying merely that the diversity rationale is not genuine. Ante, 562, at n. The itself makes no such disclaimer, which would be difficult to credit inasmuch as the foundation for its conclusion that the diversity rationale is not “genuin[e],” ante, 539, at is its antecedent discus sion of Virginia’s “deliberate” actions over past the century half, and a “[fjamiliar based on arguments,” that sought to enforce once “widely held views about women’s proper ante, place,” 538. adversative distinctive the wanted She entered. as she

soon (in joined was battle provided, VMI that education excluding for basis a had main) VMI whether over recognizes opinion Court’s The approach. that from women demonstrating that to opinion itsof much devotes this, ” “ model’ [the] adversative under well do ... women ‘some the United that these behalf “[i]t on is that (quoting Ante, suit.” instituted States not does analysis it 1434). last in the course, Of Supp., at adversative to the any benefits are there whether matter are there that contest not does concurrence method. to suffices alone that education, and single-sex benefits even will a woman admission since case, Virginia’s make than single-sex education VMI’s put an end surely more methodology. adversative to VMI’s will it of the support offers concurrence reason third A were Commonwealth that is judgment in this developments” “further to the react enough to quick Specifically, at 561. Ante, jurisprudence. evolving Court’s after clear been have it should believes concurrence that position [Virginia’s] difficulty with “[t]he that Hogan single-sex was sex; there only one diversity benefited no corre- VMI, but atmen available education public women.” available public education single-sex sponding Virginia had asserts, concurrence only, If 562. Ante, at re- public comparable devote effort genuine a “made on such through and followed women, facility for to a sources viola- protection equal avoided might have well it plan, be- concurrence say, is to That Ante, tion.” (which program held Hogan decision our after lieves unconstitu- University Women Mississippi no there was the fact any reliance tional—without the Common- program), Mississippi all-men’s corresponding expected this Court what known should wealth program. all-women’s state of a yes!, the creation .. was . Commonwealth advice gave that lawyer who Any ought to have been either (The disbarred or committed. proof of that pudding today’s 6-Justice majority opinion.) any And Virginia politician proposed who step such when there already were 4-year four colleges women’s (assisted by support state may well exceed, in ag- gregate, what VMI costs, see n. supra) ought to have been recalled. In any event, “diversity in the form single-sex, as well

as coeducational, institutions higher learning” is “avail- able to women as well as to men” Virginia. Ante, at 564. The concurrence is able to assert the contrary only by disre- garding the four private all-women’s colleges in Virginia (generously by public funds) assisted and the Common- wealth’s longstanding policy of public coordinating pri- vate offerings, educational supra, see at 579, 581-582, and 2,n. 583-584, and n. 3. According to the concurrence, the Virginia’s reason assistance to its four private all-women’s colleges “[tjhe does not count is that private colleges women’s are treated the State exactly as all private other schools are treated.” Ante, at 564. But if Virginia get cannot credit for assisting women’s education only if it treats private women’s schools as it does all private other schools, why then get should blame for assisting men’s education it only if treats VMI as it does all other public schools? This great is a puzzlement.

IV As is frequently true, the Court’s today decision will have consequences that extend beyond far parties litiga- tion. What I take to be the Court’s unease with these con- sequences, and its resulting unwillingness to acknowledge them, cannot alter reality.

A Under the constitutional principles applied announced and today, single-sex public education is By unconstitutional. going through the motions of applying a balancing test —ask- “exceedingly persua- an adduced the State whether

ing Court classification —the sex-based for its justification” sive future in some officials government that illusion the creates single- of sort some at justifying shot clear a have will case create to seeks Court Indeed, the education. public sex said have to It purports that: than illusion a greater even “We all. at schools other public to relevance of nothing rec- opportunity educational only specifically address ” 7.n. Ante, ‘unique.’ as ... ognized to sit not does States the United of Court Supreme is to function Its principal dispositions. “unique” announce lawof principles forth set is, to precedent establish —that only said weAs follow. must America court every that to courts lower ourselves both expect we Term, this based which “rationale upon to adhere Fla. v. Tribe Seminole of decisions.” earlier its of results added). That (1996) (emphasis 44, 66-67 Florida, S.U. our opinions. we publish reason is principal sex- sweeping: is decision today’s of rationale And scrutiny intermediate redefinition a classifications, based See scrutiny. strict from indistinguishable it makes that any if that indicates the Court Indeed, supra, 571-574. be opened it must “uniqu[e],” is sex one to restricted program capac- will “who sex opposite members that suggest I Ante, it. to participate ity” charac- being capable be not will that program single-sex nonexistent.8 but unique not only is “unique” terized rationale Court’s whether event, regardless any In it argue, lawyers room amount small some leaves dead. functionally is education public single-sex ensures no under I concede Court —which note I regard, In would pass program aof example no provides to do obligation so— or a football example, even, for today: reasoning under muster willing, and ready, woman any theory, Court’s theOn wrestling program. constitutional aas would, program such participate able physically so. matter, do entitled The costs of litigating the constitutionality of single-sex education program, and the risks of ultimately losing that litigation, are simply too high to be by public embraced offi- cials. Any person with standing challenge any sex-based classification can haul the State into federal court and compel to establish evidence (presumably in the form of expert testimony) that there is an “exceedingly persuasive justifi- cation” for the classification. Should the courts happen to interpret that phrase vacuous as establishing a standard that is not utterly impossible of achievement, there is consider- able risk that whether the standard has been met will not be determined on the basis of the record indeed, that evidence— will necessarily be approach any of court that seeks to path walk the the Court has trod today. No state officialin right his mind buy will such high-cost, a high-risk by lawsuit commencing single-sex program. The single- enemies of sex education have by won; persuading only seven Justices (five would have been enough) that their view of the world is enshrined in the they Constitution, have effectively im- posed that view on all 50 States.

This is especially regrettable because, as the District Court here determined, experts educational in years recent have increasingly come “suppor[t] to [the] view that substan- tial educational benefits flow from a single-gender environ- ment, be it male or female, that cannot be replicated setting.” coeducational 766 F. Supp., (emphasis added). “The th[is] evidence in case,” for example, “is virtu- ally uncontradicted” to that effect. Ibid. quite Until re- cently, public some officials attempted to institute new single-sex programs, at least experiments. In 1991, for example, the Detroit Board of Education announced a pro- gram to establish three boys-only schools for inner-city youth; it was met with a lawsuit, a preliminary injunction was swiftly entered a District Court purported rely on Hogan, see Garrett v. Board Ed. School Dist. of of Detroit, 775 Supp. (ED 1004, of 1991), Mich. and the litigation abandon voted Education Board

Detroit Blacks Aid Plan Detroit see plan, abandon thus Times, Nov. Angeles Abandoned, Los All-Boy Schools such no opinion assures Today’s A4, col. p. 1991, again. tried bewill experiment

B pro educational public single-sex extant are few There widespread today’s decision potential grams. application lies existing institutions disruption support Government education. single-sex private to immensely institutions. educational private important VWIL— runs designed and College Mary Baldwin —which higher education institutions private funds, financial (citing n. 13 22, Curiae College Amicus as Mary Baldwin Sta Education Center Education, National Dept. of S.U. (1993)). Note and p. 38 Statistics, Education Digest of tistics, significant highly is also laws the tax under status Charitable certainly not it is and institutions, educational private that hold to today’s decision rendered that Court beyond contrary deemed be college should single-sex a to donation college if deductible therefore policy public to Independ The Note, See sex. basis on discriminates Ideal Charity an Defining Laws: Tax Sector ent Bob (1991). also See 461, 476 Rev. L. Cal. Democracy, S. 64 (1983). 574 S. U. States, 461 United v. Univ. Jones only education single-sex private adverts Court above) (mentioned assertion make only to briefly, and oppor- educational only specifically address “[w]e Court District by the recognized tunity ” already I have As 7.n. 534, Ante, at ‘unique.’ Appeals noth- assures assurance 596, that supra, remarked, see future promise aas taken be it is ing, unless 599 the Court will disclaim the reasoning it has used today to destroy VML The Government, in its briefs to this Court, purports least to address the consequences of its attack public VMI for support of private single-sex education. It private contends that colleges that are the direct or indi rect government beneficiaries of funding are not thereby necessarily converted into state actors to which Equal Protection Clause is applicable. then See Brief for United States in No. 94-2107, at 35-37 (discussing Rendell-Baker v. Kohn, 457 (1982), U. S. 830 and Blum v. Yaretsky, 457 U. S. (1982)). That is true. It is virtually also meaningless. The issue will be not government whether assistance turns

private colleges into state actors, but whether govern ment would be violating the by itself Constitution providing support state single-sex colleges. example, For in Nor wood v. Harrison, 413 (1973), U. S. 455 we saw no room to distinguish between operation state racially segregated schools and state support of privately run segregated schools. “Racial discrimination in state-operated schools is barred ‘[i]t Constitution and is also axiomatic that a may state not induce, encourage promote or private persons accomplish what it is constitutionally forbidden to accom plish.”’ Id., at (quoting Lee v. Macon County Bd. of Ed., 267 Supp. (MD 458, 1967)); 475-476 Ala. see also Cooper v. Aaron, (“State (1958) U. S. support segregated through schools any arrangement, management, funds, property or squared cannot with the [Fourteenth] Amendment’s command no State shall deny any per son jurisdiction within its equal protection the laws”); of the City Grove College v. Bell, (1984) (case 465 U. S.

arising under Title IX of the Education Amendments of stating “[t]he that economic effect of direct and indirect assistance often is indistinguishable”). When the Govern pressed ment was argument oral concerning the implica tions of these cases private for single-sex education if government-provided single-sex education is unconstitu- disas- so be not will implications the that stated

tional, it segre- racially funding to provide can States since trous, circumstances,” the “depending] schools, private gated “circum- those what imagine cannot I Arg. 56. Oral ofTr. private- for foolish as be would it might be, stances” from the assurance that that think to administrators school itas made, day was it the outlive will Department Justice “un- Department's Justice the that think to VMI was intermediate-scrutiny standard an support equivocal]” in the loss the Government’s survive litigation would this in below. courts schools private single-sex state-assisted hope for only principles the future apply the in not will Court the that is am hope, I substantial ais today. That applied has it lawof Court not all, did say. After ashamed happy ear- our in applied it lawof principles today abandon posi- Court not does And cases? sex-classification lier ad-hocery our rely upon colleges to private tively invite ad- not would I “unique”? is litigation this assuring them (especially college single-sex any new foundation vise being allowed one) expectation all-male aban- soon too isit but support; government any receive already existence. colleges single-sex despair those don future a write certainly possible will It forth set of law principles the broad ignores opinion opin- dispositive utterly characterizes today, all- prestigious uniquely awas perceptions ion’s I will etc. etc., chauvinism, conceived institution, male opinion. join that citizens and economic country.” New Justice federal choose, serve Brandéis system that experiments State said Ice aas ^[*] v.Co. single laboratory; and without “one ^[*] Liebmann, 285 courageous State ^[*] risk happy incidents try novel S.U. rest may, 262, 311 social if (1932)(dissenting opinion). But it is one of the unhappy in- cidents of the system federal that a self-righteous Supreme Court, acting on its personal Members’ view what would “ ” make a perfect ‘more (a Union,’ ante, at 558 criterion only slightly more restrictive than a perfect “more world”), can impose its own favored social and economic dispositions nationwide. As today’s disposition, and single others this Term, places show, this beyond power of “single cou- rageous State,” only to introduce dispositions novel the Court upon, frowns but to reintroduce, or indeed even adhere to, dispositions disfavored that are centuries old. g., See, e. BMW North America, Inc. Gore, v. 517 U. S. 559 (1996);Romer v. Evans, (1996). 517 U. S. 620 sphere self-government reserved to people of the Republic is progressively narrowed.

In the course of this I dissent, have referred approvingly opinion my former colleague,Justice Powell, Mis- sissippi Univ. Women Hogan, v. (1982). U. S. 718 Many points of the made in his apply dissent equal with force particular, here—in judicial criticism of opinions that purport to be “narro[w]” but “logic” whose is “sweepin[g].” Id., at 745-746, n. 18. But there is one statement which I agree. cannot Justice Powell observed Court’s decision Hogan, which struck down single-sex program offered the Mississippi University for Women, had “[l]eft thereby without honor ... an element of diversity that has characterized much of American education and en- riched much of American life.” Id., at 735. Today’s deci- sion does not leave VMI without honor; no opinion court can do that.

In an odd sort way, it is precisely VMI’s attachment such concepts old-fashioned manly “honor” that has made it, system and the it represents, the target of those who today succeed in abolishing public single-sex education.

The record contains a booklet that first-year all VMI stu- keep their in “rats”) required were (the so-called dents the appears there end the Near times. all

possession a Gentleman”: of Code “The entitled piece, following period Code fundamental the of observance a strict “Without con- be can ‘polished,’ how matter no man, Honor, no of de- gentleman aof honor gentleman. a sidered incorrupt- the and word, inviolability his of the mands the of descendant the isHe principles. ibility his of defense- of defender ishe crusader; knight, a not ishe or ... justice champion less Gentleman. . . .

“A Gentleman with or public family affairs his discuss not “Does acquaintances. girl his casually about than more speak not “Does friend. by alco- is affected heif lady’shouse go ato not “Does alcohol. use temperate isHe hol. fear, anger, exhibit nor temper; his not lose “Does public. hilarity in or embarrassment, ardor hate, window. club a lady from a hail not “Does demerits or merits discusses never gentleman “A lady. aof avoids exactly he as names mention not “Does things cost. what mention dire except in friend, money from borrow not “Does must honor, a debt Money borrowed need. incurred Debts possible. promptly repaid as are child grown or sister brother, parent, a deceased honor. debt aas men by honorable assumed possessions. money or wealth, his display not “Does off, whether on manners his put “Does courtesy, peop’e treats He ballroom. ainor club may be. position social their what matter no slap strangers “Does not back nor so much as lay finger lady. on a

“Does not ‘lick the boots of those above’ nor ‘kick face of him those below on the social ladder/ advantage

“Does not take helplessness of another’s ignorance or gentleman assumes that no will take advantage of him.

“A respects Gentleman the reserves of others, but demands respect that others those which are his.

“A Gentleman can become what he wills to be. . . .” I do not know whether the men of VMI lived this code; perhaps powerfully not. But it impressive public that a higher institution of education still sought in existence have them do I so. do not any think of us, included, will be better off for its destruction. notes percent approximately derived year school 1990-1991 government local state, federal, from budgets their Brief See students. aid including

Case Details

Case Name: United States v. Virginia

Court Name: Supreme Court of the United States

Date Published: Jul 3, 1996

Citation: 518 U.S. 515

Docket Number: 94-1941

Court Abbreviation: SCOTUS