Case

In 1976, the Supreme Court decided Craig v. Boren, a case which declared that sex classifications were subject to intermediate scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Twenty years later, a case surrounding the Virginia Military Institute (VMI) reached the Supreme Court. VMI was a public all-male military college in the Commonwealth of Virginia. The Institute, which was founded in 1839, claimed to produce leaders through an “adversative” method of education. This “adversative” education was characterized as harsh mentally, physically, and emotionally. 

From 1988 to 1990, 347 women inquired about attending VMI but were given no response. One of them filed a complaint, and the Attorney General of the United States sued Virginia and VMI for gender discrimination violating the Fourteenth Amendment’s Equal Protection Clause and the Civil Rights Act of 1964. VMI was rather proud of its single-sex education, as it was the only public higher education institution in Virginia to be single-sex. VMI claimed that allowing women in would hinder the institution’s adversative education. 

When the case got to an appeals court, the court suggested Virginia take up different means if it intended to maintain VMI as a single-sex institution. As a result, Virginia established the Virginia Women’s Institute for Leadership (VWIL), intended to be a woman’s counterpart to VMI. However, VWIL did not include the same military environment, qualifications for admission were lowered, faculty was less acclaimed, science and engineering degrees were not offered, and there was none of the same prestige. Many women’s rights organizations filed amicus briefs in United States v. Virginia (1996), arguing that gender discrimination should be subject to strict scrutiny, the same standard as racial discrimination. The Supreme Court was asked to decide if the VMI violated the Equal Protection Clause because of its male-only admission requirements. 

Decision

In a 7-1 decision, with Justice Clarence Thomas not participating because of his son’s attendance at VMI, the Court concluded that VMI’s admissions policy violated the Equal Protection Clause of the Fourteenth Amendment. Justice Ruth Bader Ginsburg wrote the opinion for the Court, deciding that gender classifications need an “exceedingly persuasive justification” that cannot be “hypothesized or invented post hoc in response to litigation.” Justice Ginsburg wrote that with this heightened scrutiny, the VWIL did not contribute the same opportunities or benefits. The Court also noted that the current situation with Virginia military schools is emblematic of a historical pattern of gender discrimination in the United States and that the women who applied were being denied their full citizenship rights. Ginsburg considered the institution’s current view of gender as a “self-fulfilling prophecy.” The decision found all public one-sex institutions as unconstitutional unless they could provide very strong justifications. 

Chief Justice William Rehnquist wrote a concurrence to the majority decision, noting that gender classifications should be given intermediate scrutiny. Rehnquist’s issue with Virginia was the creation of VWIL, which was obviously inferior to VMI. Rehnquist said that this action proved the unconstitutionality of VMI’s admissions policy. 

Dissent 

Justice Antonin Scalia wrote an extensive dissent, forty pages long. In it, he argued that Ginsburg has now given gender classifications strict scrutiny, which strayed away from precedent. He also noted that all-male military colleges are a traditional feature of American culture and should not be destroyed. Scalia noted that VMI would not be able to use the same form of adversative education with women being admitted. 

Impact

The Superintendent of VMI, Josiah Bunting III, said that the institution would “change irretrievably if they bring in women.” VMI considered buying itself from the state in order to remain single-sex but inevitably did not do so. The year after the case’s decision, in 1997, thirty women enrolled at VMI, and the institution had its first female graduates in 1999. Later on, Bunting remarked that standards had actually increased at the school after allowing women in. United States v. Virginia was a landmark case, and it has remained the last major case on equal gender protection for over twenty years.

    Learn More

    1. Gillman, Howard. American Constitutionalism, Second Edition. Volume II Rights and Liberties. [Virtual Source Bookshelf].
    2. “Learning Center | Supreme Court Decisions & Women’s Rights – Milestones to Equality.” The Supreme Court Historical Society, https://supremecourthistory.org/lc_the_most_recent_standard.html. 
    3. “United States v. Virginia.” Oyez, www.oyez.org/cases/1995/94-1941.

    Think Further

    1. What did Justice Ginsburg mean when she said that Virginia’s current view of gender is a “self-fulfilling prophecy”? 
    2. What type of scrutiny should gender classifications face? Why?
    3. Do you agree that public universities should not be single-sex? Is there ever a reason for a university to be single-sex?

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