The legal standard set forth in Mississippi Univ. for Women v. Hogan applies to single-sex admissions policies in state-supported schools. The Hogan test requires “showing at least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’ Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980).”

In United States v. Commonwealth of Virginia, the U.S. Court of Appeals for the Fourth Circuit twice affirmed the district court’s findings that single-sex educational programs are pedagogically justified and substantially related to achieving an important governmental objective, namely, providing the Commonwealth’s citizens a diverse array of educational opportunities. There is no reason, either factual or legal, why the U.S. Supreme Court should set aside those findings.

Every State has a strong, legitimate interest in providing its citizens a system of education that is both educationally and economically sound. In deciding whether and to whom they will offer specialized educational programs States should be permitted to make reasonable allocations of their resources. The Equal Protection Clause does not deny States the power to treat different classes of persons differently, nor does it require States to confer benefits on all classes equally or equivalently.

A ruling requiring VMI to admit women would seriously jeopardize other single-sex schools, both public and private. All-female programs would be subject to the same constitutional standard as all-male programs. If States themselves were prohibited from establishing single-sex schools, they would also be prohibited from supporting the same programs conducted by private persons. If public single-sex programs are held to violate fundamental U.S. law, even private schools must admit both men and women or else forgo tax-exempt status and, more importantly, tax deductions for their donors.

The Hogan standard imposes an “intermediate” level of scrutiny on sex-based school admission policies. The U.S. Department of Justice argued in its opening brief that “strict scrutiny is, in fact, the correct constitutional standard for evaluating differences in official treatment based on sex.” Accepting the Justice Department’s argument would be an unwarranted and unwise departure from the Supreme Court’s precedents.

Racial classifications are subject to strict scrutiny because we regard racial differences as purely superficial. Differences between men and women, however, are real and substantial. Applying strict scrutiny to gender classifications would be unreasonable and unfair to both sexes. The judgment of the court below applying the “intermediate scrutiny” Hogan standard should be affirmed.

The Equal Protection Clause and Single-Sex Educational Programs.
In VMI I, the fourth circuit appeals court acknowledged the practical difficulty of interpreting the Equal Protection Clause.

The obvious appeal to fairness in requiring the equal application of law too often becomes entangled with generalized notions of equality as referred to in Lincoln’s Gettysburg Address and, before that, the Declaration of Independence, and these generalizations tend to overwhelm the difficult task of deciding what is meant by equal protection. We recognize that all persons are in many important respects different and that they were created with differences, and it is not the goal of the Equal Protection Clause to attempt to make them the same. To apply law to different persons with a mind toward making them the same might result, among other things, in the unequal application of the law. Thus, no one suggests that equal protection of the laws requires that all laws apply to all persons without regard to actual differences. See Jenness v. Fortson, 403 U.S. 431, 442, 91 S. Ct. 1970, 1976, 29 L. Ed. 554 (1971) (“Sometimes the grossest discrimination can lie in treating things that are different as though they were actually alike….”).

The difficulty becomes most evident in cases involving classifications based on sex. It is easy to accept the proposition that a person’s race or ethnic origin bears no relation to the person’s character, abilities or performance; therefore a classification based on race or ethnic origin is inherently suspect — that is, it is assumed to be unjustified and most likely unjustifiable. Sex-based classifications, on the other hand, are sometimes justified and sometimes not. Men and women share many of the same human characteristics and in many ways are equally capable, but men and women also differ in significant ways. To compound the difficulty, male and female children have differences and similarities that change as they mature into adults.

To apply the Equal Protection Clause intelligently in the case of a gender-based classification, one cannot assume, as one does in the case of race, that the classification is in all likelihood unjustified. Because there are real differences between men and women, a particular law treating them differently might be entirely justified. The only fair way to proceed is to undertake an open-minded inquiry into the substance and purpose of the classification. This is no easy task, as the fourth circuit court and many other courts have remarked, but any other approach would be dishonest and would violate common sense.

Mississippi Univ. for Women v. Hogan is the controlling precedent for the VMI case. Hogan involved the single-sex admissions policy of a state-supported college. The Court held in Hogan that the party seeking to uphold a gender-based classification must show “an exceedingly persuasive justification” for it. Under Hogan, a gender-based classification can be justified if it is substantially related to the achievement of important governmental objectives.

VMI’s admissions policy, having been exhaustively examined in two trials and two appeals, meets the Hogan standard. The Commonwealth’s objective has been to provide for the needs of a broad range of students at the post-secondary level. In VMI I, the appeals court accepted the district court’s findings of fact, specifically including a factual determination that “single-sex education is pedagogically justifiable, and VMI’s system, which the district court found to include a holistic formula of training, even more so.” The appeals court found, however, that the Commonwealth had “failed to articulate an important policy that substantially supports offering the unique benefits of a VMI-type of education to men and not to women.” To remedy this deficiency the Commonwealth, in partnership with VMI and Mary Baldwin College, established the Virginia Women’s Institute for Leadership (VWIL) program, which incorporates the transferable elements of VMI’s system together with elements aimed at the developmental needs of young women.

After a second trial to evaluate the sufficiency of VWIL as a remedy, the appeals court held, in VMI II, that it is a legitimate and important government objective to provide single-sex education as one option within a publicly financed system of education. It also affirmed that the single-sex programs at VMI and VWIL are substantively comparable and will operate so as not to exclude either sex from the benefits of a leadership-oriented “VMI-type” of education.

Two full rounds of trial and appeal below confirm that Virginia’s system of higher education, which now includes single-sex programs for both male and female students, complies with Equal Protection Clause requirements as articulated in Hogan. The Justice Department has supported its arguments with a few colorful or offhand statements painstakingly extracted from the record. These isolated remarks mischaracterize the weight and authority of the testimony by numerous highly qualified experts at two separate trials.

The Justice Department invariably condemns as a “stereotype” any fact that interferes with the Justice Department’s preconceived idea about the “correct” outcome of this case. Virginia and VMI, on the other hand, have followed Hogan and taken its mandate seriously at every step. They have done the hard work of examining their goals and methods, gathering data and expert opinions, studying the options, and justifying their final decision. The outcome — a pedagogically sound and useful program that fulfills real needs — is where the Hogan standard has led them. The Supreme Court should affirm the application of the Hogan standard in this case so that there will be no future doubt that other States may in a similar manner offer and support single-sex programs among an array of educational methods.

Allocation of Educational Resources by States
The Supreme Court granted a cross-petition by Virginia and VMI for certiorari on the question whether the Equal Protection Clause, as it was interpreted by the fourth circuit court of appeals, requires states to offer parallel single-sex educational opportunities for both sexes. Virginia and VMI argued that this question should be settled by the Supreme Court’s confirming that Hogan does not impose any such additional requirement.

Under the existing Hogan standard, States must provide an exceedingly persuasive justification for gender classifications by showing that they are substantially related to achieving an important governmental objective. If a State statute or action benefits one sex without hurting the other, it is unnecessary to consider the interest of the excluded sex at all. If a State statute or action benefits one sex to the detriment or disadvantage of the other, it may be necessary to consider the interest of the excluded sex, but there may still be “exceedingly persuasive justification” to pursue the program for the benefit of the one sex. If a case arises in which fairness dictates parallel programs for both sexes, following the existing Hogan standard will reveal this shortcoming: either the objective or the means of achieving it will prove to be faulty under an intermediate scrutiny analysis. We should not assume, as a matter of law, that for every gender-related action there must be an equal and opposite reaction.

In the case of education especially, States should be entitled to consider need, demand and economies of scale when determining whether and to whom they will offer specialized programs. Every child is different from every other child. In an ideal world, to ensure that every child received a perfect education, we probably would assign each one a personal tutor. In the real world, States and localities struggle to allocate limited resources in a way that will provide suitable educational opportunities for most children. The Hogan standard should permit States to make reasonable economic decisions relating to the mix of educational opportunities and should not impose additional conditions to achieve a formalistic parallelism for its own sake.

Public vs. Private Single-Sex Education
The Justice Department says that the Supreme Court need not adopt strict scrutiny for gender classifications in order to rule that VMI may not remain a single-sex state school. But a ruling against VMI would constitute a de facto adoption of strict scrutiny. If the Supreme Court overrules the lower courts and requires VMI to admit women, it will effectively decide that no publicly-supported all-male school can exist consistent with the requirements of the Equal Protection Clause. Such a ruling would seriously jeopardize other single-sex schools, both public and private.

Many supporters of the Justice Department claim that a decision adverse to Virginia and VMI will have no effect on single-sex private schools, or at least no effect on all-female programs. They are mistaken.

All-female programs would be subject to the same standard as all-male programs. Some feminist opponents of VMI have argued that all-female programs are justified as a remedy for past discrimination against women. There is no evidence to support this view, particularly in the case of higher education. According to the Department of Education, over 53 percent of students attending four-year institutions of higher education in 1993 were women, and over 54 percent of bachelor’s degrees conferred in 1992-1993 went to women. Women have outnumbered men in higher education every year since 1978.

Further, if the Supreme Court adopts the Justice Department’s view, a school’s status as “private” will not determine whether it can avoid mandatory coeducation. Instead, the determining factor will be the source of the school’s funding. Private women’s colleges, along with virtually every other public or private college in the United States, receive substantial funding from both public and private sources.

“Public” schools receive substantial portions of their income from private sources, including student-paid tuition and fees, sports events, other business income (sales of books and branded items) and contributions from alumni and others.

Conversely, “private” schools receive substantial income from public sources, including tuition grants and scholarships, government-backed student loans, research grants and government contracts. As nonprofit educational institutions, private schools rely on their tax-exempt status and the availability of tax deductions for contributors.

Opponents of VMI cite the “state action” doctrine to argue that private schools are not “state actors” and thus not subject to the Equal Protection Clause. The question, however, is not whether a private single-sex school could receive public support, but whether a State could legally offer it. If States themselves were prohibited from establishing single-sex schools, they would also be prohibited from supporting the same programs conducted by private persons. Norwood v. Harrison involved a state program to supply textbooks to racially segregated schools. The Supreme Court invalidated the program, holding that “a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Following this logic, direct and indirect public assistance to private schools would be prohibited if they discriminate against either sex.

Private schools also would be inhibited in seeking private funds. The courts and the IRS have held that racially discriminatory organizations, which violate fundamental laws, cannot qualify as “charitable” organizations for tax law purposes. If, as the Justice Department seems to argue, sex discrimination violates fundamental U.S. law, even private schools must admit both men and women or else forgo tax-exempt status and, more importantly, tax deductions for their donors. Could any private single-sex schools exist without the public aid and tax exemptions they now enjoy?

Strict Scrutiny and Gender Classifications
The Justice Department argued in its opening brief in that the Court should adopt for gender classifications the same standard now applicable to race classifications, that is, strict scrutiny. The Court should explicitly reject the Justice Department’s argument and instead affirm the decision below by reiterating the standard the Court laid out in Hogan.

Prior decisions of the Supreme Court specifically acknowledge the difference between race and gender classifications and the substantial reasons for those differences. In City of Cleburne v. Cleburne Living Center, Inc., the Court stated the “general rule is that legislation is presumed to be valid, and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” In those cases “the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” The Court then continued:

The general rule gives way however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others. For these reasons, and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny, and will be sustained only if they are suitably tailored to serve a compelling state interest.

The Court then further contrasted the levels of scrutiny given to race and gender classifications, quoting from Frontiero v. Richardson: “[W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability…is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Rather than being “deemed to reflect prejudice and antipathy,” laws treating the sexes differently “very likely reflect outmoded notions of the relative capabilities of men and women.”

Despite the fact that mental retardation is an immutable characteristic, beyond the individual’s control, affecting a small and readily observable minority who, now and in the past, have been subjected frequently to invidious discrimination, the Court would not upgrade the level of scrutiny applied to this type of legislative classification.

[I]t would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large.

Likewise, if gender were deemed a “quasi-inherently suspect” classification, it would be difficult to find a principled way to recognize in law the real differences between the sexes.

The Supreme Court should not depart from the standard it has followed in every gender-based equal protection case since at least Craig v. Boren. Indeed, adopting strict scrutiny would directly conflict with the Supreme Court’s prior decisions applying an intermediate standard to uphold gender-based classifications.

As the Court has noted, “any departure from the doctrine of stare decisis demands special justification.” The Justice Department, however, offered no special justification other than its own conclusion that strict scrutiny is the “correct” standard. The Justice Department observed that sex, like race, is an immutable and visible characteristic; that the government still employs gender stereotypes in decision making; that historical parallels between official discrimination affecting women and racial minorities exist; and that women suffer “relative political powerlessness.” None of these observations suggests that the Court ought to abandon its firmly established approach to gender classifications. Significantly, the Justice Department did not argue that intermediate scrutiny is inadequate to address invidious discrimination against women.

In fact, no special justification exists, because intermediate scrutiny is an appropriate standard of review. It subjects gender classifications to a meaningful, “heightened” review while recognizing that differences between men and women — unlike the differences between members of different races — will justify gender classifications in some circumstances.

Status of Women In Education, Business and Society
Bearing in mind that “proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause,” we nevertheless offer some statistics to rebut the Justice Department’s unsupported observations.

Women are not politically powerless. Unlike racial minorities, women constitute a majority of the population of the United States; as of 1994, women outnumbered men 51.2 percent to 48.8 percent. In the voting age population, women not only outnumber men but consistently register and vote in higher proportions than men. Women already have the political power to elect women to represent them; indeed if all women voted the same and chose to elect only women, virtually every elected office in the United States could be filled by a woman. Instead, women exercise their franchise as individuals and vote for candidates, male or female, as a matter of individual choice.

Women are not excluded from the workplace. Overall, women constitute over 45.9 percent of the civilian labor force in the United States. Among women of all ages, 58.8 percent work outside the home, versus 75.1 percent of men. Among those aged 25-54, about 74 percent of women and 89 percent of men work outside the home.

Women are not compensated less merely because of their sex. The ratio of female-to-male, year-round full-time earnings was 71 cents on the dollar in 1992. This includes workers of all ages. Among younger workers (ages 25-34) the ratio was 82 cents on the dollar, versus 67 cents for older workers (ages 55-64). “[S]erious economics scholars who are trained to interpret these data (including many eminent female economists) point out that most of the differences in earnings reflect such prosaic matters as shorter work weeks and lesser workplace experience.” An “apples-to-apples” comparison yields even more encouraging results. According to research by former Baruch College economics professor, now Congressional Budget Office director, Dr. June E. O’Neill, “among people 27 to 33 who have never had a child, the earnings of women in the National Longitudinal Survey of Youth are close to 98 percent of men’s.”

Women are not relegated to the “worst” jobs. Women and men make different career choices, but women’s career opportunities are not invariably inferior to men’s. According to 1994 Bureau of Labor Statistics reports, women represent 48.1 percent of workers in executive, administrative and managerial jobs. Women are 61.6 percent of personnel and labor relations managers, and 79.7 percent of health and medicine managers. Women are 64.3 percent of workers in technical, sales and administrative support, and 59.6 percent of workers in service occupations. Women have low representation in production, craft and repair industries (9.3 percent), among machine operators and laborers (24.3 percent), and in farming, forestry and fishing (19.3 percent). These categories include some of the fastest declining occupations, as projected by the Bureau of Labor Statistics for 1992-2005.

Women are not excluded from educational and professional opportunities. In recent years women have steadily increased their representation in the professions and in educational achievement generally. As of 1994, women were 22.3 percent of physicians, up from 15.8 percent in 1983, and 24.8 percent of lawyers and judges, up from 15.8 percent in 1983. In 1992, 35.7 percent of M.D. degrees and 42.7 percent of J.D. degrees were conferred on women. Between 1971 and 1992, the percentage of bachelor’s degrees conferred on women rose from 43.4 percent to 54.2 percent, from 40.1 percent to 54.1 percent for master’s degrees, and from 14.3 percent to 37.1 percent for doctorate degrees.

Women are not prevented from owning their own businesses. According to the Small Business Administration, between 1980 and 1990, the number of women-owned businesses increased from about 2,000,000 with $25 billion in sales to more than 5,000,000 with over $80 billion in sales. In the same period, when the overall number of business owners increased by 56 percent, the number of women business owners increased 82 percent.

The term “strict scrutiny” implies that it imposes a more demanding burden of proof than “intermediate scrutiny.” In practice, it operates as a presumption of invalidity. The progress made by women in the last generation and the success that increasing numbers of women enjoy today rebut any assertion that they require “strict scrutiny” to protect their interests. Indeed, rather than asking the Court to adopt strict scrutiny as the standard for reviewing gender classifications, a more honest approach would be to ask the Court to take this opportunity to declare women emancipated — to affirm that women are human beings and citizens, with all the rights and responsibilities that entails.