UNITED STATES, PETITIONER v. VIRGINIA et al. 94-1941
VIRGINIA, et al., PETITIONERS v.
UNITED STATES
94-2107
On Writs of Certiorari to the United States
Court of Appeals for the Fourth Circuit.
[June 26,1996]
Justice Ginsburg delivered the opinion
of the Court.
Virginia's public institutions of higher
learning include an incomparable military college, Virginia
Military Institute (VMI). The United States maintains
that the Constitution's equal protection guarantee precludes
Virginia from reserving exclusively to men the unique
educational opportunities VMI affords. We agree.
I.
Founded in 1839, VMI is today the sole single-sex school
among Virginia's 15 public institutions of higher learning.
VMI's distinctive mission is to produce "citizen-soldiers,"
men prepared for leadership in civilian life and in
military service. VMI pursues this mission through pervasive
training of a kind not available anywhere else in Virginia.
Assigning prime place to character development, VMI
uses an "adversative method" modeled on English
public schools and once characteristic of military instruction.
VMI constantly endeavors to instill physical and mental
discipline in its cadets and impart to them a strong
moral code. The school's graduates leave VMI with heightened
comprehension of their capacity to deal with duress
and stress, and a large sense of accomplishment for
completing the hazardous course.
VMI has notably succeeded in its mission to produce
leaders; among its alumni are military generals, Members
of Congress, and business executives. The school's alumni
overwhelmingly perceive that their VMI training helped
them to realize their personal goals. VMI's endowment
reflects the loyalty of its graduates; VMI has the largest
per-student endowment of all undergraduate institutions
in the Nation.
Neither the goal of producing citizen-soldiers
nor VMI's implementing methodology is inherently unsuitable
to women. And the school's impressive record in producing
leaders has made admission desirable to some women.
Nevertheless, Virginia has elected to preserve exclusively
for men the advantages and opportunities a VMI education
affords.
II.
A.
From its establishment in 1839 as one of the Nation's
first state military colleges, see 1839 Va. Acts, ch.
20, VMI has remained financially supported by Virginia
and "subject to the control of the [Virginia] General
Assembly," Va. Code Ann. Section(s) 23-92 (1993).
First southern college to teach engineering and industrial
chemistry, see H. Wise, Drawing Out the Man: The VMI
Story 13 (1978) (The VMI Story), VMI once provided teachers
for the State's schools, see 1842 Va. Acts, ch. 24,
Section(s) 2 (requiring every cadet to teach in one
of the Commonwealth's schools for a 2-year period).
1 Civil War strife threatened the school's vitality,
but a resourceful superintendent regained legislative
support by highlighting "VMI's great potential[,]
through its technical know-how," to advance Virginia's
postwar recovery. The VMI Story 47.
VMI today enrolls about 1,300 men as cadets. 2 Its academic
offerings in the liberal arts, sciences, and engineering
are also available at other public colleges and universities
in Virginia. But VMI's mission is special. It is the
mission of the school
"`to produce educated and honorable
men, prepared for the varied work of civil life, imbued
with love of learning, confident in the functions and
attitudes of leadership, possessing a high sense of
public service, advocates of the American democracy
and free enterprise system, and ready as citizen-soldiers
to defend their country in time of national peril.'"
766 F. Supp. 1407, 1425 (WD Va. 1991) (quoting Mission
Study Committee of the VMI Board of Visitors, Report,
May 16, 1986).
In contrast to the federal service academies,
institutions maintained "to prepare cadets for
career service in the armed forces," VMI's program
"is directed at preparation for both military and
civilian life"; "[o]nly about 15% of VMI cadets
enter career military service." 766 F. Supp., at
1432.
VMI produces its "citizen-soldiers" through
"an adversative, or doubting, model of education"
which features "[p]hysical rigor, mental stress,
absolute equality of treatment, absence of privacy,
minute regulation of behavior, and indoctrination in
desirable values." Id., at 1421. As one Commandant
of Cadets described it, the adversative method "dissects
the young student," and makes him aware of his
"limits and capabilities," so that he knows
"how far he can go with his anger, . . . how much
he can take under stress, . . . exactly what he can
do when he is physically exhausted." Id., at 1421-1422
(quoting Col. N. Bissell).
VMI cadets live in spartan barracks where
surveillance is constant and privacy nonexistent; they
wear uniforms, eat together in the mess hall, and regularly
participate in drills. Id., at 1424, 1432. Entering
students are incessantly exposed to the rat line, "an
extreme form of the adversative model," comparable
in intensity to Marine Corps boot camp. Id., at 1422.
Tormenting and punishing, the rat line bonds new cadets
to their fellow sufferers and, when they have completed
the 7-month experience, to their former tormentors.
Ibid.
VMI's "adversative model" is
further characterized by a hierarchical "class
system" of privileges and responsibilities, a "dyke
system" for assigning a senior class mentor to
each entering class "rat," and a stringently
enforced "honor code," which prescribes that
a cadet "`does not lie, cheat, steal nor tolerate
those who do.'" Id., at 1422-1423.
VMI attracts some applicants because of
its reputation as an extraordinarily challenging military
school, and "because its alumni are exceptionally
close to the school." Id., at 1421. "[W]omen
have no opportunity anywhere to gain the benefits of
[the system of education at VMI]." Ibid.
B.
In 1990, prompted by a complaint filed with the Attorney
General by a female high-school student seeking admission
to VMI, the United States sued the Commonwealth of Virginia
and VMI, alleging that VMI's exclusively male admission
policy violated the Equal Protection Clause of the Fourteenth
Amendment. Id., at 1408. 3 Trial of the action consumed
six days and involved an array of expert witnesses on
each side. Ibid.
In the two years preceding the lawsuit, the District
Court noted, VMI had received inquiries from 347 women,
but had responded to none of them. Id., at 1436. "[S]ome
women, at least," the court said, "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 a positive educational
experience." Id., at 1437-1438. And it was also
established that "some women are capable of all
of the individual activities required of VMI cadets."
Id., at 1412. In addition, experts 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 would provide training
in dealing with a mixed-gender army." Id., at 1441.
The District Court ruled in favor of VMI,
however, and rejected the equal protection challenge
pressed by the United States. That court correctly recognized
that Mississippi Univ. for Women v. Hogan, 458 U.S.
718 (1982), was the closest guide. 766 F. Supp., at
1410. There, this Court underscored that a party seeking
to uphold government action based on sex must establish
an "exceedingly persuasive justification"
for the classification. Mississippi Univ. for Women,
458 U.S., at 724 (internal quotation marks omitted).
To succeed, the defender of the challenged action must
show "at least that the classification serves important
governmental objectives and that the discriminatory
means employed are substantially related to the achievement
of those objectives." Ibid. (internal quotation
marks omitted).
The District Court reasoned that education
in "a single-gender environment, be it male or
female," yields substantial benefits. 766 F. Supp.,
at 1415. VMI's school for men brought diversity to an
otherwise coeducational Virginia system, and that diversity
was "enhanced by VMI's unique method of instruction."
Ibid. If single-gender education for males ranks as
an important governmental objective, it becomes obvious,
the District Court concluded, that the only means of
achieving the objective "is to exclude women from
the all-male institution-VMI." Ibid.
"Women are [indeed] denied a unique
educational opportunity that is available only at VMI,"
the District Court acknowledged. Id., at 1432. But "[VMI's]
single-sex status would be lost, and some aspects of
the [school's] distinctive method would be altered"
if women were admitted, id., at 1413: "Allowance
for personal privacy would have to be made," id.,
at 1412; "[p]hysical education requirements would
have to be altered, at least for the women," id.,
at 1413; the adversative environment could not survive
unmodified, id., at 1412-1413. Thus, "sufficient
constitutional justification" had been shown, the
District Court held, "for continuing [VMI's] single-sex
policy." Id., at 1413.
The Court of Appeals for the Fourth Circuit
disagreed and vacated the District Court's judgment.
The appellate court held: "The Commonwealth of
Virginia has not . . . advanced any state policy by
which it can justify its determination, under an announced
policy of diversity, to afford VMI's unique type of
program to men and not to women." 976 F. 2d 890,
892 (1992).
The appeals court greeted with skepticism Virginia's
assertion that it offers single-sex education at VMI
as a facet of the State's overarching and undisputed
policy to advance "autonomy and diversity."
The court underscored Virginia's nondiscrimination commitment:
"`[I]t is extremely important that [colleges and
universities] deal with faculty, staff, and students
without regard to sex, race, or ethnic origin.'"
Id., at 899 (quoting 1990 Report of the Virginia Commission
on the University of the 21st Century). "That statement,"
the Court of Appeals said, "is the only explicit
one that we have found in the record in which the Commonwealth
has expressed itself with respect to gender distinctions."
Ibid. Furthermore, the appeals court observed, in urging
"diversity" to justify an all-male VMI, the
State had supplied "no explanation for the movement
away from [single-sex education] in Virginia by public
colleges and universities." Ibid. In short, the
court concluded, "[a] policy of diversity which
aims to provide an array of educational opportunities,
including single-gender institutions, must do more than
favor one gender." Ibid.
The parties agreed that "some women
can meet the physical standards now imposed on men,"
id., at 896, and the court was satisfied that "neither
the goal of producing citizen soldiers nor VMI's implementing
methodology is inherently unsuitable to women,"
id., at 899. The Court of Appeals, however, accepted
the District Court's finding that "at least these
three aspects of VMI's program-physical training, the
absence of privacy, and the adversative approach-would
be materially affected by coeducation." Id., at
896-897. Remanding the case, the appeals court assigned
to Virginia, in the first instance, responsibility for
selecting a remedial course. The court suggested these
options for the State: Admit women to VMI; establish
parallel institutions or programs; or abandon state
support, leaving VMI free to pursue its policies as
a private institution. Id., at 900. In May 1993, this
Court denied certiorari. See 508 U.S. 946 ; see also
ibid. (opinion of Scalia, J., noting the interlocutory
posture of the litigation).
C.
In response to the Fourth Circuit's ruling, Virginia
proposed a parallel program for women: Virginia Women's
Institute for Leadership (VWIL). The 4-year, state-sponsored
undergraduate program would be located at Mary Baldwin
College, a private liberal arts school for women, and
would be open, initially, to about 25 to 30 students.
Although VWIL would share VMI's mission-to produce "citizen-soldiers"-the
VWIL program would differ, as does Mary Baldwin College,
from VMI in academic offerings, methods of education,
and financial resources. See 852 F. Supp. 471, 476-477
(WD Va. 1994).
The average combined SAT score of entrants at Mary Baldwin
is about 100 points lower than the score for VMI freshmen.
See id., at 501. Mary Baldwin's faculty holds "significantly
fewer Ph.D.'s than the faculty at VMI," id., at
502, and receives significantly lower salaries, see
Tr. 158 (testimony of James Lott, Dean of Mary Baldwin
College), reprinted in 2 App. in Nos. 94-1667 and 94-1717
(CA4) (hereinafter Tr.). While VMI offers degrees in
liberal arts, the sciences, and engineering, Mary Baldwin,
at the time of trial, offered only bachelor of arts
degrees. See 852 F. Supp., at 503. A VWIL student seeking
to earn an engineering degree could gain one, without
public support, by attending Washington University in
St. Louis, Missouri, for two years, paying the required
private tuition. See ibid.
Experts in educating women at the college
level composed the Task Force charged with designing
the VWIL program; Task Force members were drawn from
Mary Baldwin's own faculty and staff. Id., at 476. Training
its attention on methods of instruction appropriate
for "most women," the Task Force determined
that a military model would be "wholly inappropriate"
for VWIL. Ibid.; see 44 F. 3d 1229, 1233 (CA4 1995).
VWIL students would participate in ROTC
programs and a newly established, "largely ceremonial"
Virginia Corps of Cadets, id., at 1234, but the VWIL
House would not have a military format, 852 F. Supp.,
at 477, and VWIL would not require its students to eat
meals together or to wear uniforms during the school
day, id., at 495. In lieu of VMI's adversative method,
the VWIL Task Force favored "a cooperative method
which reinforces self-esteem." Id., at 476. In
addition to the standard bachelor of arts program offered
at Mary Baldwin, VWIL students would take courses in
leadership, complete an off-campus leadership externship,
participate in community service projects, and assist
in arranging a speaker series. See 44 F. 3d, at 1234.
Virginia represented that it will provide
equal financial support for in-state VWIL students and
VMI cadets, 852 F. Supp., at 483, and the VMI Foundation
agreed to supply a $5.4625 million endowment for the
VWIL program, id., at 499. Mary Baldwin's own endowment
is about $19 million; VMI's is $131 million. Id., at
503. Mary Baldwin will add $35 million to its endowment
based on future commitments; VMI will add $220 million.
Ibid. The VMI Alumni Association has developed a network
of employers interested in hiring VMI graduates. The
Association has agreed to open its network to VWIL graduates,
id., at 499, but those graduates will not have the advantage
afforded by a VMI degree.
D.
Virginia returned to the District Court seeking approval
of its proposed remedial plan, and the court decided
the plan met the requirements of the Equal Protection
Clause. Id., at 473. The District Court again acknowledged
evidentiary support for these determinations: "[T]he
VMI methodology could be used to educate women and,
in fact, some women . . . may prefer the VMI methodology
to the VWIL methodology." Id., at 481. But the
"controlling legal principles," the District
Court decided, "do not require the Commonwealth
to provide a mirror image VMI for women." Ibid.
The court anticipated that the two schools would "achieve
substantially similar outcomes." Ibid. It concluded:
"If VMI marches to the beat of a drum, then Mary
Baldwin marches to the melody of a fife and when the
march is over, both will have arrived at the same destination."
Id., at 484.
A divided Court of Appeals affirmed the District Court's
judgment. 44 F. 3d 1229 (CA4 1995). This time, the appellate
court determined to give "greater scrutiny to the
selection of means than to the [State's] proffered objective."
Id., at 1236. The official objective or purpose, the
court said, should be reviewed deferentially. Ibid.
Respect for the "legislative will," the court
reasoned, meant that the judiciary should take a "cautious
approach," inquiring into the "legitima[cy]"
of the governmental objective and refusing approval
for any purpose revealed to be "pernicious."
Ibid.
"[P]roviding the option of a single-gender
college education may be considered a legitimate and
important aspect of a public system of higher education,"
the appeals court observed, id., at 1238; that objective,
the court added, is "not pernicious," id.,
at 1239. Moreover, the court continued, the adversative
method vital to a VMI education "has never been
tolerated in a sexually heterogeneous environment."
Ibid. The method itself "was not designed to exclude
women," the court noted, but women could not be
accommodated in the VMI program, the court believed,
for female participation in VMI's adversative training
"would destroy . . . any sense of decency that
still permeates the relationship between the sexes."
Ibid.
Having determined, deferentially, the
legitimacy of Virginia's purpose, the court considered
the question of means. Exclusion of "men at Mary
Baldwin College and women at VMI," the court said,
was essential to Virginia's purpose, for without such
exclusion, the State could not "accomplish [its]
objective of providing single-gender education."
Ibid.
The court recognized that, as it analyzed the case,
means merged into end, and the merger risked "bypass[ing]
any equal protection scrutiny." Id., at 1237. The
court therefore added another inquiry, a decisive test
it called "substantive comparability." Ibid.
The 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 by the [S]tate." Ibid. Although
the appeals court recognized that the VWIL degree "lacks
the historical benefit and prestige" of a VMI degree,
it nevertheless found the educational opportunities
at the two schools "sufficiently comparable."
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 State's action. Id.,
at 1247 (quoting Mississippi University for Women, 458
U.S., at 724 ). In Judge Phillips' view, the court had
accepted "rationalizations compelled by the exigencies
of this litigation," and had not confronted the
State's "actual overriding purpose." Ibid.
That purpose, Judge Phillips said, was clear from the
historical record; it was "not to create a new
type of educational opportunity for women, . . . nor
to further diversify the Commonwealth's higher education
system[,] . . . but [was] simply . . . to allow VMI
to continue to exclude women in order to preserve its
historic character and mission." Ibid.
Judge Phillips suggested that the State
would satisfy the Constitution's equal protection requirement
if it "simultaneously opened single-gender undergraduate
institutions having substantially comparable curricular
and extra-curricular programs, funding, physical plant,
administration and support services, and faculty and
library resources." Id., at 1250. But he thought
it evident that the proposed VWIL program, in comparison
to VMI, fell "far short . . . from providing substantially
equal tangible and intangible educational benefits to
men and women." Ibid.
The Fourth Circuit denied rehearing en
banc. 52 F. 3d 90 (1995). Circuit Judge Motz, joined
by Circuit Judges Hall, Murnaghan, and Michael, filed
a dissenting opinion. 4 Judge Motz agreed with Judge
Phillips that Virginia had not shown an "`exceedingly
persuasive justification'" for the disparate opportunities
the State supported. Id., at 92 (quoting Mississippi
Univ. for Women, 458 U.S., at 724 ). She asked: "[H]ow
can a degree from a yet to be implemented supplemental
program at Mary Baldwin be held `substantively comparable'
to a degree from a venerable Virginia military institution
that was established more than 150 years ago?"
Id., at 93. "Women need not be guaranteed equal
`results,'" Judge Motz said, "but the Equal
Protection Clause does require equal opportunity . .
. [and] that opportunity is being denied here."
Ibid.
III.
The cross-petitions in this case present two ultimate
issues. First, does Virginia's exclusion of women from
the educational opportunities provided by VMI-extraordinary
opportunities for military training and civilian leadership
development-deny to women "capable of all of the
individual activities required of VMI cadets,"
766 F. Supp., at 1412, the equal protection of the laws
guaranteed by the Fourteenth Amendment? Second, if VMI's
"unique" situation, id., at 1413-as Virginia's
sole single-sex public institution of higher education-offends
the Constitution's equal protection principle, what
is the remedial requirement?
IV.
We note, once again, 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 n. 6 (1994), and
Mississippi Univ. for Women, 458 U.S., at 724 (internal
quotation marks omitted): Parties who seek to defend
gender-based government action must demonstrate an "exceedingly
persuasive justification" for that action.
Today's skeptical scrutiny of official action denying
rights or opportunities based on sex responds to volumes
of history. As a plurality of this Court acknowledged
a generation ago, "our Nation has had a long and
unfortunate history of sex discrimination." Frontiero
v. Richardson, 411 U.S. 677, 684 (1973). Through a century
plus three decades and more of that history, women did
not count among voters composing "We the People";
5 not until 1920 did women gain a constitutional 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
women opportunities accorded men so long as any "basis
in reason" could be conceived for the discrimination.
See, e.g., Goesaert v. Cleary, 335 U.S. 464, 467 (1948)
(rejecting challenge of female tavern owner and her
daughter to Michigan law denying bartender licenses
to females-except for wives and daughters of male tavern
owners; Court would not "give ear" to the
contention that "an unchivalrous desire of male
bartenders to . . . monopolize the calling" prompted
the legislation).
In 1971, for the first time in our Nation's
history, this Court ruled in favor of a woman who complained
that her State had denied her the equal protection of
its laws. Reed v. Reed, 404 U.S. 71, 73 (holding unconstitutional
Idaho Code prescription that, among "`several persons
claiming and equally entitled to administer [a decedent's
estate], males must be preferred to females'").
Since Reed, the Court has repeatedly recognized that
neither federal nor state government acts compatibly
with the equal protection principle when a law or official
policy denies to women, simply because they are women,
full citizenship stature-equal opportunity to aspire,
achieve, participate in and contribute to society based
on their individual talents and capacities. See, e.g.,
Kirchberg v. Feenstra, 450 U.S. 455, 462 -463 (1981)
(affirming invalidity of Louisiana law that made husband
"head and master" of property jointly owned
with his wife, giving him unilateral right to dispose
of such property without his wife's consent); Stanton
v. Stanton, 421 U.S. 7 (1975) (invalidating Utah requirement
that parents support boys until age 21, girls only until
age 18).
Without equating gender classifications,
for all purposes, to classifications based on race or
national origin, 6 the Court, in post-Reed decisions,
has carefully inspected official action that closes
a door or denies opportunity to women (or to men). See
J. E. B., 511 U.S., at 152 (Kennedy, J., concurring
in judgment) (case law evolving since 1971 "reveal[s]
a strong presumption that gender classifications are
invalid"). To summarize the Court's current directions
for cases of official classification based on gender:
Focusing on the differential treatment or denial of
opportunity for which relief is sought, the reviewing
court must determine whether the proffered justification
is "exceedingly persuasive." The burden of
justification is demanding and it rests entirely on
the State. See Mississippi Univ. for 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 achievement of those
objectives.'" Ibid. (quoting Wengler v. Druggists
Mutual Ins. Co., 446 U.S. 142, 150 (1980)). The justification
must be genuine, not hypothesized or invented post hoc
in response to litigation. And it must not rely on overbroad
generalizations about the different talents, capacities,
or preferences of males and females. See Weinberger
v. Wiesenfeld, 420 U.S. 636, 643 , 648 (1975); Califano
v. Goldfarb, 430 U.S. 199, 223 -224 (1977) (Stevens,
J., concurring in judgment).
The heightened review standard our precedent
establishes does not make sex a proscribed classification.
Supposed "inherent differences" are no longer
accepted as a ground for race or national origin classifications.
See Loving v. Virginia, 388 U.S. 1 (1967). Physical
differences between men and women, however, are enduring:
"[T]he two sexes are not fungible; a community
made up exclusively of one [sex] is different from a
community composed of both." Ballard v. United
States, 329 U.S. 187, 193 (1946).
"Inherent differences" between
men and women, we have come to appreciate, remain cause
for celebration, but not for denigration of the members
of either sex or for artificial constraints on an individual's
opportunity. Sex classifications may be used to compensate
women "for particular economic disabilities [they
have] suffered," Califano v. Webster, 430 U.S.
313, 320 (1977) (per curiam), to "promot[e] equal
employment opportunity," see California Federal
Sav. & Loan Assn. v. Guerra, 479 U.S. 272, 289 (1987),
to advance full development of the talent and capacities
of our Nation's people. 7 But such classifications may
not be used, as they once were, see Goesaert, 335 U.S.,
at 467 , to create or perpetuate the legal, social,
and economic inferiority of women.
Measuring the record in this case against
the review standard just described, we conclude that
Virginia has shown no "exceedingly persuasive justification"
for excluding all women from the citizen-soldier training
afforded by VMI. We therefore affirm the Fourth Circuit's
initial judgment, which held that Virginia had violated
the Fourteenth Amendment's Equal Protection Clause.
Because the remedy proffered by Virginia-the Mary Baldwin
VWIL program-does not cure the constitutional violation,
i.e., it does not provide equal opportunity, we reverse
the Fourth Circuit's final judgment in this case.
V.
The Fourth Circuit initially held that Virginia had
advanced no state policy by which it could justify,
under equal protection principles, its determination
"to afford VMI's unique type of program to men
and not to women." 976 F. 2d, at 892. Virginia
challenges that "liability" ruling and asserts
two justifications in defense of VMI's exclusion of
women. First, the Commonwealth contends, "single-sex
education provides important educational benefits,"
Brief for Cross-Petitioners 20, and the option of single-sex
education contributes to "diversity in educational
approaches," id., at 25. Second, the Commonwealth
argues, "the unique VMI method of character development
and leadership training," the school's adversative
approach, would have to be modified were VMI to admit
women. Id., at 33-36. We consider these two justifications
in turn.
A.
Single-sex education affords pedagogical benefits to
at least some students, Virginia emphasizes, and that
reality is uncontested in this litigation. 8 Similarly,
it is not disputed that diversity among public educational
institutions can serve the public good. But Virginia
has not shown that VMI was established, or has been
maintained, with a view to diversifying, by its categorical
exclusion of women, educational opportunities within
the State. In cases of this genre, our precedent instructs
that "benign" justifications proffered in
defense of categorical exclusions will not be accepted
automatically; a tenable justification must describe
actual state purposes, not rationalizations for actions
in fact differently grounded. See Wiesenfeld, 420 U.S.,
at 648 , and n. 16 ("mere recitation of a benign
[or] compensatory purpose" does not block "inquiry
into the actual purposes" of government-maintained
gender-based classifications); Goldfarb, 430 U.S., at
212 -213 (rejecting government-proffered purposes after
"inquiry into the actual purposes") (internal
quotation marks omitted).
Mississippi Univ. for Women is immediately in point.
There the State asserted, in justification of its exclusion
of men from a nursing school, that it was engaging in
"educational affirmative action" by "compensat[ing]
for discrimination against women." 458 U.S., at
727 . Undertaking a "searching analysis,"
id., at 728, the Court found no close resemblance between
"the alleged objective" and "the actual
purpose underlying the discriminatory classification,"
id., at 730. Pursuing a similar inquiry here, we reach
the same conclusion.
Neither recent nor distant history bears
out Virginia's alleged pursuit of diversity through
single-sex educational options. In 1839, when the State
established VMI, a range of educational opportunities
for men and women was scarcely contemplated. Higher
education at the time was considered dangerous for women;
9 reflecting widely held views about women's proper
place, the Nation's first universities and colleges-for
example, Harvard in Massachusetts, William and Mary
in Virginia-admitted only men. See E. Farello, A History
of the Education of Women in the United States 163 (1970).
VMI was not at all novel in this respect: In admitting
no women, VMI followed the lead of the State's flagship
school, the University of Virginia, founded in 1819.
"[N]o struggle for the admission
of women to a state university," a historian has
recounted, "was longer drawn out, or developed
more bitterness, than that at the University of Virginia."
2 T. Woody, A History of Women's Education in the United
States 254 (1929) (History of Women's Education). In
1879, the State Senate resolved to look into the possibility
of higher education for women, recognizing that Virginia
"`has never, at any period of her history,'"
provided for the higher education of her daughters,
though she "`has liberally provided for the higher
education of her sons.'" Ibid. (quoting 10 Educ.
J. Va. 212 (1879)). Despite this recognition, no new
opportunities were instantly open to women. 10
Virginia eventually provided for several
women's seminaries and colleges. Farmville Female Seminary
became a public institution in 1884. See supra, at 3,
n. 2. Two women's schools, Mary Washington College and
James Madison University, were founded in 1908; another,
Radford University, was founded in 1910. 766 F. Supp.,
at 1418-1419. By the mid-1970's, all four schools had
become coeducational. Ibid.
Debate concerning women's admission as undergraduates
at the main university continued well past the century's
midpoint. Familiar arguments were rehearsed. If women
were admitted, it was feared, they "would encroach
on the rights of men; there would be new problems of
government, perhaps scandals; the old honor system would
have to be changed; standards would be lowered to those
of other coeducational schools; and the glorious reputation
of the university, as a school for men, would be trailed
in the dust." 2 History of Women's Education 255.
Ultimately, in 1970, "the most prestigious
institution of higher education in Virginia," the
University of Virginia, introduced coeducation and,
in 1972, began to admit women on an equal basis with
men. See Kirstein v. Rector and Visitors of Univ. of
Virginia, 309 F. Supp. 184, 186 (ED Va. 1970). A three-judge
Federal District Court confirmed: "Virginia may
not now deny to women, on the basis of sex, educational
opportunities at the Charlottesville campus that are
not afforded in other institutions operated by the [S]tate."
Id., at 187.
Virginia describes the current absence
of public single-sex higher education for women as "an
historical anomaly." Brief for Cross-Petitioners
30. But the historical record indicates action more
deliberate than anomalous: First, protection of women
against higher education; next, schools for women far
from equal in resources and stature to schools for men;
finally, conversion of the separate schools to coeducation.
The state legislature, prior to the advent of this controversy,
had repealed "[a]ll Virginia statutes requiring
individual institutions to admit only men or women."
766 F. Supp., at 1419. And in 1990, an official commission,
"legislatively established to chart the future
goals of higher education in Virginia," reaffirmed
the policy "of affording broad access" while
maintaining "autonomy and diversity." 976
F. 2d, at 898-899 (quoting Report of the Virginia Commission
on the University of the 21st Century). Significantly,
the Commission reported:
"`Because colleges and universities
provide opportunities for students to develop values
and learn from role models, it is extremely important
that they deal with faculty, staff, and students without
regard to sex, race, or ethnic origin.'" Id., at
899 (emphasis supplied by Court of Appeals deleted).
This statement, the Court of Appeals observed,
"is the only explicit one that we have found in
the record in which the Commonwealth has expressed itself
with respect to gender distinctions." Ibid.
Our 1982 decision in Mississippi Univ. for Women prompted
VMI to reexamine its male-only admission policy. See
766 F. Supp., at 1427-1428. Virginia relies on that
reexamination as a legitimate basis for maintaining
VMI's single-sex character. See Reply Brief for CrossPetitioners
6. A Mission Study Committee, appointed by the VMI Board
of Visitors, studied the problem from October 1983 until
May 1986, and in that month counseled against "change
of VMI status as a single-sex college." See 766
F. Supp., at 1429 (internal quotation marks omitted).
Whatever internal purpose the Mission Study Committee
served-and however well-meaning the framers of the report-we
can hardly extract from that effort any state policy
evenhandedly to advance diverse educational options.
As the District Court observed, the Committee's analysis
"primarily focuse[d] on anticipated difficulties
in attracting females to VMI," and the report,
overall, supplied "very little indication of how
th[e] conclusion was reached." Ibid.
In sum, we find no persuasive evidence
in this record that VMI's male-only admission policy
"is in furtherance of a state policy of `diversity.'"
See 976 F. 2d, at 899. No such policy, the Fourth Circuit
observed, can be discerned from the movement of all
other public colleges and universities in Virginia away
from single-sex education. See ibid. That court also
questioned "how one institution with autonomy,
but with no authority over any other state institution,
can give effect to a state policy of diversity among
institutions." Ibid. A purpose genuinely to advance
an array of educational options, as the Court of Appeals
recognized, is not served by VMI's historic and constant
plan-a plan to "affor[d] a unique educational benefit
only to males." Ibid. However "liberally"
this plan serves the State's sons, it makes no provision
whatever for her daughters. That is not equal protection.
B.
Virginia next argues that VMI's adversative method of
training provides educational benefits that cannot be
made available, unmodified, to women. Alterations to
accommodate women would necessarily be "radical,"
so "drastic," Virginia asserts, as to transform,
indeed "destroy," VMI's program. See Brief
for Cross-Petitioners 34-36. Neither sex would be favored
by the transformation, Virginia maintains: Men would
be deprived of the unique opportunity currently available
to them; women would not gain that opportunity because
their participation would "eliminat[e] the very
aspects of [the] program that distinguish [VMI] from
. . . other institutions of higher education in Virginia."
Id., at 34 (internal quotation marks omitted).
The District Court forecast from expert witness testimony,
and the Court of Appeals accepted, that coeducation
would materially affect "at least these three aspects
of VMI's program-physical training, the absence of privacy,
and the adversative approach." 976 F. 2d, at 896-897.
And it is uncontested that women's admission would require
accommodations, primarily in arranging housing assignments
and physical training programs for female cadets. See
Brief for Cross-Respondent 11, 29-30. It is also undisputed,
however, that "the VMI methodology could be used
to educate women." 852 F. Supp., at 481. The District
Court even allowed that some women may prefer it to
the methodology a women's college might pursue. See
ibid. "[S]ome women, at least, would want to attend
[VMI] if they had the opportunity," the District
Court recognized, 766 F. Supp., at 1414, and "some
women," the expert testimony established, "are
capable of all of the individual activities required
of VMI cadets," id., at 1412. The parties, furthermore,
agree that "some women can meet the physical standards
[VMI] now impose[s] on men." 976 F. 2d, at 896.
In sum, as the Court of Appeals stated, "neither
the goal of producing citizen soldiers," VMI's
raison d'àtre, "nor VMI's implementing methodology
is inherently unsuitable to women." Id., at 899.
In support of its initial judgment for
Virginia, a judgment rejecting all equal protection
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 the opinions of Virginia's
expert witnesses, opinions about typically male or typically
female "tendencies." Id., at 1434. For example,
"[m]ales tend to need an atmosphere of adversativeness,"
while "[f]emales tend to thrive in a cooperative
atmosphere." Ibid. "I'm not saying that some
women don't do well under [the] adversative model,"
VMI's expert on educational institutions testified,
"undoubtedly there are some [women] who do";
but educational experiences must be designed "around
the rule," this expert maintained, and not "around
the exception." Ibid. (internal quotation marks
omitted).
The United States does not challenge any
expert witness estimation on average capacities or preferences
of men and women. Instead, the United States emphasizes
that time and again since this Court's turning point
decision in Reed v. Reed, 404 U.S. 71 (1971), we have
cautioned reviewing courts to take a "hard look"
at generalizations or "tendencies" of the
kind pressed by Virginia, and relied upon by the District
Court. See O'Connor, Portia's Progress, 66 N. Y. U.
L. Rev. 1546, 1551 (1991). State actors controlling
gates to opportunity, we have instructed, may not exclude
qualified individuals based on "fixed notions concerning
the roles and abilities of males and females."
Mississippi Univ. for Women, 458 U.S., at 725 ; see
J. E. B., 511 U.S., at 139 , n. 11 (equal protection
principles, as applied to gender classifications, mean
state actors may not rely on "overbroad" generalizations
to make "judgments about people that are likely
to . . . perpetuate historical patterns of discrimination").
It may be assumed, for purposes of this
decision, that most women would not choose VMI's adversative
method. As Fourth Circuit Judge Motz observed, however,
in her dissent from the Court of Appeals' denial of
rehearing en banc, it is also probable that "many
men would not want to be educated in such an environment."
52 F. 3d, at 93. (On that point, even our dissenting
colleague might agree.) Education, to be sure, is not
a "one size fits all" business. The issue,
however, is not whether "women-or men-should be
forced to attend VMI"; rather, the question is
whether the State can constitutionally deny to women
who have the will and capacity, the training and attendant
opportunities that VMI uniquely affords. Ibid.
The notion that admission of women would
downgrade VMI's stature, destroy the adversative system
and, with it, even the school, 11 is a judgment hardly
proved, 12 a prediction hardly different from other
"self-fulfilling prophec[ies]," see Mississippi
Univ. for Women, 458 U.S., at 730 , once routinely used
to deny rights or opportunities. When women first sought
admission to the bar and access to legal education,
concerns of the same order were expressed. For example,
in 1876, the Court of Common Pleas of Hennepin County,
Minnesota, explained why women were thought ineligible
for the practice of law. Women train and educate the
young, the court said, which
"forbids that they shall bestow that
time (early and late) and labor, so essential in attaining
to the eminence to which the true lawyer should ever
aspire. It cannot therefore be said that the opposition
of courts to the admission of females to practice .
. . is to any extent the outgrowth of . . . `old fogyism[.]'
. . . [I]t arises rather from a comprehension of the
magnitude of the responsibilities connected with the
successful practice of law, and a desire to grade up
the profession." In re Application of Martha Angle
Dorsett to Be Admitted to Practice as Attorney and Counselor
at Law (Minn. C. P. Hennepin Cty., 1876), in The Syllabi,
Oct. 21, 1876, pp. 5, 6 (emphasis added).
A like fear, according to a 1925 report,
accounted for Columbia Law School's resistance to women's
admission, although
"[t]he faculty . . . never maintained
that women could not master legal learning . . . . No,
its argument has been . . . more practical. If women
were admitted to the Columbia Law School, [the faculty]
said, then the choicer, more manly and red-blooded graduates
of our great universities would go to the Harvard Law
School!" The Nation, Feb. 18, 1925, p. 173.
Medical faculties similarly resisted men
and women as partners in the study of medicine. See
R. Morantz-Sanchez, Sympathy and Science: Women Physicians
in American Medicine 51-54, 250 (1985); see also M.
Walsh, "Doctors Wanted: No Women Need Apply"
121-122 (1977) (quoting E. Clarke, Medical Education
of Women, 4 Boston Med. & Surg. J. 345, 346 (1869)
("`United States v. Virginia forbid that I should
ever see men and women aiding each other to display
with the scalpel the secrets of the reproductive system
. . . .'")); cf. supra, at 18-19, n. 9. More recently,
women seeking careers in policing encountered resistance
based on fears that their presence would "undermine
male solidarity," see F. Heidensohn, Women in Control?
201 (1992); deprive male partners of adequate assistance,
see id., at 184-185; and lead to sexual misconduct,
see C. Milton et al., Women in Policing 32-33 (1974).
Field studies did not confirm these fears. See Women
in Control? supra, at 92-93; P. Bloch & D. Anderson,
Policewomen on Patrol: Final Report (1974).
Women's successful entry into the federal military academies,
13 and their participation in the Nation's military
forces, 14 indicate that Virginia's fears for the future
of VMI may not be solidly grounded. 15 The State's justification
for excluding all women from "citizen-soldier"
training for which some are qualified, in any event,
cannot rank as "exceedingly persuasive," as
we have explained and applied that standard.
Virginia and VMI trained their argument
on "means" rather than "end," and
thus misperceived our precedent. Single-sex education
at VMI serves an "important governmental objective,"
they maintained, and exclusion of women is not only
"substantially related," it is essential to
that objective. By this notably circular argument, the
"straightforward" test Mississippi Univ. for
Women described, see 458 U.S., at 724 -725, was bent
and bowed.
The State's misunderstanding and, in turn,
the District Court's, is apparent from VMI's mission:
to produce "citizen-soldiers," individuals
`imbued with love of learning, confident
in the functions and attitudes of leadership, possessing
a high sense of public service, advocates of the American
democracy and free enterprise system, and ready . .
. to defend their country in time of national peril.'"
766 F. Supp., at 1425 (quoting Mission Study Committee
of the VMI Board of Visitors, Report, May 16, 1986).
Surely that goal is great enough to accommodate
women, who today count as citizens in our American democracy
equal in stature to men. Just as surely, the State's
great goal is not substantially advanced by women's
categorical exclusion, in total disregard of their individual
merit, from the State's premier "citizen-soldier"
corps. 16 Virginia, in sum, "has fallen far short
of establishing the `exceedingly persuasive justification,'"
Mississippi Univ. for Women, 458 U.S., at 731 , that
must be the solid base for any gender-defined classification.
VI.
In the second phase of the litigation, Virginia presented
its remedial plan-maintain VMI as a male-only college
and create VWIL as a separate program for women. The
plan met District Court approval. The Fourth Circuit,
in turn, deferentially reviewed the State's proposal
and decided that the two single-sex programs directly
served Virginia's reasserted purposes: single-gender
education, and "achieving the results of an adversative
method in a military environment." See 44 F. 3d,
at 1236, 1239. Inspecting the VMI and VWIL educational
programs to determine whether they "afford[ed]
to both genders benefits comparable in substance, [if]
not in form and detail," id., at 1240, the Court
of Appeals concluded that Virginia had arranged for
men and women opportunities "sufficiently comparable"
to survive equal protection evaluation, id., at 1240-1241.
The United States challenges this "remedial"
ruling as pervasively misguided.
A.
A remedial decree, this Court has said, must closely
fit the constitutional violation; it must be shaped
to place persons unconstitutionally denied an opportunity
or advantage in "the position they would have occupied
in the absence of [discrimination]." See Milliken
v. Bradley, 433 U.S. 267, 280 (1977) (internal quotation
marks omitted). The constitutional violation in this
case is the categorical exclusion of women from an extraordinary
educational opportunity afforded men. A proper remedy
for an unconstitutional exclusion, we have explained,
aims to "eliminate [so far as possible] the discriminatory
effects of the past" and to "bar like discrimination
in the future." Louisiana v. United States, 380
U.S. 145, 154 (1965).
Virginia chose not to eliminate, but to leave untouched,
VMI's exclusionary policy. For women only, however,
Virginia proposed a separate program, different in kind
from VMI and unequal in tangible and intangible facilities.
17 Having violated the Constitution's equal protection
requirement, Virginia was obliged to show that its remedial
proposal "directly address[ed] and relate[d] to"
the violation, see Milliken, 433 U.S., at 282 , i.e.,
the equal protection denied to women ready, willing,
and able to benefit from educational opportunities of
the kind VMI offers. Virginia described VWIL as a "parallel
program," and asserted that VWIL shares VMI's mission
of producing "citizen-soldiers" and VMI's
goals of providing "education, military training,
mental and physical discipline, character . . . and
leadership development." Brief for Respondents
24 (internal quotation marks omitted). If the VWIL program
could not "eliminate the discriminatory effects
of the past," could it at least "bar like
discrimination in the future"? See Louisiana, 380
U.S., at 154 . A comparison of the programs said to
be "parallel" informs our answer. In exposing
the character of, and differences in, the VMI and VWIL
programs, we recapitulate facts earlier presented. See
supra, at 2-5, 8-9.
VWIL affords women no opportunity to experience
the rigorous military training for which VMI is famed.
See 766 F. Supp., at 1413-1414 ("No other school
in Virginia or in the United States, public or private,
offers the same kind of rigorous military training as
is available at VMI."); id., at 1421 (VMI "is
known to be the most challenging military school in
the United States"). Instead, the VWIL program
"deemphasize[s]" military education, 44 F.
3d, at 1234, and uses a "cooperative method"
of education "which reinforces self-esteem,"
852 F. Supp., at 476.
VWIL students participate in ROTC and
a "largely ceremonial" Virginia Corps of Cadets,
see 44 F. 3d, at 1234, but Virginia deliberately did
not make VWIL a military institute. The VWIL House is
not a military-style residence and VWIL students need
not live together throughout the 4-year program, eat
meals together, or wear uniforms during the school day.
See 852 F. Supp., at 477, 495. VWIL students thus do
not experience the "barracks" life "crucial
to the VMI experience," the spartan living arrangements
designed to foster an "egalitarian ethic."
See 766 F. Supp., at 1423-1424. "[T]he most important
aspects of the VMI educational experience occur in the
barracks," the District Court found, id., at 1423,
yet Virginia deemed that core experience nonessential,
indeed inappropriate, for training its female citizen-soldiers.
VWIL students receive their "leadership
training" in seminars, externships, and speaker
series, see 852 F. Supp., at 477, episodes and encounters
lacking the "[p]hysical rigor, mental stress, .
. . minute regulation of behavior, and indoctrination
in desirable values" made hallmarks of VMI's citizen-soldier
training, see 766 F. Supp., at 1421. 18 Kept away from
the pressures, hazards, and psychological bonding characteristic
of VMI's adversative training, see id., at 1422, VWIL
students will not know the "feeling of tremendous
accomplishment" commonly experienced by VMI's successful
cadets, id., at 1426.
Virginia maintains that these methodological
differences are "justified pedagogically,"
based on "important differences between men and
women in learning and developmental needs," "psychological
and sociological differences" Virginia describes
as "real" and "not stereotypes."
Brief for Respondents 28 (internal quotation marks omitted).
The Task Force charged with developing the leadership
program for women, drawn from the staff and faculty
at Mary Baldwin College, "determined that a military
model and, especially VMI's adversative method, would
be wholly inappropriate for educating and training most
women." 852 F. Supp., at 476 (emphasis added).
See also 44 F. 3d, at 1233-1234 (noting Task Force conclusion
that, while "some women would be suited to and
interested in [a VMI-style experience]," VMI's
adversative method "would not be effective for
women as a group") (emphasis added). The Commonwealth
embraced the Task Force view, as did expert witnesses
who testified for Virginia. See 852 F. Supp., at 480-481.
As earlier stated, see supra, at 24, generalizations
about "the way women are," estimates of what
is appropriate for most women, no longer justify denying
opportunity to women whose talent and capacity place
them outside the average description. Notably, Virginia
never asserted that VMI's method of education suits
most men. It is also revealing that Virginia accounted
for its failure to make the VWIL experience "the
entirely militaristic experience of VMI" on the
ground that VWIL "is planned for women who do not
necessarily expect to pursue military careers."
852 F. Supp., at 478. By that reasoning, VMI's "entirely
militaristic" program would be inappropriate for
men in general or as a group, for "[o]nly about
15% of VMI cadets enter career military service."
See 766 F. Supp., at 1432.
In contrast to the generalizations about
women on which Virginia rests, we note again these dispositive
realties: VMI's "implementing methodology"
is not "inherently unsuitable to women," 976
F. 2d, at 899; "some women . . . do well under
[the] adversative model," 766 F. Supp., at 1434
(internal quotation marks omitted); "some women,
at least, would want to attend [VMI] if they had the
opportunity," id., at 1414; "some women are
capable of all of the individual activities required
of VMI cadets," id., at 1412, and "can meet
the physical standards [VMI] now impose[s] on men,"
976 F. 2d, at 896. It is on behalf of these women that
the United States has instituted this suit, and it is
for them that a remedy must be crafted, 19 a remedy
that will end their exclusion from a state-supplied
educational opportunity for which they are fit, a decree
that will "bar like discrimination in the future."
Louisiana, 380 U.S., at 154 .
B.
In myriad respects other than military training, VWIL
does not qualify as VMI's equal. VWIL's student body,
faculty, course offerings, and facilities hardly match
VMI's. Nor can the VWIL graduate anticipate the benefits
associated with VMI's 157-year history, the school's
prestige, and its influential alumni network.
Mary Baldwin College, whose degree VWIL students will
gain, enrolls first-year women with an average combined
SAT score about 100 points lower than the average score
for VMI freshmen. 852 F. Supp., at 501. The Mary Baldwin
faculty holds "significantly fewer Ph.D.'s,"
id., at 502, and receives substantially lower salaries,
see Tr. 158 (testimony of James Lott, Dean of Mary Baldwin
College), than the faculty at VMI.
Mary Baldwin does not offer a VWIL student
the range of curricular choices available to a VMI cadet.
VMI awards baccalaureate degrees in liberal arts, biology,
chemistry, civil engineering, electrical and computer
engineering, and mechanical engineering. See 852 F.
Supp., at 503; Virginia Military Institute: More than
an Education 11 (Govt. exh. 75, lodged with Clerk of
this Court). VWIL students attend a school that "does
not have a math and science focus," 852 F. Supp.,
at 503; they cannot take at Mary Baldwin any courses
in engineering or the advanced math and physics courses
VMI offers, see id., at 477.
For physical training, Mary Baldwin has
"two multi-purpose fields" and "[o]ne
gymnasium." Id., at 503. VMI has "an NCAA
competition level indoor track and field facility; a
number of multi-purpose fields; baseball, soccer and
lacrosse fields; an obstacle course; large boxing, wrestling
and martial arts facilities; an 11-laps-to-the-mile
indoor running course; an indoor pool; indoor and outdoor
rifle ranges; and a football stadium that also contains
a practice field and outdoor track." Ibid.
Although Virginia has represented that
it will provide equal financial support for in-state
VWIL students and VMI cadets, id., at 483, and the VMI
Foundation has agreed to endow VWIL with $5.4625 million,
id., at 499, the difference between the two schools'
financial reserves is pronounced. Mary Baldwin's endowment,
currently about $19 million, will gain an additional
$35 million based on future commitments; VMI's current
endowment, $131 million-the largest per-student endowment
in the Nation-will gain $220 million. Id., at 503.
The VWIL student does not graduate with
the advantage of a VMI degree. Her diploma does not
unite her with the legions of VMI "graduates [who]
have distinguished themselves" in military and
civilian life. See 976 F. 2d, at 892-893. "[VMI]
alumni are exceptionally close to the school,"
and that closeness accounts, in part, for VMI's success
in attracting applicants. See 766 F. Supp., at 1421.
A VWIL graduate cannot assume that the "network
of business owners, corporations, VMI graduates and
non-graduate employers . . . interested in hiring VMI
graduates," 852 F. Supp., at 499, will be equally
responsive to her search for employment, see 44 F. 3d,
at 1250 (Phillips, J., dissenting) ("the powerful
political and economic ties of the VMI alumni network
cannot be expected to open" for graduates of the
fledgling VWIL program).
Virginia, in sum, while maintaining VMI
for men only, has failed to provide any "comparable
single-gender women's institution." Id., at 1241.
Instead, the Commonwealth has created a VWIL program
fairly appraised as a "pale shadow" of VMI
in terms of the range of curricular choices and faculty
stature, funding, prestige, alumni support and influence.
See id., at 1250 (Phillips, J., dissenting).
Virginia's VWIL solution is reminiscent
of the remedy Texas proposed 50 years ago, in response
to a state trial court's 1946 ruling that, given the
equal protection guarantee, African Americans could
not be denied a legal education at a state facility.
See Sweatt v. Painter, 339 U.S. 629 (1950). Reluctant
to admit African Americans to its flagship University
of Texas Law School, the State set up a separate school
for Herman Sweatt and other black law students. Id.,
at 632. As originally opened, the new school had no
independent faculty or library, and it lacked accreditation.
Id., at 633. Nevertheless, the state trial and appellate
courts were satisfied that the new school offered Sweatt
opportunities for the study of law "substantially
equivalent to those offered by the State to white students
at the University of Texas." Id., at 632 (internal
quotation marks omitted).
Before this Court considered the case,
the new school had gained "a faculty of five full-time
professors; a student body of 23; a library of some
16,500 volumes serviced by a full-time staff; a practice
court and legal aid association; and one alumnus 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
excluded. The University of Texas Law School had a full-time
faculty of 16, a student body of 850, a library containing
over 65,000 volumes, scholarship funds, a law review,
and moot court facilities. Id., at 632-633.
More important than the tangible features,
the Court emphasized, are "those qualities which
are incapable of objective measurement but which make
for greatness" in a school, including "reputation
of the faculty, experience of the administration, position
and influence of the alumni, standing in the community,
traditions and prestige." Id., at 634. Facing the
marked differences reported in the Sweatt opinion, the
Court unanimously ruled that Texas had not shown "substantial
equality in the [separate] educational opportunities"
the State offered. Id., at 633. Accordingly, the Court
held, the Equal Protection Clause required Texas to
admit African Americans to the University of Texas Law
School. Id., at 636. In line with Sweatt, we rule here
that Virginia has not shown substantial equality in
the separate educational opportunities the State supports
at VWIL and VMI.
C.
When Virginia tendered its VWIL plan, the Fourth Circuit
did not inquire whether the proposed remedy, approved
by the District Court, placed women denied the VMI advantage
in "the position they would have occupied in the
absence of [discrimination]." Milliken, 433 U.S.,
at 280 (internal quotation marks omitted). Instead,
the Court of Appeals considered whether the State could
provide, with fidelity to the equal protection principle,
separate and unequal educational programs for men and
women.
The Fourth Circuit acknowledged that "the VWIL
degree from Mary Baldwin College lacks the historical
benefit and prestige of a degree from VMI." 44
F. 3d, at 1241. The Court of Appeals further observed
that VMI is "an ongoing and successful institution
with a long history," and there remains no "comparable
single-gender women's institution." Ibid. Nevertheless,
the appeals court declared the substantially different
and significantly unequal VWIL program satisfactory.
The court reached that result by revising the applicable
standard of review. The Fourth Circuit displaced the
standard developed in our precedent, see supra, at 13-16,
and substituted a standard of its own invention.
We have earlier described the deferential
review in which the Court of Appeals engaged, see supra,
at 10-11, a brand of review inconsistent with the more
exacting standard our precedent requires, see supra,
at 13-16. Quoting in part from Mississippi Univ. for
Women, the Court of Appeals candidly described its own
analysis as one capable of checking a legislative purpose
ranked as "pernicious," but generally according
"deference to [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
at [single-gender education]," the Court of Appeals
devised another test, a "substantive comparability"
inquiry, id., at 1237, and proceeded to find that new
test satisfied, id., at 1241.
The Fourth Circuit plainly erred in exposing
Virginia's VWIL plan to a deferential analysis, for
"all gender-based classifications today" warrant
"heightened scrutiny." See J. E. B., 511 U.S.,
at 136 . Valuable as VWIL may prove for students who
seek the program offered, Virginia's remedy affords
no cure at all for the opportunities and advantages
withheld from women who want a VMI education and can
make the grade. See supra, at 31-36. 20 In sum, Virginia's
remedy does not match the constitutional violation;
the State has shown no "exceedingly persuasive
justification" for withholding from women qualified
for the experience premier training of the kind VMI
affords.
VII.
A generation ago, "the authorities controlling
Virginia higher education," despite long established
tradition, agreed "to innovate and favorably entertain[ed]
the [then] relatively new idea that there must be no
discrimination by sex in offering educational opportunity."
Kirstein, 309 F. Supp., at 186. Commencing in 1970,
Virginia opened to women "educational opportunities
at the Charlottesville campus that [were] not afforded
in other [State-operated] institutions." Id., at
187; see supra, at 20. A federal court approved the
State's innovation, emphasizing that the University
of Virginia "offer[ed] courses of instruction .
. . not available elsewhere." 309 F. Supp., at
187. The court further noted: "[T]here exists at
Charlottesville a `prestige' factor [not paralleled
in] other Virginia educational institutions." Ibid.
VMI, too, offers an educational opportunity no other
Virginia institution provides, and the school's "prestige"-associated
with its success in developing "citizen-soldiers"-is
unequaled. Virginia has closed this facility to its
daughters and, instead, has devised for them a "parallel
program," with a faculty less impressively credentialed
and less well paid, more limited course offerings, fewer
opportunities for military training and for scientific
specialization. Cf. Sweatt, 339 U.S., at 633 . VMI,
beyond question, "possesses to a far greater degree"
than the VWIL program "those qualities which are
incapable of objective measurement but which make for
greatness in a . . . school," including "position
and influence of the alumni, standing in the community,
traditions and prestige." Id., at 634. Women seeking
and fit for a VMI-quality education cannot be offered
anything less, under the State's obligation to afford
them genuinely equal protection.
A prime part of the history of our Constitution,
historian Richard Morris recounted, is the story of
the extension of constitutional rights and protections
to people once ignored or excluded. 21 VMI's story continued
as our comprehension of "We the People" expanded.
See supra, at 29, n. 16. There is no reason to believe
that the admission of women capable of all the activities
required of VMI cadets would destroy the Institute rather
than enhance its capacity to serve the "more perfect
Union."
For the reasons stated, the initial judgment
of the Court of Appeals, 976 F. 2d 890 (CA4 1992), is
affirmed, the final judgment of the Court of Appeals,
44 F. 3d 1229 (CA4 1995), is reversed, and the case
is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Thomas took no part in the consideration
or decision of this case.
Chief Justice Rehnquist, concurring in
judgment.
The Court holds first that Virginia violates
the Equal Protection Clause by maintaining the Virginia
Military Institute's (VMI's) all-male admissions policy,
and second that establishing the Virginia Women's Institute
for Leadership (VWIL) program does not remedy that violation.
While I agree with these conclusions, I disagree with
the Court's analysis and so I write separately.
I.
Two decades ago in Craig v. Boren, 429 U.S. 190, 197
(1976), we announced that "[t]o withstand constitutional
challenge, . . . classifications by gender must serve
important governmental objectives and must be substantially
related to achievement of those objectives." We
have adhered to that standard of scrutiny ever since.
See Califano v. Goldfarb, 430 U.S. 199, 210 -211 (1977);
Califano v. Webster, 430 U.S. 313, 316 -317 (1977);
Orr v. Orr, 440 U.S. 268, 279 (1979); Caban v. Mohammed,
441 U.S. 380, 388 (1979); Davis v. Passman, 442 U.S.
228, 234 -235, 235, n. 9 (1979); Personnel Administrator
of Mass. v. Feeney, 442 U.S. 256, 273 (1979); Califano
v. Westcott, 443 U.S. 76, 85 (1979); Wengler v. Druggists
Mutual Ins. Co., 446 U.S. 142, 150 (1980); Kirchberg
v. Feenstra, 450 U.S. 455, 459 -460 (1981); Michael
M. v. Superior Court, Sonoma Cty., 450 U.S. 464, 469
(1981); Mississippi Univ. for Women v. Hogan, 458 U.S.
718, 724 (1982); Heckler v. Mathews, 465 U.S. 728, 744
(1984); J. E. B. v. Alabama ex rel. T. B., 511 U. S.
___, ___, n.6 (slip op., at 10, n.6) (1994). While the
majority adheres to this test today, ante, at 6, 15,
it also says that the State must demonstrate an "`exceedingly
persuasive justification'" to support a gender-based
classification. See ante, at 6, 11, 12, 13, 15, 16,
28, 29, 39. It is unfortunate that the Court thereby
introduces an element of uncertainty respecting the
appropriate test.
While terms like "important governmental objective"
and "substantially related" are hardly models
of precision, they have more content and specificity
than does the phrase "exceedingly persuasive justification."
That phrase is best confined, as it was first used,
as an observation on the difficulty of meeting the applicable
test, not as a formulation of the test itself. See,
e.g., Feeney, supra, at 273 ("[T]hese precedents
dictate that any state law overtly or covertly designed
to prefer males over females in public employment require
an exceedingly persuasive justification"). To avoid
introducing potential confusion, I would have adhered
more closely to our traditional, "firmly established,"
Hogan, supra, at 723; Heckler, supra, at 744, standard
that a gender-based classification "must bear a
close and substantial relationship to important governmental
objectives." Feeney, supra, at 273.
Our cases dealing with gender discrimination
also require that the proffered purpose for the challenged
law be the actual purpose. See ante, at 15, 18. It is
on this ground that the Court rejects the first of two
justifications Virginia offers for VMI's single-sex
admissions policy, namely, the goal of diversity among
its public educational institutions. While I ultimately
agree that the State has not carried the day with this
justification, I disagree with the Court's method of
analyzing the issue.
VMI was founded in 1839, and, as the Court
notes, ante, at 18-19, admission was limited to men
because under the then-prevailing view men, not women,
were destined for higher education. However misguided
this point of view may be by present-day standards,
it surely was not unconstitutional in 1839. The adoption
of the Fourteenth Amendment, with its Equal Protection
Clause, was nearly 30 years in the future. The interpretation
of the Equal Protection Clause to require heightened
scrutiny for gender discrimination was yet another century
away.
Long after the adoption of the Fourteenth
Amendment, and well into this century, legal distinctions
between men and women were thought to raise no question
under the Equal Protection Clause. The Court refers
to our decision in Goesaert v. Cleary, 335 U.S. 466
(1948). Likewise representing that now abandoned view
was Hoyt v. Florida, 368 U.S. 57 (1961), where the Court
upheld a Florida system of jury selection in which men
were automatically placed on jury lists, but women were
placed there only if they expressed an affirmative desire
to serve. The Court noted that despite advances in women's
opportunities, the "woman is still regarded as
the center of home and family life." Id., at 62.
Then, in 1971, we decided Reed v. Reed,
404 U.S. 71 , which the Court correctly refers to as
a seminal case. But its facts have nothing to do with
admissions to any sort of educational institution. An
Idaho statute governing the administration of estates
and probate preferred men to women if the other statutory
qualifications were equal. The statute's purpose, according
to the Idaho Supreme Court, was to avoid hearings to
determine who was better qualified as between a man
and a woman both applying for letters of administration.
This Court held that such a rule violated the Fourteenth
Amendment because "a mandatory preference to members
of either sex over members of the other, merely to accomplish
the elimination of hearings" was an "arbitrary
legislative choice forbidden by the Equal Protection
Clause." Id., at 76. The brief opinion in Reed
made no mention of either Goesaert or Hoyt.
Even at the time of our decision in Reed
v. Reed, therefore, Virginia and VMI were scarcely on
notice that its holding would be extended across the
constitutional board. They were entitled to believe
that "one swallow doesn't make a summer" and
await further developments. Those developments were
11 years in coming. In Mississippi Univ. for Women v.
Hogan, 458 U.S. 718 (1982), a case actually involving
a single-sex admissions policy in higher education,
the Court held that the exclusion of men from a nursing
program violated the Equal Protection Clause. This holding
did place Virginia on notice that VMI's men-only admissions
policy was open to serious question.
The VMI Board of Visitors, in response,
appointed a Mission Study Committee to examine "the
legality and wisdom of VMI's single-sex policy in light
of" Hogan. 766 F. Supp. 1407, 1427 (WD Va. 1991).
But the committee ended up cryptically recommending
against changing VMI's status as a single-sex college.
After three years of study, the committee found "`no
information'" that would warrant a change in VMI's
status. Id., at 1429. Even the District Court, ultimately
sympathetic to VMI's position, found that "[t]he
Report provided very little indication of how [its]
conclusion was reached" and that "the one
and one-half pages in the committee's final report devoted
to analyzing the information it obtained primarily focuses
on anticipated difficulties in attracting females to
VMI." Ibid. The reasons given in the report for
not changing the policy were the changes that admission
of women to VMI would require, and the likely effect
of those changes on the institution. That VMI would
have to change is simply not helpful in addressing the
constitutionality of the status after Hogan.
Before this Court, Virginia has sought
to justify VMI's single-sex admissions policy primarily
on the basis that diversity in education is desirable,
and that while most of the public institutions of higher
learning in the State are coeducational, there should
also be room for single-sex institutions. I agree with
the Court that there is scant evidence in the record
that this was the real reason that Virginia decided
to maintain VMI as men only. 22 But, unlike the majority,
I would consider only evidence that postdates our decision
in Hogan, and would draw no negative inferences from
the State's actions before that time. I think that after
Hogan, the State was entitled to reconsider its policy
with respect to VMI, and to not have earlier justifications,
or lack thereof, held against it.
Even if diversity in educational opportunity
were the State's actual objective, the State's position
would still be problematic. The difficulty with its
position is that the diversity benefited only one sex;
there was single-sex public education available for
men at VMI, but no corresponding single-sex public education
available for women. When Hogan placed Virginia on notice
that VMI's admissions policy possibly was unconstitutional,
VMI could have dealt with the problem by admitting women;
but its governing body felt strongly that the admission
of women would have seriously harmed the institution's
educational approach. Was there something else the State
could have done to avoid an equal protection violation?
Since the State did nothing, we do not have to definitively
answer that question.
I do not think, however, that the State's
options were as limited as the majority may imply. The
Court cites, without expressly approving it, a statement
from the opinion of the dissenting judge in the Court
of Appeals, to the effect that the State could have
"simultaneously opened single-gender undergraduate
institutions having substantially comparable curricular
and extra-curricular programs, funding, physical plant,
administration and support services, and faculty and
library resources." Ante, at 11-12 (internal quotation
marks omitted). If this statement is thought to exclude
other possibilities, it is too stringent a requirement.
VMI had been in operation for over a century and a half,
and had an established, successful and devoted group
of alumni. No legislative wand could instantly call
into existence a similar institution for women; and
it would be a tremendous loss to scrap VMI's history
and tradition. In the words of Grover Cleveland's second
inaugural address, the State faced a condition, not
a theory. And it was a condition that had been brought
about, not through defiance of decisions construing
gender bias under the Equal Protection Clause, but,
until the decision in Hogan, a condition which had not
appeared to offend the Constitution. Had Virginia made
a genuine effort to devote comparable public resources
to a facility for women, and followed through on such
a plan, it might well have avoided an equal protection
violation. I do not believe the State was faced with
the stark choice of either admitting women to VMI, on
the one hand, or abandoning VMI and starting from scratch
for both men and women, on the other.
But, as I have noted, neither the governing
board of VMI nor the State took any action after 1982.
If diversity in the form of single-sex, as well as coeducational,
institutions of higher learning were to be available
to Virginians, that diversity had to be available to
women as well as to men.
The dissent criticizes me for "disregarding
the four all-women's private colleges in Virginia (generously
assisted by public funds)." Post, at 32. The private
women's colleges are treated by the State exactly as
all other private schools are treated, which includes
the provision of tuition-assistance grants to Virginia
residents. Virginia gives no special support to the
women's single-sex education. But obviously, the same
is not true for men's education. Had the State provided
the kind of support for the private women's schools
that it provides for VMI, this may have been a very
different case. For in so doing, the State would have
demonstrated that its interest in providing a single-sex
education for men, was to some measure matched by an
interest in providing the same opportunity for women.
Virginia offers a second justification
for the single-sex admissions policy: maintenance of
the adversative method. I agree with the Court that
this justification does not serve an important governmental
objective. A State does not have substantial interest
in the adversative methodology unless it is pedagogically
beneficial. While considerable evidence shows that a
single-sex education is pedagogically beneficial for
some students, see 766 F. Supp., at 1414, and hence
a State may have a valid interest in promoting that
methodology, there is no similar evidence in the record
that an adversative method is pedagogically beneficial
or is any more likely to produce character traits than
other methodologies.
II.
The Court defines the constitutional violation in this
case as "the categorical exclusion of women from
an extraordinary educational opportunity afforded to
men." Ante, at 30. By defining the violation in
this way, and by emphasizing that a remedy for a constitutional
violation must place the victims of discrimination in
"`the position they would have occupied in the
absence of [discrimination],'" ibid., the Court
necessarily implies that the only adequate remedy would
be the admission of women to the all-male institution.
As the foregoing discussion suggests, I would not define
the violation in this way; it is not the "exclusion
of women" that violates the Equal Protection Clause,
but the maintenance of an all-men school without providing
any-much less a comparable-institution for women.
Accordingly, the remedy should not necessarily require
either the admission of women to VMI, or the creation
of a VMI clone for women. An adequate remedy in my opinion
might be a demonstration by Virginia that its interest
in educating men in a single-sex environment is matched
by its interest in educating women in a single-sex institution.
To demonstrate such, the State does not need to create
two institutions with the same number of faculty PhD's,
similar SAT scores, or comparable athletic fields. See
ante, at 34-35. Nor would it necessarily require that
the women's institution offer the same curriculum as
the men's; one could be strong in computer science,
the other could be strong in liberal arts. It would
be a sufficient remedy, I think, if the two institutions
offered the same quality of education and were of the
same overall calibre.
If a state decides to create single-sex
programs, the state would, I expect, consider the public's
interest and demand in designing curricula. And rightfully
so. But the state should avoid assuming demand based
on stereotypes; it must not assume a priori, without
evidence, that there would be no interest in a women's
school of civil engineering, or in a men's school of
nursing.
In the end, the women's institution Virginia
proposes, VWIL, fails as a remedy, because it is distinctly
inferior to the existing men's institution and will
continue to be for the foreseeable future. VWIL simply
is not, in any sense, the institution that VMI is. In
particular, VWIL is a program appended to a private
college, not a self-standing institution; and VWIL is
substantially underfunded as compared to VMI. I therefore
ultimately agree with the Court that Virginia has not
provided an adequate remedy.
Justice Scalia, dissenting.
Today the Court shuts down an institution
that has served the people of the Commonwealth of Virginia
with pride and distinction for over a century and a
half. To achieve that desired result, it rejects (contrary
to our established practice) the factual findings of
two courts below, sweeps aside the precedents of this
Court, and ignores the history of our people. As to
facts: it explicitly rejects the finding that there
exist "gender-based developmental differences"
supporting Virginia's restriction of the "adversative"
method to only a men's institution, and the finding
that the all-male composition of the Virginia Military
Institute (VMI) is essential to that institution's character.
As to precedent: it drastically revises our established
standards for reviewing sex-based classifications. And
as to history: it counts for nothing the long tradition,
enduring down to the present, of men's military colleges
supported by both States and the Federal Government.
Much of the Court's opinion is devoted
to deprecating the closed-mindedness of our forebears
with regard to women's education, and even with regard
to the treatment of women in areas that have nothing
to do with education. Closed-minded they were-as every
age is, including our own, with regard to matters it
cannot guess, because it simply does |