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SUPREME COURT OF THE UNITED STATES

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Nos. 94-1941 and 94-2107 Opinion| Survey: Lies or Opinions?| Justice Ginzberg's Background| Syllabus| UVa Speech| Biography| Ginzberg & Gays| Picture| VMI Forum| Dissenting Opinion| Excerpts from Dissenting Opinion| Guestbook| Phyllis Schaffley on VMI

UNITED STATES, PETITIONER 94-1941 v. VIRGINIA et al. VIRGINIA, et al., PETITIONERS 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.

 

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 itscadets 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.

 

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. �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, �2 (requiring every cadet to teach in one of the Commonwealth's schools for a 2 year period). [n.1] Civil War strife threatenedthe 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. [n.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 preparationfor 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 opportunityanywhere to gain the benefits of [the system of education at VMI]." Ibid.

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. [n.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 forthe 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).

 

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 fromMary 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.

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 againacknowledged 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 undergraduateinstitutions 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. [n.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.

 

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," 766F. 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?

 

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"; [n.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, [n.6] the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity towomen (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 arti