Court Case May Redefine Legal Standing of Women It Marks First 'Meaningful' Review of Gender Bias in 15 Years

Article excerpt

THE Supreme Court heard arguments on gender discrimination yesterday in a case that could dramatically change the legal status of women in the United States.

On the surface, the case is a dispute over whether the all-male Virginia Military Institute in Lexington, Va., should allow women into its rigorous training program. The Justice Department says VMI's state-supported program, established in 1839, discriminates against women. Lawyers for Virginia and VMI argued that the case is less about discrimination and more about the virtue of single-sex institutions of learning.

But the Clinton administration raised the stakes in the VMI case yesterday in an extraordinary way. In a charged session, Justice Department lawyer Paul Bender asked the justices to create a new standard for the legal status of women in America - putting gender in the same category of rights now held exclusively by racial minorities under the 14th Amendment's equal protection clause.

If the court agrees with the government's request to give women this status, the result will be both a landmark decision and a potential explosion of gender-based litigation affecting schools, education financing, and other public institutions.

"We haven't had a meaningful review of gender discrimination in 15 years," says legal scholar Douglas Kmeic of the University of Notre Dame in Indiana. "They {the administration} went for broke in this one."

The session, marked by constant questions from the justices, particularly Ruth Bader Ginsburg and Antonin Scalia, focused on whether women who attend a newly created "leadership" program at a sister college graduate with the same status and prospects as the VMI men.

Justice Ginsburg, a legal pioneer for women's civil rights, questioned whether the trademark "adversative" nature of the VMI military program was truly duplicated at the sister school.

The high court's decision to take the case is probably a result of competing judicial agendas. The VMI case meshes with Justice Ginsburg's judicial philosophy of civil rights. But conservative justices such as Scalia and William Rehnquist may try to use VMI to block a further creation of rights the Supreme Court would be responsible for adjudicating.

Associate Justice Clarence Thomas, whose son attends VMI, recused himself from the case, which is significant because the nine-member court could yield a rare split decision in a controversial case.

'Separate but comparable' schools

Last January, the Fourth Circuit Court of Appeals in Richmond, Va., ruled that single-sex public schools can be "separate but substantially comparable." The basis for the ruling, however, was Virginia's new "parallel program" for women at the all-female Mary Baldwin College. …