Are All 'Rats' Equal? the Supreme Court Looks at VMI
Gaffney, Edward McGlynn, Jr., Commonweal
In 1954 the Supreme Court did the nation a great favor when, in Brown v. Board of Education, it repudiated racial apartheid, American-style. And Congress moved the ball a lot further when it prohibited discrimination on the basis of race, sex, and religion in the most important statute of this century, the Civil Rights Act of 1964. But that doesn't mean that all forms of discrimination are equally abhorrent. For example, single-sex schools like Wellesley or Saint Mary's College are expressly protected under Title IX of the 1972 federal statute that otherwise prohibits sex discrimination in federally funded educational programs. That suggests that governmental classifications based on gender are not quite the same as those based on race. But may state or federal funds be used to support military institutions that exclude women? Would separate facilities for men and women who want training that would enable them to serve in the military necessarily violate the equal protection clause? In other words, do we need to be discriminating about discrimination?
These questions are squarely presented in a case on the Supreme Court's docket this term involving a challenge by the federal government to the males-only admissions policy of the Virginia Military Institute (VMI). The lower courts found that this policy was unconstitutional and ordered the State of Virginia to correct this violation of women's rights by setting up a comparable program for women known as the Virginia Women's Institute for Leadership (VMIL). The federal government has pulled out all the stops in its briefs, arguing not only that VWIL is itself unconstitutional because it is a separate facility available only to women, but also that "all classifications that deny opportunities to individuals based on their gender should be subjected to strict judicial scrutiny."
"Strict scrutiny" is a legal buzzword for invalidating a governmental classification with a discriminatory effect. For several decades the Court has said that racial classifications must be reviewed under this standard, and has--with the sole exception of some affirmative-action cases--nearly always found racial classifications to be constitutionally impermissible. The whole point of Brown was to reject the idea that "separate but equal" schools were really providing equal educational opportunity when children were segregated along racial lines. But in 1973 only four justices thought that the "strict scrutiny" standard should be extended to classifications based on gender, and none of those justices now sits on the Court.
It is unlikely that a majority of the Court will now adopt this standard in the VMI case. First, the government only raised this claim in the Supreme Court, and the Court could reject the claim as not properly preserved by the government in this record. Second, the federal government could prevail in the VMI case by proving that Virginia's maintenance of separate facilities for military training of men and women does not "serve important governmental objectives," to quote the standard that currently governs sex discrimination cases. But even if five justices agree with this view of the present case, they may still hesitate to change the standard for future cases. …