Last summer's 7-1 Supreme Court decision in the Virginia Military Institute (VMI) case, United States v. Virginia (Nos. 94-1941 & 94-2107, June 26, 1996), written by Justice Ruth Bader Ginsburg, announced a new standard for equal protection review of gender classifications, called "skeptical scrutiny."
Skeptical scrutiny is distinguished from strict scrutiny, the equal protection standard applicable to race classifications, in several ways. Strict scrutiny applies both ways; that is, classifications favoring racial minorities are judged by the same standard as those operating against racial minorities.1 Skeptical scrutiny, as defined by Justice Ginsburg, favors the female sex only. Thus, it affords women (as a class) a degree of legal protection not available to any other group in American society - not even the descendants of former slaves, the original intended beneficiaries of the Fourteenth Amendment.
Skeptical scrutiny also provides an unprecedented degree of legal protection to individuals, without regard to the needs of society or civilization itself. Under skeptical scrutiny, no qualified individual may be denied an opportunity on the basis of his or her sex. The only exceptions relate to "inherent differences" (apparently limited to sex organs) and compensatory privileges for women only, based on past discrimination.
Under the previous "intermediate scrutiny" standard, in effect since the 1970s, states could defend gender distinctions in their laws by showing that the distinctions were substantially related to achieving an important governmental objective. Race classifications, in contrast, are subject to "strict scrutiny," which requires a state to show that legal distinctions based on race or ethnic origin are narrowly tailored to further a compelling governmental interest. Classifications other than race and gender (such as economic classifications) are permitted under the Equal Protection Clause as long as they have a rational basis.
The Justice Department created a stir last year when, in its VMI briefs, it asked the Court to take this opportunity to declare that gender classifications are subject to the strict scrutiny standard. Skeptical scrutiny, the standard actually adopted, is not equivalent to strict scrutiny; however, it might be called strict scrutiny with a bullet.
In introducing the skeptical scrutiny standard, Justice Ginsburg points out that in earlier decisions the Court has not "equat[ed] gender classifications, for all purposes, to classifications based on race or national origin." Slip Op. at 14. She notes helpfully that, since last term's Adarand case, even strict scrutiny is not always "fatal in fact." Id., note 6.
Contrasting the characteristics of gender and race, Justice Ginsburg admits that "inherent differences" between men and women do exist, but decrees that actual physical differences are not cause "for denigration of the members of either sex or for artificial constraints on an individual's opportunity." Slip Op. at 15.
Lest anyone conclude that the Equal Protection Clause protects only individuals, however, Justice Ginsburg hastens to add that "[s]ex classifications may be used to compensate women" or to promote equal employment opportunity, but not to create or perpetuate the legal, social, and economic inferiority of women." Id. at 16. Thus, skeptical scrutiny can operate to protect a group or class as well as an individual. Further, because there are only (so far) two sexes and only one of them can be "inferior," skeptical scrutiny may be "fatal in fact" if the classification benefits the male of the species rather than the female.
The new skeptical scrutiny test focuses on the phrase "exceedingly persuasive justification." This has appeared in earlier cases where it seemed to be interpreted simply as a shorthand synonym for the phrase "substantially related to achieving an important governmental objective." Now the shorthand phrase has an independent meaning, superseding the old inquiry into important objectives and substantial relations.
An exceedingly persuasive justification, as defined by Justice Ginsburg, "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." Slip Op. at 15.
This formulation cunningly eliminates all possible justifications for legal distinctions between men and women (except, as noted above, "remedial" justifications for the benefit of women). Virginia had justified VMI's all-male admission policy in two ways, arguing that (1) the state had an important interest in offering a diverse array of higher education programs to meet the needs of different students; and (2) single-sex schools are substantially related to achieving that goal, because they address developmental differences between male and female adolescents.
Applying skeptical scrutiny, Justice Ginsburg unsurprisingly concluded that Virginia's excuses were post hoc, not genuine, and based on overbroad generalizations about men and women. Post hoc - because no one mentioned "diversity" in 1839 when VMI was founded. Not genuine - because men have always been beastly to women.
Justice Ginsburg devoted a great deal of the majority opinion to reciting the history of man's inhumanity to woman, both in Virginia and in the United States generally. "Today's skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history." Id. at 13.
Although some would argue that the tradition of differential treatment of the sexes began at Creation, Justice Ginsburg reaches back only to 1879, when the Virginia State Senate resolved to look into the question of higher education for women, then failed to open a public college for women until 1884. As if further proof of Virginia's historical antagonism toward women were needed, the University of Virginia, founded in 1819, did not admit women (outside of a few specialized programs) until 1970.
Justice Ginsburg describes the stages of Virginia's retreat in its "deliberate" war against higher education for women this way: "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." Id. at 21.
The history of Virginia's virulence toward women only reflects the sorry history of America's treatment of women since its founding. Not until 1920, laments Justice Ginsburg, did women gain a constitutional right to vote.2 Not until 1971, in Reed v. Reed, 404 U.S. 71 (1971), was the Equal Protection Clause interpreted to require more than a mere rational basis for laws treating men and women differently.
Justice Ginsburg also found that Virginia's rationale for permitting single-sex colleges flunked the second part of the skeptical scrutiny test, in that it relied on "overbroad generalizations about the different talents, capacities, or preferences of males and females." Slip Op. at 15. The Court reached this conclusion because both sides had admitted at trial that there might be some women who, but for their sex, would qualify to attend VMI, and who might desire to be educated in an adversative-style program like VMI's.
As applied, this standard effectively prohibits states from treating individuals differently on the basis of sex. For example, the lower courts in the VMI case found, based on expert testimony, that developmental differences between male and female adolescents justify single-sex schools, because they offer a pedagogically valid and effective method of education.
Justice Ginsburg excluded all such expert testimony, saying, "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.'" Slip Op. at 24. One of the experts at trial was famed sociologist Dr. David Riesman. He testified that "if VMI were to admit women, it would eventually find it necessary to drop the adversative system altogether, and adopt a system that provides more nurturing and support for the students." Id. n.12, citing U.S. v. Virginia, 766 F. Supp. 1407, 1413 (W.D. Va. 1991).
Justice Ginsburg called this "a judgment hardly proved, a prediction hardly different from other 'self-fulfilling prophec[ies].' [citation omitted] once routinely used to deny rights or opportunities." Slip Op. at 25-26. In fact, Dr. Riesman and other Virginia/VMI witnesses based their opinions on the actual experience of all the military service academies and other college cadet corps that have admitted women (such as Virginia Tech University and Texas A&M University) - all of which substantially changed their physical standards and training methods to accommodate women.
A procedural note: This case came to the Supreme Court on writs of certiorari granted to both the Justice Department and Virginia/ VMI. Virginia and VMI petitioned the Supreme Court3 to review the decision of the Fourth Circuit court in the first round of trial and appeal, 976 F.2d 890 (4th Cir. 1992). In that case, the appeals court held that Virginia had "failed to articulate an important policy that substantially supports offering the unique benefits of a VMI-type of education to men and not to women."
The appeals court then instructed Virginia to remedy this failing and suggested possible alternatives:  "admit women to VMI and adjust the program to implement that choice," or  "establish parallel institutions or parallel programs," or  "abandon state support of VMI, leaving VMI the option to pursue its own policies as a private institution," or  "there might be other more creative options or combinations." 976 F.2d at 898.
In the second round of trial and appeal, 44 F.3d 1229 (4th Cir. 1995), the Fourth Circuit court had accepted the Virginia Women's Institute for Leadership (VWIL), a state-supported all-female corps operated cooperatively with private Mary Baldwin College, as a remedy for the constitutional violation it found in the first appeal. The Justice Department asked the Supreme Court to review that decision, arguing that only the admission of women to VMI would bring Virginia into compliance with equal protection requirements.
The Supreme Court reversed the second appellate decision, comparing the VWIL program to the separate and unequal law school for black students struck down in Sweatt v. Painter, 339 U.S. 629 (1950). The Supreme Court affirmed the first appellate decision, without further discussion.
This result leaves a number of questions. Would an identical and strictly equal program for the opposite sex pass skeptical scrutiny? Must all programs aimed at one sex be accompanied by an equal and identical program for the other? Is it true (as Justice Ginsburg suggests) that the equal protection clause permits compensatory preferential treatment only for women - and never for men? What is the status of single-sex private schools that depend on various forms of public benefits, including tax-exempt status?
Finally, the broad language in VMI protecting the rights of "individuals" above all is troublesome in other contexts as well as education. Will sports teams be obliged to accept "qualified" applicants of either sex? Will the military be obliged to open foxholes to women who are "capable and willing" to fight in combat? How will laws and classifications affecting homosexuals be interpreted after VMI?
The VMI majority opinion ends with a little homily about the history of interpretation of the Constitution, how our comprehension of the meaning of "We the People" has continually expanded. Speaking as one of the People, I would rather see the Court enlarge its comprehension of what "We the People" do, rather than who "We the People" are, under the Constitution. Rather than concocting a More Equal Protection Clause, the Court would do better to expand its understanding of the powers that the Constitution assigns to the courts, the legislature, the executive, the states and - certainly not least - "We the People."
1 Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion).
2 A key difference between race and gender is that racial minorities lack political power, whereas women (constituting over fifty-one percent of the voting population) do not. The VMI opinion conveniently overlooks the fact that women have had seventy-six years, three generations, to elect legislators who reflect their will. If women as a class had disapproved of VMI's all-male status, they could easily have caused the state legislature to change it or even stop funding VMI. Recall, however, that the Virginia Attorney General who refused to defend VMI, Mary Sue Terry, received only forty percent of the vote in the governor's race in 1993, when George Allen, a stalwart ally of VMI, was elected with sixty percent of the vote.
3 This was their second petition to the Supreme Court, having been denied certiorari in 1993 on grounds that the judgment below was not yet final.
Ms. Blair is Executive Vice President and General Counsel of the Independent Women's Forum, and author of its amicus brief in the VMI case. She is also a member of the VMI Board of Visitors.