ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, January 18, 1996 TAG: 9601180084
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
DATELINE: WASHINGTON
SOURCE: ALLISON BLAKE STAFF WRITER
Can a new school ever be equal to a prestigious college 156 years its senior?
That was one of the key questions debated Wednesday when the sex-discrimination suit against Virginia Military Institute reached the U.S. Supreme Court, the long-anticipated final legal stop in a six-year battle to keep women out of the public men's college in Lexington.
Eight justices posed questions during the hour-long oral arguments, ranging from Justice David Souter's asking about the uniqueness of the type of leaders produced by VMI to Justice Antonin Scalia's asking the federal government what it means by "stereotype."
The Supreme Court's decision is due by late spring. Justice Clarence Thomas, whose son is a VMI cadet, has stepped down from the proceedings.
Legal observers in this closely watched case, which some say is the most important to come before the court in many years, were hesitant to predict the outcome. Some even warned against reading too much into the questions the justices asked.
"Suppose you were a justice who personally had no problem with the argument. ... You still might ask a question about whether those programs equal, not because you need information, but because you think other justices need to hear that argument but might not themselves ask the question," Pam Karlan, a discrimination-law professor at the University of Virginia, said this week.
If the justices deadlock, the 4th U.S. Circuit Court of Appeals' ruling - which found that the Virginia Women's Institute for Leadership is a legally comparable plan to admitting women to VMI - would stand.
The Supreme Court's decision is due sometime before late spring. Justice Clarence Thomas, whose son is a VMI cadet, has stepped down from the proceedings, and his chair sat empty amid the row of justices seated in the front of the courtroom Wednesday.
While the federal government Wednesday argued that the case is about excluding women from a prestigious institution, VMI and the state of Virginia said the case is about the survival of single-gender education.
If the highest court in the land outlaws a public, all-male school, then any single-sex school that accepts federal funding, perhaps even student loans, may be breaking the law, they argued.
Also in the courtroom were representatives from The Citadel, the nation's only other public, all-male school. Its case on admitting women has been put on hold in the federal district courts, but Nancy Mellette - the North Carolina military school senior who replaced Shannon Faulkner after Faulkner dropped out of the South Carolina school - attended the hearing. She declined comment.
Citadel spokesman Terry Leedon said, "Our fate is tied directly to this."
Deputy Solicitor General Paul Bender - arguing on behalf of the federal government, which first brought suit during the Bush administration - maintained that VMI cannot withhold its "adversative" rat-line training from women. The Virginia Women's Institute for Leadership, set up this fall at Mary Baldwin College, is filled with stereotypical notions about women, Bender said.
"What we have here is a single-sex institute for men that teaches manly values for men," Bender said, and a single-sex program for women "that teaches women womanly values."
But Washington lawyer Ted Olson, who argued on behalf of VMI, defended VWIL and Virginia's right to offer public, single-sex education, especially since so few such colleges exist.
Outside the court following the argument, Virginia Attorney General Jim Gilmore said he believes that if VMI loses the case, "the real question is whether VWIL can exist."
He also echoed a point Olson made in the courtroom: That VWIL was designed by educators who used their expertise to develop a leadership program in which women learn best.
Deval Patrick, the Justice Department's civil rights chief, said this case is the first his department has brought that will test whether women's rights should be held to the same "strict scrutiny" as race.
Patrick also cited Justice Stephen Breyer, who questioned why the gender differences cited by VMI are any different than ethnic or religious exclusions.
"We have seen those kinds of justifications used," Patrick said, citing race, and they "have not been important enough to prevail, under the Constitution, up to now."
Bender told the judges that strict scrutiny doesn't have to be maintained to decide this case against VMI.
In 1982, Justice Sandra Day O'Connor wrote the educational-rights decision that defined the gender test in a case in which a man wanted to attend the women-only nursing school at the Mississippi University for Women. "The court certainly tried to articulate a standard," she said Wednesday.
Considered a potential swing vote by some observers, O'Connor also wondered what would happen if VMI set up a parallel women's program on-site, with separate programs, separate adversative training - "just as tough; just as mean." Would the government still be pursuing its case against VMI?
Mary Baldwin College has pledged to see this first class of VWIL students through their college careers, regardless of the outcome of the case.
Law school students, National Organization for Women interns, VWIL cadets and other court observers started lining up outside the snow-edged sidewalks of the imposing court before 4 a.m.
Trimble Bailey, a VWIL cadet from Roanoke, said she chose VWIL for VWIL. As for VMI, "It's not something I want."
Said Patrick: "The sky will not fall if women are admitted to VMI.''
LENGTH: Long : 105 lines ILLUSTRATION: PHOTO: AP. Women demonstrate outside the U.S. Supreme Court asby CNBarguments were being heard inside over VMI's all-male policy.
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