Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, March 6, 1991 TAG: 9103060412
SECTION: VIRGINIA PAGE: B2 EDITION: METRO
SOURCE: DANIEL HOWES STAFF WRITER
DATELINE: LENGTH: Medium
A federal judge cited a landmark discrimination case to deny a Justice Department motion that the school's policy be declared unconstitutional.
In papers filed in Roanoke federal court, U.S. District Judge Jackson Kiser said government attorneys "may be incorrect in [their] assumption" that educational diversity "can never justify a discriminatory policy."
VMI attorneys say the Lexington school broadens the diversity of Virginia higher education and that admitting women would narrow educational choice - especially since Virginia Tech offers military-style training for women.
Former Justice Lewis Powell, in the case of Regents of the University of California vs. Bakke, wrote that a university's attempt to ensure a diverse student body " `clearly is a constitutionally permissible goal. The freedom of a university to make its own judgments as to education includes the selection of its student body.' "
Powell's contention would be equally valid in the VMI case, Kiser said.
He predicted that the case, scheduled for an April trial, would end up in the Supreme Court. "It is very likely my decision will be appealed."
A Justice Department spokeswoman declined Tuesday to characterize the government's response to Kiser's ruling. "We are confident in our case and are pressing ahead with the trial," said Amy Casner.
Still, Kiser's ruling provided further clues about how the judge may decide the case - and underscored arguments by VMI supporters and some legal scholars that the federal assault on VMI may not be as clear-cut as it seems.
Kiser said that if testimony describing VMI's "extremely integrated, extremely intense, extremely equalizing experience" is correct, then "Virginia cannot provide the education that it wishes to provide unless it maintains VMI as a single-sex institution."
Even though evidence martialed by VMI attorneys may be sufficient to keep the case alive, Kiser said the school "still faces a high burden of proof. It must provide an `exceedingly persuasive justification' of the single-sex policy. But persuasiveness cannot be judged at this stage."
Meanwhile, Gov. Douglas Wilder wrested a small victory from Kiser, who said the governor's opinion on VMI's admissions policy "is irrelevant to the constitutional questions in the case."
Bolstering arguments already made on Wilder's behalf, Kiser ruled that the governor "has no power at all over the admissions policy at VMI." But Wilder remains a defendant in the sex-discrimination case despite repeated attempts to distance himself from it.
The Justice Department filed suit against VMI last year, saying the school's 152-year-old admissions policy violated the 14th Amendment and the Civil Rights Act of 1964. The case has since been mired in procedural bickering and political maneuvering.
by CNB