Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, April 14, 1991 TAG: 9104140061
SECTION: VIRGINIA PAGE: D1 EDITION: METRO
SOURCE: JOHN F. HARRIS THE WASHINGTON POST
DATELINE: LENGTH: Long
Even though Whittemore experienced sex discrimination as she began her legal career, she saw no irony in her most recent role: as one of the attorneys defending Virginia Military Institute against federal charges that its refusal to admit women is unconstitutional.
"I believe deeply in single-sex education," said Whittemore, who also is chairman of the Federal Reserve Bank of Richmond and has been mentioned for a federal judgeship. "There are differences between men and women. The cutting edge of feminist theory recognizes that. The focus is not on equal treatment but equitable treatment."
That position was the essence of VMI's defense in last week's trial in Roanoke. The case has become a cultural battlefront on the question of whether taxpayer-supported sex discrimination could ever be legal. The confrontation is attracting the interest of people who had never heard of the 1,300-student academy in rural Lexington.
Reporters packed U.S. District Judge Jackson Kiser's courtroom each day for a week. Even the Village Voice, New York's avant-garde weekly, dispatched a writer to the scene.
Joining Whittemore at the defense table was Richmond lawyer Robert H. Patterson Jr. - the managing partner who was overruled when Whittemore got the job in his firm.
If Whittemore is an unexpected champion for VMI's exclusion of women, Patterson seems to have been sent over for the job by Central Casting. He is a barrel-chested, vodka-drinking, chain-smoking big-game hunter with an expletive-spiked vocabulary who graduated from VMI and became a pillar of the arch-conservative Old Dominion establishment.
Patterson, in an interview, said the U.S. Justice Department threatens to destroy VMI, "a bastion against an educational system which permits overwhelming self-indulgence," a place that still prizes the "classic values of loyalty, self-discipline, hard work."
The Justice Department contends that prohibiting women from attending a school that receives state funds is unconstitutional. The defense has the task - an uphill one, according to conventional legal wisdom - of showing that at VMI, taxpayer-supported discrimination is justifiable.
Whittemore - whose mother was a World War II surgeon, long before it was common for women to become physicians - said she's convinced that her own alma mater has been hurt by admitting men. She graduated from Vassar in 1967, when it was a women's college. Whittemore said it was once an outstanding school, but has become "mediocre" since it changed its admissions policy.
While the Justice Department has stressed VMI's status as a taxpayer-supported school, Whittemore said all colleges, even nominally private ones, receive some form of government aid. She said all single-sex schools should feel threatened by the government's lawsuit.
Whittemore and Patterson are defending what some, including Gov. Douglas Wilder, has said is indefensible. But the defense team brims with confidence. Patterson has been taking bets for steak dinners with reporters on the outcome of the case.
He remains closer in spirit to a Hemingway character than to any model of 1990s sensitivity. During pretrial depositions, according to people involved with the case, he told Justice Department lawyer Judith Keith that he had been rethinking his habit of referring to her as "Judith."
"That's not appropriate in a case like this," Patterson explained. "From now on, it's `Miss Judith.' "
"I've gotten so I'm very fond of her," Patterson said of Keith. "Every now and then she'd get a bit frosty, and I'd try to lighten things."
The Justice Department lawyers are prohibited by policy from commenting on the case.
Patterson has a loyalty to his alma mater that he acknowledges is almost mystical. Growing up as the only son of a railroad engineer and a nurse in Richmond's working-class Church Hill district - not far from where Wilder lived as a child - Patterson said his arrival at VMI marked the first time he was in a place where wealth and class didn't matter.
VMI's "rat line" for freshmen features an unrelenting regimen of exercise, hazing and psychological intimidation that even one of the school's expert witnesses described as a "miserable experience." Patterson loved it.
"Everyone went through the same crap," he recalled. "We all went through the same crucible."
VMI believes this "crucible" would be changed by the admission of women. In court Wednesday, Harvard sociologist David Riesman agreed with this view in videotaped testimony. Because of psychological and physical differences, women lack the "ferocity" to do well at VMI, Riesman said, and if the school is forced to let them in, "the whole program would collapse."
VMI was not always as enthusiastic about Patterson as he is about it. Campus authorities kicked him out after he was suspected of setting off a bomb as a prank. When Patterson proved he wasn't involved in the incident, they kicked him out for being a general troublemaker, a charge he said he could not refute.
Patterson was readmitted after serving a tour in the U.S. Navy and making a personal appeal to Gov. Colgate Darden.
Richard Cullen, a legal partner of Whittemore and Patterson in the firm of McGuire Woods Battle & Boothe, said Patterson is "the greatest politician never to have run for office."
Some of Patterson's theatrical flair came out in the courtroom. When the Justice Department called a University of Wisconsin education expert as a witness, Patterson's booming voice and intimidating manner left the professor so seemingly flustered that Kiser asked how he was feeling.
Nathaniel Douglas, the Justice Department's chief lawyer in the case, told Kiser that VMI has no logical reason for keeping women out. "They just don't want women there," he said.
Patterson said this statement showed that, "The federal government doesn't understand what VMI is all about."
"You cannot have the VMI experience in a mixed-gender environment," he said. "Change is not always for the best."
Patterson, however, did change his mind about Whittemore. He said he was wrong when he resisted hiring her 20 years ago - even though she did get pregnant during a big case.
by CNB