Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, April 14, 1991 TAG: 9104140164
SECTION: VIRGINIA PAGE: D1 EDITION: METRO
SOURCE: MADELYN ROSENBERG HIGHER EDUCATION WRITER
DATELINE: LENGTH: Long
Sometimes a dozen, sometimes less, but never any fewer than eight attorneys for the school lined one side of the federal courtroom during the proceedings that ended Thursday. One of them was a former U.S. attorney general. Another, a former state attorney general. Robert Patterson, an alumnus and Richmond lawyer, led the defense for what many experts have said is indefensible, often inserting emotional appeals into his arguments.
On the other side of the room, four lawyers from the Justice Department sat, unsmiling, as they brought their suit against what they said was the school's discriminatory admissions policy.
"The government counsel has been somewhat like the visiting team - in hostile territory," U.S. District Judge Jackson Kiser said before dismissing court. And it has been - at least in this room chock full of alumni.
But in the long run, experts say, VMI is bound to lose its battle. If not in this courtroom in Roanoke, than in a higher one.
We're here to win this game
The school has portrayed itself as fighting for tradition - for the rigorous rat line and community showers, for male bonding, loyalty and friendships.
Witnesses talked about the VMI experience and cherished years at the school.
Patterson also waxed sentimental.
"Your honor," he said during opening arguments. " `The United States against VMI' strikes a chord in my soul. Always before it has been VMI and the United States."
During closing arguments his voice rose with emotion as he talked about VMI and The Citadel in South Carolina, the country's only two state-supported all-male military institutions.
There are voices, he said, from false prophets, telling the school to change.
"Maybe there's something wrong with us at VMI, but we like the voices we've been hearing, telling us to be ready to saddle up when our country is in trouble. . . . We don't want to follow the crowd. We don't want to be a half-baked, watered-down version of what we are."
Our team will bring us fame in alma mater's name VMI has a long and
impressive history. It's certainly famous among the rats, who must memorize details about the school that are printed in the Rat Bible, or "Bullet." But its rich tradition and heritage also are known across the country, particularly in military circles.
For those who didn't know about the history, the current lawsuit certainly has brought it into the limelight.
Patterson estimated that since the Justice Department began investigating VMI's admissions policy, the school has been in some newspaper in the country practically every day.
Civil War Gen. Stonewall Jackson was among VMI's faculty and taught from 1851 until 1861, when the war began, and Patterson invoked his name several times during the six-day trial.
When Jackson died in 1863, it was the VMI cadets who escorted his body to a grave site in Lexington.
Patterson also invoked the reputation of VMI's alumni and of their fighting spirit.
During the Civil War, 1,796 graduates, constituting about 94 percent of VMI's living alumni, served in the Confederate forces, following the school's motto to fight when needed. Seventeen men fought with the union forces.
Alumni also have fought in the Middle East in recent months. At the beginning of April, 383 alumni, most of them recent graduates, had traveled overseas.
The Justice Department made no move on the trial to mar VMI's history or its educational methods.
"It's a fine school," Judith Keith, the lead attorney for the government, said during her closing arguments. "And that's precisely the point. It's an opportunity that should be open to anyone."
It was an important part of the Justice Department's strategy to make that concession, said Allan Ides, a law professor at Washington and Lee University. "If Kiser were to think they were here to be attacking VMI, he could be more sympathetic. I think their decision was not to come off that way."
For though the odds will be against us, we'll not care.
The odds. Were people able to bet on the outcome of this case, VMI would be an absolute long shot, said Hal Krent, who teaches constitutional law at the University of Virginia.
Of course, bets on court cases are illegal, said a spokesman for the gaming commission in Nevada.
"I don't see why; people bet on everything else here," she said. "But court cases are definitely out."
The Justice Department took a straightforward approach in this case, speaking little during cross-examinations while VMI attorneys questioned one government witness for more than three hours.
"I think they [the Justice Department lawyers] knew the odds were favoring them from the outset," Ides said. "VMI lawyers have done the best they could with the little window of opportunity the judge gave them. They established that they had a unique method of education. They established that there is an adequate alternative education opportunity for women in the state."
Another judge might have decided the case based on a summary judgment, and decided immediately for the government, Ides said. Especially since no one has disputed the fact that VMI does discriminate against women.
"But Kiser let VMI state their whole case as best they could. Now, if they win or lose, they've had a chance to present their best case."
You'll see us fight the same Always the same old spirit And we'll triumph once again.
While there's speculation that Kiser, a conservative, will rule in favor of VMI, there's every bit as much speculation that he won't. And surely, experts say, by the time it reaches the U.S. Supreme Court, it hasn't got a prayer.
It was Sandra Day O'Connor who wrote the ruling in 1982 for Mississippi University for Women vs. Hogan, a model often cited in the constitutionality question of VMI's policy.
In the case, Joe Hogan, a man, wanted to attend the all-female state-supported nursing school but was denied admission. The court ruled 5-4 that the university had discriminated against Hogan on the basis of sex, although an exception could be made if a comparable education could be found elsewhere in the state.
"And O'Connor was no flaming liberal when she wrote that," said Pamela Karlan, who teaches classes on sex discrimination in UVa's law school. "In fact, even the Justice Department is quite conservative and they think this is a violation."
All told, she said, just because Kiser's a conservative judge doesn't mean he's going to rule for VMI.
"It could actually translate two ways," said Ides of W&L. "He could be more sympathetic with VMI or he could apply the rules of the law very strictly. This doesn't help us figure out what he would do."
If the ruling on this case went to the lawyers who gave the best performance, VMI would win the Oscar.
"I think the government was coming in with the notion of, `C'mon, we should win this case,' " Ides said. "And they did not do the kind of preparation VMI did."
But the case will be decided on law. Kiser is to make his ruling in about six weeks.
And though defeat seems certain
"I think it's fairly clear that the state can't maintain a single-sex college for men," Karlan said. "The school is perpetuating a stereotype."
In the Hogan ruling, she said, it was decided that by not opening the nursing program to men, the school was putting forth the stereotype that only women could be nurses.
Karlan says single-sex institutions have a value. "It's just that private institutions should be in the interest of providing them.
VMI attorney Griffin Bell has an argument here. He has said that since all private institutions accept some state money, they could be in danger, too, if VMI is forced to admit women.
"I don't think that's true at all," Karlan said. If it were, private schools would have had to abandon their religious affiliations years ago on similar grounds.
"They might win this trial," she said. But they will not win the war.
It's the same with VMI our battle cry is never never die.
Patterson has said from the beginning that if VMI loses, the lawyers will likely appeal.
The VMI Foundation had allocated from the beginning some $750,000 for the trial. People close to the case have estimated the cost will surpass $1 million for the trial and research alone - just on VMI's side.
Justice Department officials have said little about the case or the cost. They would not confirm whether they would appeal if they lose, but Kiser has said his court will be a "first stop" for the case, no matter who loses.
In its defense, VMI tried to distance itself from the Army and Navy academies as much as possible.
That distance, Ides said, could be part of VMI's hopes of winning this case permanently.
If the school had aligned itself with the Army, for instance, and the Army eventually placed women in combat, the argument could again arise over VMI's policies.
The argument about the school's uniqueness is a paradox. It goes something like this: The government says VMI is unique. VMI says VMI is unique. And the law, as interpreted in Hogan, says that women must have comparable education opportunities.
Both sides agree there is nothing comparable to VMI.
But, the VMI lawyers say, if women go to VMI, the system will change and the school will be just like others in the state. Then the diversity will no longer exist.
The government says the school won't change enough to make it "another Virginia Tech." Especially since there's about a 22,000-student difference, if the entire population is counted.
Hogwash, say VMI alums - the only people who know, according to Patterson, who understand VMI and who know what makes a soldier. And what makes a man.
"Nobody's asked me what I would rule in this case, and I have the answer all figured out," Ides said Friday, when the trial was over. "I don't know."
by CNB