Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: SUNDAY, April 21, 1991                   TAG: 9104220263
SECTION: EDITORIAL                    PAGE: B-3   EDITION: METRO 
SOURCE: MATTHEW J. FRANCK
DATELINE:                                 LENGTH: Long

DISTORTING `EQUAL PROTECTION'/ 123 YEARS LATER, VMI IS UNCONSTITUTIONAL?

For all his celebration of the heroes of the Brown case in "Separate But Equal," writer-director George Stevens Jr. was painstakingly honest on one point: In the course of the litigation, it gradually became clear to the NAACP attorneys (and to the Supreme Court) that the historic intentions of the 14th Amendment were not on the side of the black schoolchildren challenging segregation.

The Congress that drafted and the states that adopted the amendment, it became apparent (and more recent scholarship has confirmed), did not contemplate the clause as having any effect on the power of states to legislate racial segregation in public schooling.

The tradition of the rule of law prescribes that those without either the letter or the intentions of the law on their side have no case. But the Brown case had to be decided on some other ground.

We Americans are a pragmatic people - and proud of it. But this often means we are more concerned with how something works, and with our feeling that its practical effects are just, than with questions of legal and constitutional principle. Forgetting how to think in principled terms has increased in recent years, even (especially?) in the legal profession. This can be a dangerous thing in courtrooms.

So it was in the Brown case. A great moral goal was accomplished, but with a supreme irony: When the petitioners faced the fact that the constitutional principle was not on their side, they shifted the ground of argument from the rule of law to pragmatic policy (and a sense of justice about its effects).

Evidence of irreparable harm to black schoolchildren replaced argument about the meaning of the 14th Amendment. The court, eager to do a good and noble thing, forgot it was a court and not a legislature. The practical good was achieved, but at the cost of a deep wound to the tradition of courts reasoning about the rule of law.

Watching the movie, one could sense almost palpably Justice Felix Frankfurter's effort to convince himself that it would be all right for the brethren to use the lawsuit for their policy preferences "just this once." Once, however, is enough for a damaging precedent.

So it is in the United States against VMI. From the standpoint of the pre-Brown rule of law, Judge Jackson Kiser has wasted his time listening to "experts" testify about the practical attributes of the rat system, and to arguments over how to "balance" the "competing interests" of the state and of young women.

The equal protection of the laws is not a matter for "balancing" the virtues and vices of public policy, nor are there any "interests" at stake. It is a matter of power and right. VMI's admissions policy either violates the 14th Amendmemt or it doesn't, and it does or doesn't merely as a matter of the bounds of legislative authority.

If VMI's exclusion of women is good, the Constitution cannot save it; if it is bad, the Constitution cannot invalidate it. Its utility or futility is irrelevant. All that matters is: Can the state have such a policy consistent with the Constitution?

From this perspective, the fact-finding at trial should have taken about two minutes, including the swearing-in of witnesses. Q: Is VMI a state institution? A: Yes. Q: Does it exclude women from the student body? A: Yes. Judge Kiser: Thank you, gentlemen, now let's hear arguments about the law.

Indeed, a judge committed to the rule of law and with the slightest inclination to read history should have dismissed the Justice Department suit as frivolous before ever reaching trial.

For the fact is, the equal-protection clause was never designed even to reach the question of gender-segregated public higher education. That means it does not now reach the question, either - unless we all agree that (a) law has no durable meaning, and (b) life-tenured judges supply the "fresh" meaning the law itself lacks.

While age bestows no immunity on constitutional violations, VMI is older than the 14th Amendment. Would it not be surprising to "discover" only now, 123 years after the amendment was adopted, that an institution so visible had violated it all these years?

We can "discover" no such thing. We have to invent it, which is to say we must create an illusion, however nobly motivated, in order to satisfy a modern notion of justice that the Constitution does not mandate.

The illusion can be built and disguised very handily by the sort of testimony heard in Judge Kiser's court last week, testimony that would sound better in a legislative committee room. "VMI would never be the same" and "women need expanded opportunities" are not arguments of constitutional moment.

Poor Judge Kiser. I mean him no disrespect. The sad truth is that even if he were to heed my counsel and stick to legal reasoning, he would only get in trouble with the appellate courts.

Of course, he himself has predicted that the case will go higher anyway. But he works in a judicial system that, since the great victory for racial justice in Brown, has listened more assiduously to passionate arguments on the justice of policy than to cool reasoning about the principles of the Constitution.

Matthew J. Franck , an instructor of political science, teaches constitutional law at Radford University.