Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, April 11, 1993 TAG: 9304110046
SECTION: VIRGINIA PAGE: D-1 EDITION: METRO
SOURCE: MADELYN ROSENBERG and LESLIE TAYLOR STAFF WRITERS
DATELINE: LENGTH: Long
VMI CASE MAKES ODD BEDFELLOWS
SOME WOMEN'S COLLEGES FEAR that if Virginia Military Institute is ordered to admit women, they might have to admit men or lose state and federal aid - even though, unlike VMI, they are private.
When seven private women's colleges last month backed Virginia Military Institute's fight to exclude women, the colleges opened themselves to both praise and criticism.
On the one hand were supporters, who applauded the colleges' defense of single-sex education.
"The whole issue can compromise the position of single-sex institutions, public and private," said Leigh Farmer, a Mary Baldwin College alumna and member of Women for VMI. "I rue the day that we have no educational choices."
On the other hand were critics who questioned support from private women's colleges' for a publicly funded institution that has sought to retain all-male status. Some say the colleges have been duped, persuaded unjustifiably by VMI of a threat to private single-sex institutions.
"I don't know why women's colleges have chosen to weigh in," said Ellen Vargyas, senior counsel for the National Women's Law Center in Washington. "Why women's colleges are jumping to the defense of VMI is a question which I do not pretend to understand."
But their interest in the VMI case is not new. Women's colleges have been following the case since 1989, when the Justice Department, following up on the complaint of a female high school student, filed suit against VMI.
From the beginning, VMI lawyers said they were fighting not just for the old institute in Lexington, but for all single-sex colleges.
VMI has sought the support of single-sex colleges nationwide in asking the U.S. Supreme Court to accept its case for review.
Barbara A. Hill, president of Sweet Briar College, said the school was at first asked to sign a 20-page brief prepared by California lawyers Carolyn Kuhl and Andrea Gauthier. The college declined, Hill said.
"We did not like the framing of the issues in that one," she said. Hill would not say what about the brief didn't sit well with the college.
When word of a second brief - a four-pager prepared by New York lawyer David Lascell, who Hill referred to as an expert on education law - began circulating, Sweet Briar signed on.
"We were comfortable with his expertise," Hill said. "For us the issues were limited and clear. We wanted to reaffirm the value of single-sex education and to clarify that private colleges can offer it."
Sweet Briar was joined in Lascell's brief by Hollins College, Randolph-Macon Woman's College and Wells College in New York. Mary Baldwin College, Southern Virginia College for Women and Saint Mary's College in North Carolina submitted the brief prepared by the California lawyers.
The filings formed a consensus among private women's colleges in Virginia.
But at Hampden-Sydney College - the only all-male liberal arts school in the state and one of two in the country - administrators did not sign on with VMI. Nor did the Council of Independent Colleges, a coalition of the state's private schools.
"We're certainly concerned and we're watching with great interest," said Beverley Anne Snoddy, spokeswoman for Hampden-Sydney. "But it's not something that makes us feel threatened as a private college."
"I feel strongly that the law permits private education," said Robert Lambeth, director of the Council of Independent Colleges, which wasn't approached by VMI. "My view and my understanding of the law is that there's a big difference between single-sex private colleges and a state-supported school."
Jedwiga Sebrechts, executive director for the Women's College Coalition in Washington, said that 20 women's colleges contacted her office after being approached by VMI lawyers to join in the briefs. The coalition itself was approached, too, she said.
"VMI lawyers came here and tried to argue quite vehemently that women's colleges should join this petition to the Supreme Court," Sebrechts said. "Because we are not legal experts, we wanted to know whether there was another story to be told.
"What we found was, of all the attorneys we sought opinions from, not one of them shared the perspective advanced by VMI attorneys that the current opinion of the Fourth Circuit [Court of Appeals] was an opinion that put women's colleges in jeopardy."
The three-judge panel heard VMI's appeal last year, and while it did not overturn the institute's all-male policy, it did say that if Virginia did not provide a similar educational opportunity for women, VMI may have to open its doors wider.
The court suggested several options for Virginia, including a coed VMI, a parallel institute for women, or a private VMI. It left room for a fourth, creative option should the state come up with one, but experts have said that will be unlikely.
Public money, private schools
The legal argument made by those concerned about the future of single-sex education has its roots in a contention that the receipt of public money by private institutions makes them public.
"A number of commentators have said that private institutions that receive public funds could be threatened by the Circuit Court decision," said Lascell, the New York lawyer. "We don't want that to happen."
Private colleges are concerned that if VMI, a public institute, is found to be in violation of the 14th Amendment, their own schools will be found in violation as well.
And they're afraid that they would lose state money that goes to their students or be told that they, too, would have to go coed.
"All private schools receive some sort of public funding," said Grace Farber, public relations director for Southern Virginia College for Women, the former Southern Seminary in Buena Vista. The school's president, Col. John W. Ripley, "is very concerned that our money could be taken away as well," she said.
"We are just as much at risk as VMI in this way."
Allan Ides, a law professor at Washington and Lee University, said the concern of the single-sex colleges probably is overstated.
"I think the distinctions between the public and private colleges are pretty clear," said Ides, who has watched the case closely through more than three years of court dates. "`Though I would be a little nervous if I were running a women's college that depended on those tuition-assistance grants."
The grants, which come from the state, are designed to assist Virginia residents who attend private colleges and universities for other than religious or theological education. Though no money goes directly to the private colleges, the students who attend also receive other federal and state aid, such as Pell Grants and money from the College Scholarship Assistance Program.
Likewise, Marcia Greenberger, co-president of the women's law center, said the colleges may be feeling a nonexistent threat.
"I think a lot of scare tactics are being used but that, in truth, VMI's legal troubles and precarious position don't have anything to do with the importance, validity and legality of women's colleges," she said.
Further, she said, the Supreme Court has made clear that there could be a role for women's colleges - even for public women's colleges - because of the disadvantages women have had in the education system. The court - in the landmark Mississippi University for Women vs. Hogan case in 1982 - acknowledged the benefit of single-sex education.
Still, in her majority opinion in that case, Justice Sandra Day O'Connor "pointed out that denying men admission to that school's nursing program perpetuated stereotypes about sex and vocation," said Stephen B. Pershing, legal director of the Virginia ACLU in Richmond.
The American Civil Liberties Union is one of several groups that have backed the Justice Department in the VMI case. The group filed a friend-of-the-court brief for the department when the case was heard by the Fourth Circuit last year.
Of the appeals court decision, Pershing said it "simply doesn't extend to private institutions. It's a patently false alarm."
Sebrechts, with the Women's College Coalition, said the appeals court recognized the difference between public and private in the remedies offered to VMI - specifically the option to become a private institution.
"The Fourth Circuit opinion affirmed the right of institutions to be single-sex," Sebrechts said. "Otherwise it would make no sense for the court to say VMI could remain as it is if it becomes private. That seems a clear indication that the appeals court recognizes the difference between public and private."
Yet the colleges and their supporters hold fast to their passion for preserving single-sex education.
The colleges have found support in two women's organizations, both strong advocates of single-sex education. Women for VMI, which counts 5,041 women as members, and the Washington Women's Information Network, a professional women's organization, also plan to file a friend-of-the-court brief for VMI.
"Our group is made up of women who believe in single-sex education and women such as myself who attended a single-sex college and feel like this whole issue can compromise the position of single-sex institutions, both private and public," said Leigh Farmer, a member of Women for VMI.
"To me, it could eliminate the range of educational opportunities available; marching the whole nation down to be the same."