Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, April 23, 1993 TAG: 9304230136
SECTION: NATL/INTL PAGE: A1 EDITION: METRO
SOURCE: Associated Press
DATELINE: WASHINGTON LENGTH: Medium
A federal appeals court "correctly concluded that . . . Virginia failed to justify offering a VMI-type education to men but not to women," Justice Department lawyers told the high court.
The school's Supreme Court appeal was filed in January. The government's response was filed earlier this week and made available Thursday.
The 4th U.S. Circuit Court of Appeals ruled in October that VMI may continue to receive state money only if it admits women or the state offers them similar training elsewhere.
Justice Department lawyers, however, said they wanted to "reserve the argument that the court of appeals erred in suggesting that [Virginia] has the option of creating an all-female, VMI-type institution."
The government's response said the appeals court ruling follows a key 1982 Supreme Court precedent, and that "further review is therefore not warranted."
The justices 11 years ago ruled that state-supported schools may not segregate the sexes unless "showing at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives."
The 1982 ruling stopped a Mississippi nursing school from barring men.
Thursday, both supporters and opponents of VMI's admissions policy said they were not surprised by the Justice Department's response.
"We anticipated that they would oppose our petition and that they would not want the Supreme Court to hear the case," said Anne Marie Whittemore, an attorney with the Richmond law firm representing VMI. "We will be filing a reply to their brief as a fuller statement of our reaction to positions they have advanced."
The reply will be filed within 10 days, Whittemore said.
Stephen Fogleman, chairman of the VMI Alumni Task Force, said he too, anticipated the department's response. But he would not speculate how it would affect the Supreme Court's decision to accept the case for review.
"However, I think it clearly shows that the VMI case will affect a lot more than just the school in Lexington," Fogleman said. "The results and long-term effect are fairly broad and reach well beyond Lexington, Virginia."
Stephen Pershing, legal director of the Virginia ACLU - one of the groups backing the Justice Department in the case - called the response "entirely consistent with the position maintained throughout the case."
"To disturb the ruling in this case would perpetuate discrimination," he said. "To reverse it would be to allow VMI to be all-male. The Fourth Circuit opinion in our judgment should be allowed to stand."
VMI - which has 1,300 cadets in Lexington - and The Citadel in Charleston, S.C., are the nation's only all-male, state-supported schools. The Citadel's admission policy also is under legal attack.
According to court records, VMI offers a program that emphasizes physical rigor, mental stress, absence of privacy, minute regulation of behavior and indoctrination of values.
"The evidence suggested that because of physiological differences, a greater proportion of men than women would be able to meet VMI's physical education requirements," government lawyers said.
"That does not, however, justify the fact that no women, even those who can meet the physical education requirements, are offered the opportunity for a public education program of the kind offered at VMI."
The Supreme Court could act on VMI's appeal, either granting or denying it full review, within the next month.
Staff writer Leslie Taylor contributed information to this story.
by CNB