ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, September 21, 1996 TAG: 9609230053
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
Regardless of what the VMI Board of Visitors decides today, a judge may order the school to submit a plan within the next few weeks detailing how it will comply with the Supreme Court.
While attorneys for the state said VMI could comply by going private, one legal scholar said that is unrealistic. Another said a decision today not to admit women could result in a preliminary injunction ordering the school to accept women's applications.
An appeals court sent the VMI case back to Chief U.S. District Judge Jackson Kiser late Thursday with instructions that he oversee the state's plan to comply with the U.S. Supreme Court decision that the school admit women.
Sending the case back to the original trial judge is a formality, but it was also a necessary step to get the case back under court scrutiny. Legal observers said Kiser will likely order VMI to come up with a plan in the next few weeks, since this is the time high school seniors begin applying for next year's class openings.
A.E. Dick Howard, a University of Virginia law professor and Supreme Court scholar, said admitting women is the more feasible option.
The Supreme Court did not forbid VMI from going private to avoid coeducation because that issue was not before the court, and so VMI alumni have latched onto that as a viable option, Howard said. But it "would be a very chancy course to take."
"The Supreme Court hasn't spoken to privatization," he said. But Justice Ruth Bader Ginsburg's opinion "was probably the strongest sex discrimination case to come out of the Supreme Court yet. Given that kind of opinion, I think VMI has its marching orders, and they're pretty clear."
Washington and Lee University law Professor Allan Ides said remanding the case means that the U.S. Justice Department, which sued the state over VMI's men-only policy, "has a district court judge to go to and say, 'Let's get the ball rolling.'''
The Justice Department sought a preliminary injunction last week from Kiser to require VMI to begin accepting applications from women. But until the case was officially remanded, Kiser could not act on the motion.
If the VMI board doesn't vote today to accept women's applications, "it will be hard for [Kiser] not to grant the injunction," Ides said.
Kiser originally approved the state's plan to open an alternative military-style program for women at Mary Baldwin College. But with that judgment having been overturned by the Supreme Court, Kiser will have to oversee implementation of the high court's ruling.
"I think he's going to be stricter now," Ides said. "He gave them everything he could [the first time]. I suspect he's going to be a little less flexible now."
The 4th U.S. Circuit Court of Appeals' opinion remanding the case says Kiser must "require Virginia to formulate, adopt and implement a plan that conforms with the equal protection clause of the 14th Amendment," which guarantees equal protection under the law to everyone.
State attorneys interpreted the opinion as allowing VMI to go private because the court originally had said that to satisfy the 14th Amendment, VMI had the option of giving up state support.
"It makes it very clear we can go private," said Robert Patterson, a VMI alumnus and the school's lead attorney.
Maureen Matsen, a state assistant attorney general, said the opinion's language "explicitly keeps the option'' open by leaving it up to Kiser.
Ides said because the Supreme Court didn't explicitly prohibit going private, "people are trying to read into it that it's OK to be private. I know [the court] didn't say they could go private."
But he said if the school paid full value for its campus, the move might be upheld as constitutional. Howard, however, said doing that could subject the state to "extensive litigation" for years and it would be taking the risk of failing.
"It would be bound to be challenged as an effort to evade the court's decision," Howard said.
Staff writer Allison Blake contributed to this story.
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