THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Friday, February 24, 1995 TAG: 9502240002
SECTION: FRONT PAGE: A13 EDITION: FINAL
TYPE: Opinion
SOURCE: James Kilpatrick
DATELINE: WASHINGTON LENGTH: Medium: 76 lines
When it comes to equal protection of the law, are blacks and women all the same? If the federal government persuades the Supreme Court to hear the controversial case of VMI, one of these days we may find out.
The government lost a round last month in its effort to compel the Virginia Military Institute to admit women to its all-male corps of cadets. The U.S. Court of Appeals for the 4th Circuit handed down a 2-1 opinion approving an alternative: VMI may continue to operate for men only, provided the state creates in good faith a ``substantively comparable'' program for women at nearby Mary Baldwin College.
Circuit Judge Paul V. Niemeyer spoke for the court. To admit women to VMI, he ruled, would fundamentally change the nature of the school. VMI's method pits male against male; it regards the absence of privacy as essential to its leveling process; it requires first-year men to endure the rigorous and often humiliating militarism of the ``rat line.''
Coeducation would destroy these elements of VMI's discipline. A young woman who aspired to the hard life of a VMI cadet, once admitted, would find that the hard life had gone soft. It is, said Niemeyer, a catch-22 dilemma.
As an alternative to admission, the state has proposed to establish the Virginia Women's Institute for Leadership. This institute would have generally the same goals laid down for VMI. The state would provide the same per capita support it provides for students at VMI; women would take four years of reserve officer training; they would engage in strenuous physical education.
The 4th Circuit found persuasive evidence that single-sex education is within a state's prerogatives. Educators testified that separate colleges contribute to diversity. Moreover, the new women's institute at Mary Baldwin exists on paper only. It has no students and no faculty. To Phillips, the arrangement smacks of the discredited doctrine of ``separate but equal.'' He heard echoes of Sweatt vs Painter, decided by the Supreme Court 45 years ago.
The Sweatt case does bear some resemblance to the VMI case. Heman Marion Sweatt, a black, applied in 1946 for admission to the all-white University of Texas Law School. He was rejected solely because of his race. As an alternative, the state created an entirely new law school for blacks only.
Certain inequalities were immediately apparent. The university had 850 students, the new school 23; the university's law library numbered 65,000 volumes, the new school's 16,500; the university had a distinguished faculty of 19, the new school a not-so-distinguished faculty of four.
These were the least of the inequalities. Said a unanimous Supreme Court: ``What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, tradition and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close.''
Is there any difference between a state-supported law school and a state-supported military school? In 1946 blacks were denied admission in Texas because they were black. In 1995 women are denied admission to VMI (and to the Citadel in Charleston, S.C.) because they are women. As a matter of equal protection jurisprudence, are we talking about the same thing?
The Supreme Court has not yet made such an equation. Racial classifications are still more ``suspect'' than classifications by sex. The VMI case and the pending Citadel case present the question directly. Every single-sex school in the country that accepts state or federal aid in any form will be affected by the answer.
For all the common sense reasons advanced by the 4th Circuit, I hope VMI and the Citadel prevail. Their case is good as a matter of fact. I'm not so sure as a matter of law. MEMO: Mr. Kilpatrick's column is distributed by Universal Press Syndicate,
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by CNB