THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Sunday, November 12, 1995 TAG: 9511120002
SECTION: COMMENTARY PAGE: J5 EDITION: FINAL
TYPE: Opinion
SOURCE: James Kilpatrick
DATELINE: WASHINGTON LENGTH: Medium: 89 lines
As expected, the Supreme Court last month agreed to hear the case of Virginia Military Institute but turned down an appeal from the Citadel. When the VMI case goes to oral argument early next year, listen for the name of Joe Hogan.
The VMI case involves an effort by the U.S. Department of Justice to compel the state-supported military institute to enroll women as cadets. A suit against South Carolina's Citadel has the same purpose, but the VMI litigation had matured and the Citadel's case had not.
The two cases have much in common. VMI dates from 1839, the Citadel from 1842. Their cadet corps have been all-male from the beginning. Both colleges want to stay that way. Toward that end, both have created alternative programs for women - VMI at Mary Baldwin College, the Citadel at Converse College.
Are the separate programs substantially equal? Even if the programs are substantially equal (and they manifestly are not), may VMI and the Citadel still maintain their all-male traditions by reason of the educational value of single-sex enrollment?
It will be uphill all the way for the two colleges. The case of Joe Hogan is directly in point. In 1974 the Mississippi University for Women, at Columbus, established a four-year baccalaureate program in its School of Nursing. In 1979 Hogan applied for admission. He was turned down solely because of his sex.
In 1982 his case reached the Supreme Court. In a 5-4 split decision, the high court ruled in Hogan's favor. He had been denied equal protection of the laws under the 14th Amendment.
Justice Sandra Day O'Connor spoke for the majority. Gender-based classifications, she said, require an ``exceedingly persuasive justification.'' A state must show that single-sex education serves an important governmental objective. That objective cannot be based upon a notion that nursing is exclusively a woman's job.
In dissent, Justice Harry Blackmun noted that Mississippi offered coeducational baccalaureate programs at Jackson and Hattiesburg. Those doors were open to Hogan. He could have received a degree in nursing at either one of the other institutions.
Blackmun expressed strong reservations: ``I have come to suspect that it is easy to go too far with rigid rules in this area of claimed sex discrimination, and to lose - indeed destroy - values that mean much to some people. . . .''
Blackmun warned that the majority's decision places in jeopardy every state-supported educational institution that confines its student body to one sex, ``even though the state elsewhere provides an equivalent program to the complaining applicant.''
In a separate dissent, Justice Lewis Powell passionately defended the concept of single-sex education. Hogan's sole complaint was that he would have to travel to Jackson or Hattiesburg, while he could stay at home in Columbus. This inconvenience struck Justice Powell as something less than an unconstitutional deprivation.
The name of Joe Hogan is not the only name that will be heard at oral argument over VMI. Lawyers for the government probably will revive the name of Lloyd Gaines, a black student who won admission to the University of Missouri law school in 1938. The name of Ada Lois Sipuel may come up; she was the black woman who broke the racial barrier at the University of Oklahoma in 1948.
Other names cry from the past. There was Heman Marion Sweatt, who broke through the sham of a ``separate but equal'' law school in Texas. There was G.W. McLaurin, a black who refused to accept the humiliating restrictions imposed upon him in a graduate School of Education in Oklahoma. In every case, the high court held that universities could not discriminate against qualified black students because of their race.
But if discrimination by reason of race is absolutely forbidden, is discrimination by reason of sex equally forbidden? The high court has not yet made that equation, but it came close to such a pronouncement just 18 months ago. The case involved not the enrollment of students, but the seating of jurors.
In a 5-4 split, the court held that ``intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause.'' Classifications based on sex demand ``heightened'' judicial scrutiny. Supreme Court precedents, said Justice Anthony Kennedy, ``reveal a strong presumption that gender classifications are invalid.''
Yes, the high court may adopt the view of Justice Powell in the Hogan case, that single-sex institutions serve a valid state purpose. I wouldn't bet on it. My guess is that the precedential spirits of Hogan, Gaines, Sipuel, Sweatt and McLaurin eventually will triumph over the spirit of VMI. MEMO: Mr. Kilpatrick's column is distributed by Universal Press Syndicate,
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