THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, January 15, 1996 TAG: 9601150074
SECTION: LOCAL PAGE: B5 EDITION: FINAL
SOURCE: BY TWILA DECKER, KNIGHT-RIDDER NEWSPAPERS
LENGTH: Medium: 97 lines
A historic event is about to blow through the nation's capital this week: arguments in the U.S. Supreme Court over whether public colleges can exclude women.
A decision by the Supreme Court has the potential to force Virginia Military Institute and The Citadel to admit women, and make it easier for women to prove discrimination in future legal cases.
Opponents of efforts to make the The Citadel and VMI admit women also say a decision in the case could spell doom to private single-gender colleges as well. Private colleges disagree over whether that is true.
Regardless, Wednesday's oral arguments in the VMI case are expected to be the most watched of the term. Some people, weather permitting, plan to camp out to get a seat at what could be a landmark case. ``Certainly, the arguments are going to be very popular. We have interns that are making arrangements to camp out to make sure they get in,'' said Karen Johnson, national secretary for the National Organization for Women.
Supporters of VMI and The Citadel also plan to attend. Bob Kirchhoff, a 1957 Citadel graduate and systems analyst for the Federal Communications Commission, says it will be his first time to hear Supreme Court arguments.
The Citadel case has been put on hold until the Supreme Court rules on VMI because a decision in that case will likely affect the pending Citadel lawsuit. The ruling is expected within six months.
``Whatever happens, happens. This is the final say-so,'' Kirchhoff said. ``I sincerely hope it turns out that single-gender education is legal. But if it doesn't, we're going to follow the law.''
Although a decision in the case will likely affect The Citadel's all-male cadet corps, the Supreme Court will be considering only the VMI case on Wednesday. The court declined to hear an appeal of The Citadel case, which is not as far along the legal road as VMI's.
The specific question the court is being asked to decide is whether Virginia can continue to bar women from VMI by establishing a parallel program for them at Mary Baldwin College, a women's college in nearby Staunton.
The 4th U.S. Circuit Court of Appeals has ruled that Virginia satisfied its obligation to provide women with equal rights by establishing a ``substantially comparable program'' for them at Mary Baldwin.
But the U.S. Justice Department, which filed the suit, insists that the women's program is not substantially comparable to the VMI cadet corps. And even if it were separate but equal, schools based on gender are not constitutional, it argues.
Ultimately, if the court does what the Justice Department and feminists want, the case could establish a new legal standard that would make it as easy to prove gender discrimination cases as it is to prove race discrimination.
Currently, race and gender discrimination cases are judged by different legal standards. Policies that distinguish between the races are judged with a legal term called, ``strict scrutiny.'' Policies that distinguish between the sexes, meanwhile, are judged with ``intermediate scrutiny.''
The variance in scrutiny levels is based on court rulings that have found there are no differences between the races while there are real differences between the sexes, from pregnancies to restroom needs.
The differing scrutiny tests also explain why separate but equal schools for blacks and whites were found unconstitutional years ago while the question of whether separate but equal for men and women is constitutional remains unclear.
Opponents of efforts to make The Citadel and VMI admit women say that if the court decides to change the scrutiny test in gender cases it would spell doom for the nation's private, single-gender colleges.
``This case is not just VMI or The Citadel,'' said attorney Ted Olson, of Gibson, Dunn and Crutcher, who is making the arguments Wednesday. ``We think a decision against VMI - even if the strict scrutiny standard isn't used - would affect all private institutions that receive public funds.''
Olson also says that if the court rules against VMI it could mean an end to the tax exempt status for organizations that cater to a particular sex, such as battered women's shelters and private colleges.
But those on the other side of the legal battle say those doom predictions are scare tactics. Twenty-six of the nation's single-gender private colleges, including Columbia College, filed a friend-of-the-court brief saying that VMI should have to admit women if they want keep their public status.
``We are not against The Citadel or VMI,'' said Peter Mitchell, president of Columbia College. ``We just believe that they cannot do what they're doing as a public college. The door is still open for them if they want to pursue the private route.''
Mitchell, however, said that the 26 private colleges aren't endorsing the change in the scrutiny standard although they don't believe a change will jeopardize their status.
The Justice Department, meanwhile, argues that changing the scrutiny standard will not jeopardize the status of private single-gender colleges. The Justice Department insists that the Fourteenth Amendment, which guarantees equal protection to all, does not apply to private institutions. They also say that private colleges don't become public institutions by accepting grant money.
KEYWORDS: VMI SUPREME COURT by CNB