THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Thursday, January 18, 1996 TAG: 9601180421
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: FROM WIRE REPORTS
DATELINE: WASHINGTON LENGTH: Long : 117 lines
For 157 years, the Virginia Military Institute has admitted only men. Wednesday, during Supreme Court arguments over that practice, a majority of the justices suggested the time may have come for the prestigious state-run school to change.
In defense of VMI, a lawyer for Virginia asserted that states should be able to operate single-sex schools because they can offer young adults many benefits.
But, Justice Sandra Day O'Connor asked, why should Virginia be allowed to provide a highly regarded single-sex education ``to just one sex - just for men?''
O'Connor - who is likely to be a key vote in the dispute, but who did not fully tip her hand - also asked how VMI would create a program for women on its campus that would be ``just as tough, just as mean'' as its all-male regimen.
Four other members of the court, including Justice Ruth Bader Ginsburg, made clear they were highly skeptical of the notion that a state-funded college such as VMI can simply exclude all women.
``What do you say to the qualified woman who says: `I want to go there?' '' asked Justice Stephen G. Breyer near the end of the hour-long argument.
VMI's lawyer noted that most women would not like a college that offered harsh discipline, rugged competition and stark facilities. The state offers an all-female, military-training program nearby, he added. And the men at VMI, where Confederate Gen. Stonewall Jackson taught philosophy before the Civil War, would not feel comfortable having women in their midst.
``Isn't the answer to that, `So what?' '' Breyer commented.
Only Justice Antonin Scalia, himself a graduate of a high school military academy, sounded sympathetic to VMI.
A likely ally, Justice Clarence Thomas, had to sit out the case because his son Jamal is a senior at VMI. Thomas' chair sat empty amid the row of justices seated in the front of the courtroom Wednesday.
The Supreme Court's decision is due sometime before late spring.
Much of the arguments revolved around VMI's distinctive ``adversative'' method, a punishing physical and mental regimen that affords first-year cadets no privacy and treats them, VMI says, like ``rats . . . the lowest animal on Earth.''
The justices wanted to know whether VMI's use of confrontation and humiliation would survive the admission of women and whether the ``adversative'' method is critical to the VMI purpose.
Justice Department lawyer Paul Bender said it is not. Theodore B. Olson, representing VMI, said it is, but conceded VMI students are not distinctly different from students who graduate from the military academies at West Point and Annapolis, where the adversative method is not used.
After the Justice Department sued Virginia, alleging VMI violated the constitutional guarantee of equal protection, Virginia created a female alternative, the Virginia Woman's Institute for Leadership.
While that satisfied lower courts, many of the justices Wednesday suggested that option - offering women a minor in leadership at Mary Baldwin College, but no barracks experience or ``adversative'' training - would not pass constitutional muster. The issue for the justices is not only whether VMI is unconstitutional but what sort of program would remedy a violation.
It also appeared plain Wednesday that a majority of the court was not ready to use the VMI case to make a larger statement about sex discrimination in other contexts. The Justice Department had asked the court to rule that bias based on sex warrants the same tough judicial scrutiny as bias based on race.
During oral arguments, Bender told the justices that VMI would flunk under either a new heightened standard of review or the traditional test that asks whether a program that benefits one sex serves important governmental objectives and is substantially related to the achievement of those objectives.
He said the school's exclusion of women stems from stereotypical views and effectively says to women, ``You can't handle it.''
Scalia said the men-only policy ``has nothing to do with whether women can take the heat,'' but, rather, how the character of the program would change if women were admitted.
In response to questions from Justice Anthony M. Kennedy, Bender said VMI would have to undergo minimal changes if women were admitted. He said separate bathroom and dressing facilities would have to be added.
But Olson, representing Virginia, said the admission of women would force the school to change completely its legendary training program because the adversative method would not suit women.
Justice Ginsburg, who made her mark as a lawyer arguing for women's rights, questioned whether some variation on VMI's adversative method would ``work almost as well without denying opportunity'' to women.
Justices David H. Souter, Breyer, and, to a lesser extent, John Paul Stevens were also skeptical about the exclusion of women.
Souter questioned whether the men-only policy reflected a state judgment that women are inferior.
Though most of the justices seemed inclined to rule against VMI during arguments Wednesday, some legal observers warned against reading too much into the questions the justices asked.
``Suppose you were a justice who personally had no problem with the argument . . . you still might ask a question about whether those programs are equal,'' said Pam Karlan, a discrimination-law professor at the University of Virginia.
Representatives from The Citadel in South Carolina, the nation's only other public, all-male school, also attended Wednesday's hearing, though the Citadel's case to admit women has been put on hold in the federal district courts.
``Our fate is tied directly to this,'' Citadel spokesman Terry Leedon said.
Nancy Mellette, the North Carolina military-school senior who replaced Shannon Faulkner after she dropped out of the school, also attended the hearing. She declined comment. MEMO: This story was compiled from reports by The Washington Post, The Los
Angeles Times, Cox News Service and The Roanoke Times & World News.
ILLUSTRATION: Photo illustration
The Virginian-Pilot
KEYWORDS: VMI SUPREME COURT by CNB