THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, February 25, 1996 TAG: 9602240004
SECTION: COMMENTARY PAGE: J5 EDITION: FINAL
TYPE: Opinion
SOURCE: PERRY MORGAN
LENGTH: Medium: 82 lines
The constitutional question regarding Virginia Military Institute pending before the Supreme Court has grown more complicated as it has gone on over six years and run up legal costs to alumni of $14 million.
The time and money have bought a quandary. Lower courts ruled that VMI can continue its all-male tradition if a separate but substantially equal institute for women was established. As a result, the Virginia Women's Institute for Leadership was created at Mary Baldwin College. But there's no way that the women's program, in the strictest sense, can be equal now or perhaps ever.
If made an identical copy of VMI in terms of faculty and facilities, as it has not been made, it would lack the pervasive force of a 153-year-old tradition. On the other hand, women seeking to share in the VMI experience cannot do so because their admission would alter it - significantly so, lower courts were persuaded, regarding the harsh discipline, physical harassment and lack of privacy that VMI cadets endure.
Lower courts agreed that ``VMI's military program is absolutely unique'' and, if that is so, its single-gender status is a large part of the uniqueness. According to superintendent Josiah Bunting, VMI's mission is not to train officers for the armed forces, but, within a military setting, ``to seize the aggressive impulse of the young American adolescent male, to refine, chasten, mold and direct it toward the world of ideas and images. . . .''
The goal, says Bunting, is graduates with a marked talent for duty and service as friends, citizens and leaders. What VMI offers is not just for men but for ``some few young men,'' words of Bunting that make the institution sound all the more eccentric.
An outside view is interesting. Preparing to write an article for The New Republic (Feb. 19 issue), Jeffrey Rosen sifted through the legal arguments and then visited VMI and Mary Baldwin. He was struck, and impressed, by the contrast between robotic and burdened behaviors in VMI barracks and the ``egalitarian and tender and even nurturing place'' he discovered in classrooms and in conversations with cadets. Ultimately he found himself hoping the Supreme Court would let VMI go its way, and keep its standard of absolute equality among cadets, despite concluding that the women's program at Mary Baldwin, after allowing for its infancy, is in no way comparable to VMI. He thinks designers of the women's program erred - from a legal standpoint - in not attempting, as far as is possible, to replicate military aspects of the VMI experience.
But what if they did err? The court itself has often taken a long time to get things right. Justice Bradley opined in 1873 that a woman denied admission to practice law in Illinois deserved no relief since the ``law of the Creator'' assigned ``the offices of wife and mother'' as the ``paramount destiny and mission of woman. . . .'' It was not until 1971 that the court voided an Idaho statute conferring preference on males when a man and a woman were otherwise equally entitled to be the administrator of an estate. Swiftly in succeeding years barriers have fallen and women have moved to the top ranks of all sorts of endeavors, including the military. Are these achievements or anything else threatened by state support for a small, antique institute for boys? The notion is grounded in obsessive desire for uniformity.
The Clinton administration argues that schools based on gender are unconstitutional, whether or not a separate but equal alternative is made available. And this almost certainly would be so had the Equal Rights Amendment passed, but it didn't pass and there's no need for the court to use the VMI case to enact it. One reason the ERA failed was the fear that it left too many hard questions to be resolved too easily by an appointed judiciary. If legal equality was explicitly commanded by the Constitution, there would be nothing left to ponder.
A bill pending in Congress that would authorize elementary and secondary schools to experiment with single-sex programs is worth pondering. So is something Josiah Bunting said when asked by Jeffrey Rosen how it felt to be presiding over what may be the end of all-male education at VMI.
``Wistful, plaintive; adjectives like that,'' Bunting responded. ``(T)here is a wistful quality that comes from the fact that those who go here really love it and adore it. They realize that once it's gone it can never be recovered.''
Rather than order VMI transformed, the court should tell Virginia to persist in efforts to create an institute for women that can engender the same sort of emotions. Such an end would justify the time required to achieve it. MEMO: Mr. Morgan is a former publisher of The Virginian-Pilot. by CNB