THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, June 10, 1996 TAG: 9606100037
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY PHILIP WALZER, STAFF WRITER
LENGTH: 173 lines
It's lasted longer than the Civil War.
For more than six years, Virginia Military Institute and the U.S. Justice Department have battled in briefs and court arguments over whether VMI should admit women.
Within a month, the legal war will finally be over. The U.S. Supreme Court is expected to issue a decision on the case before it begins its summer recess.
Since 1990, the federal government, charging sex discrimination, has demanded that the courts open the Lexington college to women. VMI, citing the values of tradition and single-sex education, has steadfastly resisted.
VMI, which has 1,200 students, is one of only two all-male, public military colleges in the country. The other is the Citadel in Charleston, S.C.
In 1994, the U.S. 4th Circuit Court of Appeals in Richmond approved a plan to keep VMI all-male by opening an analogous program for women - the Virginia Women's Institute for Leadership (VWIL) - at Mary Baldwin College, a women's school in Staunton.
But the Justice Department, unsatisfied, took the case to the Supreme Court, which heard arguments in January.
What happens next won't necessarily follow an ``either-or'' path.
The Supreme Court could rule in favor of the 157-year-old college.
It could rule against it, demanding changes in Mary Baldwin's program to more closely mirror VMI.
Or it could rule against it and require VMI to admit women.
Even under the final scenario, VMI wouldn't necessarily have to change. The school could go private, dropping state subsidies to avoid coeducation. Virginia has four private women's colleges and one private all-male school.
VMI officials have said they haven't formed plans on what they will do if they lose. The school's Board of Visitors is expected to discuss the ramifications of the court decision at a meeting on the weekend of July 13.
But Josiah Bunting III, superintendent of the school, told Virginia reporters at a convention in February that he could raise $150 million ``in 10 phone calls'' to help take VMI private. The college gets about $10.3 million a year from the state.
Bunting was out of the country last week. In a statement, he declined to speculate on the court's ruling. ``We think the time has come simply to await the decision,'' he said. ``Our argument that the Commonwealth of Virginia should be able to provide single-sex educational opportunities to its college-age students is a matter of public record.''
VMI advocates - who include state Attorney General James S. Gilmore IIIand prominent academics such as Harvard sociologist David Riesman - have argued that the admission of women would require the school to alter a unique program designed to produce tough, yet honorable, graduates.
That includes the rough treatment of freshman ``rats'' and the lack of privacy - no doors on toilet stalls, no curtains on windows, no locks on doors in dorms.
The Mary Baldwin program - which began last fall with about 40 students - may not precisely equal VMI's, they say. But it is ``comparable'' and provides students the same benefits.
David Nash, a VMI student from Virginia Beach who will enter his junior year in the fall, holds to another argument in VMI's arsenal: the importance of maintaining options for college students.
``Virginia offers the most diverse college experience,'' said Nash, a 20-year-old majoring in international studies. ``We have coed schools. We have VWIL, which is an all-female experience. We have Hampden-Sydney and VMI as all-male institutions, one being public and Hampden-Sydney being private. I think it's important for people coming out of high school to have a range of choices of where they go.''
But the federal government has argued that the state is denying equal opportunities for women. The Mary Baldwin program, federal lawyers told the Supreme Court, only perpetuates inequality by insinuating that women can't make it at VMI.
The government has been supported in briefs by an assortment of groups, including the American Association of University Professors and the American Civil Liberties Union.
Sandra Brandt, chairwoman of the Virginia Women's Political Caucus, which has 400 members, feels the same way.
``Women across the state of Virginia pay a portion of their taxes to VMI and feel that their daughters should be able to go there,'' said Brandt, who lives in Virginia Beach. Opening the school to women would allow them to ``interface with future leaders of the military and business.''
The Mary Baldwin program, she said, ``is just another means of delaying the inevitable.''
The decision will be made without one of the court's nine justices. Clarence Thomas has disqualified himself because his son Jamal is a senior at the school.
If the court splits 4-4, that would reaffirm the appeals court's decision, allowing VMI to stay all-male.
Speculation among observers of the case, however, leans toward a ruling against VMI.
Last month, the chairman of the board of the Citadel all but waved the flag of surrender. The chairman, Jimmy Jones, was quoted in the Associated Press as saying it was unlikely that VMI and the Citadel would be permitted to stay all-male. ``We fought a good fight,'' Jones said. ``We're ready . . . for females.''
Allan Ides, a law professor at Washington and Lee University in Lexington who has followed the case, warns that there's no foolproof way to predict Supreme Court decisions.
But he, too, foresees a defeat for VMI, and he says it might not even be close.
Ides said the vote could go 6-2, with Chief Justice William Rehnquist and Antonin Scalia the only sure bets to stand behind the school.
Lining up against it, he said, will be the court's four liberal to moderate justices: Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens.
Ides also expects two justices normally associated with the conservative wing - Sandra Day O'Connor and Anthony Kennedy - to join the four.
O'Connor, he said, wrote a landmark decision on gender discrimination during the 1980s, requiring an all-female public nursing school in Mississippi to admit men. During arguments in January, Ides said, she suggested that that ruling could be used to decide the VMI case.
And Kennedy, he said, isn't a monolithic conservative. In fact, he has leaned leftward in some discrimination cases. Last month, he wrote the majority opinion in the court's decision to strike down Colorado's constitutional amendment denying equal legal protection to homosexuals.
Ides expects the court, citing the ``equal protection clause'' of the 14th Amendment to the Constitution, to require VMI to admit women rather than demand changes at Mary Baldwin.
Though the decision will be tailored to VMI, Ides said, the Citadel will probably adhere to it to avoid getting entangled in a hopeless legal quagmire.
Private single-sex colleges have raised concern that the court might require them to go coed, but Ides says that's unlikely. ``The mere fact that a private institution receives public funding does not automatically transpose that institution to a public institution'' in the eyes of the courts, he said.
Nash, the Virginia Beach student, said he'd continue attending VMI if it began admitting women. ``I wouldn't say it would be less of an experience,'' he said. ``It would just be a different experience.'' ILLUSTRATION: MORT FRYMAN
The Virginian-Pilot
``I think it's important for people coming out of high school to
have a range of choices of where they go,'' said David Nash, a VMI
student from Virginia Beach.
A CHRONOLOGY OF THE VIRGINIA MILITARY INSTITUTE CASE
March 1989 - U.S. Justice Department, citing complaint from
female high school student, asks VMI to report on admission
policies.
March 1990 - Justice Department files suit against VMI and
commonwealth of Virginia in U.S. District Court in Virginia.
June 1991 - U.S. District Judge Jackson Kiser rules in favor of
VMI.
Nov. 1991 - Justice Department files appeal to U.S. 4th Circuit
Court of Appeals.
Oct. 1992 - U.S. 4th Circuit Court returns case to Kiser,
ordering that VMI admit women, go private or create a parallel
program for women.
Sept. 1993 - VMI board and Gov. L. Douglas Wilder propose plan to
create parallel program, Virginia Women's Institute for Leadership,
at Mary Baldwin College.
April 1994 - Kiser approves plan, ordering Baldwin program to
open in 1995.
May 1994 - Justice Department appeals to U.S. 4th Circuit Court
of Appeals again.
Jan. 1995 - Three-judge panel of appeals court approves Mary
Baldwin plan.
May 1995 - Justice Department asks U.S. Supreme Court to review
case.
Oct. 1995 - Supreme Court accepts case.
Jan. 1996 - Supreme Court hears arguments from VMI and federal
lawyers.
SOURCE: VMI
File photos
COURT'S OPTIONS:
Rule in favor of the 157-year-old college's effort to remain
all-male.
Rule against it, demanding changes in an analogous program for
women at Mary Baldwin College to more closely mirror VMI.
Rule against it and require VMI to admit women. Even under this
scenario, VMI wouldn't necessarily have to change. The school could
go private, dropping annual state subsidies to avoid coeducation.
KEYWORDS: VIRGINIA MILITARY INSTITUTE SUPREME COURT by CNB