Male-only military school must admit female cadets

Court Bolsters Protections For Women in Virginia Case

In a much-anticipated ruling, the US Supreme Court has strongly bolstered protections for women against discrimination. But it stopped short of granting them the same equal-protection status accorded to blacks and other racial minorities.

In its first gender-discrimination case in more than a decade, the court yesterday told the state of Virginia that its 161-year-old, male-only training at the Virginia Military Institute is unconstitutional.

But in a 7-to-1 decision, with strong language chiding institutions that generalize "about the way women are," the court did open up a new kind of classification for women. In writing for the court, Justice Ruth Bader Ginsburg, a women's legal-rights pioneer, said women may be excluded only if there is an "exceedingly persuasive justification."

The ruling, which allows women to join with men in VMI's program to shape "citizen soldiers," also applies to The Citadel in South Carolina, the nation's only other state-sponsored, all-male military program.

From the start, it was widely assumed that VMI would lose its all-male status. The only real question was whether the court would dramatically increase the status of women under the 14th Amendment's equal-protection clause.

"I'm not surprised," says Barbara Perry, a law professor at Sweet Briar College in Virginia. "The state of Virginia did not have a legal or a constitutional leg to stand on."

Writing for the court, Justice Ginsburg opened by saying, "The United States maintains that the Constitution's equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI provides. We agree."

"This is Ruth Bader Ginsburg's vindication for her legal career," says Mark Tushnet, dean of the Georgetown University Law School. "This is the opinion she had hoped the court would one day arrive at when she first started arguing cases of discrimination in the 1960s."

Justice Antonin Scalia, alone in dissent, said the decision "ignores the history of our people. "Today the Court shuts down an institution that has served the people of ...Virginia with pride and distinction for over a century and a half."

"I do not think any of us, women included, will be better off for its destruction," he wrote.

Yesterday's ruling ends a long fight by the Justice Department. It filed a gender-discrimination suit against VMI in 1990. VMI won in a lower court. But last January the Fourth Circuit Court of Appeals ruled that VMI could continue its all-male program only if the state of Virginia provided a "separate but substantially comparable" program at another school. In response, Virginia formed a "parallel program" at Mary Baldwin College.

But when a female high-school senior in Virginia wrote a letter of complaint to the Justice Department last June, government lawyers decided to try again. They centered their argument on two points: First, that women were capable of participating in the rigorous training at VMI, which stresses hazardous physical and emotional experience. Second, that the parallel program at the Mary Baldwin College still perpetuated inequality because a degree from Mary Baldwin did not allow for the same access to the "old boy" alumni network that a VMI candidate would have. Thus, a woman's future employment and advancement possibilities were hampered.

The Supreme Court yesterday agreed with both of the Justice Department's arguments. Ginsburg cited the successful experience of women in the US military. "There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the institute rather than enhance its capacity to serve the more perfect union," she wrote.

Besides VMI, The Citadel is the only other all-male military school in the US. Over the past two years the The Citadel was frequently in the news while one of its cadets, Shannon Faulkner, successfully battled for the right to participate in the school's famous rigorous military training drills. Last summer, the Supreme Court refused to take The Citadel case, and Ms. Faulkner was admitted, though she dropped out of the program after several days. Since then, a second female cadet has replaced her.

Reaction came quickly in the case. "It's not surprising," Gov. George Allen (R) of Virginia said. "We will comply with the opinion."

"It's a great tragedy," said Robert Patterson, a VMI graduate and one of the attorneys who represented VMI.

In something of a surprise, leading conservative Justice William Rehnquist concurred with the court. Justice Clarence Thomas, whose son attends VMI, recused himself from case.

ALSO yesterday, in a significant 7-to-2 decision, the high court dealt a blow to efforts for campaign finance reform by granting political parties much more leeway in spending.

The court made its ruling on First Amendment free-speech grounds. The case arose out of Colorado when the state's GOP used money from its national headquarters in radio ads against then-Rep. Tim Wirth, a Democrat running for US Senate. Mr. Wirth argued under a 1971 Federal Elections Commission law that the Colorado GOP had already spent its allotted amount of money. A US circuit court agreed.

Fighting back in the Supreme Court, the Colorado GOP said its spending was legal because the money was not used to promote any specific GOP candidate, but rather was used to question Wirth's policies in general. Writing for the court, Justice Stephen Breyer stated: "We do not see how a Constitution that grants to individuals, candidates, and ordinary political committees the right to make unlimited independent expenditures could deny the same right to political parties."

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