THE Supreme Court heard arguments on gender discrimination yesterday in a case that could dramatically change the legal status of women in the United States.
On the surface, the case is a dispute over whether the all-male Virginia Military Institute in Lexington, Va., should allow women into its rigorous training program. The Justice Department says VMI's state-supported program, established in 1839, discriminates against women. Lawyers for Virginia and VMI argued that the case is less about discrimination and more about the virtue of single-sex institutions of learning.
But the Clinton administration raised the stakes in the VMI case yesterday in an extraordinary way. In a charged session, Justice Department lawyer Paul Bender asked the justices to create a new standard for the legal status of women in America - putting gender in the same category of rights now held exclusively by racial minorities under the 14th Amendment's equal protection clause.
If the court agrees with the government's request to give women this status, the result will be both a landmark decision and a potential explosion of gender-based litigation affecting schools, education financing, and other public institutions.
"We haven't had a meaningful review of gender discrimination in 15 years," says legal scholar Douglas Kmeic of the University of Notre Dame in Indiana. "They [the administration] went for broke in this one."
The session, marked by constant questions from the justices, particularly Ruth Bader Ginsburg and Antonin Scalia, focused on whether women who attend a newly created "leadership" program at a sister college graduate with the same status and prospects as the VMI men.
Justice Ginsburg, a legal pioneer for women's civil rights, questioned whether the trademark "adversative" nature of the VMI military program was truly duplicated at the sister school.
The high court's decision to take the case is probably a result of competing judicial agendas. The VMI case meshes with Justice Ginsburg's judicial philosophy of civil rights. But conservative justices such as Scalia and William Rehnquist may try to use VMI to block a further creation of rights the Supreme Court would be responsible for adjudicating.
Associate Justice Clarence Thomas, whose son attends VMI, recused himself from the case, which is significant because the nine-member court could yield a rare split decision in a controversial case.
'Separate but comparable' schools
Last January, the Fourth Circuit Court of Appeals in Richmond, Va., ruled that single-sex public schools can be "separate but substantially comparable." The basis for the ruling, however, was Virginia's new "parallel program" for women at the all-female Mary Baldwin College.
The Justice Department was not satisfied, however. Citing "the long history of discrimination against women," it stated that not only are women still underrepresented in government, but also that the alumni network long established by VMI gives men an unfair advantage in matters of placement and connections. The only way to remedy the disadvantage, the Justice Department argued, is by making gender a "suspect class" - a legal status now reserved only for racial and ethnic minorities. Currently, women are a "quasi-suspect" class.
Much of VMI's case hinges on a large and recognized body of empirical evidence showing that single-sex schools can be educationally advantageous. "We think gender equality is fine on a fire truck," says Anita Blair of the Independent Women's Forum, a conservative policy group that filed a friend-of-the-court brief with VMI. "But evidence shows the absence of the opposite sex enables kids to better pay attention in school."
VMI lawyer Theodore Olson also argued that given the limited number of women interested in VMI and the limited tax dollars available, the state is not under a constitutional obligation to change its policy - especially with the state's female leadership program under way.
The court's ruling on VMI will also control policy at the only other all-male military school, The Citadel in South Carolina.
Last summer, after two years of successful legal battles by Citadel student Shannon Faulkner to enter the academy's military program, the court refused to hear The Citadel's petition. Ms. Faulkner, who earned the right to go through the strenuous training and hazing, dropped out after two days. Another female student, however, has replaced her.
Complaint by Virginia girl
Experts say the high court took the VMI case because it was "cleaner" than the South Carolina case. In the Citadel case, Faulkner's famous haircut, her living and privacy conditions, and other personal facts would have entered the court's consideration. The VMI case, however, was brought to the federal court by the Justice Department after a female Virginia high school student wrote a letter of complaint about VMI's admissions policy.
The case has been popularly framed as a clash over two concepts of women - between the idea of women as less adapted to stress and physical self-reliance, and the idea of women as thriving on adversity and hardship. Actually, both VMI and the government concede that some women are prepared for brutal exercise and military training, and some are not.