Gender Barriers Falling Down

SUPREME Court Justice Ruth Bader Ginsburg got it right. After listening to arguments last week about whether Virginia's exclusion of women from its state-supported military school violates the Constitution and, if so, whether a women's military program at a nearby college is the proper solution, Justice Ginsburg said: ''If women are to be leaders in life and in the military, then men have got to become accustomed to taking commands from women, and men will not be accustomed if women are not let in.''

Virginia contends that admitting women to the Virginia Military Institute (VMI) would force the school to change its demanding military-style program - a program steeped in tradition. That argument is steeped in stereotypes, however.

VMI has only to look at the experience of the US military academies. A brief filed for the case by current and former military academy students says the schools have not had to change their programs significantly since they began admitting women in the 1970s, and the benefits to the country have been great.

Justice Antonin Scalia went further, asking whether the fact that many women might not be able to handle the rigors of VMI's program justifies keeping all women out.

A year ago, the US Court of Appeals for the Fourth Circuit in Richmond ruled in separate cases that excluding women from the opportunity for a state-supported military education violates the 14th Amendment's guarantee of equal protection of the law.

In the VMI case, however, the appeals court accepted Virginia's proposal to create a separate program for women at Mary Baldwin College. It said opportunities offered to the two sexes ''need not be the same, but they must be substantively comparable.'' Virginia said ''real differences'' between women and men justify offering a different type of program.

Like Justice Ginsburg, the Justice Department, which sued Virginia in 1990 to force the admission of women to VMI, is right. It said the Fourth Circuit made the original constitutional violation worse by endorsing an alternative that didn't even meet the ''separate but equal'' standard rejected by the Supreme Court.

The Mary Baldwin program has few of the features of VMI. VMI's teaching method is based on the ''adversative'' method, which emphasizes physical rigor, mental stress, and absence of privacy, among other things. The Mary Baldwin program, on the other hand, offers a ''very supportive environment,'' as the program's director says. It is not as physically challenging, puts less stress on military training, offers fewer technical courses, and teaches in a nonconfrontational manner.

Many of the women at Mary Baldwin say they wouldn't want to attend VMI even if they could. That kind of confrontational experience wouldn't be right for them, they say. Clearly, not every woman (nor every man) has the physical and emotional stamina to succeed at VMI. But those who do want to attend and believe they would thrive (or at least survive) under such conditions should not be kept out. Legitimate admissions standards aside, how can a tax-supported school say which taxpayers can and cannot benefit from a VMI education?

Virginia lawyers argue that a ruling against VMI is a ruling against all single-sex education. Most of the justices seem unconvinced, however, and with good reason. Private institutions typically receive some government benefits, but that doesn't automatically put them in the same category as state-supported VMI.

The Justice Department has asked the high court to hold sex discrimination to the same high standard it requires of race cases under the 14th Amendment. Though they won't make a final decision until June, the justices appeared to agree that the VMI case could be decided without such a high standard of review.

If so, that's an opportunity lost. When she was a lawyer, Justice Ginsburg tried to persuade the Supreme Court to judge all gender discrimination by the toughest standard. In one case she came within a vote. The justices could and should send a message that a public institution such as VMI must treat all citizens - women and racial minorities - equally. VMI no longer says an African-American shouldn't be admitted because his presence would ''irrevocably alter'' its program. What justification does the state school have for barring a qualified woman who could become a ''citizen soldier'' simply because it wishes to remain exclusively male?

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