# Faulkner v. Jones

> Court of Appeals for the Fourth Circuit · April 13, 1995 · 51 F.3d 440

URL: https://www.frixlaw.com/law-library/cases/6934327

## Case

- **Full name:** Shannon Richey FAULKNER United States of America v. James E. JONES, Jr., Chairman, Board of Visitors of The Citadel, the Military College of South Carolina Carrol A. Campbell, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina T. Easton Marchant, Member of the Board of Visitors of The Citadel, the Military College of South Carolina Barbara S. Nielsen, Member of the Board of Visitors of The Citadel, the Military College of South Carolina William F. Prioleau, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina William E. Jenkinson, III, Member of the Board of Visitors of The Citadel, the Military College of South Carolina Leonard C. Fulghum, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina James M. Leland, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina John A. McAllister, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina David S. Boyd, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina Julian G. Frasier, III, Member of the Board of Visitors of The Citadel, the Military College of South Carolina James W. Bradin, Member of the Board of Visitors of The Citadel, the Military College of South Carolina Larry J. Ferguson, Member of the Board of Visitors of The Citadel, the Military College of South Carolina Steve D. Peper, Member of the Board of Visitors of The Citadel, the Military College of South Carolina Wallace I. West, Jr., Director of Admissions and Recruiting at The Citadel, the Military College of South Carolina Claudius E. Watts, III, President of The Citadel, the Military College of South Carolina, in their official capacities State of South Carolina the Citadel, the Military College of South Carolina the Board of Visitors of the Citadel, the Military College of South Carolina, National Women's Law Center American Association of University Women California Women's Law Center Center for Advancement of Public Policy Center for Women Policy Studies Clearinghouse on Women's Issues Coalition of Labor Union Women Connecticut Women's Education and Legal Fund Equal Rights Advocates Federally Employed Women, Incorporated Feminist Majority Foundation Human Rights Campaign Fund Lawyer's Committee for Civil Rights Under Law National Association of Girls & Women in Sports National Association of Commissions for Women National Council of Jewish Women National Council of Negro Women, Incorporated National Education Association National Hook-up of Black Women, Incorporated National Organization for Women NOW Legal Defense and Education Fund National Women's Party National Women's Conference Committee National Women's Political Caucus Northwest Women's Law Center Trial Lawyers for Public Justice Wider Opportunities for Women Women Employed Women's Law Project Women's Legal Defense Fund Carol Gilligan, Ph.D. Valerie E. Lee, Ed.D. Diane S. Pollard, Ph.D. Bernice Sandler, Ed.D. Program on Gender, Science and Law at Columbia University School of Public Health, Amici Curiae
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** April 13, 1995
- **Citations:** 51 F.3d 440; 1995 WL 222198
- **Precedential status:** Published
- **Opinion:** Concurrence by Hall
- **Judges:** Hall, Hamilton, Niemeyer
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6934327

## Opinion text

K.K. HALL, Circuit Judge,
concurring:
This court’s VMI precedents * bear heavily upon both the result and the remedy in this case. Judge Niemeyer quite correctly concludes, ante at 448, that South Carolina’s proffered justification for denying its daughters an educational opportunity that it provides for its sons is of no more substance than Virginia’s policy of exclusion under the perverse guise of “diversity.” VMI I at 898-99.
Although South Carolina has put off for almost three years squarely addressing the constitutional deficiency that has been obvious to all who would see, ante at 449, allowing the state a reasonable time to correct the deficiency is consistent with our approach in VMI I. However, as Judge Niemeyer recognizes, time is Shannon Faulkner’s most precious possession, and it is running out. Because Judge Niemeyer’s disposition of this case provides — in the absence of South Carolina’s timely implementation of a remedy that comports with VMI II — for the soonest practicable admission of Ms. Faulkner into The Citadel’s Corps of Cadets, and because I am bound to respect the precedents of this circuit, I join fully in his opinion.
I choose to write separately because I am convinced that we have embarked on a path that will inevitably fall short of providing women their deserved equal access to important avenues of power and responsibility. We began this unfortunate journey in VMI I, *451 when we promoted a means to an end— single gender education — to the status of an end in itself and avoided ascertaining, let alone analyzing, the true purpose behind the state’s decision to keep women out of VMI. Though we correctly concluded that maintaining the status quo offended the Constitution, we failed to mandate VMI’s integration — and thus we failed.
Our failure became apparent in VMI II, long after the time had passed to ask the only question that matters: “Why has the state decided to create or maintain this institution for the benefit of only one gender?” Instead, we were constrained to ask a wholly irrelevant one: “Does the state offer a ‘substantively comparable’ educational option to the other gender?” As Chief Justice Warren once observed, separate educational facilities are inherently incomparable, substantively or otherwise. “[T]he opportunity of an education!,] ... where the state has undertaken to provide it, is a right which must be made available to all on equal terms.... Separate educational facilities are inherently unequal.” Brown v. Board of Education of Topeka, 347 U.S. 483, 493-95 , 74 S.Ct. 686, 691-92 , 98 L.Ed. 873 (1954) (Brown I).
In fact, though VMI, The Citadel, and their advocates have ceaselessly insisted that education is at the heart of this debate, I suspect that these cases have very little to do with education. They instead have very much to do with wealth, power, and the ability of those who have it now to determine who will have it later. The daughters of Virginia and South Carolina have every right to insist that their tax dollars no longer be spent to support what amount to fraternal organizations whose initiates emerge as full-fledged members of an all-male aristocracy. Though our nation has, throughout its history, discounted the contributions and wasted the abilities of the female half of its population, it cannot continue to do so. As we prepare, together, to face the twenty-first century, we simply cannot afford to preserve a relic of the nineteenth.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6934327. Public record. Not legal advice.