Appendix — United States v. Virginia

OA. 1941 Suprema Court, U.S,

A ; a EI I E D

VAY

Ww

—

No. —

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In the Supreme Court of the United States

OCTOBER TERM, 1994

UNITED STATES OF AMERICA, PETITIONER

U.

COMMONWEALTH OF VIRGINIA, ET AL.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Drew S. Days, III

Solicitor General

DEVAL L. PATRICK

Assistant Attorney General

PAUL BENDER

Deputy Solicitor General

CORNELIA T. L. PTILLARD

Assistant to the Solicitor General

JESSICA DUNSAY SILVER

THOMAS E. CHANDLER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

RN NE

TABLE OF CONTENTS

Appendix A (Court of Appeals opinion (Jan. 26,

1995) ) la

Appendix B (District Court opinion (Apr. 29, 1994) ) 53a

Appendix C (Supreme Court denial of certiorari (May

24, 1993)) 132a

Appendix D (Court of Appeals opinion (Oct. 5, 1992) ) 134a

Appendix E (District Court opinion (June 14, 1991) ) 158a

Appendix F (Court of Appeals order on rehearing

(Apr. 28, 1995)) . 246a

(1)

——

~ APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 94-1667, 94-1712

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

9.

COMMONWEALTH OF VIRGINIA; GEORGE F. ALLEN,

Governor, of the Commonwealth of Virginia; V-

GINIA MILITARY INSTITUTE; JOSEPH M. Spivey, III,

President of the Virginia Military Institute Board

of Visitors; JOHN WILLIAMS KNaAppP, Superintend-

ent of Virginia Military Institute; THE BOARD oF

VISITORS OF VIRGINIA MILITARY INSTITUTE; VMI

FOUNDATION, INCORPORATED; VMI ALUMNI As-

SOCIATION; THE VIRGINIA STATE COUNCIL OF

HIGHER EDUCATION AND ITS MEMBERS AND OFFI-

CERS; THOMAS N. DOWNING; ELIZABETH P. Hols-

INGTON, Brig. Gen.; RopertT Q. MARSTON; A

COURTLAND Sports, III, DANIEL F. FLOWeERs; B.

POWELL HARRISON, IR.; Ropert H. SPILMAN;

SAMUEL E. WOOLWINE; JAMES W. ENochs, IR.;

WILLIAM A. HAZEL; Harvey S. SADOW; DOUGLAS

K. BAUMGARTNER; DANIEL D. CAMERON; GLEN N.

JONES; JOHN W. ROBERTS, DEFENDANTS-APPELLEES

and

GORDON K. DAVIES, DEFENDANT -

(la)

24

THE NATIONAL WOMEN’S LAW CENTER; AMERICAN

ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN

Civi. LIBERTIES UNION; CALIFORNIA WOMEN’S

LAW CENTER; CENTER FOR WOMEN POLICY

STUDIES; CONNECTICUT WOMEN’S EDUCATION AND

LEGAL FUND; EQUAL RIGHTS ADVOCATES; FED-

ERALLY EMPLOYED WOMEN, INC.; FEMINIST Ma-

JORITY FOUNDATION; HUMAN RIGHTS CAMPAIGN

FUND; LAWYER’S COMMITTEE FOR CIVIL RIGHTS

UNpeR LAW; NATIONAL ASSOCIATION FOR GIRLS

& WOMEN IN Sport; NATIONAL ASSOCIATION OF

COMMISSIONS FOR WOMEN; NATIONAL COUNCIL

OF NEGRO WOMEN; NATIONAL EDUCATION Asso-

CIATION ; NATIONAL GAY AND LESBIAN TASK FORCE;

NATIONAL HOOKUP OF BLACK WOMEN; NATIONAL

ORGANIZATION FOR WOMEN; NOW LE&GAL DEFENSE

AND EDUCATION FUND; NATIONAL WOMEN’S CON-

FERENCE COMMITTEE; NATIONAL WOMEN’S PARTY;

NORTHWEST WOMEN’S LAW CENTER; TRIAL LAW-

YERS FOR PUBLIC JUSTICE; WOMEN EMPLOYED;

WoMEN’s LAW PROJECT; WOMEN’S LEGAL DE-

FENSE FuND; YWCA or THE U.S.A.; Mary

BALDWIN COLLEGE; WELLS COLLEGE; SAINT

MARY’S COLLEGE; SOUTHERN VIRGINIA COLLEGE,

AMICI CURIAE

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

U.

COMMONWEALTH OF VIRGINIA; GEORGE F. ALLEN,

Governor, of the Commonwealth of Virginia; Vir-

GINIA MILITARY INSTITUTE; JOSEPH M. Spivey, III,

3a

President of the Virginia Military Institute Board

of Visitors; JOHN WILLIAMS KNArr, Superintend-

ent of Virginia Military Institute; THE BOARD OF

VISITORS OF VIRGINIA MILITARY INSTITUTE; VMI

FOUNDATION, INCORPORATED; VMI ALUMNI As-

SOCIATION; THE VIRGINIA STATE COUNCIL OF

HIGHER EDUCATION AND ITS MEMBERS AND OFFI-

CERS; THOMAS N. DOWNING; ELIZABETH P. Hols-

INGTON, Brig. Gen.; RoBert Q. MARSTON; A

COURTLAND Sports, III, DANIEL F. FLOWERS; B.

POWELL HARRISON, IR.; ROBERT H. SPILMAN;

SAMUEL E. WOOLWINE; JAMES W. ENOCHS, IR.;

WILLIAM A. HAZEL; HARVvey S. SA DOW; DOUGLAS

K. BAUMGARTNER; DANiEL D. CAMERON; GLEN N.

JONES; JOHN W. ROBERTS, DEFENDANTS-APPELLANTS

and

GORDON K. DAVIES, DEFENDANT

THE NATIONAL WOMEN’S LAW CENTER; AMERICAN

ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN

CiviL LIBERTIES UNION; CALIFORNIA WOMEN’S

LAW CENTER; CENTER FOR WOMEN POLICY

STUDIES; CONNECTICUT WOMEN’S EDUCATION AND

LEGAL FuND; EQUAL RIGHTS ADVOCATES; Fo-

ERALLY EMPLOYED WOMEN, INC.; FEMINIST Ma-

JORITY FOUNDATION; HUMAN RIGHTS CAMPAIGN

FUND; LAWYER’S COMMITTEE FOR CIvIL RIGHTS

UNDER LAW; NATIONAL ASSOCIATION FOR GIRLS

& WOMEN IN Sport; NATIONAL ASSOCIATION OF

COMMISSIONS FOR WOMEN; NATIONAL COUNCIL

OF NEGRO WOMEN; NATIONAL EDUCATION Asso-

CIATION ; NATIONAL GAY AND LESBIAN TASK FORCE;

NATIONAL HOOKUP OF BLACK WOMEN; NATIONAL

4a

ORGANIZATION FOR WOMEN; NOW L&GAL DEFENSE

AND EDUCATION FUND; NATIONAL WOMEN’s Co-

FERENCE COMMITTEE; NATIONAL WOMEN’S PARTY;

NORTHWEST WOMEN’S LAW CENTER; TRIAL LAW-

YERS FOR PUBLIC JUSTICE; WOMEN EMPLOYED;

WOMEN’S LAW PROJECT; WOMEN’S LEGAL DE-

FENSE FUND; YWCA or THE U.S.A.; MARY

BALDWIN COLLEGE; WELLS COLLEGE; SAINT

MARY’s COLLEGE; SOUTHERN VIRGINIA COLLEGE,

AMICI CURIAE

Argued Sept. 28, 1994

Decided Jan. 26, 1995

Before: NIEMEYER, Circuit Judge, PHILLIPs,

Senior Circuit Judge, and Warp, Senior United

States District Judge for the Middle District of

North Carolina, sitting by designation.

Affirmed and remanded by published opinion.

Judge NIEMEYER wrote the opinion, in which Senior

Judge WARD joined. Senior Judge PHILLIPS wrote

a separate dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

At issue is the important question of whether a

state may sponsor single-gender education without

violating the Equal Protection Clause of the Four-

teenth Amendment.

Sa

In United States v. Commonwealth of Virginia,

(VMI 1), 976 F.2d 890 (4th Cir.1992), we concluded

that single-gender education was “pedagogically jus-

tifiable,” id. at 897, and the United States has ac-

knowledged in this case that state sponsorship of

single-gender education, if provided to both genders,

is not per se a denial of equal protection. Even

though single-gender college education yields bene-

fits to both genders, it nevertheless has the secondary

effect of excluding men from the women’s college and

women from the men’s college, an effect that becomes

yet more complicated when the programs at the two

colleges differ to some degree.

We must decide now whether the Commonwealth

of Virginia’s proposal (1) to continue to provide a

single-gender military-type college education for men

at the Virginia Military Institute (VMI), (2) to

provide, beginning in 1995, a single-gender educa-

tion with special leadership training for women at

Mary Baldwin College, and (3) to continue to pro-

vide other forms of college education, including mili-

tary training, for both men and women at other col-

leges and universities in the state is constitutionally

permissible. After applying a heightened interme-

diate scrutiny test specially tailored to the circum-

stances before us and imposing specific performance

criteria on the implementation of Virginia's pro-

posal, we affirm the district court’s judgment ap-

proving the proposal.

I

VMI, established by the Commonwealth of Vir-

ginia in 1839 as a four-year military college, has a

current enrollment of approximately 1,300 men. The

college has always admitted only males and, through

an adversative military-type training, it seeks to

6a

graduate them as “ ‘citizen-soldiers, educated and

honorable men who are suited for leadership in eivil—

ian life and who can provide military leadership

when necessary.“ VM/ J, 976 F.2d at 893. In

II, we affirmed the district court’s factual find-

ings, based on studies in evidence, that such a single-

gender education is pedagogically justifiable, both

for males and females. We concluded:

It is not the maleness, as distinguished from

femaleness, that provides justification for the

program. It is the homogeneity of gender in the

process, regardless of which sex is considered,

that has been shown to be related to the essence

of the education and training at VMI.

Id. at 897.

We also affirmed findings of fact that coeducation

would destroy aspects of VMI’s program which lie

near the core of its holistic system and that the ad-

mission of women therefore would deny them the

very benefit they sought by their admission. The dis-

trict court found that coeducation would require

fundamental changes (1) to the adversative method

which pits male against male because that method

would not produce the same results when a male is

set against a female; (2) te the absence of privacy

which was found to be essential to the leveling proc-

ess; and (3) to physical training, requiring VMI to

adopt, as was required at the U.S. military acade-

mies, a dual-track program for men and women in

order to achieve equality in effect. We concluded

that coeducation at VMI would thus

deny those women the very opportunity they

sought because the unique characteristics of

— —

7a

VMI’s program would be destroyed by coeduca-

tion. The Catch-22 is that women are denied the

opportunity when excluded from VMI and can-

not be given the opportunity by admitting them,

because the change caused by their admission

would destroy the opportunity.

Id. at 897 (footnote omitted).

In view of these findings, we did not direct the

Commonwealth of Virginia to change VMI to a co-

educational college, but we did find that its failure

to offer women comparable benefits constituted a vio-

lation of the Equal Protection Clause of the Four-

teenth Amendment. We remanded the case to the

district court, directing it to require Virginia and

the other defendants to formulate, adopt, and over-

see the implementation of a remedial plan. In giving

Virginia the opportunity to select its course to cor-

rect the Fourteenth Amendment violations, we did

not suggest any particular remedy, but allowed that

Virginia might properly decide to alter the program

and admit women to VMI, or establish parallel insti-

tutions or parallel programs, or abandon state sup-

port, leaving VMI the option to pursue its own poli-

cies as a private institution.

On remand, Virginia designed a proposal to imple-

ment a parallel program at Mary Baldwin College

providing women with single-gender education,

coupled with special leadership training. Following

a trial on the appropriateness of the remedy, the

district court approved the plan and directed Vir-

ginia “to proceed with all deliberate speed in im-

plementing the Plan and to have the Plan opera-

tional for the academic year commencing in the Fall

of 1995.” United States v. Commonwealth of Vir-

8a

ginia, 852 F.Supp. 471, 485 (W. D. Va. 1994). The

court retained jurisdiction to supervise implementa-

tion of the plan and required a status report every

six months.

The plan approved by the district court provides

for Virginia to establish with state funds the Vir-

ginia Women’s Institute for Leadership (VWIL) as

part of the undergraduate program at the otherwise

privately funded Mary Baldwin College, a women’s

liberal arts college founded in 1842 in Staunton, Vir-

ginia, about 35 miles from VMI. The plan is the

product of 2 task force, chaired by Dr. James D.

Lott, Dean of Mary Baldwin College, which set as its

goal the task of designing a program at Mary Bald-

win College to produce “citizen-soldiers who are edu-

cated and honorable women, prepared for varied

work of civil life, qualified to serve in the armed

forces, imbued with love of learning, confident in the

functions and attitudes of leadership, and possessing

a high sense of public service.“ Because its mission

is similar to VMI’s mission, VWIL would have its

students pursue the same five goals as those pursued

at VMI: education, military training, mental and

physical discipline, character development, and lead-

ership development. In designing the program at

Mary Baldwin College, however, the task force con-

cluded that aspects of VMI’s military model, espe-

cially the adversative method, would not be effective

for women as a group, even though the task force

concluded that some women would be suited to and

interested in experiencing a “women’s VMI.” The

task force concluded instead that its mission and

goals could better be achieved by designing a pro-

gram which deemphasized the military methods asso-

ciated with the “rat line,“ see VMI I, 976 F.2d at

9a

893, utilizing instead a structured environment em-

phasizing leadership trainir

In addition to the standard bachelor of arts pro-

gram offered at Mary Baldwin College, VWIL stu-

dents would be required to complete, as a “minor,”

core and elective courses in leadership. A student in

the VWIL program would be required to take

courses in leadership communications; theories of

leadership; ethics, community, and leadership; and

a leadership seminar or semester of independent re-

search on a topic relevant to women and leadership.

Students would also be required to participate in

Saturday seminars sponsored by upperclass students

on designated iets. Outside of the classroom,

students would be required to complete a leadership

externship during which they would work off campus

in the public or private sector for up to one semester

and to participate in a speaker series in which each

VWIL class would be responsible for bringing out-

standing leaders to speak on campus. Finally, all

VWIL students would be required to organize and

carry out community service projects.

While students at VWIL would be required to par-

ticipate in four years of ROTC and in an ROTC

summer camp, VWIL would not be organized under

the pervasive military regimen that exists at VMI.

Nevertheless, in addition to standard ROTC training,

the students would conduct “leadership laboratory

activities” which might incorporate aspects of mili-

tary training, and they would participate in a newly-

established Virginia Corps of Cadets, a uniformed

military corps comprised of the all-female VWIL, the

all-male VMI, and the coeducational Virginia Tech

ROTC corps. The Virginia Corps of Cadets would be

largely ceremonial.

10a

Finally, VWIL students would be required to take

and pass eight semesters of physical education, a por-

tion of which would be devoted to health education

courses. These programs would include athletics,

physical training and a “cooperative confidence build-

ing program” to be held twice a week.

The VWIL program would be implemented at Mary

Baldwin College with its faculty, although VMI

faculty would conduct some ROTC training and teach

some ROTC courses at Mary Baldwin College. The

program would be funded by the Commonwealth of

Virginia, providing a per student payment equal to

the current annual appropriation paid per cadet at

VMI. The program, which task force members expect

would have about 25 to 30 students in the first year,

would also be given a permanent endowment of $5.46

million. The out-of-pocket expenses for students to

attend VWIL is expected to be no greater than those

of students attending VMI, and VWIL students would

be eligible for the same financial aid programs as are

available to VMI cadets.

The experts for both sides acknowledge that the

proposed VWIL program differs from VMI in meth-

odology since VWIL would not rely on the pervasive

military life and adversative methods to achieve its

goals. Members of the task force, who are profes-

sionals in education, testified that the different ap-

proach was selected principally to address the different

educational needs of most women. Dr. Heather Anne

Wilson, a member of the task force, summarized the

thinking, stating that “the VMI model is based on the

premise that young men come with [an] inflated sense

of self-efficacy that must [be] knocked down and re-

built... What [women] need is a system that builds

lla

their sense of self-efficacy through meeting challenges,

developing self-discipline, meeting rigor and dealing

with it, and having successes.” Mary Baldwin Col-

lege, which participated actively in the design of the

VWIL program, observed in its amicus brief regard-

ing the differences between the methodology used at

VMI and that proposed for VWIL:

It would have been possible to design the

VWIL program to more closely resemble VMI,

with identical physical fitness standards and ad-

versative techniques associated with the rat line.

Such a program would have been easier to design

and to defend against the arguments raised by

the government and its amici. But it would have

been a paper program, with no real prospect of

successful implementation. [Mary Baldwin Col-

lege] believes it would be professionally irrespon-

sible to compromise student welfare by designing

a program to meet litigation objectives instead of

student needs.

While the task force did not conduct any scientific

survey on demand for the proposed VWIL program,

or alternatively for a women’s VMI, several members

expressed the opinion, based on some field data, that

demand would be “significant” for VWIL but not

for a women’s VMI, and some expressed doubt that

enough women would be interested in a women’s

VMI to make it work.

II

The United States contends that the remedial pro-

gram offered by the Commonwealth of Virginia does

not meet the requirements of the Fourteenth Amend-

ment’s Equal Protection Clause. It states that “[the

2a

proposed remedy] does not correct the constitutional

violation, te., the denial to women of VMI’s unique

educational methodology. As the district court rec-

ognized, the program ‘differs substantially’ from the

educational program offered at VMI.” At oral argu-

ment the United States argued that any parallel pro-

gram would have to be “identical” in substance and

methodology to that of VMI. The United States main-

tains further that by not offering coeducation at

VMI, the Commonwealth of Virginia is relying on

false stereotypes and generalizations “that women

are not tough enough to succeed in VMI’s rigorous,

military-style program.” As the United States sum-

marized its position:

[T]he fact remains that men have [this] special

educational opportunity available to them and

women do not, and that as a result VMI gradu-

ates have been very successful in both public

and private careers. This suit was brought on

behalf of those women who want to go to VMI

precisely because it is such a demanding and

challenging school. The remedial plan approved

by the district court does nothing for them.

The United States urges that we enter an order di-

recting Virginia to admit women to VMI as the

only remedy for correcting the past constitutional

violation.

j III

Equal protection of the law requires that persons

similarly circumstanced be treated alike, Reed v.

Reed, 404 U.S. 71, 76 (1971), but equal protection

does not deny states the power “to treat different

classes of persons in different ways.” Jd. at 75.

—

13a

When the state classifies by defining a group to whom

a regulation applies or a benefit is conferred, the

classification “ ‘must be reasonable, not arbitrary,

and must rest upon some ground of difference having

a fair and substantial relation to the object of the

legislation... Id. at 76 (quoting Royster Guano

Co. v. Virginia, 253 U.S. 412, 415 (1920) ). In strik-

ing down a state statute that preferred males over

females as administrators of wills in order to further

governmental efficiency, the Court provided the seed

for the formulation of a test utilizing an intermediate

level of scrutiny for state regulations that classify

by gender. While Reed implicitly applied a height-

ened level of scrutiny, the formulation of this stand-

ard came later. As this test has finally been

articulated, to withstand this level of scrutiny, “clas-

sifications by gender must serve important govern-

mental objectives and must be substantially related

to achievement of those objectives.” Orr v. Orr, 440

U.S. 268, 279 (1979) (internal quotations omitted) ;

see also Mississippi Univ. for Women v. Hogan, 458

U.S. 718, 724 (1982).

In Hogan the Court outlined a two-step process

that inquires (1) whether the state’s objective is

“legitimate and important,” and (2) whether “the

requisite direct, substantial relationship between ob-

jective and means is present.” Id. at 725. The Court

explained that tailoring the means to fit the legiti-

mate and important purpose is necessary to assure

that the classification is the product of “reasoned

analysis” rather than the “mechanical application of

traditional, often inaccurate, assumptions about the

proper roles of men and women.” Id. at 725-26. In

Hogan, the Court held unconstitutional Mississippi’s

women-only admissions policy of a state supported

14a

nursing school. In doing so, the Court relied on the

first prong of its articulated test, finding that the

state’s purported objective to “compensate[ ] for

[past] discrimination against women,” id. at 727,

was in effect an effort to “ ‘protect’? members of one

gender because they are presumed to suffer from an

inherent handicap or to be innately inferior.” Id. at

725. The state’s purported justification, the Court

observed, perpetuated an archaic and stereotyped

view of women as nurses. Thus, affirmative action

in favor of women based on an outdated and unsup-

ported assertion that such protection was needed was

held not to be an important governmental objective.

Cf. Kirchberg v. Feenstra, 450 U.S. 455 (1981)

(holding that a state statute, which preserves the

husband as “the head and master of the [marriage]

partnership or community of gains” by providing the

husband, and not the wife, with the right to unilater-

ally dispose of jointly held property, was not a

legitimate and important state objective). The Court

in Hogan did not decide, however, and indeed ap-

pears deliberately to have left open, the question of

whether states could provide single-gender education

in other circumstances. See 458 U.S. at 720 n. 1.

In undertaking the first step of the Hogan analysis

to determine whether the state’s objective is “legiti-

mate and important,” a court should not substitute

its priorities of value over those established by the

democratically chosen branch. To remain true to its

constitutional role and avoid the pitfalls of a sub-

stantive evaluation of proper governmental objectives,

which would amount to a “substantive equal protec-

tion analysis,” a court should, at this step, defer-

entially consider only whether the regulation is im-

— ee -

——

1Sa

portant to a legitimate governmental purpose. The

cautious approach to this first prong of intermediate

scrutiny effectively redirects the court’s focus on

evaluating the state’s means for obtaining its objec-

tive, which is the second step to the Hogan analysis.

Giving greater scrutiny to the selection of means

than to the proffered objective recognizes an appro-

priate deference to legislative will and at the same

time assures that the legislature does not accomplish

its objectives through an unequal application of the

law. The substantive equal protection portion of the

analysis cannot, however, be entirely diminished, for

the courts can never approve a pernicious legislative

purpose or one that does not comport with traditional

notions of the proper role of government. The proper

relative balance under this “procedural equal protec-

tion analysis” thus results in a court scrutinizing

closely the procedural mechanism adopted by the leg-

islature to accomplish its purpose and determining

whether the means selected fits that purpose and

_bears a direct and substantial relationship to it. Cf.

Faulkner v. Jones, 10 F.3d 226, 230 (4th Cir.1993)

(“A regulatory classification which is made for a

purpose unrelated to the purpose of the regu-

lation, or which is broader than that appropriate

for the regulation, may reveal prejudice and define

discrimination.” ).

There is ample support for directing the court’s

attention from a substantive equal protection analy-

sis to a more procedural analysis. In Craig v. Boren,

429 U.S. 190, 199-200 (1976), the Coi rt recognized,

without a significant substantive evaluation, that the

protection of public health and safety, which formed

the basis for Oklahoma’s statutes prohibiting the sale

of “3.2% beer” to males under 21 and fen.ales under

ha

18, “represents an important function of state and

local governments.” But the Court found the statute

unconstitutional nevertheless because the classifica-

tion by gender was not shown to serve a sufficient

role in achieving the state’s objective. Similarly in

Reed, the Court agreed, again without any signifi-

cant substantive evaluation, that establishing an effi-

cient probate process was a legitimate governmental

objective. But it nevertheless held that selecting

males over females as administrators of wills was

not a means that bore a direct and substantial rela-

tionship to the state’s objective. See 404 U.S. at 76-

77. See also Orr v. Orr, 440 U.S. 268, 280 (1979)

(readily acknowledging as legitimate the state’s pur-

pose of providing assistance to needy spouses but

finding unconstitutional the means that required hus-

bands, but not wives, to pay alimony upon divorce).

Accordingly, under the intermediate level of seru—

tiny of a statute or program that classifies by gender,

the analysis begins with the limited inquiry into

whether the state objective is both consistent with a

legitimate governmental role and important in serv-

ing that role. Thereafter it must shift to an inquiry

of heightened scrutiny into whether the classification

“substantially and directly furthers” that objective.

Application of this traditional test, however, to a

case where the classification is not directed per se at

men or women, but at homogeneity of gender, pre-

sents a unique problem, because once the state’s

objective is found to be an important one, the classifi-

cation by gender is by definition necessary for ac-

complishing the objective and might thereby bypass

any equal protection scrutiny. The second prong of

the test thus would provide little or no scrutiny of

—— — ae 6 ee —

17a

the effect of a classification directed at homogeneity

of gender. Thus, in order to measure the legitimacy

of a classification based on homogeneity of gender

against the Equal Protection Clause, we conclude

that we must take the additional step of carefully

weighing the alternatives available to members of

each gender denied benefits by the classification.

To achieve the equality of treatment demanded by

the Equal Protection Clause, the alternatives left

available to each gender by a classification based on

a homogeneity of gender need not be the same, but

they must be substantively comparable so that, in the

end, we cannot conclude that the value of the bene-

fits provided by the state to one gender tends, by

comparison to the benefits provided to the other, to

lessen the dignity, respect, or societal regard of the

other gender. We will call this third step an inquiry

into the substantive comparability of the mutually

exclusive programs provided to men and women.

Therefore, in this case we will examine a state-

sponsored educational scheme offered by the Common-

wealth of Virginia, under which the state provides a

single-gender military-type college education to men

and a single-gender college education with special

leadership training to women, and determine (1)

whether the state’s objective of providing single-

gender education to its citizens may be considered a

legitimate and important governmental objective;

(2) whether the gender classification adopted is di-

rectly and substantially related to that purpose; and

(3) whether the resulting mutual exclusion of women

and men from each other’s institutions leaves open

opportunities for those excluded to obtain substan-

tively comparable benefits at their institution or

through other means offered by the state. This is the

18a

special intermediate scrutiny test that we shall apply

in deciding this case.*

IV

Turning to Virginia’s proposed VWIL program,

we begin with the first part of the test and inquire

inte whether single-gender education constitutes a

legitimate and important governmental objective, re-

membering that deference is to be accorded the state’s

legislative will so long as the purpose is not perni-

cious and does not violate traditional notions of the

role of government.

The provision of education is considered one of the

most important functions of state and local govern-

ment. See Brown v. Board of Educ., 347 U.S. 483,

493 (1954) (“Today, education is perhaps the most

important function of state and local governments.”) ;

Stroman v. Colleton County Sch. Dist., 981 F.2d 152.

»The dissenting opinion has improperly characterized this

test as one for “allowable separate-but-equal state-supported

educational institutions.” This misunderstands the standard

we utilize.

As a general principle of equal protection jurisprudence,

when there is no meaningful and relevant difference between

two classes of persens for purposes of a given state regula-

tion, equality is demanded, and “separate but equal” does not

fulfill the demand. When there is a difference between two

classes of persons, then separate and different facilities for

each class may satisfy equal protection if the difference in

facilities is sufficiently related to the nature of the difference

between the classes.

In this case, we do not espouse a “separate-but-equal” test

and never discuss “separate-but-equal facilities.” Rather, the

test we utilize would allow separate and substantively com-

parable facilities where a state justifies its offering of single

gender education as a legitimate governmental! objective.

ee

19a

158 (4th Cir. 1992) (‘Public education is recognized

as one of the most important public services offered

by state government.“). State and local governments

routinely commit large portions of limited tax dollars

to education and mandate that, through a certain

educational level, attendance at school is legally re-

quired. Moreover, discussions of economic competi-

tiveness and the root causes of social disorder

commonly end in a discussion about the importance

of public education.

As important as education is thought to be to the

welfare of the people, it is nevertheless not a right

secured to the people by the Constitution, see San

Antonio School District v. Rodriguez, 411 U.S. 1, 35

(1973), and following from that reality, a citizen

does not, in the absence of legislative will, have a

right to demand a publicly financed education. More-

over, it is not the province of the courts to create

such rights in the name of guaranteeing equal protec-

tion of the laws. /d. at 33.

When a state chooses to support college education,

it need not provide all types of education, all dis-

ciplines, all methods, or all courses. A state with

limited resources might, for example, subsidize a

medical school without similarly subsidizing a law

school, and its selection from among many permis-

sible beneficial programs does not in and of itself

constitute “unequal protection.” When a state nar-

rows the range of its educational offerings, a narrow-

ing of the class of those appropriately benefited is a

necessary censequence. But a state may not establish

a clessification for admission, for example, to a medi-

cal school unrelated to its purpose of providing a

medical education. Thus, we would expect judicial

approval of an admissions classification based on

20a

intellectual capability, but not on race or national

origin. In a similar vein, if a state were to choose to

subsidize a conservatory of music, sponsoring such a

benefit might not fall beyond the range of what con-

stitutes a legitimate and important state purpose.

Yet those qualified to attend would naturally be a

narrowly-drawn class of persons who qualified as the

best musicians. Such a classification necessarily ex-

cludes most people, yet it is substantially related to

the governmental objective. On the other hand, a

classification for that conservatory defined by gen-

der would probably not qualify as an appropriate

classification.

Turning to this case, providing the option of a

single-gender college education may be considered a

legitimate and important aspect of a public system

of higher education. That single-gender education at

the college level is beneficial to both sexes is a fact

established in this case. See United States v. Com-

monwealth of Virginia, 766 F.Supp. 1407, 1411-12

(W.D.Va.1991). Indeed, the briefs submitted in this

case by the parties and amici curiae list a multitude

of professional articles describing the benefits of

single-gender education, especially for late adoles-

cents coming out of high school. This should not be

surprising in light of common experience that a sex-

neutral atmosphere can be less distracting to late

adolescents in an educational setting where the fo-

cus is properly on matters other than relationships

between the sexes. Moreover, it is not surprising

that the public, increasingly seeking admission to

single-gender colleges, finds this objective to be im-

portant. A recent edition of a national magazine, de-

voted to an annual collection of statistical data and

ratings about colleges and universities, reports:

21a

After two decades as also-rans in higher educa-

tion’s rush to embrace coeducation, women’s col-

leges are experiencing an unanticipated surge in

enrollments and positive public attention.

„ * * * *

While the disproportionate distinction achieved

by women who are alumnae of single-sex institu-

tions .. is partially responsible for the enroll-

ment boom, there are other explanations. Many

attribute the newfound popularity to studies

showing that girls in adolescence and beyond

typically react to coeducational classrooms with

“learned silence” and lowered aspirations. Others

cite the diminished attraction of coeducation be-

cause of worrisome statistics on drinking and

concerns about date rape and other violent crimes

at institutions with both men and women, as

well as the mounting criticism of large universi-

ties for seeming indifference to the quality of

undergraduate education.

“A Burst of Popularity,” U.S. News & World Re-

port, Sept. 26, 1994.

J ust as a state’s provision of publicly financed ed-

ucation to its citizens is a legitimate and important

governmental objective, so too is a state’s opting for

single-gender education as one particular pedagogical

technique among many. Although there remains some

disagreement among the experts about the extent of

the benefits of single-gender education, it is not our

role to resolve that issue. It is enough that there is

a growing consensus in the professional community

that a sexually homogeneous environment yields con-

crete educational benefits. Thus, we should defer to

a state’s selection of educational techniques when we

22a

conclude, as we do here, that the purpose of provid-

ing single-gender education is not pernicious and falls

within the range of the traditional governmental ob-

jective of providing citizens higher education. Ac-

cordingly, we conclude that Virginia has met the first

part of our intermediate scrutiny test.

V

When applying the special intermediate scrutiny

test for classifications based on homogeneity of gen-

der in the context of higher education, we next con-

sider whether that classification is substantially re-

lated to the state’s purpose. When combined with

the third. part of the test, ie., the inquiry into

whether excluded men and women have opportunities

to obtain substantively comparable benefits, this in-

quiry serutinizes the means by which the state chooses

to obtain its objective.

Single-gender education provides an educational

environment in which the student population is of

one sex, providing the assumed benefit that those stu-

dents are not distracted by the presence of the other

sex. Even though it may be offered to both genders

through separate institutions, separate campuses, or

even separate classrooms, a single-gender educational

program necessarily excludes members of the gender

not included in that institution, campus. or class-

room. The importance of the classification is not the

fact that the student body is male or female, but

that it is of the same gender, whichever is chosen

for the particular program. But the only way to

realize the benefits of homogeneity of gender is to

limit admission to one gender. Thus, the means of

classifying by gender are focused on the single-

gender educational purpose as directly as the nature

of the objective allows.

23a

The classification for single-gender education at

VMI is also directly related to achieving the results

of an adversative method in a military environ-

ment. The adversative method was not designed to

exclude women, but seized on the possibility, in a

sexually homogeneous environment, of grating egos

and setting the aggressiveness of one person against

another through conflict, egalitarianism, lack of pri-

vacy, and stress—both physical and mental. The ad-

versative method is intended to break down individ-

ualism and to instill the uniform values espoused by

the institution. The methodology described, however,

has never been tolerated in a sexually heterogeneous

environment; indeed, we condemn it for good reason.

If we were to place men and women into the adversa-

tive relationship inherent in the VMI program, we

would destroy, at least for that period of the ad-

versative training, any sense of decency that still

permeates the relationship between the sexes.

Accordingly, to preserve the benefits of single-

gender education, which Virginia has chosen to at-

tain through separate institutions, the programs at

VMI and Mary Baldwin College would of necessity

exclude persons of the opposite gender, men at Mary

Baldwin College and women at VMI. No more direct

means could be adopted to accomplish the state’s

objective of providing single-gender education at the

institutional level. It is inherent in the benefit that

men must be excluded from the women’s program

and women from the men’s.

While we are satisfied that a classification for

homogeneity of gender is necessary to provide single-

gender education, at whatever level of separation, we

must nevertheless, under the special intermediate

scrutiny test that we are applying for such classifica-

24a

tion, be satisfied that both excluded men and ex-

cluded women have reasonable opportunities to ob-

tain benefits substantively comparable to those they

are denied. That brings us to the final inquiry of

this intermediate scrutiny test.

VI

In determining the substantive comparability of

benefits, we are faced with at least two questions:

how are the benefits from which one gender is ex-

cluded to be defined, and on what level and to what

degree must other benefits be comparable.

The United States notes that VMI affords a unique

type of military training as part of its educational

program which cannot be duplicated in another insti-

tution. Even though it acknowledges that a parallel

program could theoretically satisfy the requirements

of the Equal Protection Clause, the United States

argues that any such program must be identical to

that of VMI. Because that cannot be accomplished,

it concludes that women could only enjoy the unique

benefits of the VMI program if VMI admits women.

The failure of the government’s syllogism, how-

ever, comes from its failing to follow its logic to com-

pletion. If we ordered VMI to admit women, the

program would be irrevocably altered, forever deny-

ing its unique methodology to both women and men.

Changes would have to be made to the adversative

method, to the absence of privacy, and to the physical

requirements of the program, all of which are part of

VMI’s unique methodology. Certainly military train-

ing could be provided for women at WMI, but it would

be substantially different from the training VMI ca-

dets currently receive and would be closer to the pro-

66» fßßßßßfßßß, DEE IRE

25a

grams offered by the U.S. military academies, which

are already open to women. Thus, neither gender

would experience the unique type of adversative mili-

tary training now utilized at VMI if VMI were to

become coeducational.

Moreover, the government’s argument that a com-

parable opportunity requires an identical program is

not sustained by the Equal Protection Clause. The

advocation that laws require equal methods and equal

results for different classes of people can no more be

supported than the suggestion that two programs for

two different classes of people can ever be identical.

See Reed, 404 U.S. at 75; Jenness v. Fortson, 403

U.S. 431, 442 (1971) (“Sometimes the grossest dis-

crimination can lie in treating things that are dif-

ferent as though they were exactly alike.”). And the

alternative of allowing a state to provide benefits only

when they could be provided in identical form to all

of its citizens, regardless of whether they are similarly

eireumstanced, is justified only by a needless, and

indeed baseless, demand for conformity.

Thus, if the state desires to offer the benefits of

single-gender education to its citizens, the state must

mitigate the effects of the resulting gender classifica-

tion by affording to both genders benefits comparable

in substance, but not in form and detail.

VMI offers a publicly subsidized college education

in a single-gender environment, resulting in a bach-

elor’s degree and intended to produce disciplined men

of honor who are well-suited for leadership. Its

method involves the use of the traditional classroom

in a pervasive military environment. The VWIL pro-

gram at Mary Baldwin College would likewise intend

to provide an educational opportunity in a single-

26a

gender environment, leading to a bachelor’s degree

coupled with discrete training designed specifically to

prepare women for leadership. In considering the

level of detail for any comparison of the two pro-

grams, we must, to achieve a meaningful comparison

of substance, do more than simply recognize that both

programs provide higher education leading to an un-

dergraduate degree. But we should not reject pro-

grams that are aimed at achieving similar results, not

generally available from other institutions of higher

learning, simply because they differ in approach. In

this case, both VMI and VWIL are focused on results

beyond simply awarding an undergraduate degree.

Both seek to teach discipline and prepare students for

leadership. The missions are similar and the goals

are the same. The mechanism for achieving the goals

differ—VMI utilizing an adversative and pervasive

military regimen and VWIL proposing to utilize a

structured environment reinforced by some military

training and a concentration on leadership develop-

ment—but the difference is attributable to a profes-

sional judgment of how best to provide the same

opportunity.

Io argue whether the adversative and pervasive

military method applied to men at VMI should be ap-

plied to women at VWIL to reach better the goal of

taught discipline and leadership in women makes for

a rigorous debate among professional educators. The

possibility of adapting the adversative methodology

to women, setting woman against woman with the in-

tended purpose of breaking individual spirit and in-

stilling values, could succeed only if it is true

that women, subjected to the same grating of mind

and body, respond in the same way men do, and only

27a

then if a sufficient number of women necessary to

make such a program work desired to participate in

the program. Educational experts for the Common-

wealth testified that women may not respond similarly

and that if the state were to establish a women’s

VMI-type program, the program would attract an

insufficient number of participants to make the pro-

gram work. The United States did not offer sufficient

evidence to lead us to conclude that the Common-

wealth’s expert testimony was clearly erroneous in

this regard. But we need not resolve such details of

methodology. This is the type of ongoing debate that

is to be expected among substantively comparable

institutions, and it reveals a vitality of professional

concern which can lead to institutional betterment

through adjustments down the road. In this case, the

mission and goals are the same, and the methodologies

for attaining the goals, while different, nevertheless

are reasonably calculated to succeed at each institu-

tion. Those differences that do exist do not require

that the important state purpose of providing single-

gender education for both sexes be defeated in this

case.

It is true that VWIL is at its incipiency, and the

VWIL degree from Mary Baldwin College lacks the

historical benefit and prestige of a degree from VMI.

But such intangible benefits can never be created on

command—they must be the byproduct of a longer-

term effort. Moreover, to some extent, we compensate

for this deficiency in the remedy section, below. For

purposes of the Equal Protection Clause, however, we

are satisfied that the programs to be offered at both

institutions can be substantively comparable if VWIL

28a

is undertaken with a persistently high level of com-

mitment by Virginia and that men and women

mutually excluded by the two programs will not be

denied the opportunity for an undergraduate educa-

tion with discipline and special training in leadership.

It is noteworthy that men and women are not limited

to the choices available at these two institutions.

Virginia provides a much broader array of oppor-

tunities in higher education through other state sup-

ported colleges and universities, ineluding the co-

educational military program at Virginia Polytechnic

Institute and State University. See VMI I, 976 F.2d

at 893 n. 1 & 898 n. 8.

In this case, we conelude that if the conditions that

we impose below are fulfilled, the opportunities that

would be open both to men and women are sufficiently

comparable. We therefore are satisfied that the spe-

cial intermediate scrutiny test defined for this case

— been 5 insofar as a proposed program can meet

is test, by the WIL program roposed

Baldwin College. a *

VII

Were Virginia now building its higher educational

program from the ground up and, as part of it, offer-

ing bachelor’s programs (1) at a male-only institu-

tion featuring a highly disciplined military environ-

ment, (2) at a female-only institution featuring a

highly disciplined leadership program in a non-mili-

tary environment, and (3) at a third institution offer-

ing a broad array of subjects and methods in a co-

educational environment, our analysis would end here

with approval of the program against an l

tection challenge. 2 N

23 „ w „

29a

In this case, however, there is an added element

created by the presence now of VMI as an ongoing

and successful institution with a long history and the

absence now of a comparable single-gender women’s

institution. Virginia’s proposal for Mary Baldwin

College is just that—a proposal. Virginia has under-

taken what appears to be a serious effort at develop-

ing a plan to meet this historic deficiency. Virginia

appointed a task force of professionals to design a

new program, designed a program aimed at special

leadership for women, and funded the proposed pro-

gram at the same per capita levels at which it funds

VMI. In addition, governmental officials in Virginia

seem to be supporting the new program at every level.

In our earlier opinion we noted some ambivalence in

that regard. Then-Governor Douglas Wilder had

favored coeducation at VMI in the face of no other

alternative, and state education officials favored a

separate program, or some other course, leading the

state, as a party, to bow out of the liability phase of

the litigation as a house divided. Governor Wilder is

now firmly behind the VWIL program as is current

Governor George Allen. Moreover, the Virginia legis-

lature has supported the program by providing what

appears to be adequate funding and by promising to

increase the level of funding, should the response

require it.

Nevertheless, a state’s response to a court ordered

correction of a Fourteenth Amendment violation is

given under command and therefore must be viewed

with some skepticism. While the court was assured

at oral argument that the program proposed at Mary

Baldwin College was serious and had the full support

of the state, the important question remains whether

30a

Virgina will implement the program with the in-

tensity and perserverance necessary to provide a sub-

stantively comparable opportunity for women, so that

when VWIL is established we will not conclude that

the value of the benefits provided by that program,

when compared to VMI, tends “to lessen the dignity,

respect, or societal regard” of women. To allay any

skepticism and assure eradication of the constitu-

tional violation, we therefore find it essential, during

the early stage of VWIL’s history, to be assured

affirmatively that a high level of state support

continues.

Accordingly, while we affirm the judgment of the

district court, which has issued an injunction man-

dating implementation of the plan and retaining juris-

diction to oversee the implementation, we are remand-

ing the case with instructions that the court include,

as part of its oversight of the plan’s implementation,

a 3pecific review to ensure that (1) the program is

headed by a well-qualified, motivated administrator,

attracted by a level of compensation suited for the

position; (2) the program is well-promoted to poten-

tially qualified candidates; (3) the program includes

a commitment for adequate funding by the state for

the near term; and (4) the program includes a mech-

anism for continuing review by qualified professional

educators so that its elements may be adjusted as

necessary to keep the program aimed not only at pro-

viding a quality bachelor’s degree but also at affording

the additional element of taught discipline and leader-

ship training for women.

AFFIRMED AND REMANDED.

3la

PHILLIPs, Senior Circuit Judge, dissenting :

In VMI I, 976 F.2d 890, we held unanimously that

the Commonwealth of Virginia’s official policy of

allowing only men to be educated at state-supported

Virginia Military Institute violated the Equal Protec-

tion Clause. Specifically, we held, applying intermedi-

ate level scrutiny under developed Equal Protection

jurisprudence, that if, as the Commonwealth then

asserted, the “important governmental objective” its

policy served was the provision for its citizens of a

diverse array of educational opportunities, including

single-gender education, then providing one single-

gender institution for men but none for women could

not be deemed “substantially related to achievement”

of that objective. Jd. at 892, 899. Furthermore, we

expressed doubt that the asserted diversity-of-educa-

tional-opportunities objective could stand scrutiny as

the actual reason for maintaining VMI’s male-only

policy. Id. at 899 (pointing to lack of any state-

announced policy of providing single-gender educa-

tion as part of overall “diversity” goal; to the failure

of the Commonwealth to defend the policy in this liti-

gation; and to the fact that the actual policy being

overwhelmingly followed by the Commonwealth’s col-

leges and universities was coeducation rather than

single-gender education ).

In any event, whether because the asserted govern-

mental objective of “diversity” was not a credible

reason for the policy, or because, if it were, maintain-

ing one male-only institution in the overall system

could not be deemed substantially related to such an

objective, we held the policy violative of equal protec-

tion guarantees. And, in keeping with established

32a

judicial policy where comparable forms of systemic

state action have been found violative of equal pro-

tection, see, e.g., White v. Weiser, 412 U.S. 783, 794-

95 (1973) (electoral redistricting), we remanded

with directions to allow the Commonwealth to make

the first attempt at remedy. VMI I, 976 F.2d at 900.

In doing so, we noted the two obvious remedies: ad-

mitting women to VMI (going co-ed) or foregoing

further state support (going private). Id. Addition-

ally—and I believe prudently, if with risk—we noted

the possibility, without pre-judging the validity of

any effort to realize it, of establishing “parallel in-

stitutions or programs.” Id.

The Commonwealth opted for the “parallel pro-

gram” possibility as an attempted remedy and sub-

mitted to the district court the proposed plan sum-

marized in the majority opinion. Finding it adequate

if properly implemented over time to satisfy equal

protection guarantees, the district court adopted it in

the form of an injunctive decree that directed com-

pliance “with all deliberate speed.” 852 F.Supp. 471,

485 (W.D.Va.1994). The panel majority has now

affirmed the district court’s decree and the critical

findings and conclusions on which it is based.

With all respect, I would not do so. I do not believe

the proposed remedial plan, whose judicial adoption

in unrealized form obviously does not bring Virgiria

into present compliance with equal protection guaran-

tées, has any real and effectively measurable capacity

to do so over foreseeable time.

I therefore dissent. I would hold that the proposed

remedial plan fails, as did the policy rejected in VMI

J. to pass equal protection muster under the appropri-

ate intermediate level of scrutiny. Accordingly, I

— U— x RD a eS te dine Rs ———

, ee a

33a

would reject the plan, declare the VMI men-only policy

still in violation of the Equal Protection Clause, and

order that the violation be ended either by abandon-

ing the policy or by foregoing further state support

for the institution.

I

Though the legal framework is well known and the

general historical background of this litigation is not

in dispute, a brief summary is needed to aid in iden-

tifying the exact constitutional issue that is now

before us.

When Virginia Military Institute was founded in

1839 as a siate-supported military school for men

only, it is inconceivable that any thought was given

oy the founders te the possibility that women should

not be denied its intended benefits. No conscious gov-

ernmental choice between alterratives therefore dic-

tated the original men-only policy; it simply reflected

the unquestioned general understanding of the time

about the distinctively different roles in society of

men and women. Sce Mississippi Univ. for Women

v. Hogan, 458 U.S. 718, 725, n. 10 (1982) (noting

numerous examples from that era of “legislative at-

tempts to exclude women from particular areas sim-

ply because legislators believed women were less able

than men to perform a particular function”). Since

that time and until this litigation (so far as anything

before us reveals) no conscious governmental choice

had ever been made by the Commonwealth of Vir-

ginia to reexamine that original policy. So far as

can be the gender-role premises of its origins

were those that continued over time to sustain it as

official state policy.

34a

It is clear then that it was this litigation that

prompted the Commonwealth’s first official re-exami-

nation of the policy and its underlying premises in

light of the Fourteenth Amendment’s requirement

that the states provide the equal protection of their

laws to all persons subject to them. That obligation,

as imposed in 1868, has from earliest times been un-

derstood by the courts to expose gender-classifications

to equal protection judicial scrutiny. Early on, that

scrutiny was almost completely deferential to the

legislative prerogative, asking only whether the classi-

fication served any reasonably conceivable, legitimate

governmental purpose. See, e. g., Bradwell v. Illinois,

83 U.S. (16 Wall), 130, 141 (1872) (standard ap-

plied to uphold law prohibiting women from practicing

law). Since 1976, however, the Supreme Court, con-

firming a trend toward some degree of heightened

scrutiny that started in the early 1970's, see, €.9.,

Reed v. Reed, 404 U.S. 71 (1971) (invalidating state

law that preferred men over women as administrators

of decedents’ estates) has interpreted the Clause to

require a significantly more stringent standard, “in-

termediate” between the “strict” scrutiny required

for racial and other historically “suspect” classifica-

tions, and the most deferential “rational basis“ seru-

tiny originally applied to gender-based classifications.

As expressly adopted in Craig v. Boren, 429 U.S. 190

(1976), this intermediate level of scrutiny asks

whether the state’s gender-ciassification “serves im-

portant governmental objectives” and is “substan-

tially related to achievement of those objectives,” id.

at 197. Under this standard, states seeking to uphold

such classifications “carry the burden of showing an

‘exceedingly persuasive justification’ for ſit]“ by dem-

35a

onstrating both that the governmental objectives it

asserts for the classification are “important” ones and

that “the discriminatory means employed are substan-

tially related to achievement of those objectives.”

Mississippi Univ. for Women v. Hogan, 458 U.S. 718,

724 (1982).

It was this intermediate level of scrutiny that we

applied in VMI I in holding the original male-only

policy violative of equal protection. That holding still

stands. Unless and until it is overruled, the original

policy—which still remains in effect—remains uncon-

stitutional. The district court’s decision that we now

review does not of course purport to hold otherwise.

It assumes, as it must, the continuing unconstitution-

ality of that policy, but holds that the viclation may

be effectively remedied by the state’s compliance with

the injunctive decree entered by the court in adopting

the state’s proposed “parallel program” plan for

women only at Mary Baldwin.

Several important things emerge from those de-

velopments. The first is that the remedial plan pro-

posed by the Commonwealth and adopted as remedy

by the district court simply involves a new gender-

classification which now has become the proper sub-

ject of the heightened scrutiny mandated by Craig

and its progeny. Cf. White v. Weiser, 412 U.S. 783,

795 (1973) (judicial review of remedial redistricting

plan asks only whether plan meets constitutional re-

quirements, not whether it provides best possible

remedy for original violation).

The next point of importance is that this new

gender-classification (in its projected form) is of a

type that has not yet been definitively subjected to

equal protection scrutiny: it involves a state’s provi-

36a

sion of separate single-gender educational institutions

for men and women which it is claimed will meet

equal protection requirements by providing substan-

tially equal, though separately administered, benefits.

This could raise a threshold question whether separate

State-supported educational facilities for men and

women, like those for white and black students, are

so “inherently unequal,” by reason of their stigmatic

implications, see Brown v. Bd. of Educ., 347 U.S.

483, 495 (1954), that the new classification violates

equal protection per se and warrants no further

scrutiny.

If the answer to that threshold question is, how-

ever, no“, so that intermediate scrutiny must pro-

ceed in detail, a final point of importance about the

new classification must be faced. It is that one of the

two critical elements in its separate-but-equal ar-

rangement, the women-only program at Mary Bald-

win, is only a plan and not a present reality. This

creates a difficult problem for Equal Protection analy-

sis. Must we assume, without question, that the stated

goals of the women’s program are actually achievable

and that the fact of their achievement is subject to

judicial verification when it occurs, so that we should,

on that assumption, (though conditionally) assess the

plan in its proposed ultimate form? Or may we, in

intermediate scrutiny, question either or both the

' The district court necessarily made that assumption. Im-

plicit in its decision is the determination that (1) if the

asserted objectives of the wemen-only program at Mary

Baldwin are achieved, the result will be a separate-but-equal

provision of benefits that passes equal protection muster and

(2) achievement of the objectives is a realistic possibility

capable of verification by the court when it occurs.

37a

achievability of the program’s stated objectives and

the ability of the courts effectively to assess their

achievement? If we undertake conditional assessment

of the plan on the stated assumption, what is the

proper equal protection test for allowable separate-

but-equal state-supported educational institutions?

What is the proper measure of equality for that

purpose?

Each of these inescapable problems raises for us

issues of first impression in application of equal pro-

tection jurisprudence to the resolution of this case.

II

The logical first question is whether separate

single-gender undergraduate educational facilities for

men and women are “inherently unequal” so that the

proposed plan, even if perfectly realized in time,

would be per se violative of equal protection. Cf. id.

The question has not been addressed by the Supreme

Court, see Hogan, 458 U.S. at 720 n. 1, or by this

court, hence is an open one. Under the disposition I

believe proper, it could remain open, for IT would

decline to address it, and hold that even if some

separate-but-equal arrangement might pass equal pro-

tection muster, the one here proposed would not.

*The United States has expressly disclaimed any conten-

tion that any and all forms of state-supported single-gender

education are per se violative of equal protection. See VMI J.

976 F.2d at 898. This position would seem compelled by the

Supreme Court’s recognition in Hogan that a single-gender

educational institution might be justified on the basis of need

to compensate the favored gender for past discrimination.

458 U.S. at 727, 728. But that is a different issue than the

issue whether the provision of allegedly separate-but-equal

single-gender facilities for purposes other than compensation

38a

III

This leads to the next question: whether the par-

ticular separate-but- equal arrangement proposed by

the Commonwealth and adopted by the district court

can survive intermediate equal protection scrutiny.

As earlier noted, the fact that the women-only

component of this arrangement exists now only in

plan form presents a difficult analytical problem:

whether its consummation in fact should be assumed,

with scrutiny then confined to the consummated over-

all plan, or whether the possibility of effective, ju-

dicially verifiable consummation of the plan may it-

self be questioned. Because I believe that even were

the VWIL proposal to be substantially consummated

in foreseeable time the resulting two-component

arrangement would not pass equal protection muster,

I would proceed on that assumption, though with

some reservations to be expressed about the practical

enforceability of the injunctive decree that embodies

the proposal.

for past discrimination against one of the genders would

violate equal protection per se because—as in matters of race

—such separateness is “inherently unequal.” The “question

whether states can provide ‘separate but equal’ undergraduate

institutions for males and females” was, in fact, expressly

noted by the Supreme Court in Hogan as still an open one.

Hogan, 458 U.S. at 720 n. 1. I do not therefore understand

the United States’ disclaimer to run as well to noncompensa-

tory “separate but equal” arrangements, particularly in view

of its suggestion of their necessary stigmatic implication.

Appellant’s Br. 20-22; Reply Br. 9, 10. For this reason, I do

not think the issue whether non-compensatory “separate but

equal” arrangements are per se violative can be avoided as

waived, but, as indicated, would myself avoid it as unnecessary

to decision in this case.

39a

A

In its fully consummated form, the Common-

wealth’s proposed arrangement would consist of two

separate single-gender undergraduate institutions,

one for men only, the other for women only. The

basic structure of each has been accurately summa-

rized in the majority opinion and is not in dispute.

A brief recapitulation of the core aspects suffices

here.

The men-only component would be Virginia Mili-

tary Institute, a justly famous and distinguished

state-supported four-year liberal arts college organ-

ized and operated since 1839 in the classic “military

school” model, featuring a student body now num-

bering around 1,300 men organized as a quasi-mili-

tary “Corps of Cadets” and a distinctive ‘“adversa-

tive” social and educational methodology designed to

produce a distinctive type of “citizen-soldier” particu-

larly suited for military and civic leadership.

The women-only component would be the Virginia

Women’s Institute for Leadership (VWIL) operated

under contract with, and funded by, the Common-

wealth of Virginia, as part of the undergraduate

program at the otherwise privately-funded Mary

Baldwin College. This “Institute,” whose essential

structure and stated mission are accurately sum-

marized in the majority opinion, ante at 1233-35,

would have come into existence in the Fall of 1995

at the earliest, around a century and a half after

VMI’s founding. While its future enrollment is nec-

essarily uncertain, it would be expected to start up

with about 25 to 30 students and expand as a con-

cededly problematic demand for its highly specialized

program allowed.

40a

As indicated, for purposes of decision here, I would

lay aside all concerns about whether the VWIL pro-

gram would actually ever work out substantially as

proposed, assume that it would be, and subject the

resulting two-component arrangement to intermedi-

ate level equal protection scrutiny. That is, I would

ask whether the resulting provision of separate state-

supported men-only and women-only educational op-

portunities at VMI and VWIL respectively could

meet that standard.

B

The first step in that process is to identify the

precise governmental objective(s) the Commonwealth

asserts to be the “important” one(s) justifying the

proposed double gender-classification under which

women will continue to be denied admission to VMI

and men to VWIL. For in intermediate level scru-

tiny, unlike rational-basis scrutiny, we are limited to

consideration of the objectives specifically advanced

by the state, and may not look beyond those to any

our imaginations might seize upon as justification.

See L. Tribe, American Constitutional Law, § 16-32,

pp. 1604-06 (2d ed.1988).

Though usually the governmental objectives relied

upon to justify gender (and other) classifications are

plainly enough articulated by their state defenders,

that is not so true here. There is a real problem of

identification in this case, for the Commonwealth

seems uncertainly to advance a number as alternative

or cumulative free-standing possibilities. Three might

be identified: (1) providing separate single-gender

educational facilities for both men and women be—

cause of the intrinsic value to some in both genders

of such a social environment for education (“intrin-

4la

sic value“); (2) producing both men and women

particularly suited for leadership roles as “citizen-

soldiers” by providing separate single-gender educa-

tional programs for each that are designed to ac-

commodate their different psychological and emotional

strengths and weaknesses in becoming effective lead-

ers in either domain (“gender-adapted leadership

training“); and (3) providing separate single-

gender educational facilities for men and women as

part of an overall objective of providing a diverse

array of state-supported higher-education opportuni-

ties (“system-diversity” ).°

If these be, alternatively or together, the “govern-

mental objectives” now asserted by the Common-

wealth, we are entitled at the outset to inquire as to

whether they are the “actual purposes,” and to re-

ject them if the record draws their reality as the true

motivations for the policy sufficiently in doubt.“ This

was exactly what the Supreme Court did in rejecting

the State of Mississippi’s assertion in Hogan that its

primary objective in maintaining its School of Nurs-

ing for women only was to compensate for past dis-

crimination against them. Looking to the history of

the School’s founding and subsequent operation, to

statistics respecting the actual dominance of women

in the nursing profession throughout that history,

* Appellees’ Br. at 4, 5.

Id. at 2-4, 32-87.

Id. at 14 & n. 5.

Such an inquiry logically precedes inquiry into the im-

portance” of any objectives accepted as reflective of “actual

purpose.” See Hogan, 458 U.S. at 730. As to how the “im-

portance” inquiry would work out in this case, see infra, at

1248 & n. 8.

42a

and to state legislative history, the Court concluded

that although the state recited a benign, compensa-

tory purpose,’ it failed to establish that the alleged

objective is the actual purpose underlying the dis-

criminatory classification.” Hogan, 458 U.S. at 730.

The real purpose behind the original policy and its

continuation through history was implicitly recog-

nized by the Hogan court as being simply the carry-

ing through of a “stereotyped view of nursing as an

exclusively women’s job.” Id. at 729. See also Cali-

fano v. Goldfarb, 430 U.S. 199, 212-17 (1977); Wein-

berger v. Wiesenfeld, 420 U.S. 636, 648 (1975)

(noting that “the mere recitation of a benign com-

pensatory purpose is not an automatic shield which

protects against any inquiry into the actual purposes

underlying a statutory scheme“).

I believe that a comparable inquiry here could

properly support a like rejection of the various gov-

ernmental objectives suggested by the Commonwealth

on the basis that they demonstrably are rationali-

zations compelled by the exigencies of this litigation

rather than the actual overriding purpose of the pro-

posed separate-but-equal arrangement. Such an in-

quiry—looking realistically to the historical record,

taking judicial notice of much of relevance that is

known to the whole world and of which we are not

compelled to feign ignorance, see Watts v. Indiana,

338 U.S. 49, 52 (1948), and holding the Common-

wealth to its appropriate stringent burden of justifi-

cation, see Hogan, 458 U.S. at 724 (must be “ex-

ceedingly persuasive”) would, I believe, reveal a

quite different actual purpose. Specifically, I think it

would support a confident and fair conclusion that

the primary, overriding purpose is not to create a

new type of educational opportunity for women, nor

43a

to broaden the Commonwealth’s educational base for

producing a special kind of citizen-soldier leadership,

nor te further diversify the Commonwealth’s higher

education system—though all of these might result

serendipitously from the arrangement—but is simply

by this means to allow VMI to continue to exclude

women in order to preserve its historic character and

mission as that is perceived and has been primarily

defined in this litigation by VMI and directly af-

filiated parties.“

As the record indicates, and as it is well to recall at this

stage of the litigation, the Commonwealth of Virginia did not

officially defend the original VMi men-only policy that we held

to be unconstitutional in VAI J. The justification for that

policy advanced in VMI / was exclusively shaped and actively

conducted by VMI, its official governing board, that board’s

members and (as intervenors) VMI alumni organizations.

See VMI I, 976 F.2d at 894 & n. 3. The justification then

advanced by those parties is fairly and simply summarized:

VMlI’s distinctive educational program, featuring rigor-

ous military discipline and an “adversative” methodology,

is suitable only for men and not for women, to the point

that the admission of any women into it would effectively

destroy it; the demonstrated value to society of that pro-

gram and those it has produced is too important to allow

it to be destroyed in that way.

See VMI I, 976 F.2d at 896-97.

That justification and the perception underlying it has not

been abandoned by those who advanced it. They continue to

press it by “protective” cross-appeal on this appeal after hav-

ing sought to challenge its rejection in the Supreme Court.

Taking judicia! notice of matters surely of common know!-

edge in the Commonweulth, I would be prepared to conclude

that (1) the perception underlying the policy justification

advanced by VMI officials and alumni organizations remains

alive and strongly held by those parties, and that (2) the

44a

To reach such a conclusion would no more ques-

tion the good faith of the Commonwealth in advanc-

ing these claimed governmental objectives in this liti-

gation than did the Supreme Court’s rejection of the

objectives advanced by Mississippi in the Hogan liti-

gation. It would simply involve the same realistic

recognition that the objectives advanced represent

after-the-fact rationalizations that, quite understand-

ably, may be advanced by any state required in liti-

gation to justify a gender-classification whose seeds

were planted long before equal protection jurispru-

dence had come into being or had evolved to the

point of drawing it in question. Cf. Cleveland Board

of Education v. LaFleur, 414 U.S. 632, 653 (1974)

(Powell, J., concurring in result) urging analysis

of mandatory pregnancy leave policy under equal

protection doctrine, and rejecting under such an anal-

ysis “most of the after-the-fact rationalizations pro-

posed by the [state agency defendant)” as “unsup-

ported by the record“).

A conclusion that the actual, overriding purpose of

the proposed separate-but-equal arrangement remains

the preservation by that means of the original 1839

policy of excluding women from VMI, a policy that

unquestionably has been driven unchanged since its

origins by a stereotyped view of the proper role and

prestige and influence of VMI and its justly loyal alumni and

their organization in influencing any political decision affect-

ing VMI’s interests is sufficiently powerful to ensure that

their overriding purpose in this matter effectively defines the

actual governmental objective of the Commonwealth’s pro-

posed remedial plan. That overriding purpose remains the

preservation of VMI as a state-supported educational insti-

tution for men only, with all other asserted purposes of the

plan merely secondary means to that end.

45a

capabilities of women in society, would of course

require declaring the proposed arrangement viola-

tive of equal protection without further inquiry into

specifics. See Hogan, 458 U.S. at 729, 730.

Although, as indicated, I believe a decision on that

ground would be proper, I would not decide the case

on that basis alone, or even primarily. There are

unique circumstances here that were not present in

Hogan or in any other case of which I am aware

in which a state’s asserted objectives have been re-

jected at the threshold 1s demonstrably not the “ac-

tual purpose” of a challenged gender-classification.

Uniquely, the gender-classification under specific

challenge here is one now defended by the Common-

wealth as a proposed judicially required remedy

for a so-far unsuccessfully defended prior gender-

classification. The real position of those who de-

fended the original policy remains that the Common-

wealth should not have been required to undertake

any remedial action, hence that it need have no

justifying objectives for the new remedial gender-

classification it proposes. See supra, note 7. Though

the Commonwealth does not press the point, I think

it fair to recognize that in these circumstances, un-

like those where the gender-classification being de-

fended is one prompted entirely by voluntary state

action, courts should be especially cautious about re-

jecting as not actual“ the objectives advanced for

involuntarily undertaken remedial action. Accord-

ingly, though I believe the Commonwealth must de-

fend its remedial plan under the usual intermedi-

ate scrutiny standard, I think it is entitled to have

its proposed separate-but-equal gender-classification

assessed for the substantiality of its “fit” to the re-

medial objectives it now asserts.

40a

C

Assuming then for purposes of this case that the

governmental objectives earlier identified should be

accepted as reflective of the “actual purposes” of the

proposed plan despite my stated doubts about their

reality as other than compelled remedial rationaliza-

tions, the next question is whether they have also

been shown to be “important” and not merely “ra-

tional.” Here again, because of the conceptual diffi-

culties presented by the remedial context of the case,

I would assume arguendo* the importance of the

governmental objectives asserted by the Common-

wealth and proceed to the second inquiry under the

proper equal protection test: whether the Common-

wealth has made an “exceedingly persuasive” show-

ing that the gender-classification central to its

proposed separate-but-equal arrangement is “substan-

tially and directly related to its proposed [remedial]

objectives.” Hogan, 458 U.S. at 724, 730. I would

*I make the assumption arguendo because resolution of the

special conceptual problems respecting remedial objectives

in intermediaie-level scrutiny that would be required is not

necessary to the decision I would reach. In making the as-

sumption, I note, with all respect, that I do not agree with

the majority’s assertion that when we do assess “importance”

we owe great Jeference to legislative judgments on the matter.

portant” to justify gender-classification being challenged; no

deference accorded legislative judgment).

47a

hold not, as the primary ground for decision that the

proposed plan does not pass constitutional muster.

What is the “substantial and direct relationship”

—the “fit”’—between means and asserted ends for

which we search in intermediate scrutiny, and how

do we look for it—in general, and particularly in

this case? The general question whether a challenged

classification “is substantially related to its asserted

goals” has been characterized as “at best an opaque

one.” Michael M. v. Superior Court of Sonoma

County, 450 U.S. 464, 474, n. 10 (1981) (plurality

opinion) (emphasis in original). Though as this

rightly observes, the substantive inquiry is likely to

be difficult, two critical aspects of the inquiry process

are plain enough. —

1. The inquiry is one of law—of constitutional

law—so that review of a lower court’s determination

of the issue, (though not of any underlying factual

predicates) is plenary. Sce, e.g., Wengler v. Drug-

gists Mutual Ins. Co., 446 U.S. 142, 150-52 (1980)

(plenary review of State Supreme Court holding).

2. The requirement that the relationship between

discriminatory means and asserted goals be “substan-

tial and direct,” rather than merely “rational for any

conceivable purpose,” mandates an inquiry into avail-

able alternatives, including gender-neutral ones. This

is not to determine whether the fit is the best one

possible, but to ensure that the means chosen did not

by-pass reasonably available alternatives less discrim-

inatory or not at all discriminatory in their impact

on the disfavored gender. See, e.g., Wengler, 446

U.S. 142, 151 (1980); Orr v. Orr, 440 U.S. 268, 283

(1979).

The specific issue thus becomes whether the Com-

monwealth has sufficiently shown within these prin-

48a

ciples, that its proposed separate single-gender school

arrangement is directly and substantially related to

the achievement of the three governmental objectives

earlier identified in short-form as the “intrinsic

value,” “gender-adapted leadership training,” and

“system-diversity” objectives. Supra at [40a-41a].

As earlier indicated, the question of the fitness of

any such separate single-gender school arrangement

to achieve any governmental objective apparently is

one of first impression in contemporary equal protec-

tion jurisprudence. One aspect of the matter, how-

ever, seems clear at the outset to me: no such ar-

rangement could be found substantially related to

any conceivable governmental objective unless the

benefits to be separately distributed by the arrange-

ment were substantially equal across the board of the

relevant criteria for evaluating educational institu-

tions. The Supreme Court’s reference, in dicta, to

the possibility of such an arrangement in Hogan

seems to assume such an equality of benefits as a

given, see Hogan, 458 U.S. at 720 n. 1, and I do

not see how it could be otherwise under contemporary

equal protection jurisprudence. Certainly, when

separate-but-equal educational arrangements for the

races were considered to be tolerable under the Equal

Protection Clause, a basic prerequisite was that they

be truly, substantially equal in all the relevant cri-

teria, tangible and intangible, by which educational

institutions are evaluated. See e.g., Sweatt v. Painter,

339 U.S. 629, 633-34 (1950) (requiring “substan-

tial equality in educational opportunities” to justify

separate state-supported law schools for white and

black students, and not finding it upon considering

both tangible resources such as “scope of library”

and intangible resources such as “position and in-

49a

fluence of the alumni,” “traditions and prestige“).

Though race is a “suspect” classification and gender

so far is not, I see no reason why the same require-

ment of substantial equality of benefits that was

thought at one time to justify separate-but-equal

schools for the different races should not apply to

separate schools for men and women if that class!

fication now does, as race formerly but no longer

does, permit separate-but-equal arrangements. If

that be so, then no governmental objective whose

achievement is specifically dependent upon the utiliza-

tion of separate single-gender institutions to distrib-

ute educational benefits could possibly justify a sig-

nificant discrimination between the two in terms of

the basic content, or quality, or quantity of those

benefits—tangible and intangible. Thus, I would

think a state could not justify under intermediate

scrutiny the provision of a men-only engineering

school and a women-only nursing school as a means

of achieving such asserted objectives as system-

diversity, or the intrinsic value to some in each

gender of single-gender educational environments, or

the like. Neither could it justify the provision of

separate graduate or undergraduate institutions hav-

ing comparable educational programs and missions,

but also having wide disparities favoring one gender

over the other in matters of physical plant, annual

funding, faculty or like commonly understood meas-

ures of value.

Does this mean that there is no way that a state

constitutionally could set about achieving such govern-

mental objectives through the provision of separate

single-gender institutions? I think it does not neces-

sarily mean that, but the arguably acceptable means

would seem to me to be very narrowly circumscribed.

50a

If we looked for the arrangement most likely to sur-

vive scrutiny, it presumably would involve simultane-

ously opened single-gender undergraduate institutions

having substantially comparable curricular and extra-

curricular programs, funding, physical plant, admin-

istration and support services, and faculty and library

resources. Such an arrangement would involve no

gender-line discrimination in terms of tangible bene-

fits, nor of intangible benefits such as tradition, pres-

tige and alumni influence—as to which each starts

with none. Nor could there be any stigmatic implica-

tions arising from the substantially comparable con-

tent of its educational program. If any arrangement

involving separate-but-equal single-gender institu—

tions set in place to achieve governmental objectives

of system-diversity, or of accommodating valid pref-

erences in each gender for a single-gender educational

environment, could survive equal protection scrutiny,

it surely would be one such as that posited.

Taking it as the paradigm against which to

measure the proposed arrangement reveals how far

short the proposed plan falls from providing substan-

tially equal tangible and intangible educational bene-

fits to men and women. Without denigrating in any

way the proposed VWIL program, not certainly Mary

Baldwin, the contrast between the two on all the rele-

vant tangible and intangible criteria is so palpable as

not to require detailed recitation. If every good thing

projected for the VWIL program is realized in rea-

sonably foreseeable time, it will necessarily be then

but a pale shadow of VMI in terms of the great bulk,

if not all of those criteria. Particularly is this ob-

vious with respect to the intangibles such as prestige,

tradition and alumni influence which the Supreme

Sla

Court, looking for substantial equality of educational

opportunities in Sweatt, thought “more important“

even than tangible resources. 339 U.S. at 634. The

student and eventual graduate of VWIL will not be

able to call on the prestigious name of “VMI” in

seeking employment or preference in her various en-

deavors; the powerful political and economic ties of

the VMI alumni network cannot be expected to open

for her; the prestige and tradition of her own fledg-

ling institution cannot possibly ever achieve even

rough parity with those of VMI. The catch-up game

is an impossible one, as any honest reflection upon the

matter must reveal.

The district court and the majority apparently seek

to avoid the insurmountable problem of finding sub-

stantial equality of benefits by narrowly defining the

relevant range of those to be considered. If inquiry

is confined only to those benefits sought by those rela-

tively few women who are expected to self-select

VWIL primarily for its single-gender environment, it

becomes very easy to ascribe not only substantial

equality, but superiority, to the benefits available at

VWIL. But that, of course, won’t do. The proper

perspective from which to measure substantial equal-

ity of available benefits is that of the potential student

who could be admitted to either school and has a

choice. As was said in Sweatt, „fit is difficult to

believe that one who had a free choice between

[these] schools would consider the question close.” Id.

The implication of all this is, as I realize, a stark

one. No separate single-gender arrangement that in-

volved VMI as the all-men’s school and any newly-

founded separate institution (whether free-standing

or an appendage) as the all womens’ component could

52a

pass equal protection muster. It could not provide

substantially equal educational benefits or opportuni-

ties to both genders.

This may be most obvious when the proposed ar-

rangement is tested for fit against the “system-

diversity” and “intrinsic value“ objectives. The “gen-

der-adopted leadership training” objective poses a

slightly different problem. The benefit upon which it

concentrates is a projected outcome: that of being one

especially suited for military and civilian leadership

by virtue of training adapted to different gender-

characteristics, as eitizen-soldier.“

As to this particular objective, I will close by noting

a process reservation beyond the substantive concerns

for achieving substantial equality of the outcome goal.

It seems to me too amorphous an objective to permit

any principled judicial assessment as the VWIL pro-

gram is expected to evolve. When can it first be

assessed? Surely not earlier than the four years it

will take to produce the first graduate presumably

trained for that special leadership role. Must it not

actually await an additional period for putting the

training to test in the military and civilian domains?

How will it be assessed even then: by comparing, on a

proportional basis, the actual leadership positions

achieved by graduates of the two schools? My pessi-

mistic assessment is that one of two things will occur.

One, this particular governmental objective—actually

a critical one as advanced—will simply be allowed to

fall out of sight in the judicial monitoring of results

that is projected. Two, its attempted monitoring will

generate an absolute quagmire of conflicting conten-

tions about achievement of the objective.

It will not work.

53a

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

Civ. A. No. 90-0126-R

UNITED STATES OF AMERICA, PLAINTIFF

v.

COMMONWEALTH OF VIRGINIA, ET AL., DEFENDANTS

Apr. 29, 1994

MEMORANDUM OPINION '

KIsER, Chief Judge.

This phase of this case (“Remedy”) is on remand

from the Fourth Circuit. Although the Fourth Circuit

agreed that single-sex education was a legitimate

pedagogical goal, it criticized the Commonwealth’s

avowed policy of supporting diversity in higher educa-

tion through VMI in two respects: First, that there

had been no authoritative articulation that the Com-

monwealth sought to diversify its higher education

Additional findings of fact are set forth in the Appendix

to this Memorandum Opinion.

54a

system by offering single-sex education; and, second,

that the program—as it now stands—is one-sided, i.e.

that VMI offers a single-sex opportunity to young

men while there is no comparable opportunity for

young women. For these reasons, this case was re-

manded to this Court to permit the Commonwealth to

„. .. formulate, adopt and implement a plan that con-

forms to the principles of equal protection.

United States v. Commonwealth of Virginia, 976 F.2d

890, 892 (4th Cir.1992) (VM).

There is substantial disagreement between the

parties as to what is required by the remanding in-

structions of the Fourth Circuit and the Equal Pro-

tection Clause. It is the position of the United States

that the mandate from the Fourth Circuit and the

Equal Protection Clause require that if the Common-

wealth opts to establish a separate program for young

women, it must be in all respects equivalent to, i.e. a

mirror image of, the VMI program.* The Common-

wealth argues that the United States’ position mis-

The United States continues to maintain that the only

action by the Commonwealth which will comport with the

Equal Protection Clause is to admit women to VMI. This

was the remedy the United States sought in its Complaint,

and it has never wavered from it. The United States called

the Court's attention to the recent decision in J. E. B. v. Ala-

bama, —— U.S. ——, 114 S.Ct. 1419, —— L.Ed.2d ——

(1994). This case does not change the equal protection ju-

risprudence applicable to the intermediate scrutiny test as

applied to sex-based claasifications. The Court, in its plurality

opinion, reaffirmed the test as set forth in Mississippi Uni-

versity for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331,

73 L.Ed.2d 1090 (1982). The Court found the respondent

had failed to meet the first prong of the test, i.e., that sex-

based peremptory challenges are not an important govern-

mental objective.

55a

construes both the meaning of the Fourth Circuit’s

mandate and the requirements of the Equal Protec-

tion Clause. The Commonwealth’s position is that the

mandate of the Fourth Circuit requires Virginia to

provide a state-supported all-female college program

that will attain an outcome for women that is com-

parable to that received by young men upon gradua-

tion from VMI. The Commonwealth argues that to

attain the desired outcome for women, the Fourth

Circuit’s mandate does not require that an all-female

program adopt the same or similar methodology as is

used at VMI. The Commonwealth further argues

that its view comports with the judicial gloss given,

in this context, to the Equal Protection Clause—i.e.

that the Commonwealth’s system of higher education

now satisfies intermediate scrutiny equal protection

analysis applicable to sex-based discrimination.

If the United States’ position is the correct one,

then the Commonwealth’s proposed Plan must fail

because the Plan differs substantially from the VMI

program. If the Commonwealth’s position is the cor-

rect one, however, then an analysis of its proposed

plan is necessary to determine whether it meets both

the requirements of the Fourth Circuit’s mandate and

the requirements of the Equal Protection Clause. I

am persuaded that the Commonwealth’s position is

the correct one and that its proposed plan meets the

requirements of the Fourth Circuit’s mandate and the

requirements of the Equal Protection Clause. Here is

why.

Procedural Background

At the outset of this phase of the litigation, this

Court ruled that factual findings, which were made

by this court in the liability phase and approved by

56a

the Fourth Circuit, would not be open for reexamina-

tion. A full recitation of those facts is found in this

Court’s opinion at 766 F.Supp. 1407. A brief recita-

tion of the operative findings made there will be suffi-

cient for the present purposes.

District Court Opinion

After reviewing the legal principles that apply to

intermediate scrutiny under the Equal Protection

Clause, I reviewed the expert testimony pertaining to

the benefits of a single-sex education and concluded

that “viewed in the light of this very substantial au-

thority favoring single-sex education, the VMI board’s

decision to maintain an all-male institution is fully

justified even without taking into consideration the

other unique features of VMI’s method of teaching

and training.” /d. at 1412. After making that find-

ing, I then reviewed the effect that the admission of

women to VMI would have on its program and con-

cluded “the single-sex status would be lost and some

aspects of the distinctive method would be altered if

it were to admit women.” /d. at 1413. Finally, I

observed that there was an absence of a comparable

opportunity for women, but concluded that this did

not impair the legitimacy of the VMI program, and I

did not seek to impose corrective action upon the

Commonwealth because “the relief that the United

States seeks in this suit is to require VMI to open its

doors to women—not to force Virginia to establish

an all-female, state supported college.” /d. at 1414.

Fourth Circuit Opinion

At the outset of its opinion, the Fourth Circuit

stated,

57a

[Wie accept the district court’s factual determi-

nation that VMI’s unique methodology justifies a

single-sex policy and material aspects of its es-

sentially holistic system would be substantially

changed by coeducation. . . The Commonwealth

of Virginia has not, however, advanced any state

policy by which it can justify its determination,

under an announced policy of diversity, to afford

VMI’s unique type of program to men and not

to women.

p. 892.

The court stated that it was remanding the case

“to the district court to require the Commonwealth

of Virginia to formulate, adopt, and implement a plan

that conforms to the principles of equal protection

discussed herein.” /d. at 892. The court then pro-

ceeded with its analysis. After reviewing this Court’s

finding with regard to the benefits of single-sex educa-

tion in general—and VMI methodology in particular

—and after reviewing the pertinent jurisprudence

with regard to the proper application of equal protec-

tion under the intermediate scrutiny test, the court

concluded, “In summary, the record supports the con-

clusion that single-sex education is pedagogically jus-

tifiable, and VMI’s system, which the district court

found to include a holistic formula of training, even

more so.” Id. at 898.

The appeals court proceeded to criticize the Com-

monwealth for failing to articulate, authoritatively

and comprehensively, a policy with regard to single-

sex education which would include both males and

females. In summation, the Court stated:

58a

We are thus left with three conclusions: (1)

single-sex education, and VMI’s program in par-

ticular, is justified by a legitimate and relevant

institutional mission which favors neither sex;

(2) the introduction of women at VMI will ma-

terially alter the very program in which women

seek to partake; and (3) the Commonwealth of

Virginia, despite its announced policy of diversi-

ty, has failed to articulate an important policy

that substantially supports offering the unique

benefits of a VMI-type of education to men and

not to women.

Id. at 899.

Because of these deficiencies, the Fourth Circuit

remanded the case to this Court to give the Common-

wealth an opportunity to fashion a remedy that would

address the constitutional violation identified by the

Court. In so doing, the Court instructed:

[Wie do not mean to suggest the specific remedial

course that the Commonwealth should or must

follow hereafter. Rather, we remand the case

to the district court to give the Commonwealth

the responsibility to select a course it chooses, so

long as the guarantees of the Fourteenth Amend-

ment are satisfied. Consistent therewith, the

Commonwealth might properly decide to admit

women to VMI and to adjust the program to im-

plement that choice, or it might establish parallel

institutions or parallel programs, or it might

abandon state support of VMI leaving VMI the

option to pursue its own policies as a private

institution. While it is not ours to determine,

59a

there might be other more creative options or

combinations.”

Id. at 900.

Interpreting the Fourth Circuit’s Opinion

The overarching question in this phase of the litiga-

tion is: what does the Fourth Circuit’s opinion re-

quire of a proposed plan in order to pass constitu-

tional muster? As stated above, the litigants disagree

strongly on this issue. Both sides are able to support

their arguments by fragmented readings of the

Fourth Circuit’s opinion. For example, the United

States finds support in the statement “whether the

unique benefit offered by VMI’s type of education can

be denied to women by the state under a policy of

diversity. VMI, 976 F.2d at 898. This state-

ment would imply that a program for women must

provide a VMI-type education. The United States

urges that to comply with the instructions of the

Fourth Circuit, the Commonwealth is required to pro-

duce a plan that will create a separate institution

which closely resembles, if not clones, the physical

plant, the curriculum, the methodology, the prestige,

and many of the other attributes of VMI. In other

words, the United States reads the Fourth Circuit

opinion to require a “separate but equal” institution.’

The sophistry of the “separate but equal“ concept

was roundly rejected in Sweatt v. Painter, 339 U.S.

629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950). Sweat

involved an equal protection challenge to the admis-

sions policy at the University of Texas law school

»The United States does not use the phrase “separate but

equal” but that is the import of its argument.

60a

which categorically denied admission to blacks. Texas

offered a newly established all-negro law school which

it claimed remedied any constitutional violation which

may have existed by virtue of UT’s law school ad-

missions policy. Although Sweatt was a racial dis-

crimination case that applied strict scrutiny equal

protection analysis, the rationale of the case applies to

this case. The Sweatt Court, after reviewing the

tangible qualities which made the University of Texas

— to the proposed new law school for negroes,

stated:

What is more important, the University of Texas

law school possesses to a far greater degree those

qualities which are incapable of objective mea-

surement but which make for greatness in a law

school. Such qualities to name but a few, include

reputation of the faculty, experience of the ad-

ministration, position and influence of the alumni,

. in the community, traditions and pres-

tige.

Id. at 634, 70 S.Ct at 850.

Thus, if “separate but equal” is the standard by

which the Commonwealth’s plan must be measured,

then it surely must fail because, as the United States

pointed out time and time again during the trial,

even if all else were equal between VMI and the Vir-

ginia Women’s Institute for Leadership! (“VWIL”),

the VWIL program cannot supply those intangible

qualities of history, reputation, tradition, and pres-

tige that VMI has amassed over the years. One must

*This is the title assigned to the Commonwealth’s Pro-

posed Remedial! Plan.

6la

assume that the Fourth Circuit did not assign the

Commonwealth an impossible task when it suggested

that the Commonwealth was free to establish “parallel

programs” or to devise “creative options or combina-

tions” that would comply with the court’s decision.

It would be unrealistic to think that the Fourth

Circuit was requiring an exercise in futility.

Moreover, the Fourth Circuit’s opinion must be read

in light of the portions of the district court findings,

which the appeals court approved. The district court

found VMI’s male-only admission policy was justified

without regard to VMI’s unique methods of teaching

and training. The Fourth Circuit’s opinion approved

specifically the district court findings in this respect

when it stated, “the record supports the conclusion

that single-sex education is pedagogically justifiable,

and VMI’s system, which the district court found to

include a holistic formula of training, even more so.”

Id. at 898. Thus, both the district court and the ap-

peals court held that the legal justification for VMI’s

all-male admission policy was contained in the benefits

that flow from a single-sex education. The finding

that VMI employed unique methods to teach young

men was simply an added dimension to the already

pedagogically justifiable policy.

The Fourth Circuit’s subsequent decision in Faulk-

ner v. Jones, 10 F.3d 226 (4th Cir.1993), further

bears out this interpretation of its mandate in this

case. In amplifying its decision in the VMI case, the

Faulkner court stated,

We remanded the case to the district court with

instructions to elicit a plan from the state com-

plying with the Fourteenth Amendment. We al-

lowed for the possibility that a plan could still

62a

permit VMI to remain a state-supported, single-

sex institution, if that were the will of Virginia,

so long as women were offered a parallel pro-

gram. (citations omitted). The order in VMI

did not, however, direct that any parallel pro-

gram which the state might choose to provide be

identical for both men and women.

[Anny analysis of [a parallel program] in re-

sponse to a justified purpose must take into

account the nature of the difference on which the

separation is based, the relevant benefits to the

needs of each gender, the demand (both in terms

of quality and quantity), and any other relevant

factor. In the end, distinctions in any separate

facilities provided for males and females may be

based on real differences between the sexes, both

in quality and quantity, so long as the distinc-

tions are not based on stereotyped or generalized

perceptions of differences.

Id. at 232.

I now examine the Commonwealth’s Proposed Re-

medial Plan to determine whether it comports with

the controlling legal principles framed by the Fourth

Circuit’s remand.

Virginia Women’s Institute for Leadership

The Virginia Women’s Institute for Leadership

(“VWIL”) plan envisions a parallel program, which

takes into account the differences and the needs of

college-age men and women. The VWIL plan offers

a holistic, residential four-year college experience in

63a

an established all-female environment, Mary Baldwin

College (MBC). VWIL’s stated mission is to produce

the “citizen soldier,” i.e., women who are trained for

leadership in both civilian and military life. Defs.’

Ex. 11 at 6. The methods by which this goal could

be achieved were the subject of intensive study and

planning by professionals who are leaders in the field

of designing and implementing educational programs

for women.

The Dean of Mary Baldwin College (“MBC”), Dr.

James D. Lott, chairs a Task Force which was charged

with developing a leadership program suitable for an

all-female four-year college. Dr. Lott is an expert in

the field of educating women at the college level, as

were most of the members of the Task Force who were

drawn from the staff and faculty at MBC. Besides

drawing on their own experience and expertise, the

Task Force made an in-depth study of the published

literature on the developmental psychology of women

and the cognitive development of women. The Task

Force also consulted outside experts, the most notable

of which was Dr. Richard C. Richardson, Jr. After a

detailed study of the appropriate methods by which

the leadership program should be structured, the Task

Force determined that a military model and, espe-

cially VMI’s adversative method, would be wholly

inappropriate for educating and training most women

for leadership roles. Consequently, the Task Force

developed an analogy to the holistic VMI program,

bringing together the co-curricular and the curricular

to promote the student’s development in all phases of

her life. See Defs.’ Exs. 11, 39.

In lieu of the adversative methods employed by

VMI, the VWIL concept proposes a cooperative

64a

method which reinforces self-esteem rather than the

leveling process used by VMI. VWIL will be a highly

structured program but without the extreme adversa-

tive VMI components, such as the rat line and break-

out. In the opinion of one of the leading experts on

the educating of women, Dr. Elizabeth Fox-Genovese,

an adversative method of teaching in an all-female

school would be not only inappropriate for most

women, but counter-productive. Dr. Fox-Genovese’s

opinion is based on her extensive research which shows

that most women reaching college generally have less

confidence than men. It is the opinion of the Task

Force that the methods adopted for the VWIL will

produce the same or similar outcome for women that

VMI produces for men. Dr. Fox-Genovese concurs in

this assessment. Tr. 247-48 (Fox-Genovese).

In addition to its argument that the VWIL pro-

gram is not sufficiently similar to the VMI methods to

pass constitutional muster, the United States argues

that the VWIL program will not attain its stated

goals and that the financial planning is fatally flawed.

I will address these objections in turn.

A. Differences between VWIL and VMI.

1. Academic offerings and requirements of

VWIL

The general education requirements and the aca-

demic majors, as well as the admission standards, for

VWIL students will be the same as those for regular

MBC students. Plan at 8. VWIL students must com-

plete a calculus course, either a statistics course or

“an appropriate discipline-based quantitative methods

course, two science courses with labs, in addition to

65a

Biology of Women, and a microcomputer applications

course “or the equivalent or by passing a competency

test.“ Defs.“ Ex. 39 at 6. VWIL students will take a

leadership externship. According to the plan, this

externship, “which should ideally be related to [the

student’s] major,” will be distinguished from other

externships by providing an opportunity to experience

and refleet on leadership in practice. VWIL students

will participate in the VWIL seminar, and in Satur-

day seminars three times a semester. Defs.’ Ex. 39

at 8, 15. VWIL students will organize a Leadership

Speaker Series for one semester of the junior year and

one semester of the senior year. Defs.’ Ex. 39 at 15.

VWIL students will not attend any classes with male

students. Tr. 101, 155 (Lott).

At trial, the government spotlighted the fact that

VWIL students will have the opportunity to earn an

engineering degree only if they participate in a 3-2

program with Washington University. According to

the government this arrangement is constitutionally

unacceptable given that VMI offers an engineering

degree as well as several advanced math and physics

courses that VWIL will not offer. Defendants ex-

plained however, that demand at present would not

justify an engineering program at MBC. The Fourth

Circuit, while amplifying its VMI decision in Faulk-

ner stated explicitly that one of the factors to be con-

sidered by this Court in evaluating any proposed

remedy is the demand for aspects of a particular

program. Faulkner, 10 F.3d at 232. The compelling

evidence is that there would be a very slight demand

for an engineering program at the all female VWIL.

Again, simply because a small handful of women may

desire a mirror image VMI, or even an engineering

66a

program in an all female environment, does not mean

that the Commonwealth is constitutionally obliged to

provide such. The Commonwealth has finite resources

and it must identify demand for the various alterna-

tives in higher education in the Commonwealth and

allocate its resources accordingly.

The very concept of diversity precludes the Com-

monwealth from offering an identical curriculum at

each of its colleges. Thus, in many instances, a pro-

spective student must make a choice between the

lifestyle of a college and a preferred course of study.

For example, a prospective student may prefer the

lifestyle at William and Mary in the eastern part of

the state, but wants to study veterinary medicine

which is offered only at VPI in the western part of

the state. Here, a prospective VWIL student is faced

with a similar choice—to go to VPI, a co-ed college

which offers an engineering course and has an ROTC

component, or to attend VWIL, which is all female,

has an ROTC component but no on-campus engineer-

ing program. Each of Virginia’s colleges cannot be

all things to all people. Financial resources do not

permit it nor does equal protection require it.

2. VWIL/MBC Residence Life

The residential life for VWIL students will vary

significantly from the residential life of VMI stu-

dents. The Task Force developed a model which will

allow VWIL students to move in productive ways

between the walls“ of VWIL and the MBC com-

munity. Defs.’ Ex. 39 at 11-12. Upperclass VWIL

students will be required to live for at least one year

in the VWIL House. Defs.’ Ex. 39 at 14-15. The

VWIL House will not be operated on a military for-

67a

mat. Defs.’ Ex. 11 at 11; Tr. 374 (Tyson). The

Task Force rejected VMI’s extreme adversative

model for the co-curriculum component because that

model would not produce the same outcomes for the

VWIL population as it does for the VMI population.

Notwithstanding these differences, the VWIL pro-

gram will use the highly disciplined schedule of the

VMI model. Defs.’ Ex. 39 at 12-14.

3. The Military Component

VWIL requires participation in an ROTC program.

The United States argues that the VWIL ROTC

component is a pale image of the military lifestyle

at VMI, but in making the argument the United

States confuses VMI’s co-curricular military model

of training with its ROTC program.

The only expert to testify on the effectiveness of

ROTC programs was Major General Robert E. Wag-

ner. He is a person who has devoted a substantial

portion of his career to establishing, evaluating and

standardizing ROTC programs in colleges through-

out the United States. He compared outcomes of

ROTC programs of co-ed colleges which had no mili-

tary co-curricular lifestyle with the cadets from

VMI who participated in ROTC and found no sig-

nificant difference in the performance of VMI cadets

and participants from co-ed colleges. For example,

he found that the ROTC participants from the Uni-

versity of Virginia fared as well, and in some cases

better, than VMI cadets.

4. VWIL’s Benefits/Outcomes

VWIL is a good design for producing female

citizen-soldiers and will be unique in the country. Tr.

68a

249-50 (Fox-Genovese). The VWIL experience will

not be the entirely militaristic experience of VMI.

Instead, VWIL, because it is planned for women who

do not necessarily expect to pursue military careers,

incorporates the element of public service. Id. Al-

though the United States showed unequivocally that

the VWIL program differed from VMI in many

ways, no expert for the United States testified that

VWIL would not be educationally beneficial for

women.

Defendants’ witnesses, Dr. Richardson and Mr.

Bunting, and United States witnesses, Drs. Conrad

and Astin, agree that any given set of outcomes can

be obtained by more than a single methodology. Tr.

608 (Richardson); Tr. 1550 (Bunting); Tr. 1076

(Conrad); Tr. 1302 (Astin). VWIL is a pioneer-

ing project. As such it cannot, by definition, boast of

a VMI type record of producing “citizen soldiers.”

However, the evidence produced at trial indicates

that MBC is committed to providing to the VWIL

women benefits that are equal to or better than the

benefits provided to men at VMI. As noted supra,

MBC, with its experience in women’s education and

record of unique programs, believes that VWIL will

accomplish its mission. Tr. 1529-30 (Tyson).

The government stressed the fact that the Com-

monwealth has not yet developed a firm methodology

for evaluating the VWIL program and argues, there-

fore, the credibility of the plan is fatally undermined.

The expert testimony at trial differed significantly in

assessing the expected outcomes of the VWIL program.

Perhaps the only conclusion that may fairly be drawn

from the testimony in this regard is that attempting

to evaluate the VWIL program before it is imple-

mented is of questionable value. According to Dr.

69a

Askegaard, evaluating a program is a retrospective

exercise and terms like “citizen-soldier” must be op-

erationalized before a program can be evaluated. Be-

cause the term “citizen-soldier” has not been opera-

tionalized, an assessment plan has not been developed.

Dr. Clifton Conrad, cne of the government’s ex-

perts on curricular and co-curricular education pro-

grams, testified that (1) many different means can

be used to achieve the VMI outcomes, Tr. 1103-04

(Conrad), (2) his opinions regarding VWIL are in-

formed guesses, and (3) he cannot evaluate the pro-

gram until it has been implemented. Tr. 1260

(Astin).“

The government also offered testimony of Dr. Alex-

ander Astin. Dr. Astin testified that the success of

the VWIL program will depend upon who is at-

tracted to the program and who forms the peer group

and how the implementation of the program deals

with the dilemma of what will be different and

unique from the traditional MBC program. Because

of these considerations, Dr. Astin concludes it will

be difficult to realize VWIL’s objectives. Tr. 1260

(Astin).

Dr. Conrad was asked by the Justice Department to

analyze whether VWIL will provide to women benefits com-

parable to those provided to men at VMI. Tr. 1041 (Conrad).

With respect to the components of the VWIL program, Dr.

Conrad testified only that each is not “fully comparable” to

VMI. Tr. 1047-51, 1061, 1063, 1067 (Conrad). Dr. Conrad

testified that VMI and VWIL are not comparable in that there

are differences. Dr. Conrad stated that he did not think that

one program is better than the other. Further, Dr. Conrad

testified on cross-examination that he does not consider him-

self an expert in single-sex education. He has not studied

whether single-sex programs for women are different from

single-sex programs for men. Tr. 1090-91 (Conrad).

70a

Dr. Astin testified that the only way to know if

VWIL can accomplish its outcomes is to implement

VWIL and assess its outcomes. Tr. 1273 (Astin).“

Dr. Astin conceded that, even if the Commonwealth

of Virginia were to create the mirror image of VMI

for women, it could not duplicate the alumni net-

work, history, tradition and prestige of VMI. Tr.

1277 (Astin).’ Finally, Dr. Astin testified, as did

Dr. Conrad, that it is possible to achieve a similar

educational outcome through different educational

methodologies. Tr. 1302 (Astin). Dr. Astin further

testified that his conclusions regarding VWIL’s fu-

ture outcome are speculative, Tr. 1287 (Astin), and

that educators could reasonably disagree with his con-

clusion that the VWIL program will not be able to

achieve its stated goals. Tr. 1305 (Astin).

Dr. Astin’s personal ethical opposition to VMI’s

current all-male admissions policy impairs his ob-

jectivity in evaluating the VWIL program. Indeed,

Dr. Astin has admitted that he has “a problem with

any institution that excludes applicants on the basis

of race or sex,” that his “sense of equity and desire

for the elimination of sexism and racism conflicts

with [his] interest in supporting the most effective

Dr. Astin testified that the peer group is the key factor in

any undergraduate student’s development. Dr. Astin opined

that the peer group in the VWIL program will differ radically

from that at VMI and therefore the benefits will not be com-

parable. Tr. 1219-21 (Astin). However, Dr. Astin testified

that he does not know what type of peer group will be in the

VWIL program. Tr. 1272 (Astin).

Dr. Astin acknowledged that he has made no study of

the outcomes of VMI or of MBC. Tr. 1306-07 (Astin). He

has not determined what would be required in the VWIL pro

gram to achieve VMI outcomes. Tr. 1289 (Astin).

71a

forms of education,“ and that some compromise in

the quality of education is the price we must pay if

we are to achieve fairness and equity.” Defs.’ Ex.

95. Dr. Astin’s opposition to VMI’s admission policy

seems to be somewhat at odds with his flagship pub-

lication, Four Critical Years, wherein he extolled the

virtues of single-sex education at the college level.

The conflict arises from his present personal view-

point on excluding females from publicly-supported

colleges. Indeed, Dr. Astin has stated that because

of this strong personal opinion, he would be willing

to sacrifice beneficial pedagogical methods which in-

fringe on his view. Defs.’ Ex. 95. If I comprehend

Dr. Astin’s distinction correctly, he believes that

single-sex education is beneficial for both men and

women, but because of his ethical views it should not

be practiced in publicly-supported colleges. In his

view, as Four Critical Years bears out, single-sex

education should be restricted to private colleges.

By adhering to the public-private distinction, Dr.

Astin creates a different ethical quagmire. As Dr.

Fox-Genovese pointed out, private colleges are pro-

hibitively expensive for students who come from fam-

ilies that are in the middle and lower income strata

of society. Moreover, the public-private shibboleth

is more apparent than real. It cannot be gainsaid

that private olleges receive substantial infusions of

both federal and state money. Thus, the distinction

Dr. Astin draws is illusory.

The United States also offered the testimony of

Dr. Carol Nagy Jacklin who testified that the plan

homogenizes women by assuming that there is an

appropriate way to educate women. Tr. 873 (Jack-

lin). The essence of Dr. Jacklin’s testimony can be

summarized thusly: Gender is not a useful predictor

72a

of learning patterns. Tr. 870-75 (Jacklin). Dr.

Jacklin based her statement on her research which,

according to her, shows a greater disparity in learn-

ing patterns within a gender group than exists be-

tween the two gender groups. She proceeded to illus-

trate her thesis with bell curve graphs as to each

of the sexes groups. For th men and women the

bell curve was a typical one—small numbers of per-

sons at the beginning and ending with large numbers

of persons in the middle. Of interest, however, was

a narrow band where there was no overlap between

the curve for males and the curve for females. When

one thinks about Dr. Jacklin’s conclusions, she is

stating what educators—indeed, the public in gen-

eral—have known for a long time; that people are

born with varying degrees of ability and drive. It

is certainly no revelation that within a given popula-

tion of males, there will be slow learners, average

learners, and fast learners. The same holds true

with any given population of females. Thus, the bell

curves are not surprising. Moreover, the education

experts who find a need for single-sex colleges do not

base their opinion on the difference in cognitive abil-

ities of male and females, but rather on develop-

mental and emotional differences between the sexes.

See, e.g., 766 F.Supp. at 1434-35 (Liability App. at

VLB)

Dr. Jacklin’s testimony was contradicted by most

of the evidence in the record.* In addition, Dr. Jack-

Dr. Jacklin agreed that experts could reasonably disagree

with her opinion. Specifically, Dr. Jacklin stated that ex-

perts could reasonably disagree as to how to accommodate

differences in formulating educational programs. Tr. 906,

921-22 (Jacklin).

73a

lin conceded at least two justifications for single-sex

education: (1) men and women are treated differ-

ently in the classroom as evidenced by her observa-

tion of students at MBC who were passive, while the

students she observed at VMI were interactive; and

(2) women have more chances for leadership at

single-sex institutions. Tr. 887 (Jacklin).

5. Pedagogical Justification for VWIL Program

Several experts in women’s education testified that

VWIL was a pedagogically sound and justified pro-

gram. Drs. Richardson, Riesman, and Fox-Genovese

furnished testimony supporting the appropriateness

of the VWIL program and each expressed the opin-

ion that the VWIL approach towards educating and

preparing women leaders was preferable to the VMI

approach.

Dr. Fox-Genovese testified that VWIL does not

need to use the same methodology as VMI with re-

spect to the rat line and the adversative system and

that based upon her study of literature and people,

there would be little demand for a female VMI but

there would be much more significant demand for

VWIL. Tr. 138 (Fox-Genovese). Her personal ex-

perience and the “overwhelmingly scholarly evidence“

—a portion of which is summarized in Defendants’

Exhibit 130A—suggest that young women, by the

time they reach college, have less confidence in them-

selves than young men. Young women, according to

Dr. Fox-Genovese, do not need to have uppityness

According to Dr. Jacklin, this trend could be exacerbated

in a co-educational environment. Tr. 887 (Jacklin).

74a

and aggression beaten out of them.” Dr. Fox-Geno-

vese further explained that adolescence is a period of

emotional stress and statistically, the emotional

stress takes the form of delinquency in men and de-

pression in women. According to Dr. Fox-Genovese,

anorexia is rampant among young college women,

in part because they doubt themselves and so they

want to exercise control. The control they feel they

can exercise is over their own bodies. This, testified

Dr. Fox-Genovese, is a turning of energy inward

instead of projecting it outward. She explained that

anorexia is self-discipline turned pathological. What

young women need to understand is the fit between

a predictable order of the outside world and their

own tendencies towards self-discipline. Tr. 252

(Fox-Genovese). Thus, she concluded, the adversa-

tive model is not appropriate to accomplish this re-

sult. Tr. at 250-52 (Fox-Genovese). Finally, Dr.

Fox-Genovese testified that it is important for states

tc maintain tax-supported single-sex educational op-

portunities because of the expense of private single-

sex programs. Public single-sex opportunities will

provide the most benefit to poorer women and men

who, according to Dr. Fox-Genovese, would probably

benefit the most from single-sex education." Tr. 291

( Fox-Genovese ).

Dr. Richardson testified that “[T]here is not in

the VMI paradigm a place for the woman leader

% Dr. Wilson concurred, testifying that women do not need

the leveling experience of a rat line and adversative methods

and that women are generally raised with a lower self-image

than men. Tr. 340 (Wilson).

11 Dr. Fox-Genovese explained: “My position is that the

existence of [tax-supported] single-sex education is an ex-

tremely important option.”

75a

who excels and does those things that women are ex-

pected to do now and in the 21st century.” Tr. 611

12 (Richardson). Dr. Richardson further testified

that he does not believe that the VMI model is achiev-

able from the public policy perspective because it is

deficient from the standpoint of attracting a suffi-

cient clientele and from the standpoint of achieving

a reasonable degree of acceptance from the Common-

wealth.”

Dr. Riesman testified that VWIL is a “wholly ap-

propriate way to proceed” to prepare women as

citizen-soldiers. Tr. at 539-40 (Riesman).” Dr.

Riesman opined that the fact that this litigation may

end with this new program and VMI stil! extant is

a tremendous achievement, not only for Virginia but

for the country. Tr. 474 (Riesman). Dr. Riesman

stated, “Given the women now coming to higher

education, what is offered in VWIL is a model for

the country, with potentially enormous consequences

to reverse the unhappy, often unequal, output of co-

education.” After evaluating the Commonwealth’s

plan, Dr. Riesman concluded that VWIL will produce

the kind of self-assurance in the face of accomplish-

Dr. Richardson examined demand at Virginia Tech and

at West Point and concluded that the demand for an all-

women’s VMI would be so small as to make the project un-

feasible. Tr. 611-15 (Richardson). At trial, Dr. Richardson

testified that he interviewed 20 women currently enrolled in

the ROTC program at VPI and only one of the 20 wanted a

VMI-type experience. Dr. Richardson further testified that a

mirror-image VMI would only enroll 25-30 students.

Dr. Riesman was not involved directly in preparing the

Plan. Tr. 543 (Riesman). He knows MBC’s president, Dr.

Tyson, and has reviewed drafts of the Plan and responded

to requests for his comments. Tr. 508 (Riesman).

76a

ment of difficulties that VMI offers and requires of

its cadets. Tr. 496 (Riesman).

Given the testimony of Drs. Fox-Genovese, Rich-

ardson and Riesman—and the absence of any testi-

mony from the United States’ experts indicating

that VWIL’s methodology is inappropriate or in-

effective for women—I find that the differences be-

tween VWIL and VMI are justified pedagogically

and are not based on stereotyping. This is not to

say that some women cannot succeed within a VMI

type methodology. The evidence at trial indicated

that the VMI methodology could be used to educate

women and, in fact, some women—such as the alle-

gorical Jackie Jones—may prefer the VMI methodol-

ogy to the VWIL methodology. As discussed above,

however, the controlling legal principles in this case

do not require the Commonwealth to provide a mirror

image VMI for women. Rather, it is sufficient that

the Commonwealth provide an all-female program

that will achieve substantially similar outcomes in an

all-female environment-and that there is a legitimate

pedagogical basis for the different means employed

to achieve the substantially similar ends. VWIL

satisfies the Fourth Circuit’s requirement that the

Commonwealth adopt a parallel program for women

which takes into account the differences and needs

of each sex.

B. Planning Assumptions

The United States’ second line of attack on the

Commonwealth’s plan is that the plan employs faulty

financial assumptions.

77a

1. General Assumptions/Enrollment Projections

At trial, the government challenged the planning

assumptions underlying the VWIL. According to the

government, the assumptions are faulty. Primarily,

the government argues the Task Force’s working

assumption of 25 students in VWIL in the first year

for planning purposes is merely a guesstimate

without a sound factual basis. I disagree. The Com-

monwealth acknowledges that the Task Force did

not undertake a market study for VWIL, but offers

two sound reasons for this. First, MBC’s experience

in attracting students to the traditional program

informed its judgment that an intensified state-sup-

ported program would have sufficient appeal to make

the program workable. Second, the 25 student esti-

mate is based upon MBC’s experience with the PEG

program and is also a number beyond which incre-

mental costs per student will net exceed incremental

revenues. Tr. 219-20 (Lott).“ Furthermore, there is

no cap on the number of students MBC will accept

into VWIL. MBC has additional residential capacity

for 100-150, and MBC agrees it will accept VWIL

students in lieu of traditional students if it becomes

necessary. Tr. 131 (Lott).

MBC has a good record of success in developing

and implementing innovative educational programs.

„Tr. 210-11 (Lott); See also Pif.’s Ex. 102.

15 Based on his experience with new programs in higher

education in the Commonwealth, Dr. Finley testified that 25

is a good projection of the first VWIL class size. The proto-

type class for the new College of Integrated Science and

Technology at James Madison University is 40. Dr. Finley

has reviewed proposals for other new programs with num-

bers in the 10 to 25 range. Tr. 131 (Lott).

78a

The success of MBC’s PEG program validates MBC’s

ability to provide distinct programs and suggests that

MBC has the ability to successfully implement the

VWIL program.

2. VWIL Financing

The United States also disputes sufficiency of

VWIL’s financing as presented by Dr. Lott.“ Dr.

Lott, who has experience in planning for new edu-

cational programs and in funding new educational

programs, testified that the VWIL program is ade-

quately financed.”

1% Dr. Lott, Dean of MBC, developed the financial projec-

tions for the VWIL program that are reflected in Defendants’

Exhibit 45.

17Dr. Lott testified that the financial projections that he

prepared, and which are reflected in defendants’ Exhibit 45,

were based upon the amount of money necessary to cover

the start-up costs of the VWIL program regardless of the

number of students in the VWIL program. The start-up

funding is adequate for the projected 25 VWIL students in

the first year of operation, and, if more than 25 students are

admitted to the VWIL program in the first year, the addi-

tional revenue from the Commonwealth, and the tuition pro-

vided by these students, will be adequate to cover the marginal

increased costs. Tr. 220-21 (Lott).

Dr. Finley prepared a “Pro-Forma Expenditure & Income

Statement” for the VWIL program based upon his review of

the financial projections of the VWIL program prepared by

Dr. Lott and his discussions with Dr. Lott. Defs.’ Ex. 15. As

projected by Dr. Finley, the VWIL program will produce in-

come in excess of expenditures for the first four years of

operation of $48,700; $215,775; $398,026; and $606,559. The

projected contingency funds available for the first four years

of operation of the VWIL program are 7.7%, 24.8%, 35.2%

and 43.7% of revenues over expenditures. Defs.’ Ex. 15. In

conducting his review, Dr. Finley relied upon the professional

79a

The United States argues that there is no reason

to expect the increased tuition revenues to meet the

increased costs of additional students. At trial, how-

ever, Dr. Finley stated that the tuition and fees

received from new students combined with revenues

received from the state contract could accommodate

increased admissions. Both Dr. Lott and Dr. Finley

judgment of Dr. Lott and that of his colleagues in putting

the VWIL program together. Dr. Finley’s approach was to

review with Dr. Lott each of Dr. Lott’s assumptions to deter-

mine whether it was reasonable, and to review with the MBC

administration whether it had resources in place to ad-

dress each of the components of the Remedial Plan. Dr.

Finley testified that he was convinced that this had been

accomplished. Tr. 1488 (Finley).

Dr. Finley testified that based upon his discussions with

Dr. Lott, his knowledge of Dr. Lott’s professional experience,

and based upon a series of questions posed, he believed that

Dr. Lott had used appropriate concepts in developing his

financial basis for the VWIL program, had thought through

the VWIL program very carefully, and had well laid his plans

for adding faculty where needed. Tr. 1460-61, 1512 (Finley).

Furthermore, in addition to the anticipated income in excess

of expenses stated above, the VWIL program will have the

additional asset of the Unique Military Appropriation which

will be shared per capita by the entire Virginia Corps of

Cadets. Tr. 1466-67 (Finley); 668-70 (Sgro).

Based upon his analysis and review, Dr. Finley opined

that, if more than 25 students enroll in the VWIL program

the first year, increased economies of scale would permit the

program to be financially feasible. Tr. 1467 (Finley). On

the income side, the revenue from tuition and fees would in-

crease, the VMI endowment income would remain the same,

and the state contract would expand to accommodate the ad-

ditional students. The Budget Bill, as introduced, contains

the proviso that, in the event more than 25 students enroll

in the first year, the Commonwealth would put in additional

monies on a per-student basis to accommodate the increase.

Tr. 1467 (Finley).

80a

are well-experienced in funding new educational pro-

grams. They approached the task in the same man-

ner that most businesses use in predicting necessary

funds for a new venture, i.e., a pro forma statement

based on assumptions of what is likely to occur in

the future. The assumptions of Drs. Lott and Finley

are reasonable, and that is all that is required at the

planning stage.

The United States also argues that the out-of-

pocket costs for VWIL students will be greater than

those of VMI cadets.“ This conflicts directly with

Dr. Sgro’s testimony that the VWIL tuition wil! cost

the same as VMI tuition. Dr. Sgro testified that the

Commonwealth of Virginia will provide the same

amount of financial support to MBC for in-state

cadets in the VWIL program that it provides to VMI

on a per full time equivalent student basis. Defs.’

Ex. 12; Tr. 667-68 (Sgro).“

18 According to the United States, each institution will col-

lect $6,830.00 in tuition from each student. The United States

argues that VMI students will have an additional $490,415.00

of state financial aid distributed to them to help defer the

costs of the $6,830.00 in tuition and fees—but no money has

been designated by the Commonwealth to help defer the

amount of tuition and fees to be collected from VWIL stu-

dents. The evidence indicates, however, that the Common-

wealth will pay dollar-for-dollar for VWIL students as it

pays for VMI. Defs.’ Ex. 12 at 94. For a student to obtain

additional funds at either institution, he/she must qualify

for student aid on the basis of need.

0 In addition, the Unique Military Appropriation which

VMI receives will be shared on an equal, pro rata, basis with

MBC and Virginia Tech so that each of the three corps of

cadets will receive financial support from the Unique Military

Appropriation presently provided only to VMI. Tr. 668-70

(Sgro); Tr. 1466-67 (Finley); Defs.’ Ex. 12 at 128-29. Fur-

8la

The Commonwealth’s Support

of the Remedial Plan

The Commonwealth of Virginia has an avowed

policy of offering a diversity of choices in higher

education. The Fourth Circuit expressed misgivings

as to whether VMI’s all-male admissions policy was

in fact an official state policy. The record in this

case shows the Commonwealth’s unambiguous and

unequivocal support of single-sex education for men

and women. Contrary to the perceptions of many,

the Commonwealth’s position in this Court has al-

ways been supportive of VMI’s all-male admissions

policy because it adds to the diversity of choices in

Virginia’s higher education system.” This support

is evidenced by the affidavits of all of the Common-

wealth’s top officials entered into the record in this

case.

thermore, the State Cadetships, presently allotted only to

VMI, will be shared equitably among the students participat-

ing in the three Corps of Cadets. Id.

= Although former Governor Wilder, during his brief cam-

paign for the 1992 Democratic presidential nomination, made

extrajudicial statements criticizing VMI’s all male admissions

policy, his position in this Court has always been one support-

ing VMI’s all male admissions policy. See Governor Wilder’s

Answer, Liability Trial. In any case, Governor Wilder’s prior

extrajudicial statements against VMI’s all male admissions

policy notwithstanding, the former Governor’s affidavit ten-

dered in this phase of the litigation again expresses his sup-

port of single-sex education for men and women by “ap-

prov([ing] the remedial plan proposed by the VMI defen-

dants.” See VMI Remedy Ex. 5. See also Defs.’ Ex. 11-R at

2-3. (Governor Wilder’s statement supporting the VWIL

plan stating that he is “satisfied that this plan is educationally

sound and will remedy all current discrimination.”).

82a

Governor George F. Allen has filed an affidavit in

which he states that: IVWILI] will enhance diver-

sity in Virginia higher education and provide for

the women of the Commonwealth a unique and inno-

vative educational alternative.” Defs.’ Ex. 1 at 1-2."

Former Governor L. Douglas Wilder filed an affi-

davit approving the remedial plan, Defs.’ Ex. 5, and

has commented that “I and my staff have worked

closely with Mary Baldwin College and VMI in craft-

ing a program to remedy the discrimination. . . .

[and VWIL] extends to women across our Common-

wealth the benefit of a single-sex education which

Virginia presently makes available to men at VMI.”

Defs.’ Ex. 11-R at 2. Lieutenant Governor Donald

S. Beyer, Jr. has also filed an affidavit supporting

the remedial plan stating that VWIL “will enhance

and contribute to the diversity of educational oppor-

tunities which are available to college-age women in

Virginia and will make Virginia a leader in provid-

ing such opportunities to women. Diversity of edu-

cational opportunity is a hallmark of the Virginia

system of higher education.” Defs.’ Ex. 2 at 1. At-

torney General James S. Gilmore, III. has also filed

an affidavit supporting the remedial plan as have

J. Paul Councill, Jr., the Chairman of the House

of Delegates Education Committee, and Elliot S.

Schewel, Chairman of the Senate Education Com-

mittee. Virginia’s Secretary of Education, Dr. Bev-

erly H. Sgro supports the Proposed Remedial Plan

because it provides diversity of education in Virginia,

1 In addition to supporting the remedial plan, Governor

Allen explains in his affidavit that a VMI for women “is eco-

nomically prohibitive. The lack of demand, the dubious edu-

cational benefit and the tremendous cost of establishing such

a college preclude that option.” Defs.’ Ex. 1.

83a

which is one of the primary goals of Virginia as

stated in the Report of the Commission on the Uni-

versity in the 21st Century. Defs.’ Ex. 213. The

State Council on Higher Education has also indicated

its support of the Proposed Remedial Plan stating

that it would be “pleased to work with the adminis-

tration of [MBC] to develop the strongest possible

program should the proposal submitted to the court

be judged acceptable.” Defs.’ Ex. 8. Finally, that

the Commonwealth’s 1994-96 budget bill, which funds

the remedial plan and passed both houses of the

legislature, indicates clearly the Commonwealth’s

support of single-sex education for women and men.

In short, every person in Virginia officialdom who

has or has had the authority to affect Virginia’s

policies on higher education has spoken in favor of

diversity by offering single-sex education to men and

women of the Commonwealth and have strongly sup-

ported VWIL.

Conclusion

VWIL is a new venture and no one can predict

with certainty its outcome. The evidence, however,

supplies a reasonable basis for predicting success in

attaining its stated goals. No doubt the program

will need further adjustment as experience dictates ;

however, according to Dr. Lott, the program is fully

developed conceptionally and ready to be implemented

for the Fall of 1995. During the implementation of

VWIL, it will remain under the supervision of this

Court.

The Commission on the University in the 21st

Century has recommended that “private colleges and

universities should be encouraged to expand enroll-

ment (in response to projected increases of college-

84a

bound students), supported by the Tuition Assistance

Grant Program and the contract for services pro-

gram.” Defs.’ Ex. 213. In exercising its sovereign

prerogative to structure its system of higher educa-

tion, the Commonwealth has determined to follow the

recommendations in the Report of the Commission

on the University of the 21st Century by providing

diversity in education and utilizing the talents of

private colleges within its borders. Defs.’ Ex. 11 at

4. In so doing, it has chosen to maintain VMI as an

all-male institution and, through VWIL, to maintain

an all-female institution.“ See generally, Defs.’ Ex.

11.

If VMI marches to the beat of a drum, then Mary

Baldwin marches to the melody of a fife and when

the march is over, both will have arrived at the same

destination. The defendants’ Proposed Remedial Plan

will be approved.

An appropriate order will enter.

22 As one commentator aptly observes, the purpose of the

remedy in this case “is not that VMI ought to be preserved

as an all-male bastion, but that the Commonwealth ought to be

given broad leeway in determining how best to ensure that

women are provided an equal opportunity within the Com-

monwealth’s system of higher education.” Allan Ides, The

Curious Case of the Virginia Military Institute: An Essay

on the Judicial Function, 50 Wash. & Lee L.Rev. 35, 47 (1993).

——

85a

ORDER

For the reasons stated in the Memorandum Opin—

ion filed contemporaneously with this Order, it is

hereby ADJUDGED and ORDERED that:

1. Defendants’ Motion to approve their Proposed

Remedial Plan is GRANTED;

2. Defendants’ are directed to proceed with all

deliberate speed in implementing the Plan and to

have the Plan operational for the academic year

commencing in the Fall of 1995;

3. the Court will retain jurisdiction in order to

supervise implementation of the Defendants’ Plan;

4. Defendants’ will be required to submit status

reports apprising the Court of the progress of the

Plan implementation every six (6) months;

5. this ruling is dispositive of all pre-trial motions.

86a

APPENDIX: FINDINGS OF FACT

SO EE - ae 3 [87a]

71. [S7a]

A yx, [99a]

II. The Proposed Remedial Plans pate Os [101la]

A. Development of VWiL Program at Mary

IIK w 1 [10a]

. SS Se [104a]}

C. Cooperation with VI [105a)

D. MBC’ Commitment to VWIL. ......... 8 [106a]

E. Further Development of VWIL ...................... [106a]

III. Status Report/VWIL. Program Specifications .....[107a]

9. .. [107a]

B. Academic Offerings and Requirements of

KKW 1108a]

C. Military Leadership and Training [109a]

D. Physical Education and Training {[llla]

1;˙ a cccicciitsniennictiteicsntsninnemnbinnsemiaianed [114a]

F. VWIL/MBC Residences a IIa]

G. VWIL's ROTC Component 1 [116a]

1110 —T— [120a]

I. VWIL Access to VMI Alumni Network [120a]

IV. Mary Baldwin College (MB [122a]

A. History Background ....................... 3 9 [122a]

I... — [126a]

TTT 1129

VI. Differences Between VWIL and VM1 .................. [129]

*7ͤ—ü— [ mm . [129 a]

— [129 a]

C. Physical Training Facilities [130a]

D. Academic Programa I131a]

87a

The findings of fact set forth in this Appendix fall

into three categories: (1) the curriculum vitae of

each of the expert witnesses and a description of the

fact witnesses for each side; (2) a description of the

VWIL plan; and (3) a profile of Mary Baldwin Col-

lege and how it compares with VMI.

Because a great majority of these findings are

historical facts and are essentially uncontroverted,

I found it convenient to use the format and much of

the substance of the Defendants’ Proposed Findings

of Fact. Virtually all of these findings provide ref-

erences to the record for their support.

Unless otherwise indicated, all references to ex-

hibits and trial transcripts refer to the remedial

phase of this litigation. Transcript citations refer to

the unofficial transcript.

I. WITNESSES

A. Expert Witnesses

(i) Defendants’ Expert Witnesses

1. Lewis D. Askegaard testified as a defense ex-

pert in educational assessment. He earned a B.A. in

English, a Master of Education Degree in Curricu-

lum, and a Ph.D. in Educational Evaluation from the

University of Virginia. He has participated in a

number of federally funded assessment projects, has

trained educators and social workers in assessment

methodology, has assisted the State of Virginia in

designing assessment strategies, has served on nu-

merous evaluation committees for the Southern As-

sociation of Colleges and Schools, has served on the

Steering Committee of the Virginia Assessment

Group, and is recommended by the Southern Asso-

88a

ciation of Colleges and Schools as an expert in assess-

ment. Currently, Dr. Askegaard serves as Associate

Dean of Mary Baldwin College, Registrar, and

Director of Institutional Research. Tr. 1361-65

( Askegaard ) ; Defs.“ Ex. 110.

2. Josiah Bunting, III, testified as a defense ex-

pert in higher education with concentration on single-

sex education, and as an expert in leadership. He

graduated from VMI in 1963, won a Rhodes Scholar-

ship, and earned an M.A. at Oxford. He served in

the United States Army from 1966 to 1972, serving

in the infantry, and as Assistant Professor at West

Point. From 1972 to 1973, he was Professor and

Acting Head of the Department of Strategy, U.S.

Naval War College. From 1973 to 1977, he served

as President of Briarcliff College, then an all-female

college. From 1977 to 1987, he was President of

Hampden-Sydney College, an all-male college. Since

1987, he has served as Head Master of The Law-

renceville School, a private preparatory school in

Lawrenceville, New Jersey, where he presided over

the school’s change in status from single-sex to co-

educational. Mr. Bunting served as a defense expert

in the liability phase of this case. Tr. 1536-39

(Bunting) ; Defs.“ Ex. 111.

3. Paul O. Davis testified as a defense expert on

human physiology. Dr. Davis served as a defense

expert in the liability phase of this case. He earned

a Bachelor’s Degree from Columbia Union College, a

Master’s Degree in physical education from Ameri-

can University, and a Ph.D. from the University of

Maryland College of Health and Human Perfor-

mance, Department of Kinesiology, with a major in

exercise physiology and a minor in research design

and statistics. He has taught physical education to

89a

both sexes at the elementary school, junior high

school and high school levels, and has taught applied

physiology at the University of Maryland. Liability

Tr. 879-84 (Davis). He is a Fellow of the American

College of Sports Medicine. Tr. 1399-1400 (Davis).

He has consulted extensively for the United States

Armed Forces on developing physical training pro-

grams for men and women. Liability Tr. 882-84

(Davis). Dr. Davis has published prolifically in his

field. Defs.’ Ex. 113.

4. Donald J. Finley testified as a defense expert

in higher education finance in Virginia. Dr. Finley

has a Doctor of Education Degree in Higher Educa-

tion Administration from the College or William and

Mary, and Bachelor’s and Master’s Degrees in Busi-

ness Administration from the University of Rich-

mond. He has served as Assistant Director of the

State Council of Higher Education for Virginia, as

Staff Director and Senior Fiscal Analyst for the

House Appropriations Committee of the Virginia

General Assembly, as Deputy Secretary of Finance

for the Commonwealth of Virginia, and as Secretary

of Education for the Commonwealth of Virginia

under Governor Robb and Governor Baliles. Dr.

Finley presently serves as Associate Director of the

State Council of Higher Education for Virginia, with

responsibility for finance and facilities. Tr. 1450-58

(Finley) ; Defs.’ Ex. 114.

5. Elizabeth Anne Fox-Genovese testified as a de-

fense expert in women’s issues, feminist theory,

gender, higher education with particular reference

to women’s education, single-sex education and cur-

riculum development, and the history of American

women. She is currently professor of history and

Eleonore Raoul Professor of the Humanities at

90a

Emory University in Atlanta, Georgia. She is also

an associate member of the English Department, a

core member of the Women’s Studies Department,

and a member of the Comparative Literature faculty.

Dr. Fox-Genovese began her work in women’s

studies as an assistant professor at the University

of Rochester, where she taught one of the first

courses nationally in Women’s History and developed

an interdisciplinary minor in Women’s Studies. In

1980 she moved to the State University of New York

at Binghamton to help design the first graduate pro-

gram in Women’s History in the country. In 1986,

she was selected in a national search to become

Founding Director of Emory University’s Women’s

Studies program, which encompasses an undergradu-

ate minor, an undergraduate major, graduate degrees,

and certifications in Women’s Studies.

She has published a number of books, inciuding

Feminism Without Illusions: A Critique of Individ-

ualism (University of North Carolina Press, 1991)

and Within the Plantation Household: Black and

White Women of the Old South (University of North

Carolina Press, 1988), 45 articles, and numerous lec-

tures. She has been selected by the United States to

direct a national project on women in history, serves

as a member of the Steering Committee of the Holmes

Group to study the state of contemporary education,

served as a member of the Steering Committee for

the Nationa] Assessment Project, serves as a member

of the Steering Committee of the National History

Standards Project, and serves as a board member

of the American Academy for Liberal Education,

which is developing new accreditation standards for

small liberal arts colleges. Tr. 225-35 (Fox-Genovese) ;

Defs.’ Ex. 115.

91a

6. James D. Lott testified as a defense expert in

higher education, single-sex education, leadership ed-

ucation for women, curriculum and program develop-

ment. Dr. Lott serves as Dean of the College at

Mary Baldwin College. He received his B.A. from

the University of Tennessee, M.A. from Vanderbilt

University and a Ph.D. at the University of Wiscon-

sin. He has taught for 30 years at MBC. In his 30

years of experience at a women’s college, he has

developed expertise in curriculum development, single-

sex education, women’s cognitive, moral, and leader-

ship development, and the development of new pro-

grams, including financial planning. Tr. 52-67

(Lott); Defs.’ 116.

7. Richard C. Richardson, Jr., testified as a de-

fense expert in higher education, with particular

expertise and hands-on experience in developing

academic co-curricular programs and in public policy

and higher education. Tr. 603-06 (Richardson). Dr.

Richardson is also an expert in women’s education.

Tr. 640 (Richardson). He is Professor of Educa-

tional Leadership and Policy Studies at Arizona State

University. He holds a B.S. degree in education from

Castleton State College, an M.A. from Michigan State

University, and a Ph.D. from the University of

Texas. He served in the Marine Corps for three

years. He taught at an all-female college, Vermont

College, from 1958 to 1961, and has both profes-

sorial and administrative experience at several col-

leges and community colleges, including institutions

with large minority populations. His publications in-

clude Creating Effective Learning Environments:

State Policy and College Learning (Denver, Co., Edu-

cation Commission of the States, March 1993); /m-

proving State and Campus Environments for Quality

92a

and Diversity: A Self-Assessment (with Matthews

and Finney, Denver, Co., Education Commission of

the States, 1992) ; Promoting Fair College Outcomes:

Learning from the Experiences of the Past Decade

(Denver, Co., Education Commission of the States,

1991); Achieving Quality and Diversity: Univer-

sities in a Multicultural Society (with E.F. Skinner,

New York, ACE/Me Millan, 1991); and Fostering

Minority Access and Achievement in Higher Educa-

tion: The Role of Urban Community Colleges and

Universities (with L.W. Bender, San Francisco,

Jossey-Bass, 1987). He testified as a defense expert

in the liability phase of this case. Liability Tr. 661-

66 (Richardson). He has also been retained by the

United States to testify on its behalf in race discrimi-

nation lawsuits involving higher education. He has

served as chair of 25 evaluation teams on behalf of

regional higher education accreditation boards, in-

cluding the team that most recently evaluated West

Point. Defs.“ Ex. 118. His research in the past 10

years has focused on “the impact of students on col-

leges and the impact of colleges on students.” Lia-

bility Tr. 664-65 (Richardson).

8. David Riesman, Henry Ford II Professor of

Social Sciences, Emeritus, at Harvard University,

testified as a defense expert in sociology, with a par-

ticular emphasis on culture, personality and char-

acter, higher education in the United States and

single-sex education for women. Tr. 506-07 (Ries-

man). He holds a bachelor’s degree from Harvard

College, a law degree from Harvard Law School and

honorary degrees from more than twenty institutions.

After completing a year of postgraduate study, he

served as the last law clerk to Justice Louis D.

Brandeis of the United States Supreme Court. He

93a

taught at Buffalo School of Law, and served as a

research fellow at Columbia Law School in sociology

and anthropology. He joined the faculty at the Uni-

versity of Chicago in 1946, and returned to Harvard

in 1958. He is regarded as “one of the first and

still is one of the most influential among social scien-

tists who have systematically applied the concepts

of culture and personality to contemporary society.

His book, The Lonely Crowd, is highly acclaimed in

the field, and his concepts of ‘inner-directed’ and

‘other-directed’ [personalities] have been incorporated

into the general vocabulary.” Liability Tr. Defs.’ Ex.

8 at 29. He has focused his research in recent years

on the development and present state of American

higher education. Clark Kerr, head of The Carnegie

Foundation on Higher Education, described Dr.

Riesman as “the best informed, most insightful, most

interesting commentator on higher education in the

United States. And he has no peer in any other

nation.” Defs.’ Ex. 124. His many publications in-

clude The Lonely Crowd (1950); Constraint and

Variety in American Education (1956); The Acade-

mic Revolution (with Christopher Jencks 1968); and

On Higher Education: The Academic Enterprise in

an Era of Rising Student Consumerism (with several

collaborators 1980). His latest book is Choosing a

College President: Opportunities and Constraints

(1990). Dr. Riesman served as a defense expert in

the liability phase of this case. Defs.’ Ex. 119.

9. Cynthia Haldenby Tyson testified as a defense

expert in single-sex education for women, women’s

educational development and women’s leadership de-

velopment. Dr. Tyson is President of Mary Baldwin

College. She previously served as Vice President for

Academic Affairs, Dean of the College, Chairman of

the Division of Humanities, 2nd English Professor

—

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at Queens College, Charlotte, North Carolina (then

a women’s college), as well as Associate Professor of

English at Seton Hall University (then a men’s col-

lege). She received her B.A., M.A. and Ph.D. de-

grees from the University of Leeds in England. Dr.

Tyson has spent 25 years focusing en the education

of women at two women’s colleges as a teacher and

an administrator. She has written and lectured

widely on women’s education. She has also received

certificates in advanced studies for college adminis-

trators at Harvard University. Dr. Tyson has served

as president of the Southern Association of Colleges

for Women and as a commissioner of the Southern

Association of Colleges and Schools. Tr. 358-67

(Tyson); Defs.’ Ex. 121.

10. Major General Robert Edwin Wagner, U.S.

Army (Retired), testified as a defense expert on

leadership in the military. Tr. 565 (Wagner). Gen-

eral Wagner currently serves as Executive Assistant

to the President of Norfolk State University, a pre-

dominantly Black institution. Before his recent re-

tirement from the military, General Wagner served

as Commanding General of the United States Army

ROTC Cadet Command where he supervised all of

the Army’s pre-commissioning training. A liberal

arts graduate of VMI, Major General Wagner served

33 years as an armor officer, in positions ranging

from platoon leader to assistant division command.

He spent three years in Vietnam. Tr. 550-66

(Wagner) ; Defs.’ Ex. 122.

11. Heather Anne Wilson testified as a defense

expert in the psychological, social, emotional and in-

tellectual development of college women. Dr. Wilson

is Dean of Students at Mary Baldwin College, re-

sponsible for residence life, student activities, inter-

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national students, housing and counseling. She holds

a B.A. in English from Bucknell University, a Mas-

ter’s degree in Counseling from Boston University,

a Master’s in Institutional Research and Planning

from Columbia University, and a Doctorate in

Higher Education from Columbia University. The

primary focus of her 20 years’ experience in higher

education has been the education and developm

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