# Appendix — United States v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0607%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1996 - **Citation:** 518 U.S. 515 ## Text OA. 1941 Suprema Court, U.S, A ; a EI I E D VAY Ww — No. — r a a0 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0607%3A03. Public record. Not legal advice.