Opposition Brief — United States v. Virginia

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No. 94-1941 EILE

IN THE

Supreme Court of the United States oo |

OCTOBER TERM, 1994

UNITED STATES OF AMERICA,

Petitioner,

COMMONWEALTH OF VIRGINIA, et ai.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF FOR THE COMMONWEALTH OF VIRGINIA,

ET AL., IN OPPOSITION

JAMES S. GILMORE, III THEODORE B. OLSON

Attorney General of Virginia (Counsel of Record)

WILLIAM H. HURD THOMAS G. HUNGAR

Deputy Attorney General GIBSON, DUNN & CRUTCHER

900 East Main Street 1050 Connecticut Ave., N.W.

Richmond, Virginia 23219 Washington, D.C. 20036

(202) 955-8500

RICHARD K. WILLARD ROBERT H. PATTERSON, JR.

STEPTOE & JOHNSON ANNE MARIE WHITTEMORE

1330 Connecticut Ave., N.W. WILLIAM G. BROADDUS

Washington, D.C. 20036 MCGUIRE, Woops, BATTLE &

BOOTHE

GRIFFIN B. BELL One James Center

WILLIAM A. CLINEBURG, JR. Richmond, Virginia 23219

KING & SPALDING

191 Peachtree Street

Atlanta, Georgia 30303

Counsel for Respondents

PRESS OF BYRON 8. ADAMS, WASHINGTON, D.C. 1-800-347-8208

~ BEST AVAILABLE COPY) §

QUESTIONS PRESENTED

1. Whether the Commonwealth of Virginia's single-sex

admissions policy for the Virginia Military Institute and the

Virginia Women's Institute for Leadership is constitutional

given the findings by both courts below that this policy is

substantially related to the achievement of important state

objectives.

2. Whether the Commonwealth's policy of providing

substantively comparable single-sex educational programs

to men and women is constitutional where the programs are

not identical in every detail but instead incorporate the

judgments of educational experts as to the methodologies

that will best achieve the same educational benefits for the

women and men in each program.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........-..0seeeeeeeeeeeees i

TABLE OF AUTHORITIES ............:seceeeeeeeeeees iv

INTRODUCTION. ........0cscesssessececeeeeceecesssosess l

STATEMENT. ........-sscsccscesecsscsesccsccecsssvcssvocs 2

A. Background ............ccccccsseseeseeeees 2

1. Mary Baldwin College............ 3

2. Virginia Military Institute........ 4

B. Initial Proceedings Below............... 5

1. The District Court's Liability

DeCiSION ........cccccccccsccvesecees 5

2. The Court of Appeals’

Liability Decision ..............++. 8

3. VMI's Petition for Writ of

CeTtiOrasl ....ccrccccsscccccevccoees 9

C. Proceedings on Remand.............+.. 10

1. Virginia Women's Institute for

Leadership........sccceccccccsceceee 10

2. The District Court's Remedial

Decision ...5..ccccccscrccscccccecsess 15

. ate 17

REASONS FOR DENYING THE WRIT ...........-. 18

CONCLUSION

A. The Judgment Below Does Not

Conflict With Any Decisions of

This Court Or Of Any Other

1. Sweatt v. Painter is Inapposite .. 20

2. The ae Conflict Asserted

tioner Reflects Nothing

ore Than Di t With

the Facts Found Below

3. No Decision of this Court

Supports the Contention that

ee eee 2 VER

is y Acceptable

Remed

B. The Questions Presented In The

Petition Are Not Of Recurring Or

Widespread Importance ................. 29

: Vv

TABLE OF AUTHORITIES | Vorchheimer v. School Dist., 532 F.2d 880

) (3d Cir. 1976), aff'd by divided

Cases Page(s) : Court, 430 U.S. (i ebenbecsoossocecccoscoces

Adarand Constructors, Inc. v. Pena, No. 93- Williams v. McNair, 316 F. . 134

1841 (U.S. June 12, 1995)............ccceeseeceeeeee 26 . (D.S.C. 1970), aff'd, 401 U.S. 951 (1971).......

Craig v. Boren, 429 U.S. 190 (1976) ......... ...... 27 |

Frontiero v. Richardson, 411 U.S. 677 °

GIPUED cctccncnscstenindscbalesisncidbeiebesissencenstins 26,27 |

Goodman v. Lukens Steel Co., 482 U.S. 656 )

EE Ee 24 |

J.E.B. v. Alabama ex rel. T.B., 114 S. |

Sh, BOR CII cenecescccensicnbtintetenteniasennesses 21,27

Metro Broadcasting, Inc. v. FCC, 497 U.S.

547 (1990), overruled in part, Adarand

Constructors, Inc. v. Pena, No. 93-1841

Ff |) ) ee 26

M Univ. for Women v. Hogan, 458 .

Se, FED CoP cccrcesestpcnnbsensennnntensneneevseens 5,27 ;

Regents of the University of California v.

Bakke, 438 U.S. 265 (1978)...........c.sceeeeeeeees 20

Schlesinger v. Ballard, 419 U.S. 498 (1975) ....... 26

Schweiker v. Hogan, 457 U.S. 569(19 )............ 18

Sweatt v. Painter, 339 U.S. 629(1950) .............. 20

United States v. Doe, 465 U.S. 605 (1984) ......... 24

United States v. New York Telephone Co. ,

GEO a BE Gee cccschveccansittissionsssasiosnsseses 18

VMI v. United States, 113 §. Ct. 2431 (1993)...... 10

0 eRe RIA me

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

No. 94-1941

UNITED STATES OF AMERICA

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA, ez ai.,

- Respondents.

On Petition For Writ Of Certiorari to the

United States Court Of A

For The Fourth Circuit

BRIEF FOR THE COMMONWEALTH OF VIRGINIA,

ET AL., IN OPPOSITION

Respondents the Commonwealth of Virginia, Governor

George F. Allen, the Virginia State Council »f Higher Edu-

cation, the Virginia Military Institute, its Board of Visitors

and Superintendent, the VMI Foundation, Inc., and the

VMI Alumni Association respectfully submit this brief in

opposition to the petition for a writ of certiorari.

INTRODUCTION

The Commonwealth of Virginia offers students of either

gender the opportunity to enroll in a state-supported single-

sex college program that is designed to develop leadership

and character through a comprehensive system of curricular

and co-curricular activities including military training.

Male students are offered this opportunity through the

Virginia Military Institute (VMI), an historically all-male

undergraduate institution; women students are offered this

opportunity through the Virginia Women's Institute for

Leadership (VWIL), a state-supported program at Mary

Baldwin College (MBC), an historically all-female private

undergraduate institution. The question on which petitioner

seeks review in this case is whether the Commonwealth's

decision to offer this unique combination of single-sex edu-

cational opportunities for men and women violates the

Equal Protection Clause merely because the VWIL and

VMI programs do not use identical educational methods to

achieve their admittedly identical goals.

STATEMENT

The petition filed by the Solicitor General glosses over

crucial facts found by the district court and approved by the

court of appeals below. Because the extensive factual

record provides a complete refutation of petitioner's conten-

tion that further review is warranted, respondents set forth

below a more complete statement of the relevant facts.

A. Background

There are 15 public four-year undergraduate institutions

in Virginia; these institutions enrolled 72,819 men and

85,441 women in 1989. Historically, many of these insti-

tutions maintained single-sex admissions policies, but near-

ly all are now coeducational. VMI and VWIL are at pre-

sent the only single-sex college programs supported directly

by the Commonwealth. Pet. App. 10a, 185a-189a.!

IThere are also five private single-sex four-year colleges in

Virginia, four of which admit only women and one of which

admits only men. The Commonwealth provides financial aid

to Virginia residents who attend these and other private col-

leges in Virginia. Pet. App. 189a-191a.

a ee ee a er |

OO iE eR Ee RO OF ee

1. | Mary Baldwin College

MBC, the home of the VWIL program, was founded in

1842. Beginning in the 1860s, MBC provided a program

of study for women patterned on the curriculum of mathe-

matics, classics, and science then offered only to men at the

University of Virginia. In recent decades, MBC has

responded to the changing role of women in society by

expanding its curriculum “to include the new options open

to women in business and the professions." Pet. App.

122a. Accordingly, MBC has “developed an emphasis on

career planning,” has “computerized the campus,” and has

added “new facilities for the communications and computer

science disciplines" and “new state of the art equipment for

its science labs." /d. at 122a-123a. In short, MBC “is

committed to the education of women for a world of ex-

panding opportunity.” Jd. at 122a.

MBC has over 1300 students, approximately 700 of

whom are residential undergraduate students. MBC has a

Phi Beta Kappa chapter, is accredited by the Southern

Association of Colleges and Schools, and has repeatedly

been ranked among the top ten liberal arts colleges in the

Southeast. MBC's 55-acre campus in Staunton, Virginia,

includes the facilities of the former Staunton Military Aca-

demy, residence halls, classroom buildings, computer and

science laboratories, a 40,000-square-foot physical educa-

tion facility, playing fields, tennis courts, and a swimming

pool. Pet. App. 123a, 125a-!29a.

The student-faculty ratio in MBC's residential program is

eleven to one. MBC offers 28 undergraduate majors,

including degrees in mathematics, sciences, business, and

the arts. MBC also offers pre-law and pre-med programs,

as well as joint-degree engineering programs with Washing-

ton University and with the University of Virginia. Pet.

App. 123a-124a; App., infra, 17a, 19a-23a. MBC is

“geared in the direction of trying to encourage women to

persist in math and physics.” Jd. at 126a.

MBC enjoys "a record of success in developing new pro-

grams and operating distinctive and unique programs within

the larger traditional undergraduate residential community."

Pet. App. 125a. For example, MBC has successfully

established a unique residential educational program for

academically gifted, high-school-age female students. The

program is tailored to "the academic, emotional and devel-

opmental needs of young women." Jd. at 126a.

2. Virginia Military Institute

VMI, which was founded in 1839, has an enrollment of

about 1300 students. It employs a unique “adversative"

system for developing character and leadership in young

men. The adversative method is intended to create doubts

about students’ previous beliefs and experiences and there-

by prepare them to accept the values and behavior taught by

VMI. Pet. App. 175an.10, 189a, 191a-192.

"Physical rigor, mental stress, absolute equality of treat-

ment, absence of privacy, minute regulation of behavior,

and indoctrination in desirable values are the salient attri-

butes of the VMI educational experience." Pet. App. 191a-

192a. First-year VMI students are subjected to an extreme

form of the adversative model known as the “rat line,"

which “is comparable to Marine Corps boot camp in ter:ns

of both the physical rigor and mental stress of the experi-

ence." Id. at 194a-195a.

Students at VMI live in a four-story barracks housing one

class per floor. “There is a total lack of privacy” in the

barracks: there are no door locks or window shades, and

the doors to the students’ rooms contain open windows that

permit “the officer in charge to . . . see every cadet without

anything being hidden." Pet. App. 198a-199a. The bar-

racks features group bathrooms? and “close and intimate

2There is one bathroom on each floor, serving up to 400

students. Each bathroom has group showers with about 24

[Footnote continued on next page]

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quarters.” Jd. In short, “there is literally no place in the

barracks that physically affords privacy,” and students are

thus “under constant scrutiny.” Jd. at 198a, 199a. This

total lack of privacy and constant scrutiny is an integral part

of the VMI experience. Jd. at 199a.

Also of crucial importance to the VMI method is its strict

egalitarianism. "The VMI experience is based on absolute

equality, which is achieved through treating everyone in

exactly the same way." Pet. App. 237a. The spartan and

public nature of life in the barracks "is an aspect of the

egalitarian ethic ai VMI," as is the fact that VMI imposes

the same physical requirements on all students, regardless

of ability. Jd. at 198a, 233a.

Each VMI student must participate in an ROTC program

like those offered at other undergraduate institutions. Un-

like the federal military academies, which exist to prepare

their graduates for career service in the armed forces,

VMI's military emphasis is primarily a teaching device;

only 15 percent of VMI graduates choose military careers.

Pet. App. 116a-117a, 200a, 206a, 218a-219a.

B. Initial Proceedings Below

a The District Court's Liability Decision

The United States brought suit against respondents in

1990, seeking admission of women to VMI. After a six-

day trial, the district court found for respondents under the

standard enunciated in Mississippi Univ. for Women vy.

Hogan, 458 U.S. 718 (1982), which asks whether a chal-

lenged gender-based classification "'serves important gov-

[Footnote continued from previous page]

heads, and there are no doors on the partitions i

toilet. Pet. App. 128a, 240a. . ee

ernmental objectives and [whether] the discriminatory

means employed are substantially related to the achieve-

ment of those objectives.'" Pet. App. 165a.

Based on the unrebutted expert testimony and academic

studies in the record, the court found that a “substantial

body of ‘exceedingly persuasive’ evidence supports VMI's

contention that some students, both male and female, bene-

fit from attending a single-sex college." Pet. App. 168a;

see id. at 167a-170a, 174a, 176a, 225a-227a. The court

further found that VMI's adversative method is beneficial

to adolescent males, but ill-suited to most adolescent

females. Pet. App. 171a-172a, 223a-225a.3

These findings were based, not on stereotypes or precon-

ceived notions, but rather on the informed judgments and

testimony of leading professional educators and social sci-

entists. As the court explained, a “substantial body of con-

temporary scholarship and research supports the proposition

that, although males and females have significant areas of

developmental overlap, they also have differing

developmental needs that are deep-seated,” and thus that

"there ure important differences between men and women

in learning and developmental needs." Pet. App. 223a-

224a. Moreover, the court expressly found that "[these]

psychological and sociological differences between men and

women are real differences, not stereotypes." Jd. at 225Sa.4

3These findings, of course, refer to the developmental charac-

teristics of college-age male and female students, and reflect

the sensitive and sometimes difficult nature of the transition

from late adolescence to adulthood that such students are expe-

riencing. The district court made no such findings with

respect to students at the graduate or post-graduate educational

levels.

4Even petitioner's education expert conceded this point, agree-

ing that “there clearly are differences between men and

women, and not only obvious physiological ones, but ones

{Footnote continued on next page}

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The district court also found that “key elements of the

adversative VMI educational system ... would be funda-

mentally altered, and the distinctive ends of the system

would be thwarted, if VMI were ... to make changes

necessary to accommodate [the] needs and interests” of

female students. Pet. App. 167a. Substantial changes

would inevitably be required to crucial aspects of VMI's

educational method, including the rigorous physical training

program? and the constant scrutiny and total lack of privacy

in the barracks.© And the belief that these changes would

occur "is well-founded in empirical evidence, and not based

on stereotype.” Jd. at 171a.

These changes would necessarily lead to differential treat-

ment of distinct groups of VMI students on the basis of

gender, thereby contradicting VMI's core principle of abso-

lute equality of treatment.’ Moreover, coeducation "would

[Footnote continued from previous page]

having to do in part with how they interact, how they learn

and so on." 91-1690 C.A. Br. 24; 91-1690 C.A. App. 625.

See Pet. App. 233a ("If women were admitted to VMI, it

would be necessary to change certain physical training pro-

gram courses and to set different standards... . Either [some

aspects] would have to be abandoned, or there would have to

be accommodations that would result in a dual track for

women."); id. at 234a ("If VMI were coeducational and

females were subjected to the same physical demands as male

cadets, females would suffer on the order of 300% more

injuries than maies."); id. at 221a.

Pet. App. 233a (“Adaptations would have to made in order to

provide for individual privacy, for the sake of the as well

as for the sake of the women. .. . The introduction of privacy

required by admission of women at VMI would contradict the

principle that everyone is constantly subject to scrutiny by

everyone else.”).

7Pet. App. 237a ("The VMI experience is based on absolute

[Footnote continued on next page]

produce cross-sex relationships among cadets that would

significantly alter the character-building and leadership-

development aspects of the VMI experience." Pet. App.

239a. As a result, "it would be impossible for a female to

participate in the ‘VMI experience,'" because “her intro-

duction into the process would change it. Thus, the very

experience she sought would no longer be available." Jd.

at 175a; see also id. at 176a, 227a.

The district court therefore concluded that VMI's admis-

sions policy was constitutional under Hogan, because it was

substantially related to the important state objectives of

increasing educational diversity and providing the "substan-

tial educational benefits" of single-sex education and the

VMI method. Pet. App. 173a, 176a-177a.

2. The Court of Appeals' Liability Decision

The court of appeals affirmed the district court's findings

of fact but vacated and remanded for further proceedings.

In particular, the court of appeals upheld the district court's

findings that “VMI's unique methodology justifies a single-

sex policy" and that “the record supports the conclusion

that single-sex education is pedagogically justifiable, and

VMI's system .. . even more so." Jd. at 15la; See id. at

137a, 150a, 155a.

The court also affirmed the district court's findings “that

VMI's mission can be accomplished only in a single-gender

{Footnote continued from previous page]

equality, which is achieved through treating everyone in

exactly the same way.... Given the actual physiological,

psychological, and sociological differences between males and

females, it would be impossible to treat everyone fairly by

continuing to treat them the same if women were admitted to

VMI. Equal treatment would necessarily give way to fair

treatment, thus undermining egalitarianism.").

environment and that changes necessary to accommodate

coeducation would tear at the fabric of VMI's unique

methodology.” Pet. App. 148a. Admission of women

would require creation of “a dual track physical training

program" which would in turn lead to perceptions of

unequal treatment, jealousy, and resentment. Jd. at 146a-

147a. The total lack of privacy engendered by the barracks

system would no longer be possible. Jd. at 147a. And the

VMI system would be unable to accommodate the cross-sex

confrontation and harassment that would necessarily occur

if VMI attempted to maintain its adversative method in a

coeducational setting. Jd.8

Accordingly, the court of appeals concluded that the ad-

mission of women to VMI “would deny those women the

very opportunity they sought because the unique character-

istics of VMI's program would be destroyed by coeduca-

tion.” Pet. App. 148a. Nonetheless, the court held that the

Commonwealth had failed to justify its policy of providing

single-sex education only to men. Id. at 15la-154a. The

court remanded the case to permit the Commonwealth to

formulate an acceptable remedy such as "establish[ing]

parallel institutions or parallel programs." Jd. at 156a.

3. VMI's Petition for a Writ of Certiorari

VMI filed a petition for a writ of certiorari seeking

review of the court of appeals’ liability determination. VMI

v. United States, No. 92-1213. Petitioner filed a brief in

Opposition, asserting that certiorari was not warranted

because of the fact-bound nature of the court of appeals’

8Importantly, the court of appeals expressly rejected petitioner's

claim that this finding was based on stereotyping: “the

evidence supported the district court's finding that cross-sexual

confrontation and interaction introduces additional elements of

Stress and distraction which are not accommodated by VMI's

methodology.” Pet. App. 147a.

decision and because this case involves only the consti-

tutionality of VMI's "unique" educational program and

therefore does not present important or recurring legal

issues. 92-1213 Br. in Opp. 9-20. This Court denied certi-

orari. 113 S. Ct. 2431 (1993).

C. Proceedings on Remand

1. Virginia Women's Institute for Leadership

Believing that its educational goals would best be served

by continuing to provide the option of single-sex education,

the Commonwealth chose to extend that option to women

through creation at MBC of a state-supported program

known as the Virginia Women's Institute for Leadership

(VWIL). VWIL will provide single-sex undergraduate

education with military training in an integrated program

designed “to produce the ‘citizen soldier,’ i.e., women who

are trained for leadership in both civilian and military life."

Pet. App. 63a.

In 1993, MBC formed a task force of professionals in the

field of single-sex education to plan and implement VWIL.

The task force “made an in-depth study of the published

literature on the developmental psychology of women and

the cognitive development of women" and “consulted

outside experts” in addition to drawing on its own collecive

experience in women's education. Pet. App. 63a, 103a.

After conducting “a detailed study of the approriate

methods by which the leadership program should be struc-

ured,” including an examination of “the VMI methodology

and outcomes" (id. at 63a, 104a), the task force concluded

that VMI's adversative method "would be wholly inappro- —

rite for educating and training most women for leadership

roles." Id. at 63a.9

9Petitioner has sought to discredit these conclusions by labeling

them “stereotypes.” The factual findings below are to the

[Footnote continued on next page]

Accordingly, the task force developed a program that is

specifically designed to develop women leaders through use

of a “method which reinforces self-esteem rather than the

leveling process used by VMI." Pet. App. 64a. Like

VMI, VWIL offers an integrated and “highly structured

oe, 1) emia ant te cunt

to promote the student's development in all phases of

her life" and that pursues “the same five goals as those

pursued at VMI: education, military training, mental and

physical discipline, character developmen‘, and leadership

development.” Jd. at 8a, 63a, 103a-104a. More than 40

young women have now accepted admission to VWIL's

entering class and paid nonrefundable deposits. App.,

infra, 16a.

As part of the VWIL program, students must demonstrate

computer and foreign language proficiency and complete

courses in calculus, statistics, and laboratory sciences. In

addition, they must complete an extensive leadership devel-

opment curriculum, a leadership externship, leadership

laboratory activities, two Leadership Speaker Series, and

community service projects. Jd. at 9a, 64a-65a, 108a-

109a.!9 No male students will attend classes with VWIL

{Footnote continued from previous page}

contrary, however, and petitioner's unsupported characteri-

zations ignore the fact that the task force was composed largely

of women whose profession it is to educate female students for

leadership roles in society. C.A. App. 269. These individuals

es ee ee ane 3 te Sls end wont be

detect reject harmful ster

yb os | e} eotypes about

10Petitioner complains (Pet. 9-10 & n.7, 18) that VWIL students —

cannot obtain a bachelor of science degree or a state-financed

degree. In fact, however, VWIL students can

from a of science and mathematics majors

[Footnote continued on next page]

students. Jd. at 65a.

Women enrolled in VWIL are also required to complete

four years of an ROTC program through cross-enrollment

agreements between MBC and the ROTC units at VMI.!!

These ROTC programs will utilize the uniform ROTC cur-

riculum and methods including standardized military physi-

as all other ROTC programs. Pet. App. 67a, 109a, 116a-

117a; App., infra, 12a-13a. VWIL students will also

constitute a corps of cadets with military rank, will wear

uniforms, will drill in ROTC, and will participate in the

Virginia Corps of Cadets, which consists of all VMI and

VWIL cadets together with the coeducational Virginia

Polytechnic Institute and State University (VPI) Corps. Jd.

at 110a.!2

[Footnote continued from previous page]

offered at MBC (Pet. App. 123a), and will have an opportunity

to obtain a state-supported degree in engineering through a

newly established dual degree program with the University of

Virginia. App., infra, 17a, 19a-23a. The district court found

that there would be only “a very slight demand for an

engineering program at an all female VWIL.” Pet. App. 65a.

\1The military's ROTC programs do not utilize adversative

training methods, and it is not necessary for students to be

exposed to those methods or to the other aspects of the VMI

program in order to succeed in ROTC and the military. Pet.

App. 67a, 118a.

12VPI's Corps of Cadets has a mission similar to that of VMI

and VWIL, but seeks to achieve the same results in the setting

of a large coeducational university, thereby enhancing the di-

versity of the Commonwealth's educational offerings. The

VPi Corps is a residential ROTC unit with about 400 male and

female students. VPI cadets who are single must live in the

Corps residence hall, and all cadets wear uniforms and adhere

7‘ [Footnote continued on next page]

In addition to their ROTC physical training and drill,

VWIL students will be required to complete eight semesters

of physical and health education, including self-defense and

an advanced fitness course designed for VWIL students.

Pet. App. llla. WWIL students will also receive special

“training in self-defense and self-assertiveness” as part of a

program “designed to be analogous to the VMI ‘rat chal-

lenge’" and consisting of a variety of “physically and men-

tally challenging events.” Jd. at 112a. In sum, VWIL's

physical training program “is designed to be comparable in

ee or ae

Before the start of their freshman year, VWIL students

will participate in a special “cadre week orientation” to be

run by upperclass VWIL students and designed to provide

"a physically and mentally demanding experience which

will foster bonding and which will be a paradigm for VWIL

itself." Pet. App. 110a, 114a. Freshmen VWIL students

will room together in freshman residence halls and will be

subject to a variety of regulations, including spot inspec-

tions and a required study hall. “[TJhe VWIL program will

use the highly disciplined schedule of the VMI model." /d.

at 66a-67a, 1 14a.

After their freshman year, VWIL students will be re-

quired to live for at least one year in the VWIL House,

which will be the center for VWIL meetings and activities.

Pet. App. 115a. Upperclass VWIL students will serve as

mentors for incoming VWIL students and will play an

important role in orienting incoming students, enforcing

rules and regulations, teaching VWIL standards and expec-

[Footnote continued from previous page]

gee taaaet regulations and discipline. Pet. App. 214a-

tations, organizing and directing drills, and leading the

VWIL Corps. id. at 11Sa-116a. WWIL students will be

subject to MBC's honor code system. Jd. at 114a-115a.

Both the Commonwealth and VMI have provided exten-

sive financial and other support for the development and

implementation of VWIL, and they and MBC are com-

mitted to the program's success. Pet. App. 68a, 8la-83a,

102a-106a. The Commonwealth has expressed “unambigu-

ous and unequivocal support of single-sex education for

men and women,” and all relevant Virginia officials “have

strongly supported VWIL." Jd. at 81a, 83a.!9 The Virgi-

nia General Assembly has enacted legislation mandating

equal funding (on a per-student basis) for VWIL and VMI

without any limit on the maximum number of VWIL stu-

dents. Jd. at 10a, 80a & nn. 18-19; App., infra, 12a.

VMI has cooperated extensively in the development of

VWIL, and “has committed to support the VWIL pro-

gram." Pet. App. 102a, 105a. VMI and MBC have jointly

formed a leadership education advisory board that will

study “the advancement of leadership training at VMI and

MBC" and will monitor the outcomes of the two programs.

Id. at 105a; App., infra, 6a, 14a; see also id. at 17a, 24a-

26a. The VMI Foundation has provided substantial

financial support for the implementation of VWIL and is

committed to providing VWIL with an additional $5.5

million endowment once final court approval has been

obtained. Pet. App. 120a; App., infra, 6a-7a, 12a.

VMI is also committed to providing VWIL with full

access to and support from its alumni network. VMI alum-

13Petitioner notes (Pet. 4 n.2) that former Governor Wilder

expressed personal opposition to the exclusion of students from

public educational institutions on the basis of gender, but

Governor Wilder subsequently submitted an affidavit in sup-

port of VWIL, stating that it “will remedy all current discri-

mination.” Pet. App. 81a n.20.

ni and admissions personnel assist in recruiti icants

for VWIL. Pet. App. 120a-121a; App., wwe beg 10a,

14a. The VMI Alumni Association has extended its place-

ment services and networks to VWIL, will assist VWIL

students in obtaining leadership externships, and has begun

to develop joint alumni networking opportunities with

MBC. Pet. App. 12la; App., infra, 6a. In short, “[t]he

attitude of VMI alumni toward VWIL is extremely support-

ive. They are committed to making VWIL work." Pet.

App. 121a.

2. The District Court's Remedial Decision

After conducting a six-day trial and considering the testi-

mony of 18 expert witnesses (Pet. App. 87a-98a), the

district court found that the Commonwealth had satisfied

the requirements of the Equal Protection Clause by offering

VWIL as single-sex leadership education program for

women. Rejecting petitioner's argument that the Common-

wealth was required to provide a mirror-image VMI for

women, the court expressly found that "VWIL is a good

design for producing female citizen-soldiers" and that "the

differences between VWIL and VMI are justified pedagogi-

cally and are not based on stereotyping.” Jd. at 67a, 76a. 14

\4This finding is supported not only by evi i

y evidence introduced b

respondents but also by statements of petitioner's nai

For example, according to petitioner's expert Dr. Alexander

Astin, “[s]ome of the largest gender differences occur in the

area of psychological well-being: the declines in psychological

well-being (feeling depressed, feeling overwhelmed, low self-

rating on emotional health) are all stronger among women than

among men during the undergraduate years." C.A. App. 278.

In support of these findings, the court relied on expert testi-

mony that “the VWIL approach towards educating and pre-

paring women leaders was preferable to the VMI approach"

and indeed that “the demand for an all-women's VMI

would be so small as to make the project unfeasible,"

whereas “there would be much more significant demand for

VWIL." Jd. at 73a, 75a & n.12.

Indeed, as the court noted, Dr. Elizabeth Fox-Genovese,

“one of the leading experts on the educating of women,”

testified that “an adversative method of teaching in an all-

female school would be not only inappropriate for most

women, but counter-productive," because it would be

destructive of women's self-confidence. Pet. App. 64a,

74a. Petitioner offered no experts in single-sex education,

leaving this testimony effectively unrebutted. Moreover,

the court expressly rejected the testimony of Dr. Carol

Jacklin, petitioner's expert in psychology, who asserted that

the differences in methodology at VMI and VWIL were

based on stereotypes. Jd. at 72a-73a. The court explained

that Dr. Jacklin's “testimony was contradicted by most of

the evidence in the record," including her own admissions

that women students tend to be less aggressive in the class-

room and would “have more chances for leadership at

single-sex institutions." Jd.

The district court also found that VWIL was likely to

attain its goal of producing “citizen-soldiers" well prepared

for leadership roles in civilian and military life. Pet. App.

83a. Based on the experts’ conclusions that “the methods

adopted for the VWIL will produce the same or similar

outcome for women that VMI produces for men" (id. at

64a) and that "VWIL will produce the kind of self-

assurance in the face of accomplishment of difficulties that

VMI offers and requires of its cadets” (id. at 75a-76a), the

district court rejected petitioner's argument that VWIL must

mirror VMI. Instead, the court held that VWIL satisfied

the Commonwealth's constitutional obligations because it

"will achieve substantially similar outcomes in an all-female

environment and . . . there is a legitimate pedagogical basis

for the different means employed to achieve the substan-

tially similar ends." Jd. at 76a.

3. The Court of Appeals' Remedial Decision

The court of appeals affirmed and remanded for further

proceedings. The court made clear at the outset that, in

addition to the two-pronged test applied by this Court in

Hogan, it was requiring the Commonwealth to satisfy a

third requirement, which entails “carefully weighing the

alternatives available to members of each gender denied

benefits by the classification" in order to determine whether

those alternatives are “substantively comparable." Pet.

App. 17a.

Turning to the first prong of the Hogan test, the court

reaffirmed the factual finding that “single-gender education

at the college level is beneficial to both sexes," and con-

cluded that "a state's opting for single-gender education as

one particular pedagogical technique among many" is “a

legitimate and important governmental objective." Pet.

App. 20a, 21a. The court next concluded that the Com-

monwealth's decision to provide single-sex education

through VMI and VWIL was directly related to the Com-

monwealth's legitimate and important objectives, because

"the only way to realize the benefits of homogeneity of

gender is to limit admission to one gender." Jd. at 22a. In

addition, the court found that "“[tJhe classification for

single-gender education at VMI is also directly related to

achieving the results of ar adversative method in a military

environment,” because essential ‘characteristics of VMI's

— would be destroyed by coeducation.'" Jd. at 6a-

Finally, the court concluded that the benefits offered by

VMI and VWIL were “substantively comparable." Pet.

App. 24a-28a. After scrutinizing the two programs, the

court found that "the mission and goals are the same, and

the methodologies for attaining the goals, while different,

nevertheless are reasonably calculated to succeed at each

institution." Jd. at 27a. Moreover, the differences in the

two programs are justified because they are “attributable to

a professional judgment of how best to provide the same

opportunity.” Jd. at 26a.

Indeed, as the court explained, providing women with a

program identical to VMI would not be practicable, be-

cause “[e]ducational experts for the Commonwealth testi-

fied that women may not respond similarly" to an adversa-

tive approach and that a women's program identical to VMI

“would attract an insufficient number of participants to

make the program work.” Pet. App. 27a. Accordingly,

the court of appeals upheld the remedy approved by the

district court. In order to ensure the effective and success-

ful implemeniation of VWIL, the court remanded the case

to the district court with instructions to oversee the remedy.

Pet. App. 30a.

REASONS FOR DENYING THE WRIT

The petition meets none of this Court's criteria for the

exercise of its certiorari jurisdiction. In the first piace, the

petition is limited to remedial issues, but threshold ques-

tions about the correctness of the court of appeals’ liability

determination would likely preclude the Court from reach-

ing those issues in this case.!5 Moreover, as set forth

15Respondents have filed a conditional cross-petition challenging

the court of appeals’ liability determination. See Virginia v.

United States, No. 94-___. Regardless of the disposition of

that cross-petition, however, the threshold question of liability

will arise in this case if the Solicitor General's petition is

granted, because a judgment may be defended on any ground

supported by the record. Schweiker v. Hogan, 457 U.S. 569,

585 n.24 (1982); United States v. New York Telephone Co.,

434 U.S. 159, 166 n.8 (1977). Of course, respondents fully

[Footnote continued on next page]

below, there is no conflict among the circuits, nor (despite

petitioner's contentions to the contrary) is there any in-

consistency between the decisions of this Court and the

decision below. Indeed, petitioner's challenge to the court

of appeals’ ruling rests fundamentally on petitioner's rejec-

tion of explicit factual determinations rather than on any

legal question of substantial or recurring importance. Peti-

tioner simply disagrees with the factual findings by both

courts below that the differences between the VMI and

VWIL programs reflect pedagogically justified responses to

non-stereotypical differences between male and female

college students. That fact-bound disagreement is not

worthy of review, and the petition should therefore be

denied.

A. The Judgment Below Does Not Conflict With

Any Decisions Of This Court Or Of Any Other

Appellate Court |

As petitioner implicitly concedes, there is no circuit con-

flict on the questions raised in the petition. Indeed, the

decision below is consistent with the only lower court opin-

ions (and judgments of this Court) addressing the consti-

tutionality of dual single-sex educational programs. Com-

pare Vorchheimer v. School Dist., 532 F.2d 880, 882, 887-

88 (3d Cir. 1976) (upholding separate boys' and girls’ high

schools because they were “comparable” but not identical),

aff'd by equally divided Court, 430 U.S. 703 (1977), and

Williams v. McNair, 316 F. Supp. 134 (D.S.C. 1970)

{Footnote continued from previous page]

support the VWIL program and accept the remedial ruling

below, but the absence of a proper basis for the court of

appeals’ liability determination will provide an alternative (and

logically prior) ground for affirmance in the event of review

by this Court.

(upholding separate public “school for young ladies" where

State also supported a single-sex “military school" for

men), aff'd, 401 U.S. 951 (1971), with Pet. App. 25a, 28a

(State must “affor[{d] to both genders benefits comparable in

substance, but not in form and detail”).

Petitioner instead asserts that certiorari is warranted

because of purported conflicts between this Court's prece-

dents and the decision below. These purported conflicts do

not exist, however, and further review is therefore not

warranted.

1. Sweatt v. Painter is Inapposite

Petitioner errs in contending (Pet. 16, 18) that the deci-

sion below “conflicts with” Sweatt v. Painter, 339 U.S.

629 (1950). Sweatt involved a racial classification, not a

gender-based classification, and this Court has never ap-

plied (or even cited) Sweatt in a case involving the latter

issue.!6 Petitioner cites this Court's decision in Hogan for

the proposition that the “separate but equal" test applied in

Sweatt is also applicable here (Pet. 17, citing 458 U.S. at

720 n.1), but the cited footnote instead reveais that the

Hogan Court did not address that issue, which was not

presented on the facts of that case.

Moreover, even petitioner is apparently unwilling to take

16Indeed, in Regents of the University of California v. Bakke,

438 U.S. 265 (1978), a case involving racial classifications in

education, Justice Powell's controlling opinion relied in part

on Sweatt (see id. at 287, 313-14) but expressly rejected the

relevance of the legal standards applied in cases involving

gender-based classifications, noting that “the Court has never

viewed [gender-based] classification as inherently suspect or as

comparable to racial or ethnic classifications for the purpose of

equal protection analysis." 438 U.S. at 303; accord

Vorchheimer, 532 F.2d at 886 (holding that Sweart is

“inapplicable” in analyzing constitutionality of dual single-sex

schools).

the position that the Court's analysis in Sweast is applicable

without modification in the context of single-sex schools.

Instead, petitioner suggests (Pet. 16) that differential treat-

ment of the genders is permitted if the State "justif[ies] any

inequality under a standard of heightened constitutional

scrutiny.” But that is not the test set forth in Sweatt, and

the fact that petitioner feels compelled to rewrite Sweatt

before attempting to extend it to gender-based classifica-

tions is simply further evidence of the inapplicability of that

decision in this context. And in any event, the findings

below demonstrate that VMI and VWIL would satisfy the

hybrid test proposed by petitioner, so there is no possibility

of a conflict. See Pet. App. 76a (“there is a legitimate

pedagogical basis for the different means employed [by

VMI and VWIL] to achieve the substantially similar ends");

id. at 26a, 27a.

2. The Alleged Conflict Asserted by Petition-

er Reflects Nothing More Than Disagree-

ment With the Facts Found Below

Petitioner also asserts (Pet. 16, 19) that the decision

below conflicts with Hogan, J.E.B. v. Alabama ex rel.

T.B., 114 S. Ct. 1419 (1994), and similar cases involving

the constitutionality of gender-based classifications. Ac-

cording to petitioner, this purported conflict arises because

the court of appeals did not apply the test enunciated in

those cases, which asks whether “the difference in treat-

ment serves important governmental objectives and is sub-

ayy related to the achievement of those objectives."

= }

Petitioner's attempt to manufacture a conflict with this

Court's gender-discrimination precedents rests upon a mis-

reading of the decisions below. Both courts below express-

ly acknowledged and applied the precise legal standard

quoted by petitioner. See Pet. App. 13a, 145a, 165a.!’

Petitioner disagrees with the conclusion reached by the

lower courts in applying that standard to the facts of this

case, but that fact-bound disagreement hardly justifies the

exercise of this Court's certiorari jurisdiction.

Indeed, a careful reading of the petition demonstrates that

petitioner's real objection to the decision below is aimed at

the factual underpinnings of that decision, not the legal

standard applied by the court of appeals. Petitioner's prin-

cipal and often-repeated claim is that the court of appeals

alleged'y based its ruling on "stereotypes" and “archaic no-

tions” about women and their proper role in society. See,

e.g., Pet. 15, 19-24. That assertion, however, is directly

contrary to the factual findings below, and the issues raised

in the petition effectively disappear once those findings--

rather than petitioner's characterizations--are examined.

As the district court found, modern scholarship and

research demonstrates that “there are important differences

between men and women in learning and developmental

needs,” and these "psychological and sociological differ-

ences are real differences, not stereotypes." Pet. App.

224a, 225a. Moreover, the court found that VWIL was

carefully designed to achieve the same results as VMI by

taking account of these differences in its student body, and

thus “the differences between VWIL and VMI are justified

pedagogically and are not based on stereotyping." Jd. at

76a.'8 The court of appeals agreed, explaining that "the

17As noted above, the court of appeals went beyond Hogan's

two-pronged test by creating a third prong that also had to be

satisfied by the Commonwealth, but petitioner obviously does

not and cannot contend that the creation of this additional

requirement (which did not affect the result below and merely

imposed an unduly high burden on respondents) provides a

basis for review.

18indeed, even petitioner's expert witnesses did not assert that

{Footnote continued on next page]

difference [between VWIL and VMI] is attributable to a

professional judgment of how best to provide the same

opportunity." Jd. at 26a.

These findings demonstrate conclusively that this case is

wholly unlike Hogan, J.E.B., or the other cases cited by

petitioner (Pet. 19-21 & n.17). Rather than relying on

outdated stereotypes or unfounded presumptions about the

respective roles of the genders, the courts below considered

the most up-to-date sociological, psychological, and physio-

logical research and expert opinion and found, based on a

"reasoned analysis" of the evidence, that real differences

between adolescent men and women and between the opti-

mum methods of educating them justify the methodological

differences between VWIL and VMI. Neither the Constitu-

tion nor this Court's cases require more. !9

[Footnote continued from previous page]

the VWIL program would be inappropriate or ineffective for

women. Pet. App. 68a, 76a. Petitioner's expert on curricular

and co-curricular offerings admitted that neither VMI's

program nor VWIL's program was “better than the other." Jd.

at 69a n.5, 96a. Petitioner's contention in this Court that

VWIL reflects harmful stereotypes and prejudicial views of

women is thus contrary to the record and findings below.

19Petitioner contends (Pet. 22) that the Constitution forbids

educators to take account of demonstrable differences in the

educational needs of male and female adolescents because such

differences “may well reflect the effects of long-standing sex-

based limitations on social roles." Petitioner offers no support

for this ipse dixit, however, and whatever its validity, it would

hardly follow that educators must ignore these real differences

in formulating education programs. Instead, the approach

most in keeping with the Constitution's mandate of equal

opportunity would be for educators to develop programs that

are designed to eliminate any lingering effects of past societal

stereotyping by developing self-confident graduates who are

well-equipped to seek and obtain positions in all facets of

[Footnote continued on next page]

In short, the factual findings by the courts below are fatal

to petitioner's attempt to create an inconsistency between

the judgment below and the decisions of this Court.

Petitioner's quarrel is with the record, not the law, but this

Court does not sit to review facts found by two lower

federal courts. Goodman v. Lukens Steel Co., 482 U.S.

656, 665 (1987); United States v. Doe, 465 U.S. 605, 614

(1984).29 The purported “conflict” identified by petitioner

{Footnote continued from previous page}

American society, regardless of archaic notions about which

gender is better suited to a particular job. The findings and

expert evidence in the record demonstrate that single-sex

education tends to reduce the effects of societal stereotyping on

both men and women by making students “more likely to take

the risk of choosing a career normally associated with the other

sex,” Pet. App. 226a, and that VWIL will be more effective

than a mirror-image VMI at preparing most women students to

assume leadership roles in modern society. Jd. at 27a, 63a-

64a, 73a-74a.

20Petitioner's cavalier treatment of the facts is also apparent

from its argument (Pet. 20, 21) that exclusion of women from

VMI perpetuates an “archaic, exclusive association of each

gender with particular professions—here the premise that men,

and not women, are fit to be military leaders." Exclusion from

VMI sends no message of unfitness for a military career,

because (with the exception of the service academies) all

undergraduate institutions—including VMI, VWIL, and the

coeducational University of Virginia and VPI--produce military

leaders in precisely the same way: through standardized ROTC

programs that are the same across the Nation. The district

court specifically found that (1) “nothing about the ROTC

programs at VMI is unique to VMI other than the absence of

women,” (2) non-VMI students perform marginally better than

VMI students in their ROTC programs, and (3) VWIL's

ROTC programs will offer “the opportunity to be

commissioned in the armed services." Pet. App. 116a-117a,

119a. Thus, women enrolled at VWIL have at least as good

[Footnote continued on next page]

simply does not warrant review.

3. ee ae Gee Snqperts the

Petitioner also errs in contending (Pet. 23-26) that the

decision below conflicts with precedents of this Court hold-

ing that “overbroad . . . generalizations” cannot be used to

justify “sex-based classifications that are applied to fore-

close individual opportunity." In the first place, as already

noted, the differences between VMI and VWIL are not

based on archaic’ and “‘outdated'” assumptions or

stereotypical'" notions containing at most a "‘shred of

truth’” (Pet. 24 & n.20), but are instead predicated on the

expert knowledge, advice, and research of highly regarded

professional educators and social scientists. The cases cited

by petitioner are therefore inapposite.

Second, the cases on which petitioner relies involved

gender-based classifications that were overbroad in that

they excluded all members of the disfavored class even

though the governmental justification for the classification

was not applicable to many of the excluded individuals and

thus was not served by their exclusion. In this case, by

contrast, the gender-based classification is not overbroad.

Rather, it is directly and precisely tailored to the Common-

wealth's legitimate and substantial interest in providing a

diverse educational system that offers the unique benefits of

a single-sex college education, and those benefits simply

cannot be achieved without a gender-based admissions

[Footnote continued from previous page]

an Opportunity to become military leaders as they would if the

were enrolled at VMI, and there is no basis for petidoner’s

assertions to the contrary.

Third, petitioner is simply wrong in suggesting that a

classification is invalid if there are any members of one

gender as to whom the classification is not accurate. This

Court has never held that there must be a paradigmatically

perfect fit between a gender-based classification and the

interests served by it, and petitioner points to no authority

to the contrary. Instead, petitioner cites cases holding that

a gender-based classification must be “substantially related"

to the achievement of the underlying objective.2! As this

Court made clear in Metro Broadcasting, Inc. v. FCC, 497

U.S. 547 (1990),22 however, a classification need not be

accurate “in every case” in order to survive intermediate

scrutiny. Rather, as long as the empirical evidence sug-

gests that the classification will, “in the aggregate,” ad-

vance the underlying objective, the classification will be

upheld as the “product of ‘analysis’ rather than a ‘s:ereo-

typed reaction’ based on ‘[hJabit."" 497 U.S. at 579, 582-

83.23 That approach is particularly appropriate in the con-

21 Petitioner also cites (Pet. 24 n.20, 25 n.21) Justice Brennan's

plurality opinion in Frontiero v. Richardson, 411 U.S. 677

(1973). That opinion, however, applied “strict judicial scru-

tiny” to a gender-based classification. /d. at 688. That

approach has never been adopted by the full Court, and

petitioner has not asked the Court to revisit that issue (which

was, in any event, neither pressed nor passed upon below).

Petitioner's reliance on the Frontiero plurality is therefore

221n Adarand Constructors, Inc. v. Pena, No. 93-1841 (U.S.

June 12, 1995), slip op. 26, this Court overruled Metro

Broadcasting's holding that certain federally mandated race-

based classifications are subject only to intermediate scrutiny.

The Adarand Court did not suggest that Metro Broadcasting

represented an inaccurate illustration of the intermediate-scru-

tiny standard, however, and thus Metro Broadcasting con-

tinues to provide guidance on that issue.

234ccord Schlesinger v. Ballard, 419 U.S. 498, 508 (1975)

[Footnote continued on next page]

text of higher education, because educational programs

must of necessity be designed to accommodate group

characteristics and preferences rather than the desires of

individual students.

Finally, petitioner's argument in this regard, as well as its

requested remedy (Pet. 26-29), rests on the false assump-

tion that those few women who might be interested in

experiencing the unique elements of a VMI-type education

could do so if a different remedial approach were mandated

by the courts. That assumption is belied by the record and

findings below, which demonstrate conclusively that it

[Footnote continued from previous page]

(rejecting argument that separate classification of male and

female Navy officers was based on impermissible “archaic and

overbroad generalizations” where facts demonstrated that

women “will not generally have compiled records ...

comparable to those of male(s}") (emphasis added).

Petitioner's argument that perfect tailoring is required rests on

to serve as a proxy for drinking and driving, a correlation of

2% must be considered an unduly tenuous ‘fit,'" and the

alleged “statistical disparities between the sexes are not

substantial"). Likewise, petitioner relies (Pet. 24-25) on

J.E.B., but most of the empirical evidence in that case refuted

the existence of amy correlation between gender and juror

attitudes. 114 S. Ct. at 1426-27 & n.9. See also Hogan, 458

U.S. at 731 (record was “flatly inconsistent" with assertion

that classification was related to proffered justification);

Frontiero, 411 U.S. at 689 ("[t}he Government offerfed] no

concrete evidence .. . tending to support its view that" the

would be impossible to duplicate the VMI experience for

women with the mathematical precision expected by peti-

tioner.

In the first place, a separate women's program identical

to VMI would be unworkable and financially impossible

because too few women would be interested in participating

in such a program. As the court of appeals noted, peti-

tioner did not offer sufficient evidence to refute respond-

ents’ showing at trial 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 program

work.” Pet. App. 27a; see id. at 73a, 75a & n.12.74

Likewise, as both courts below found, women cannot be

admitted to VMI itself without destroying the very aspects

of its program that serve to distinguish it from VPI, VWIL,

and other institutions. Pet. App. 6a-7a, 24a-25a, 146a-

148a, 170a-173a, 227a, 233a-234a, 237a-239a. The funda-

mental characteristics of VMI's educational method, includ-

ing the adversative system, the total absence of privacy,

and the strict egalitarianism that pervades all aspects of the

program, would undergo radical change or disappear alto-

gether with the admission of women, thus denying those

women “the very opportunity they sought because the

unique characteristics of VMI's program would be

destroyed by coeducation.” Jd. at 6a-7a.

Petitioner disputes the accuracy of the latter finding,

arguing (Pet. 27-29) that it is factually inaccurate and is

24Based on West Point's experience in recruiting for its non-

adversative, coeducational the district court con-

cluded (Pet. App. 174a) that “some women” would want to

attend a coeducational VMI (with the modified educational

program entailed by coeducation). Petitioner offered no

evidence of any significant interest in a mirror-image VMI for

women, however, and thus it is undisputed that such a

program would not be feasible.

improperly based on “sex-based generalizations." This

challenge to the findings of both lower courts is not worthy

of review, of course, and it is also incorrect. The evidence

at trial--as distinct from the conclusory and baseless asser-

tions of petitioner's counsel--demonstrates that VMI's

adversative method would necessarily go the way of West

Point's similar system if VMI were to become coeduca-

tional.2> Indeed, the Marine Corps has been able to

preserve the harsh regimen of its boot camps only by

returning to a single-sex methodology (Pet. App. 235a),

and petitioner points to no basis for concluding that VMI

would have a different experience. In short, petitioner's —

characterizations of the facts of this case are simply false,

and further review of these fact-bound issues is neither

warranted nor appropriate.

B. The Questions Presented In The Petition Are Not

Of Recurring Or Widespread Importance

For the reasons set forth above, the decision below does

not conflict with any decisions of this Court or other appel-

late courts, and petitioner's disagreement with the court of

appeals’ ruling involves nothing more than case-specific

25s the district court found, West Point modified and then

abandoned the adversative model altogether after women were

admitied, and it also rejected fixed physical training standards

in favor of “comparable” training, thereby creating inequalities

and resentment among the cadets. Pet. App. 235a-24la. Even

petitioner made clear below that coeducation would require

substantial changes in VMI's method, including the introduc-

tion of separate sports teams and dual-track physical education

activities for women, the creation of privacy rights on the basis

of gender, and the elimination of “harassment” deemed

inappropriate for women. C.A. App. 99-103, 107-108. The

result of these changes, of course, would be the complete

a ee eee Pet.

. 237a.

questions about the accuracy of the factual determinations

made by the courts below. Nor does petitioner suggest that

a decision on the merits in this case would have widespread

impact or significance such that a grant of certiorari would

be appropriate even absent any of the usual justifications

for this Court's review. According to the petition, this case

"does not require the Court to address the validity of public

single-sex education generally." Pet. 16 n.13 (emphasis

added). Instead, petitioner repeatedly emphasizes the pur-

ported narrowness of the questions presented, arguing that

the judgment below is wrong because this case involves the

“unique” educational methodology of a “unique” school.

Pet. 15, 16 n.13. Indeed, petitioner even suggests (Pet.

27) that the remedy allegedly required here may be inap-

plicable in other cases involving single-sex schools, again

because of the unique facts of this case.

Taking petitioner at its word, this case is simply not of

sufficient general or recurring importance to merit review.

Indeed, as petitioner explained in opposing review at an

earlier stage of this case, further review is not warranted at

this time because the rulings below rest on facts that "pri-

marily involve VMI, an institution that petitione{r] [has]

consistently described as ‘unique.'" 92-1213 Br. in Opp.

19. “There is only one other all-male public college [in the

Nation] besides VMI, and the fact that a challenge to its

single-gender policy might raise issues similar to those of

this case does not, standing alone, warrant further review.”

Id. at 19-20.

Petitioner's earlier objections to certiorari are at least

equally applicable here. The Court previously denied certi-

orari in this case, and the petition identifies no persuasive

reason for reaching a different result now.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

James S. Gilmore, III Theodore B. Olson

Attorney General of Virginia (Counsel of Record)

William H. Hurd Thomas G. Hungar

Deputy Attorney General Gibson, Dunn & Crutcher

900 East Main Street 1050 Connecticut Ave., N.W.

Richmond, Virginia 23219 Washington, D.C. 20036

(202) 955-8500

Richard K. Willard Robert H. Patterson, Jr.

Steptoe & Johnson Anne Marie Whittemore

1330 Connecticut Ave., N.W. William G. Broaddus

Washington, D.C. 20036 McGuire, Woods, Battle &

Boothe

maton A yap Set Gee

hasten . urg, JT. Richmond, Virginia

King & Spalding 23219

191 Peachtree Street

Atlanta, Georgia 30303

Counsel for Respondents

June 23, 1995

APPENDIX

dee ee

3 | . TABLE OF CONTENTS

7 Appendix A (Defendants' First Status Report

cx xs | MM MES cont tice. la

a aX ty . Appendix B (Defendants' Second Status Report

! RS oo bg 8a

j r | Appendix C (Defendants' Supplement to Second

etude: | Status Report) (June 23, 1995))....... l6a

; &

Ps C

| eauee se ;

APPENDIX A

IN THE

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

UNITED STATES OF

AMERICA

Plaintiff,

CIVIL ACTION

NO. 90-0126-R

i i ee a ee ee ee

Pursuant to the Court's April 29, i994 order approving

Defendarts' Proposed Remedial Plan ("Plan") and directing

a status report of the progress of the Plan implementation

every six months, Defendants, the Commonwealth of Vir-

ginia, et al. ("the Commonwealth") file this first status

report.

Implementation Date. In accordance with the Court's

order, the Virginia Women's institute for Leadership

("VWIL") will commence with the 1995 fall semester.

Orientation of entering students will begin on August 23,

1995. The first class of students is being recruited at the

present time as described below.

The United States has appealed this Court's order

approving the Plan to the United States Court of Appeals

for the Fourth Circuit. The Court granted the motion of

the Commonwealth to expedite the appeal in light of the

ongoing recruiting of students. Oral argument was heard

on September 28, 1994. No opinion has issued to date.

Contract for Services. The Plan provides for state

funding of VWIL through a contract for services among the

Commonwealth of Virginia, Virginia Military Institute

("VMI") and Mary Baldwin College ("MBC"). Plan at 13.

On September 27, 1994, the Commonwealth of Virginia,

acting by and through the State Council of higher Education

for Virginia, approved the contract for services. A copy of

the fully executed contract is attached as Exhibit 1.

VWIL Administration and Deveiopment. The VWIL

Task Force rendered its final repurt to the MBC faculty on

July 15, 1994. On September 9, 1994, the MBC faculty

voted to approve the report, which constitutes final faculty

approval of the VWIL curriculum. A copy of the report is

attached as Exhibit 2. The Director of VWIL will develop

the syllabi for the new leadership courses, described on p. 6

of Exhibit 2, subject to faculty review.

On July 12, 1994, President Tyson appointed Dr. Heather

Wilson as acting Director of VWIL. Dr. Wilson also

serves as the Dean of Students at MBC. Mr. Alan Duester-

haus was designated assistant to the acting Director of

VWIL. Approximately 50% of their time has been devoted

to the VWIL development since their respective appoint-

ments.

A Search Committee has been constituted to recruit a

ag Director of VWIL. A copy of advertisements in

the Chronicle of Higher Education and Black issues in

Higher Education is attached as Exhibit 3. The Search

Committee includes Dr. Wilson, Mr. Duesterhaus, mem-

bers of the MBC faculty, and a student representative. The

Search Committee expects to fill the Director's position as

of January 1, 1995. As of October 21, forty applications

had been received. The Search Committee met on

October 26 to establish criteria for reviewing applications

and to begin the review process.

VWIL Recruiting. The staff of the MBC Admissions

Office has been expanded by the addition of one recruiter

whose primary responsibility is recruitment for VWIL.

The position was filled as of July 15, 1994.

The Admissions Office developed a recruiting program

after receiving proposals from a marketing firm. The

VWIL recruiter has met with representatives of the VMI

Admissions Office and the ROTC units at VMI to coordi-

nate recruitment and referrals of female applicants. A

recruiting budget of $96,000 for salary, recruiting material,

and travel expenses has been allotted.

MBC recruiters are scheduled to visit approximately 500

high schools and, in addition, to attend more than 300 high

school college fairs, between September 1994 and May

1995 to recruit for VWIL. High school military academies

are included in the itinerary. The recruiting brochure and

accompanying letter, attached as Exhibit 4, have been

mailed to approximately 1300 high school students. Ap-

proximately 1000 of the recipients were identified by a

student search for young women potentially interested in

military and/or ROTC training. A VWIL view book is

being developed and wili be available for recruiting in

November 1994. The VWIL recruiter is also sending a

letter of introduction of herself and VWIL to all Virginia

high school counselors.

A High School Visit Day was held at MBC on

September 10, 1994 for high school girls and their parents.

The afternoon session was devoted exclusively to VWIL.

Of the 54 girls who participated, nine attended the VWIL

session. A second High School Visit Day in the same

format is scheduled for November 12.

As of October 21, eighty-three inquiries regarding VWIL

have been received from prospective students and parents of

prospective students. The application form, which

supplements the MBC application form, is attached as

Exhibit 5 and became available on October6, 1994.

Applications will be accepted through April 15, 1995. As

of October 21, one application had been receives. Appli-

cants who apply by February 15 will be notified by

March 15. Applicants who apply by March 15 will be

notified by April 15, and applicants who apply by April 15

will be notified by May 1.

ROTC. The acting Director of VWIL has met on several

occasions with representatives of the ROTC programs

conducted at VMI by the United States Army, the United

States Navy/Marine Corps and the United States Air Force.

On October 24, the acting Director of VWIL visited the

United States Air Force ROTC unit at Maxwell Air Force

Base. Cross-enrollment agreements have been developed

between VMI and MBC, and are pending approval by the

respective cadet commands.

VWIL Uniforms. The acting Director of VWIL is

developing the uniform design with assistance from the

uniform company that provides uniforms for the VMI

Corps of Cadets.

Orientation Program Development. The acting Director

of VWIL has developed the format for the orientation

program for all new VWIL students, which will be

conducted for one week before the commencement of the

1995 MBC fall session. VWIL. women will participate in a

four-day, physically rigorous, confidence-building wilder-

ness experience in New Castle, Virginia, conducted by

Wilderness Adventure, which is headed by a VMI graduate.

The new members of the VWIL Corps will return to the

MBC campus for two days of VWIL orientation, including

issuance of uniforms and drill practices.

Assessment Development. In spring 1994, MBC

replicated most aspects of VMI's annual alumni survey in a

survey of MBC alumnae to gather baseline data and to

identify any methodological issues. Dr. Lewis Askegaard,

Director of Institutional Research at MBC, has continued to

consult with Colonel Steve RiCharde, his counterpart at

VMI, to identify assessment instruments for the VMI

cohort entering in the fall of 1995, the conditions of

testing, and timing, all of which are to be replicated to the

extent possible with the entering class of VWIL. They

have also begun to explore some methodological issues,

such as the comparative size of the two cohorts and the

gender-specific differences in starting points on the various

assessment instruments. Dr. Askegaard expects to opera-

tionalize the VWIL outcomes and specify assessment strate-

gies for review by VMI and VWIL by the end of 1994.

Cooperation with VMI. Colonel Michael Bissell has been

designated as liaison on behalf of VMI with VWIL. He has

provided consultation on military training and the ROTC

programs, assisted in the development of the VWIL

uniform, and participated in the coordination of calendars

between VMI and VWIL for activities such as field

maneuvers.

The VMI Admissions Office is referring all female

inquiries to the VWIL recruiter. At college fairs, young

women are referred to the VWIL recruiter by VMI

recruiters and alumni.

The ROTC officers at VMI have provided orientation or

ROTC programs and scholarships to the VWIL recruiter,

who has been invited to attend ROTC classes and field

exercises.

The VMI Physical Education Department and the VMI

Air Force ROTC are providing information and assistance

to Sharon Spalding of the MBC Physical Education Depart-

ment, who is developing the VWIL physical fitness test and

VWIL physical education program.

Colonel Steve RiCharde is continuing to consult with Dr.

Joint Advisory Board has been constituted and will hold its

first meeting on November 4, 1994 at MBC. The member-

ship of the Joint Advisory Board, the draft agenda and

mission statement are set forth in Exhibit 6.

Joint Alumni Activities. The VMI and MBC Alumni

Associations are planning joint alumni/alumnae activities.

The Associations held a joint meeting in Mobile, Alabama

on October 18, 1994.

Funding by the VMI Foundation. The September 25,

1993 Agreement ("Agreement") between the VMI Founda-

tion ("Foundation") and MBC contemplated that VWIL

would not admit students and the Foundation would not

endow VWIL unless final court approval were obtained

after all appeals had been exhausted. To provide funding

for the commencement of VWIL in the 1995 fall semester

notwithstanding that appeals may not have been exhausted,

and to allow the continuation of funding to permit

completion of the program by entering students in the event

that final court approval is not ultimately obtained, the

Foundation and MBC have entered into a First Amendment

of the Agreement dated September 29, 1994 ("First

Amendment"). A copy of the First Amendment is attached

as Exhibit 7.

In accordance with the Agreement, the Foundation made

payments to MBC before September 29, 1994, totaling

$150,000, which have been expended on VWIL develop-

ment to date. On September 29, 1994, the Foundation paid

MBC $165,000 in accordance with paragraphs | and 9 of

the First Amendment. The First Amendment also provides

for a payment of $150,000 on or about January 1, 1995, to

fund is immediately available, that the scholarship fund is

available for students entering VWIL in the 1995 fall

semester, and that a monthly payment of $22,760.42 (the

income stream on the Permanent Endowment) shall begin

on September 1, 1995 and continue until the transfer of the

Permanent Endowment. The First Amendment also estab-

lishes the obligations of the Foundation and MBC in the

event final court approval is not obtained after commence-

ment of VWIL.

Pursuant to the Court's Order, Defendants will file a

further Status Report within six months.

COMMONWEALTH OF

VIRGINIA, GOVERNOR

GEORGE F. ALLEN and

THE STATE COUNCIL OF

HIGHER EDUCATION

By: sl

VIRGINIA MILITARY

INSTITUTE, ITS BOARD

OF VISITORS, SUPERIN-

TENDENT, THE VMI

FOUNDATION, INC. AND

THE VMI ALUMNI

ASSOCIATION

By: /s/

APPENDIX B

IN THE

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

UNITED STATES OF

AMERICA,

Plainuff,

CIVIL ACTION

NO. 90-0126-R

Vv.

COMMONWEALTH

OF VIRGINIA, et al.,

ee ee ee ee

Defendants.

DEFENDANTS' SECOND STATUS

REPORT

The Court's April 29, 1994 order approved Defendants’

Proposed Remedial Plan ("Vian") and directed a status

report of the progress of the Plan implementation every six

months. Pursuant to the order, Defendants, the Common-

wealth of Virginia, et al. ("the Commonwealth”) file this

second status report.

The United States appealed this Court's opinion and order

to the United States Court of Appeals for the Fourth

Circuit. On January 26, 1995, the Fourth Circuit issued its

opinion affirming this Court's judgment and injunction

mandating the implementation of the Plan. The appeals

court also affirmed this Court's retaining jurisdiction to

oversee implementation and remanded the case with

instructions that this Court include, as part of its oversight

of the Plan's implementation, a specific review of the

qualifications and compensation of the program adminis-

trator, the promotion of the program, the adequacy of state

funding and the mechanism for continuing review of the

program by qualified professional educators. United States

v. Commonwealth of Virginia, et al., 44 F.3d 1229, 1242

(4th Cir. 1995). On March 20, 1995, the Fourth Circuit

entered an order sua sponte “temporarily staying the issu-

ance of the mandate.” Order, Exhibit 1.

On April 28, 1995, the Court entered an order announ-

cing that a poll failed to produce a majority of the Court in

favor of rehearing. Order, Exhibit 2.

Defendants have continued to proceed with the implemen-

tation of the Plan and the commencement of the Virginia

Women's Institute for Leadership ("VWIL") at Mary Bald-

win College ("MBC") in the fall semester of 1995.

Recruiting of high school seniors for the entering class and

promotion of the VWIL program has been and continues to

be conducted as described in the First Status Report

(attached as Exhibit 3) and below.

As of April 28, 1995, 31 young women (of whom 29 are

Virginia residents) have accepted admission to the entering

class and paid deposits (nonrefundable after May 1, 1995)

of $300 each. Applications for admission to the entering

class received through April 17, 1995 totaled 64. Offers of

admission have been extended to 52 young women.

Eighteen offers are outstanding. In addition, 2 applications

are pending review by the Admissions Committee. The

average high school grade point average (GPA) of the

students accepted into VWIL is 3.5 on a 4-point scale; the

average combined SAT score is 1031.

VWIL Recruiting and Promotion. The MBC Admissions

Office conducted the recruiting program for VWIL as

described in the First Status Report. Lori A. Esch was

primarily responsible for VWIL recruiting, and was assisted

10a

by the admissions staff of 7 recruiters in addition to

alumnae volunteers. Approximately $70,000 was expended

in recruiting the entering class and identifying prospects for

future classes. For the 1995 entering class, 239 prospects

were identified. The MBC Admissions Office corres-

ponded with 120 young women who responded to the

mailings described in the First Status Report and inter-

viewed 45 young women. To date, 100 prospects have

been identified for the entering class of fall 1996, and 21

for the entering class of fall 1997.

MBC recruiters visited 618 high schools and high school

fairs in Virginia and in 18 other states to recruit for VWIL.

In addition, MBC recruiters pursued referrals from the

VMI Admissions Office and from the ROTC officers sta-

tioned at VMI.

The VWIL program has also been promoted through

speaking engagements by President Cynthia H. Tyson,

former "satin Director of VWIL Heather A. Wilson,

Professor Carrie Douglass, VWIL Director Brenda L. Bry-

ant. staff member Crista R. Cabe, and others. Dr. Tyson

has delivered approximately 20 speeches on VWIL since

the first status report in October of 1994. The MBC Col-

lege Relations Office has placed or provided information on

VWIL for stories and reports in radio, television, news-

papers and magazines, resulting in over 300 public men-

tions of the program nationally since October, including

segments on the Fox Morning News and the Doug Wilder

Show. Sampies of clippings from the print media are

attached as Exhibit 4.

Continued promotion of VWIL through speaking engage-

ments and publications is one of the responsibilities of the

Director of VWIL (see below).

MBC has established a budget of $50,000 for VWIL

recruiting and promotion during the 1995-96 academic

year.

lla

VWIL_ Administration. Dr. Heather Wilson, Dean of

Students, served as acting Director of VWIL through

February 1995. On March 1, 1995, Dr. Brenda L. Bryant

assumed the position of permanent director. Dr. Bryant's

education and professional experience are described in

Exhibit 5.

Dr. Bryant was selected through a nationally advertised

search. The Search Committee, which was composed of

two administrators, four faculty and one student, received

54 applications. The Committee considered academic

credentials and/or teaching experience, community life

experience, administrative skills, potential as a role model,

communication skills and experience with single-gender

education/support roles. The Committee conducted a

further evaluation of ten candidates, including reference

checks. Four finalists were selected for a full day of

interviews at MBC where they met Dr. Tyson, the Search

Committee, the VWIL Admissions Recruiter, the Dean of

the College and various faculty and students. Dr. Bryant

was the unanimous choice of the Committee.

Dr. Bryant's compensation is at the levei of a dean of

special programs at MBC. Her compensation and benefits

are described in Exhbit [sic] 6, which is being filed under

seal at the request of MBC. Dr. Bryant's responsibilities as

VWIL director are described in Exhibit 7. Dr. Bryant, as

the VWIL director, provides direction and coordination to

the VWIL program. The director reports to the Dean of

the College and manages program implementation through

a series of advisory councils. These councils are the

Advisory Council for Research and Assessment, the Inter-

Divisional Academic Advisory Council for VWIL, the

External Advisory Council for VWIL, the Advisory Coun-

cil on Military Leadership, the VWIL Admissions

Committée, the Co-Curriculum Advisory Council, and the

Physical and Health Education Advisory Council. Mission

statements are attached as Exhibit 8.

12a

The VWIL operating budget for 1995-96 will depend

upon the number of students enrolled in the program. A

working operating budget of $182,710 was developed based

on a minimum class of 10 students. Since it appears that

the number of entering students will be at least twice the

minimum class size, the budget for 1995-96 will be

increased. The operating budget does not include faculty

salaries, admissions, financial aid and other expense cate-

gories which are not administered by the VWIL Director.

The budget for these other expense categories, based on 10

students, would be $375,522 in 1995-96.

VWIL Funding. The Virginia General Assembly has pro-

vided funding for Virginia women in the VWIL program in

the same per capita amount as appropriated for Virginia

men at VMI. For the 1995-96 academic year, this will

amount to $7,308 per student. In addition, VWIL will

receive an amount estimated to be $1900 per student

pursuant to the per capita distribution of the Unique Mili-

tary Appropriation among the Virginia Corps of Cadets,

which includes the corps at VMI, VPI, and VWIL. The

appropriation legislation is attached as Exhibit 9.

The VMI Foundation has also provided the funding set

forth in the Agreement of September 25, 1993 and the First

Amendment of September 29, 1994, previously filed with

the Court as an exhibit to the Plan and Exhibit 7 to the First

Status Report, respectively. The VMI Foundation has

made all payments in compliance with the agreements.

In the opinion of MBC, the VWIL program is adequately

funded in the Virginia biennial budget through June 30,

1996.

ROTC. Cross-enroliment agreements among MBC, VMI

and the Cadets command of the United States Army and

United States Navy have been executed and are attached as

Exhibits 10 and 11. A cross-enrollment agreement with the

United States Air Force is pending approval. In 1995-96,

ROTC classes and laboratory will be conducted on the VMI

13a

post. It is anticipated that ROTC officers will provide

counseling to VWIL students at MBC. Drill and ceremony

instruction will be conducted at MBC. Colonel Bissell,

VMI liaison to VWIL, and the officers in charge of each of

the ROTC units at VMI have been collaborating with Dr.

Wilson and Dr. Bryant to schedule and arrange the ROTC

courses, field exercises and other requirements for VWIL

Dr. Bryant i is évedagion the residential saguiations and co-

curricular requirements described generally in the Task

Force Report which will be integral to the program goals of

taught discipline and leadership training.

VWIL Uniforms. VWIL students will be issued dress

and ROTC classroom uniforms and fatigues for training

exercises. Uniform regulations, in addition to ROTC

requirements, are being developed by Dr. Bryant. Under

consideration also is an arrangement for VWIL to use the

services of the quartermaster store and tailor shop at VMI.

Physical Education Program. MBC advertised nationally

for a new position in its Physical Education Department

which will concentrate on the physical fitness program for

VWIL. Two candidates from 56 applicants have been

interviewed.

A mew course developed specifically for VWIL,

Advanced Fitness, has been approved by the faculty. A

copy of the syllabus is attached as Exhibit 12. A fitness

test is being designed in accordance with national ROTC

standards for women, and will measure strength as well as

endurance, flexibility and body composition.

Assessment Program. The VWIL research and

assessment program is designed to test cognitive

development, affective learning and performance. In

addition, it will determine long-term outcomes for the

program, ascertain the effectiveness of the instructional

program, allow for comparisons with VMI student

l4a

development and performance, provide feedback to students

and contribute to an expanded understanding of the teaching

of leadership to women. The research and assessment

program will be monitored by the VWIL Advisory Council

for Research and Assessment. In addition, the External

Advisory Council for VWIL, which will be composed of

experts in leadership education from outside Mary Baldwin

College, will provide advice and expertise on assessment

and evaluation approaches and tools. The Joint Advisory

Board on Leadership Education has also reviewed the

assessment plan and assessment instruments.

Joint Advisory Board on Leadership Education. The

Board held its second meeting on April 7, 1995 at VMI.

The agenda, minutes and attachments to the minutes, are

attached as Exhibit 13.

Virginia Corps of Cadets. Dr. Tyson, President of MBC;

General Knapp, Superintendent of VMI; and General

Musser, VPi Commandant, have formed a committee to

develop a program for the Virginia Corps of Cadets.

Cooperation with VMI. Colonel Bissell continues to

serve as VMI liaison with VWIL. Consultations continue

between VMI and MBC counterparts on ROTC and other

military training, physical education and institutional

assessment. The VMI Admissions Office makes VWIL

recruiting material available at college fairs and other

recruiting functions and provides referrals of young women

to VWIL. In addition, ROTC officers stationed at VMI

assisted in recruiting women to the VWIL.

‘

}

15a

Pursuant to the Court's order, the third status report will

be filed within six months.

COMMONWEALTH OF

VIRGINIA, GOVERNOR

GEORGE F. ALLEN and

THE STATE COUNCIL OF

HIGHER EDUCATION

By: /s/

VIRGINIA MILITARY

INSTITUTE, ITS BOARD

OF VISITORS, SUPERIN-

TENDENT, THE VMI

FOUNDATION, INC. AND

THE VMI ALUMNI

ASSOCIATION

l6a

APPENDIX C

IN THE

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

UNITED STATES OF

AMERICA

Plaintiff,

CIVIL ACTION

NO. 90-0126-R

Vv.

COMMONWEALTH

OF VIRGINIA, et al.,

i i i i a ee

Defendants.

DEFENDANTS’ SUPPLEMENT TO

SECOND STATUS REPORT

Defendants, the Commonwealth of Virginia, et al.

("Defendants") supplement the Second Status Report, filed

April 28, 1995, as follows:

Defendants are proceeding with the implementation of the

Plan and the commencement of the Virginia Women's

Institute for Leadership ("VWIL") at Mary Baldwin Col-

lege ("MBC") in the fall semester of 1995.

Entering Class. As of June 21, 1995, 42 young women

(of whom 38 are Virginia residents) have accepted

admission to the entering class and paid nonrefundable

deposits.

17a

ROTC. A cross-enrollment agreement among MBC,

VMI and the United States Air Force has been finalized and

is attached as Exhibit 1. 24 entering students have elected

Air Force ROTC; 12 have elected Navy ROTC; and 6 have

elected Army ROTC.

Virginia. VWIL students may participate in a dual-degree

program leading to a bachelor's degree in science or mathe

matics from MBC and a master's degree from the Univer-

sity of Virginia in the fields of biomedical, civil, environ-

mental, transportation, nuclear or systems engineering,

materials science or engineering physics. The agreement

between MBC and the University of Virginia is attached as

Exhibit 2.

Extemal Advisory Council. Dr. Tyson has appointed the

External Advisory Council to VWIL which will be a

mechanism for continuing review of VWIL by qualified

educators, in accordance with the mandate of the United

States Court of Appeals for the Fourth Circuit in YWII_-II.

The agenda of the meeting and the composition of the

Council are described in Exhibits 3 and 4. The External

Advisory Council will next convene in March, 1996.

> 7 -_

Pursuant to the Court's order, the third status report will

be filed within six months of the filing of the Second Status

Report.

18a

VIRGINIA MILITARY

INSTITUTE, ITS BOARD

OF VISITORS,

SUPERINTENDENT, THE

VMI FOUNDATION, INC.

AND THE VMI ALUMNI

ASSOCIATION

By: Ls/

19a

EXHIBIT 2

Memorandum of Understanding for a Dual Degree

Program

Leading to a Bachelor's Degree in Science or

Mathematics

from Mary Baldwin College

and a Master's Degree in Engineering in Biomedical,

Civil (Environmental or Transportation), Material

Science,

Nuclear, Systems Engineering or Engineering Physics

from the University of Virginia

Introduction

This dual degree agreement makes it possible for the stu-

dent to earn a Bachelor's Degree in Science or Mathematics

from Mary Baldwin College and a Master's Degree in

Besicenten i Bi tical, Civil (Envi S -

20a

Upon condition that the Mary Baldwin College academic

record is strong (i.e. a "B" average or higher, both in

mathematics and science courses and overall), the student

applies for admission to the University of Virginia School

of Engineering and Applied Science as a conditional

graduate student. The student will be expected to complete

at least 30 undergraduate semester hours at the University

of Virginia with a "B" average or higher and have a

minimum score on the Graduate Record Examination as

designated by the specific engineering program to which

she is applying in order to be admitted unconditionally into

the appropriate graduate program in engineering. Provided

the student earns a “C" or better in each course at the

University of Virginia, 30 semester hours of transfer credit

will be awarded by Mary Baldwin College which, along

with the previous 102 hours, complete the semester hour

requirement for the Bachelor's Degree at Mary Baldwin

College, as well as the requirements for a major in science

or mathematics. The graduate portion of this dual degree

program is intended to require approximately 12 months to

obtain the degree of Master of Engineering at the Univer-

sity of Virginia. In some cases, the student may choose to

undertake a program leading to the degree of Master of

Science. Such a program normally requires a longer time

(typically one and one-half years) because of the research

component of the program.

It is also agreed that authorities at either school will

notify those at the other of any changes which affect these

programs, with at least one year advance warning.

This agreement has been developed in the firm belief that

it provides a valuable new educational opportunity for the

citizens of the Commonwealth of Virginia using the exist-

ing facilities of Mary Baldwin College and the University

of Virginia.

2la

Guidelines and Procedures

(1) To be qualified for the dual degree program, the

student must have completed at least 102 semester hours

including all general education requirements at Mary

Baldwin College. Moreover, the student must have com-

pleted four semesters of calculus, including ordinary

differential equations; two semesters of chemistry; two

semesters of calculus-based physics; and other courses as

required for a major in science or mathematics. The

student must have a "B” average overall and demonstrated

strength in mathematics and science.

(2) To apply for admission to the dual degree program,

the student must have the approval of the Dean of the

College at Mary Baldwin.

(3) The student then applies for admission to the School

of Engineering and Applied Science as a conditional gradu-

ate student in the appropriate area of engineering. The

Mary Baldwin Coordinator for the dual degree program

will advise and assist the student in the application process.

The application must be submitted directly to Graduate

Studies, Office of the Dean, School of Engineering and

Applied Science. Deadlines for completed applications are:

December | for January admission, May 1 for June admis-

sion, and August 1 for September admission. At the same

time, the student should also notify the administrator for

these programs at the University of Virginia.

(4) The student, once admitted to the program, spends

the fourth year at the University of Virginia, taking

appropriate basic undergraduate courses in engineering and

applied science. It is not necessary that all courses taken at

UVA be engineering courses or even technical courses.

The courses for each student will be selected to provide a

useful introduction to engineering while fulfilling the

Bachelor's Degree requirements at Mary Baldwin, i

22a

(5) Upon completion of the 30 semester hours at UVA,

with individual course grades of "C” or above, the student

is awarded the baccalaureate degree from Mary Baldwin

College.

(6) After completion of the 30 semester hours at UVA

with a "B" average or higher, the student will be eligible

for admission into the graduate program in the appropriate

area of engineering, provided a satisfactory GRE score has

been attained. Typically, this score should be at least 1250,

but the various departments commonly grant exceptions

provided a basis for doing so exists in the form of a parti-

cularly strong course-work record.

Students may also apply to the other engineering pro-

grams (Electrical, Mechanical, Chemical, and Aerospace)

though these programs are not part of this formal

agreement.

(7) A student who elects to pursue a course of studies

leading to the degree Master of Engineering may complete

that program in approximately one full calendar year (that

is, two semesters and one summer). A student in a

program leading to the degree Master of Engineering is not

eligible for a graduate research assistantship (GRA) or

graduate teaching assistantship (GTA).

(8) A student who elects to pursue a course of studies

leading to the degree Master of Science may expect to

complete that program in about one and one-half years.

Financial aid may be available in the form of a graduate

research assistaniship for such a student. The graduate

research assistant is expected to spend a significant amount

of time on research directed by a faculty advisor and to

present the result of his/her research in an M. S. thesis.

(9) Mary Baldwin College will designate a faculty

member the On-Campus Coordinator of the program and

will make the dual degree program known to current and

prospective students. The University of Virginia School of

23a

Baldwin Coordinator with current catalogues, application

forms, and other materials necessary for students interested

in the program. Also, the School of Engineering and

Applied Science reserves the right to limit the number of

dual degree candidates admitted to the program.

(10) The agreement will be evaluated every five years by

designated representatives from both institutions.

Mary Baldwin College University of Virginia

/s/ Ls/

James Lott Richard W. Miksad

Dean of the College Dean of the School of

Engineering and Applied

Science

Date: _ 6/1/31 [sic]

24a

EXHIBIT 3

[SEAL]

Mary Baldwin College

From the Office of College Relations

For More Information: 703/887-7009

For Immediate Release: For More Information:

June 20, 1995 Crista Cabe or Sara

O'Connor

703-887-7011

External Advisory Council for the Virginia Women's

Institute for Leadership

Holds Inaugural Meeting on the Mary Baldwin College

Campus

On June 16, 1995, the External Advisory Council for the

Virginia Women's Institute for Leadership held its inaugu-

ral meeting at Mary Baldwin College in Staunton, Virginia.

The purpose of the External Advisory Council is to recom-

mend instructional content and methods, to recommend

methods and tools for assessing the performance of the

Institute, and to provide an external perspective on the

teaching of leadership. The members of the council are

experts in leadership and leadership education, including

military education. A VWIL student will be appointed to

the council in the fall.

Dr. Brenda Bryant, director of VWIL, said, "VWIL will

be a flagship program unique in undergraduate education.

We are looking for the best advice from outstanding experts

on leadership.”

25a

The agenda of the meeting included an overview of the

goals and objectives of VWIL, a review of the program's

academic and physical education requirements, and a

discussion of research and evaluation opportunities.

The advisory council is composed of 11 distinguished

members. Six attended the June 16 meeting, including Dr.

Linda K. Bunker, Dr. Kenneth E. Clark, Miriam B. Clark,

Dr. James E. Colvard, Sally Helgesen and Dr. Curtis J.

Smith. Dr. Gloria Randle Scott, Dr. Howard T. Prince,

Dr. Josiah Bunting, Sara King and Susan Estrich were

unable to attend.

Dr. Linda K. Bunker is an internationally renowned sport

psychologist and the associate dean for academic and

student affairs in the Curry School of Education at the

University of Virginia. Dr. Bunker has authored or co-

authored 10 books and has been extensively involved in

leadership programs for women.

Dr. Kenneth E. Clark is the Smith Richardson Senior Sci-

nist at the Center for Creative Leadership in Greensboro,

North Carolina. He has consulted widely on leadership and

is the past president of the American Board in Professional

Psychology. He is the co-author of Impact of Leadership

and Choosing to Lead, and he edited for 10 years the

Journal of Applied Psychology.

Miriam B. Clark is the former associate dean in the

College of Arts and Science at the University of Rochester

and an educational consultant. With Kenneth Clark, she

was co-editor of Leadership Education: A Source Book and

of Measures of Leadership, and the co-author of Impact of

Leadership and Choosing to Lead.

Dr. James E. Colvard of King George, Virginia, serves

as a senior fellow in the Office of the President at the

Center for Naval Analysis. He is an expert in manage-

ment, leadership and the civilian-military interface.

Writer Sally Helgesen of New York City is the author of

The Female Advantage: Women's Ways of Leadership, a

26a

book which has been hailed as “the classic book" on

women leaders.

Dr. Howard T. Prince, Il was appointed to be the

founding dean of The Jepson School of Leadership Studies

at the University of Richmond in 1990. Dr. Prince is a

clinical psychologist and has published widely on contem-

porary leadership topics.

Dr. Curtis J. Smith brings to the panel extensive experi-

ence in personnel management and development. He is .1¢€

director of the Federal Executive Institute, the govern-

ment's residential facility for executive development in

Charlottesville, Virginia

Dr. Gloria Randle Scott is the 11th president of Bennett

College, a historically biack college for women in Greens-

boro, North Carolina. She has distinguished herself as a

leader in higher education and an advocate of women's

issues. >

Dr. Josiah Bunting is the headmaster of The Lawrence-

ville School in Lawrenceville, New Jersey, and the former

president of Hampden-Sydney College. He also served as a

major in the U.S. Army.

Sara King is a program director at the Center for Creative

Leadership. Along with this, she is coeditor of two Center

publications which highlight leadership education programs

and courses in higher education settings.

Susan Estrich is a professor of law and political science at

the University of Southern California. She writes frequent-

ly about issues involving law and gender.

Mary Baldwin College faculty and staff members partici-

pated in the External Advisory Council meeting as well.

The council plans to meet twice a year to provide ongoing

advice and review of the VWIL program.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.