Amicus Curiae Brief — United States v. Virginia

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@) | NOV 16 1995

Nos. 94- i

In THE

Supreme Court of the United States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA,

. Petitioner,

COMMONWEALTH OF VIRGINIA, ef all,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICI CURIAE OF WELLS COLLEGE,

SOUTHERN VIRGINIA COLLEGE

AND SAINT MARY’S COLLEGE

SUPPORTING AFFIRMANCE

DAVID M. LASCELL

Counsel of Record

REBECCA A. KIRCH

HALLENBECK, LASCELL, NORRIS

& Zorn, LLP

One Exchange Street

Rochester, New York 14614

(716) 423-5900

Counsel for Amici Curiae

Wells College,

Saint Mary’s College and

Southern Virginia College

Witson - Eras Painrine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS |

TABLE OF AUTHORITIES .... Se

INTEREST OF AMICI CURIAB o.2.0.0..0-.0.0-:c0cc--cocceeesionoe-

SUMMARY OF ARGUMENT his

ARGUMENT

SINGLE-GENDER EDUCATION PROVIDES

SUBSTANTIAL EDUCATIONAL BENEFIT TO

TABLE OF AUTHORITIES

Cases

Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988)...

Mississippi University for Women v. Hogan, 458

U.S. 718 (1982)

Powe v. Miles, 407 F.2d 78 (2d Cir. 1968) ..............

Rice v. President and Fellows of Harvard College,

668 F.2d 886 (ist Cir. 1981)

United States v. Commonwealth of Virginia, 44

F.3d 1229 (4th Cir. 1995) (VMI 11)

United States v. Commonwealth of Virginia, 976

F.2d 890 (4th Cir. 1992) (VMI 1)

United States v. Commonwealth of Virginia, 852

F.Supp. 471 (W.D. Va. 1994)

United States v. Commonwealth of Virginia, 766

F.Supp. 1407 (W.D. Va. 1991)

Articles

Marvin Bressler & Peter Wendell, The Sex Com-

position of Selective Colleges and Gender Dif-

ferences in Career Aspirations, 51 J. Higher

BR, GED COD cccvcsccnsccctiiicntseceensinteamaiasiiieaidaics

Mikyong Kim & Rodolfo Alvare:, Women-Only Col-

leges: Some Unanticipated Conseqences, 66 J.

Higher Educ. 641 (Nov./Dec. 1995) —..................

Daryl G. Smith, Lisa W. Wolf, and Diane E. Mor-

rison, Paths to Success: Factors Related to the

Impact of Women’s Colleges, 66 J. Higher Educ.

245 (May/June 1995) ....

Growing Smart: What’s Working for Girls in

School, Report Commissioned by the American

Association of University Women Educational

Foundation, Executive Summary and Action

Guide, Oct. 1995 ........................ OE EES

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

OTR, HOR, GE, TRS cccectetensscatssunnenensiindaiiitdaeasai

In THE

Supreme Court of the United States

OcTOBER TERM, 1995

Nos. 94-1941 and 94-2107

UNITED STATES OF AMERICA,

7 Petitioner,

COMMONWEALTH OF VIRGINIA, ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICI CURIAE OF WELLS COLLEGE,

SOUTHERN VIRGINIA COLLEGE

AND SAINT MARY’S COLLEGE

SUPPORTING AFFIRMANCE

INTEREST OF AMIC/ CURIAE

Wells College, founded in 1868, is a private women's

college located in Aurora, New York. Saint Mary's Col-

lege, founded in 1842, is a private women’s college lo-

cated in Raleigh, North Carolina. Southern Virginia

College, a private college located in Buena Vista, Vir-

ginia, has been dedicated to educating women since its

founding in 1867. For more than a century, these schools

have provided high quality education for women. Through-

out their history, they have become enthusiastic supporters

of the pedagogical value of single-gender education. In-

deed, Wells, Saint Mary’s and Southern Virginia College

believe that they and other single-gender educational in-

stitutions provide needed diversity in American post-

secondary education.

Because amici are committed to the education of women

in a single-gender environment, amici urge this Court to

protect the ability of these institutions to continue to offer

single-gender education.*

SUMMARY OF ARGUMENT

Amici Wells, Saint Mary’s and Southern Virginia Col-

lege are all private liberal arts colleges for women. These

singie-gender institutions provide excellent education in

the liberal arts and offer an environment conducive to

producing female leaders. Indeed, the Fourth Circuit

Court of Appeals in this case twice affirmed the District

Court’s findings that single-gender educational opportuni-

ties are valuable for both males and females. Said the

Court in this case:

Thus, while the data support a pedagogical justifica-

tion for a single-sex education, they do not materially

favor either sex. Both men and women appear to

have benefited from single-sex education in a mate-

rially similar manner.

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

890, 897-98 (4th Cir. 1992) (VM. I); see also United

States v. Commonwealth of Virginia, 44 F.3d 1229, 1239

(4th Cir. 1995) (VMI II) (reaffirming that single-gender

education benefits both sexes). Similarly, in Mississippi

University for Women v. Hogan, 458 U.S. 718 (1982),

this Court also recognized the viability of single-gender

education. /d. at 728, 732, n.17. This Court's decision

in Mississippi University for Women v. Hogan and the

* Petitioner /Cross-Respondent and Respondents /Cross-Petitioners

consented to the filing of this brief. Copies of the consent letters

have been filed with the Clerk.

District Court’s findings in this case support the conclu-

inn Cees ees pape

justification for single-gender education.

Amici urge this Court to affirm that finding with re-

spect to single-gender education and to construct a deci-

sion that will allow the continuation of single-gender

education in the United States.

ARGUMENT

SINGLE-GENDER EDUCATION PROVIDES SUBSTAN-

TIAL EDUCATIONAL BENEFIT TO WOMEN

As is amply demonstrated by the evidence considered

by the District Court in this case, a large number of

studies have confirmed the value and importance of single-

gender education. See, e.g., Marvin Bressler & Peter

Wendell, The Sex Composition of Selective Colleges and

Gender Differences in Career Aspirations, 51 J. Higher

Educ. 650, 662 (1980), cited in the Circuit Court’s opin-

ion, VMI I, 976 F.2d at 897. Acknowledging the merit

of these studies and the testimony supporting them, the

District Court in this case found that men and women

are treated differently in the classroom and women have

more chances for leadership at single-sex institutions.

United States v. Commonwealth of Virginia, 852 F.Supp.

471, 480 (W.D. Va. 1994). The District Court also

found that the educational benefits flowing from a single-

gender environment cannot be replicated in a coeduca-

tional setting. Thus, concluded the District Court, single-

gender education adds an important measure of diversity

in an overall educational system. United States v. Com-

monwealth of Virginia, 766 F. Supp. 1407, 1415 (W.D.

Va. 1991).

The Circuit Court in this case expressly adopted the

District Court’s factual findings, concluding that single-

gender education “yields concrete educational benefits.”

VMI Il, 44 F.3d at 123%. In reaching its conclusion, the

Circuit Court stated:

VMI Il, 44 F.3d at 1238.

Based on the factual record before it, the Fourth Circuit

Court held:

Just as a state’s provision of publicly financed educa-

tion to its citizens is a legitimate and important gov-

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

single-gender education as one particular pedagog-

ical technique among many.

VMI II, 44 F.3d at 1239.

In fact, several studies published since the Fourth Cir-

cuit Court’s ruling confirm its conclusion that single-

gender education offers significant advantages when com-

pared to coeducation. See, e.g., Mikyong Kim & Rodolfo

Alvarez, Women-Only Colleges: Some Unanticipated

Consequences, 66 J. Higher Educ. 641 (Nov./Dec. 1995);

Daryl G. Smith, Lisa W. Wolf, and Diane E. Morrison,

Paths to Success: Factors Related to the Impact of

Women's Colleges, 66 3. Higher Educ. 245 (May/June

1995); see also Growine Smart: What's Working for

Girls in School, Report Commissioned by the American

Association of University Women Educational Foundation,

Executive Summary and Action Guide, Oct. 1995. The

popular press has echoed these conclusions, reporting

that women’s colleges produce successful leaders in the

workplace. See, e.g., “A Burst of Popularity,” U.S. News

& World Report, Sept. 26. 1994, at 105, cited in the Cir-

cuit Court’s opinion, VMI II, 44 F.3d at 1238-39.

Despite the Circuit Court's conclusions in this case and

this Court’s holding in Mississippi University for Women,

several commentators and amici supporting the govern-

ment assert that public support of any kind of single-

gender education is unconstitutional. They urge this

Court to adopt a strict scrutiny standard and measure

every institution according to that standard. See Brief of

Amici Curiae National Women’s Law Center, et al., On

Petition for Writ of Certiorari, U.S. v. Virginia, cert.

granted, ——- US. ——, 116 S.Ct. 281 (1995), p. 9.

Single-gender education, they claim, can be supported

only as remedial action on behalf of women, not because

single-gender education is valuable standing by itself.

The implication is that even a private institution will be

unable to offer single-gender education if it receives fed-

eral financial assistance, state aid, or merely a state or

federal tax exemption. Indeed, since Grove City College

v. Bell, 465 U.S. 555 (1984), and the resulting amend-

ments to Title IX, the government has maintained con-

sistently that federal jurisdiction over the entire institu-

tion is triggered if a private institution receives any pub-

lic financial assistance, direct or indirect. Although the

Second Circuit Court of Appeals (the Circuit in which

Wells is located) twice reaffirmed that such government

funding does not transform a private institution into a

public one, Albert v. Carovano, 851 F.2d 561 (2d Cir.

1988): Powe v. Miles, 407 F.2d 73 (2d Cir. 1968); ac-

cord Rice v. President and Fellows of Harvard College,

663 F.2d 336 (ist Cir. 1981), the government and its

supporting amici seem to suggest that a private institution,

by accepting public benefits or taxpayer largess, be-

comes subject to the same constitutional scrutiny as pub-

lic institutions. Thus, they argue, traditionally private in-

stitutions will be unable to offer single-gender education.

Amici do not believe that this Court has made any such

ruling. Already, however, lawsuits are emerging to test

this argument and the viability of single-gender admissions

policies at private institutions. A District Court in Geor-

gia may soon be adjudicating the rights of a male appli-

cant seeking admission to Spelman College, a private

women’s college in Atlanta, Georgia. The Chronicle of

Higher Education (Oct. 27, 1995, at A29) reports the

male applicant asserts that because Spelman receives fed-

eral financial assistance, it cannot discriminate against

men in its admissions policy without violating Title IX.

Thus, the issue of how far this Court’s ruling in this case

will extend is already being raised. Similarly, the U.S.

lege in South Carolina. Converse is the college where a

program similar to the one at Mary Baldwin College (dis-

cussed in the record in this case) has been established.

The complaint chailenges the College’s receipt and use of

state funds to create a new, single-gender leadership pro-

gram for women, urging that this aid makes the institu-

tion a public one that is subject to Title IX’s prohibition

on discrimination in admissions.

Contrary to the arguments urged by the government

and its supporters in this case, amici believe strongly that

private women’s colleges are protected by Title [IX and

the U.S. Constitution. Recognizing, however, that almost

every private, single-gender institution could not survive

without public funds, amici urge that this Court clear any

remaining doubt. This Court’s decision in Mississippi

University for Women and the District Court's findings

in this case support the holding that providing the option

of a single-gender college education is a legitimate and

important aspect of both a public and private system of

higher education.

Against such a background, this Court cannot allow a

misinterpretation of its holding in Mississippi University

for Women, supra. Instead, it should reaffirm the value

of single-gender education, hold firmly and clearly that it

has its place in the American higher: education system,

and rule that educationally successful institutions like

amici may constitutionally offer single-gender education.

CONCLUSION

For the foregoing reasons, the Court should affirm the

Fourth Circuit Court’s decision upholding the constitu-

tionality of the proposed single-gender remedial plan.

Respectfully submitted,