Amicus Curiae Brief — United States v. Virginia

SS COMMONWEALTH OF Winona, eta Cross-Petitioners,

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ie "AMICI CURIAE BRIEF OF WOMEN’S SCHOOLS

8, “TOGETHER, INC.; BOYS’ SCHOOLS: AN

INTERNATIONAL COALITION; ROBERT BOBB;

ee : we - (Additional Amici Listed on Inside Front Cover)

os St. Louis, Missouri 63102-2750

an. (314) 259-2000

Wes . Attorneys for Amici Curiae

314-231-4477

Questions Presented

|. Whether a state or political subdivision is ever permitted

to offer the benefits of same-gender education to one sex without

offering them to the other.

2. Whether a state or political subdivision is permitted to

offer different educational methodologies to each sex when

providing same-gender education to both sexes.

Publicly-Sponsored Single-Sex Educational

Programs Are Constitutionally Permissible If

They Are Substantially Related to the Achieve-

ment of an Important Governmental Objec-

OOD .. cqusreereresestoreenpeicereestmnnens

A. The Promotion of Academic Achieve-

ment Constitutes an Important Govern-

I SOD ccenenescccnsnssnsnsesssemnesescens

B. The Use of Same-Gender Education is

Substantially Related to Achieving the

A State is Constitutionally Permitted to Pro-

vide Same-Gender Education for One Sex

Without Providing it for the Other ................

A. Local Communities and Educators Must

Be Permitted to Prioritize the Use of

ment of Needs Rather than to Engage in

Gestures of Superficial Equality ...........

10

10

10

16

17

21

aw iy —

III. When Offering Single-Sex Education to Both

Sexes, Educators Are Constitutionally Per-

mitted to Use Different Educational Method-

Table of Authorities

Page(s)

Cases:

Adarand Constructors, Inc v. Pefia, 115 S.Ct. 2097

SERED tinnsthdaniinenesneiatiitemntinineentehatennanidiperiaimigpiateunens 23

Brown v. Board of Education, 347 U.S. 483, 493

SE Wilthcicnntniicadibalchtiniinsinednishhitinnsimdnandineteeniaiinies 1]

City of Richmond vy. J.A. Croson, 488 U.S. 469

IE vicdmecictenipentensitninctabitninichaepneemmmmsinntetanees 23

Craig v. Boren, 429 U.S. 190 (1976) ........ccccccceceeeeeeees 10,11,12

Frontiero v. Richardson, 411 U.S. 677 (1973) .........0. 10

Garrett v. Board of Educ.,775 F. Supp. 1004 (E.D. Mich.

ere nctesanitninmasiinntceastedenisnaiesingepiviiimbemnenbneuaenees 19

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)..... 16

J.E.B. v. Alabama, 14 S.Ct. 1419 (1994) occ 10

Michael M. v. Superior Court of Sonoma County, 450

ee ee ED entererctptetntnctiapilinintnicntimnens 11,19,20,26

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

UTE. ceceesininnepermacinittisbanmensesintinmeesneccmmnents 10,12,16,19,

20,23,24,25,27

Newburg v. Board of Public Education, 9 Phila. 556

(C.P. Phila. County 1983), aff'd, 478 A.2d 1352

GO, BRED: Ga, TOD ccctccssccnesenszmnszsttesnerescccensscsece 11

Norwood v. Harrison, 413 U.S. 455 (1973) ..............0+. 27

Parham v. Hughes, 441 U.S. 347 (1979) ......cccccccceeseeees 20

Plyler v. Doe, 457 U.S. 202 (1982) ....ccccccsssssssssesseeeeeeee i

on Yon

Rogers v. Lodge, 458 U.S. 613 (1982) .........cccccccccceseees 16

Rostker v. Goldberg, 453 U.S. 57 (1981) .............. 10,20,22,23

Stanley v. Illinois, 405 U.S. 645 (1972) ......cccccccccceeeeeees 10

Stanton v. Stanton, 421 U.S. 7 (1975) ......ccccccccseceeeseeeees 12

United States v. Doe, 465 U.S. 605 (1984) oo... 16

Vorcheimer v. School Dist. of Philadelphia, 532 F.2d

880 (3d Cir. 1976), aff'd by slates divided Court,

SP es CP CITED vitettticnsntetaretteniittaliitendinesin 11

Weinberger v. Weisenfeld, 420 U.S. 636 (1975)........... 12,20

Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142

CUDIED cicccsencccseschetistabibblaciumnesiisieiteanbiaadasciusessenens 10

Statutes:

The Equal Educational Opportunity Act, 20 U.S.C. §§

5 PI CUE GPU cinicdiisandedstneilicnabeadeldsuiiintistecemiane 21

Title IX of the Education Amendments of 1972, 20

Felice ©. HES GUE conntinetenttcentunniniininsesnicusstaabes 21

Other Authorities:

Am. Ass'n of Univ. Women Educ. Found., How Schools

Shortchange Girls 147 (1992) .........cccccccccceeosveeneees 15

Anita Blair, Separate and Equal, N.Y. Times, November

FET ae Le CL IN 23

Kristin Caplice, The Case for Single Sex Education,

Harv. J. L. & Pub. Pol’y 227 (1994) .0000........ 18,20,28

Detroit Public Schools, Male Academy Grades K-8: A

Demonstration Program for At-Risk Males 15 (De-

cember 7, 1990) (working draft) ..................000000. 17,18

— Vvii—

Susan Estrich, For Girls’ Schools and Women's Col-

leges; Separate is Better, N.Y. Times, May 22,

Uo MINES Seve re ee

Richard Hawley, A Case for Boys Schools, reprinted in

Office of Educ. Research & Improvement, U.S.

Dept. of Educ., Single-Sex Schooling: Proponents

ey ee Hee i ialerchtessecinsciectsticabetdinuiadeeens

Richard Hawley, A Progressive Case for an Ancient

Reform, 92 Tchrs. College Rec. 433 (1991)..........

Mikyong Kim & Rodolfo Alvarez, Women-Only

Colleges:Some Unanticipated Consequences, 66

Fuigher Bac. 640 (1995) ........-cecoccrsocoresesceceserererees

V.E. Lee and H.M. Marks, Sustained Effect of the Single-

Sex School Experience on Attitudes, Behaviors, and

Values in College, 1990 J. of Educ. Psychol. 82,

578-592, summarized in Office of Educ. Research

& Improvement, U.S. Dept. of Educ., Single-Sex

Schooling: Proponents Speak Vol 1, 13, 37-38

SS EAS TLS ae

Mary Moore et al., Single Sex Schooling and Educa-

tional Effectiveness: A Research Overview, Office

of Educ. Research & Improvement, U.S. Dept.of

Educ., Single-Sex Schooling: Proponents Speak

OU ND i

Note, Inner-City Single-Sex Schools: Educational Re-

form or Invidious Discrimination?, 105 Harv. L.

IRE ee nn ene

Office of Educ. Research & Improvement, U.S. Dept. of

Educ., Single-Sex Schooling: Proponents Speak

ERT i PSN eID FANE a

21

15

15

13

15

15

17,19

— vili —

Diane Ravitch, Things Go Better in Single-Sex Schools,

Wash. Post, August 31, 1995, at A23.............000

Laura Rehrmann, Where the Smart Girls are Away from

Boys, Western Students Excel, Balt. Sun, January

FF, CBD, 0 SD eeinttrtertsbineanseintinttacnccttninatsaniiniainnien

Letter from Cornelius Riordan to Senator John C. Danforth

(June 30, 1994), reprinted in Cong. Rec. $10,205

(daily ed. August 1, 1994) ..........cccccccserseeseeeneneneees

Cornelius Riordan, Girls and Boys in School: Together

OF Separate? (1DBD) .......eccerorcerocccesecerccccscceessesoecees

Cornelius Riordan, Public and Catholic Schooling: The

Effects of Gender Policy, Am. J. of Educ., Aug.

BO, 60 BOD coeicnteictencscnsestesecinnsiantnnintinssinitamcnninetiin

Cornelius Riordan, Reconsidering Same Gender Schools:

The VMI Case and Beyond, Educ. Wk., February

BD, Fs CB cccansctecencnneecn ss tnnctncmnnrcinnintiemanonitaintin

Cornelius Riordan, The Case for Single Sex Schools,

reprinted in Office of Educ. Research & Improve-

ment, U.S. Dept. of Educ., Single-Sex Schooling:

Proponents Speak Vol II, 47 (1992) ..........cesseeeeee

Catherine Saillant, Ventura New Math Class Recruiting

Method, L.A. Times, February 4, 1995, at B2 ......

Catherine Saillant, Ventura’s All-Girl Math Classes Pass

Test on Bias, U.S. Civil Rights Authorities Suggest

Courses Be Renamed but Find They Do Not Dis-

criminate Against Boys, L.A. Times, March 8,

7) a

Ventura Unified School District, Educational Diversity

for Gender Equity Proposal, (undated manuscript)

OD ceciesestindinivineenaitnermenremntingbieniantminciaptchaainnemmetien

15

21

28

14

14

14

14

22

21

22

== iX——

Eric Wee, A Lesson in Confidence: Va. Middle School

Tries All-Girl Classes, Wash. Post, May 1, 1995, at

Al

SPEER EEE EEE EE EEE EEE EEE HEHE EEE ERE OEE ES

Ann Zanders, A Presentation of the Arguments For and

Against Single-Sex Schooling, reprinted in Oftice

of Educ. Research & Improvement, U.S. Dept. of

Educ., Single-Sex Schooling: Proponents Speak

Vol. II, 15 (1992)

SRE EEE E Ee

21

Nos. 94-1941 and 94-2107

In THE

Supreme Court of the United States

Octoser Term, 1995

Unrrep States or AMERICA, Petitioner

Vv.

COMMONWEALTH OF VIRGINIA, ef al., Respondents.

COMMONWEALTH OF ViraINniA, ef al., Cross-Petitioners,

Vv.

Unrrep States or America, Cross-Respondent.

On Writs of Certiorari to the

United States Court of Appeals for the Fourth Circuit

AMICI CURIAE BRIEF OF WOMEN’S SCHOOLS

TOGETHER, INC.; BOYS’ SCHOOLS: AN

INTERNATIONAL COALITION; ROBERT BOBB;

THOMAS H. BUTLER, Ed.D; DR. ROY J. DAWSON;

PETER M. FLANIGAN; DR. RICHARD HAWLEY;

FRANK HAYDEN; DR. SPENCER HOLLAND;

NANCY E. KUSSROW; PROFESSOR MARY R.

LEFKOWITZ; KATHLEEN S. McCREARY; JOAN S.

McMENAMIN; JOSEPH W. McPHERSON; DR.

ANGELA PIENKOS; DR. DIANE RAVITCH; DR.

CORNELIUS RIORDAN; DR. JOSEPH SPIRITO;

MICHAEL M. UHLMANN; AND THE HONORABLE

ARNOLD W. WEBSTER, Ph.D.

IN SUPPORT OF

RESPONDENTS, CROSS-PETITIONERS

ws

INTEREST OF AMICI CURIAE

This brief amici curiae is submitted by a diverse array of

individuals concerned about the potential implications of the

Court’s resolution of this case. While all of the amici do not

necessarily endorse the overall educational philosophy at VMI,

they share a concern that this Court’s decision will have conse-

quences for what they believe is an important pedagogical

alternative: single-sex education.

Some of the amici on this brief represent urban school districts

which have developed or are considering the development of

elementary or secondary same-gender programs. In the exercise

of their professional judgment, these educators maintain that

same-gender public schools or classes benefit young people, and

they are concerned that a decision against VMI in this case will

not only set back VMI but will also crush their fledgling

programs. In addition, most of these educators teach at-risk,

disadvantaged children. They do not want the Constitution

interpreted in a way that permits only those who can afford

private education to have access to the proven benefits of same-

gender education.

Other amici are scholars, both women and men, who have

spent years studying the educational system. These experts

believe firmly, and with good cause, that single-sex education

can help both boys and girls. They are concerned that a decision

against VMI in this case could deny the benefits of same-gender

education to future generations of young women and young men.

Other amici represent or teach at single-sex private schools.

They are apprehensive about the implications of this decision for

their schools. Some students at their institutions receive federal

funds. Many of the institutions themselves are exempt from

federal taxation as nonprofit organizations. Others receive

substantial forms of federal or state aid. As the district court

stated, “the public-private shibboleth is more apparent than real.

It cannot be gainsaid that private colleges receive substantial

ee ieee

infusions of both federal and state money. Thus, the distinction

{ ] draw([n] is illusory.” Pet’r App. at 71a. These amici worry

about the implications of this decision for same-gender private

schools.

Descriptions of the amici are set forth in the attached appen-

dix.'

STATEMENT OF THE CASE

Virginia offers a wide selection of publicly supported and

privately funded colleges and universities. Pet’r App. at 187a.

Fourteen of fifteen state-supported, four-year colleges in Vir-

ginia are now coeducational, the Virginia Military Institute

(VMI) being the only exception. /d. at 185a, 187a. The

Commonwealth currently has five private all-women’s colleges

and one private all-men’s college. /d. at 189a. The hallmarks of

Virginia’s educational policy are “diversity and autonomy,”

with the Boards of Visitors of each institution having broad

autonomy in the determination of its mission. /d. at 187a. The

Commonwealth now offers three public programs of higher

education targeted specifically at promoting leadership in mili-

tary and civilian life. Jd. at 107a, 202a-203a, 214a.

The Virginia Polytechnic Institute (VPI) offers both men and

women the opportunity to pursue together this education in the

VPI Corp of Cadets. /d. at 214a. The VPI method differs

significantly from the system used at VMI, using “positive

motivation” and recognizing individual differences in a more

informal environment. /d. at 218a.

VMI offers men the opportunity to pursue together this

leadership education through a unique, adversative method

found by experts, the district court, and the court of appeals to be

suited specifically for a sexually homogeneous environment. /d.

at 148a, 171a, 173a. The adversative system includes physical

' The parties’ written consents to the filing of this brief have been filed with

the Court.

rigor, mental stress, absolute equality of treatment, absence of

privacy, minute regulation of behavior, and indoctrination in

desirable values for VMI cadets. Jd. at 191a-192a.

The Virginia Women’s Institute for Leadership (VWIL), in its

first year, offers women the opportunity to pursue together a

leadership education through an analogy to the holistic VMI

program, using a “cooperative method which reinforces self-

esteem rather than the leveling process used by VMI.” /d. at 63a-

64a.

This case originated from a complaint filed in 1990 by the

United States Department of Justice on behalf of a female high

school student seeking admission to VMI. /d. at 160a. After a

six-day trial, id. , the district court found three important govern-

mental interests: (1) the diversity added by a same-gender VMI;

(2) the substantial educational benefits flowing to each sex from

same-gender education; and (3) the benefits flowing specifically

to men from the adversative method:

“(t]he evidence in the case, which is virtually uncontradicted,

supports Virginia’s view that substantial educational ben-

efits flow from a single gender environment, be it male or

female, that cannot be replicated in a coeducational set-

ting.” Id. at 176a-177a.

The court then held that Virginia’s provision of same-gender

education at VMI survived constitutional scrutiny under this

Court’s decision in Mississippi Univ. for Women v. Hogan, 458

U.S. 718 (1982). Id. at 177a.

The Fourth Circuit agreed with the district court about the

undisputed and unique educational benefits associated with

same-gender education, see id. at 150a-15la, but disagreed

t the Commonwealth’s ability, consistent with the Four-

teenth Amendment, to provide this benefit only to men. /d. at

15la. In the process, however, the court affirmed the district

court’s factual findings that such a single-gender education is

educationally justifiable. Jd. The court also affirmed findings of

—

fact that “coeducation would destroy aspects of VMI's program

which lie near the core of its holistic system ... deny[ing] those

women the very opportunity they sought.” /d. at 6a.

In finding a violation of the Fourteenth Amendment, the

appellate court ultimately drew three significant conclusions:

“(1) single-gender education, and VMI's program in par-

ticular, is justified by a legitimate and relevant institutional

mission which favors neither sex; (2) the introduction of

women at VMI will materially alter the very program in

which women seek to partake; and (3) the Commonwealth

of Virginia, despite its announced policy of diversity, has

failed to articulate an important policy that substantially

supports offering the unique benefits of a VMI-type of

education to men and not to women.” /d. at 15Sa.

Instead of mandating that women be admitted to VMI or that

public funds be withdrawn from the institution, the Fourth

Circuit remanded the case, permitting VMI to explore alterna-

tives and specifically suggesting that VMI “might establish

parallel institutions or parallel programs.” /d. at 1 56a.

After the Fourth Circuit's decision, the Governor approved

the proposed Virginia Women’s Institute for Leadership (VWIL)

at Mary Baldwin College (MBC), a private women’ s college. Id.

at 102a, 122a. A task ferce, comprising faculty, staff and

students at MBC, with the input of external education experts,

developed an implementation proposal promoting the same

goals and values as VMI, but intentionally using a different

methodology. /d. at 102a-103a. Through a contractual arrange-

ment with the state, id. at 104a, VWIL now is a “publicly-

supported, single-sex ed» ation program with military training

for women.” /d. at 107a.

On remand, the district court was persuaded by the testimony

of three experts that VWIL is “a pedagogically sound and

justified program.” /d. at 73a. Specifically relying on this expert

testimony, the district court found that “the differences between

— oo

VWIL and VMI are justified pedagogically and are not based on

stereotyping.” Id. at 76a (emphasis added). Accordingly, the

court concluded

“(that] controlling legal principles in this case do not

require the Commonwealth to provide a mirror image VMI

for women. Rather, it is sufficient that the Commonwealth

provide an all-female program that will achieve substan-

tially similar outcomes in an all-female environment and

that there is a legitimate pedagogical basis for the different

means employed to achieve the substantially similar ends.

VWIL satisfies the Fourth Circuit's requirement that the

Commonwealth adopt a parallel program for women which

takes into account the differences and needs of each sex.”

Id.

On the second appeal, the Fourth Circuit affirmed the district

court, using a “heightened intermediate scrutiny test specially

tailored to the circumstances...” Jd. at Sa. The court observed

that “[jJust as a state’s provision of publicly financed education

to its citizens is a legitimate and important governmental objec-

tive, SO too is a state’s opting for single-gender education as one

particular pedagogical technique among many.” /d. at 21a. The

court then concluded that “the only way to realize the [educa-

ional] benefits of homogeneity of gender is to limit admission

to one gender.” Jd. at 22a.

Instead of ending the “Hogan analysis” with the two steps

articulated in Mississippi Univ. for Women v. Hogan, 458 U.S.

718 (1982), the Fourth Circuit added a third step, asking whether

excluded men and excluded women have reasonable opportuni-

ties to obtain benefits substantively comparable to those they are

denied. /d. at 24a.

After specifically rejecting the government's argument that a

comparable opportunity requires an identical program, id. at

25a, 27a, the court of appeals held that the programs are substan-

tively comparable in design and approved the remedy condi-

_

tioned on Virginia's maintaining a high level of commitment to

VWIL. /d. at 27a-28a. The court of appeals issued a judgment

accordingly, remanding the case to the district court with instruc-

tions regarding appropriate oversight of the implementation of

the VWIL program. /d. at 30a.

SUMMARY OF ARGUMENT

Under the test in Mississippi Univ. for Women v. Hogan, 458

U.S. 718, 724 (1982), a gender-based classification must serve

employed must be substantially related to the achievement of

Virginia has both a broad and a narrow important objective in

employing the means of same-gender education. The first

objective is the obvious responsibility of every state government

to provide a superior education to all of its students. The second,

narrower objective, which is related to the first, is to provide the

discrete benefits of higher academic achievement, greater self

esteem, and greater career advancement that have been proven

to result from single-sex education.

substantially related to

the achievement of those objectives. 458 U.S. at 724. Thus, a

State or a school board must not use gender reflexively as an

overbroad proxy for more relevant criteria. The creation of

same-gender schools or classes is not an overbroad proxy. In

fact, the educational benefit of same-gender education for some

young people is beyond dispute. The evidence is strong and

tional achievement of some young people and achieves the

important goals of increased self-esteem, increased academic

Unquestionably, single-sex schools and classes substantially

serve the important governmental interest of providing a supe-

rior education to some students. The issue in this case then

becomes: What constraints does the Constitution place on an

educational authority's use of this important educational tool?

Specifically, (1) is an educational authority ever permitied to

offer the benefits of same-gender education to one sex without

offering them to the other? And (2) is an educational authority

permitted to offer different educational methodologies to each

sex when providing single-sex education to both sexes?

Amici are concerned about the legal standard announced by

the Fourth Circuit in this case. In order to provide guidance to

lower courts, and more importantly to educators, this Court

should lay to rest the notion that a state or school district is always

required by the Constitution to provide parallel programs in

order to initiate same-gender educational experimentation. A

requirement of parallel programs in every instance will chill the

revived interest in this important educational method.

In the case of urban school districts, which have the legitimate

and substantial goal of providing a quality education to all their

students, single-sex education can be warranted to ensure in-

creased achievement for a subset of the overall student popula-

tion for whom the current range of classroom settings is inad-

equate. In the best judgment of educators, the particular educa-

tional needs of some boys in certain urban areas, and some girls

in others, cry out for alternative single-sex educational settings.

State governments and school districts operate under finite

budgets to provide the range of educational programs that will

best meet the educational needs of the total student population.

School districts should not always be constitutionally required to

offer parallel programs in each instance of experimentation with

single-sex education. That requirement could force school

districts to shift limited funds from other beneficial educational

programs to create what may be, in their professional judgment,

a much less needed same-sex program. The most likely outcome

of a parallelism requirement for these school districts struggling

to use their limited resources in the most effective manner

—

possible would be to abandon single-sex experimentation alto-

gether — a tragic outcome, as this method is gaining in popular-

ity and beginning to produce positive results for many children

in Our inner Cities.

Certainly, when a state or schoo! district offers the benefits of

publicly funded same-gender education to both sexes, as Vir-

ginia has done in this case, the Constitution does not serve as an

educational micromanager, second-guessing the methodologies

recommended. In the case at hand, an independent group of

experts in women’s education recommended a non-adversative

system as the most effective methodology to teach leadership

and military skills to women. Virginia has provided substantial

resources for the project. VMI has pledged both monetary and

nonmonetary aid. Thus, the Commonwealth, having studied the

issue thoroughly, has provided the resources and the support

necessary to offer the significant benefits of single-sex education

to both sexes. The Constitution requires no more, and the vast

= ity of parents and students would be disappointed with any

~~

ARGUMENT

I. Publicly-Sponsored Single-Sex Educational Programs

Are Constitutionally Permissible If They Are Substan-

tially Related to the Achievement of an Important Gov-

ernmental Objective.

In Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724

(1982), the Court articulated the standard for analyzing the

constitutionality of a public university’s policy of admitting

members of only one gender to a particular educational program.

Under this test, a gender-based classification is permissible if (1)

“the classification serves ‘important governmental objectives’”

and (2) “‘the discriminatory means employed’ are ‘substantially

related to the achievement of those objectives.”” /d. citing

Wengler v. Druggists Mutual Ins. Co.,446 U.S. 142, 150(1980).

A. The Promotion of Academic Achievement Consti-

tutes an Important Governmental Objective.

This Court’s Equal Protection jurisprudence requires that

those using an explicit gender classification must put forward an

“important governmental objective” as justification. Hogan,

458 U.S. at 724. The Court repeatedly has found objectives such

as administrative ease and convenience insufficient to justify

gender-based classifications. Craig v. Boren, 429 U.S. 190, 198

(1976), citing Stanley v. Illinois, 405 U.S. 645, 656 (1972);

Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (plurality

opinion). The Court also has scrutinized carefully the “statutory

objective itself” to insure that it does not reflect “archaic and

stereotypic notions” or is not designed to “exclude or ‘protect’

members of one gender because they are presumed to suffer from

an inherent handicap.” Hogan, 458 U.S. at 725. See also J.E.B.

v. Alabama, 114 S.Ct. 1419, 1426 (1994).

In contrast, the Court has accepted as important governmental

objectives the protection of public health and safety, Craig v.

Boren, 429 U.S. at 199-200; the raising and supporting of armies,

Rostker v. Goldberg, 453 U.S. 57, 70 (1981); and the prevention

— |

of illegitimate pregnancies. Michael M. v. Superior Court of

Sonoma County, 450 U.S. 464, 470 (1981) (plurality opinion).

Although the cases do not offer a bright line for drawing

distinctions between important and unimportant objectives, they

indicate that an objective is important if it is a responsibility

traditionally assigned to government and highly valued by

citizens. Cf. Craig v. Boren, 429 U.S. at 199-200 (public health

and safety represents “an important function of state and local

governments’’).

Certainly, increasing academic achievement is more analo-

gous to the interests found important by this Court than to those

which have been rejected. “Today, educ:tion is perhaps the most

important function of state and local governments.” Plyler v.

Doe, 457 U.S. 202, 222 (i982), citing Brown v. Board of

Education, 347 U.S. 483, 493 (1954). In addition, “education

provides the basic tools by which individuals might lead eco-

nomically productive lives to the benefit of us all.” Jd. “The

primary aim of any school system must be to furnish an educa-

tion of as high a quality as is feasible. Measures which would

allow innovation in methods and techniques to achieve that goal

have a high degree of relevance.” Vorcheimer v. School Dist. of

Philadelphia, 532 F.2d 880, 888 (3d Cir. 1976), aff'd by equally

divided Court, 430 U.S. 703 (1977).?

_ B. The Use of Same-Gender Education is Substan-

tially Related to Achieving the Important Govern-

mental Objective of Increasing Academic Achieve-

ment.

“If the State’s objective is legitimate and important, [the

Court] next determine[s] whether the requisite direct, substantial

? In Vercheimer, the Third Circuit, utilizing emerging heightened scrutiny,

permitted Philadelphia to retain an all-male high school and an all-female

high school, finding the objective of a quality education sufficiently impor-

tant. But see Newburg v. Board of Public Education, 9 Phila. 556 (C.P. Phila.

County 1983), aff'd, 478 A.2d 1352 (Pa. Super. Ct. 1984) (state court found

inequities between Central High School for boys and Girls High School for

girls in violation of federal and state constitutions).

—

relationship between objective and means is present.” Hogan,

458 U.S. at 725. “The purpose of requiring that close relation-

ship is to assure that the validity of a classification is determined

through reasoned analysis rather than through the mechanical

application of traditional, often inaccurate, assumptions about

the proper roles of men and women.” /d. at 725-726.

In explaining how to determine the existence of a sudstantial

relationship between means and ends, the Court in Hogan cited

a series of cases in which the Court struck down statutes for

unthinkingly applying traditional assumptions about the sexes.

Hogan, 458 U.S. at 726 nn.11, 12. In those cases, state legisla-

tures or the United States Congress reflexively used gender as an

overbroad proxy for more relevant criteria. See Craig v. Boren,

429 U.S. at 201-02 (gender as a proxy for “drinking and driv-

ing”); Stanton v. Stanton, 421 U.S. 7, 13 (1975) (gender as a

proxy for likelihood of attending college); Weinberger v.

Weisenfeld, 420 U.S. 636, 643 (1975) (gender as a proxy for

wage earning).

Rather than being an overbroad proxy, the gender distinction

itself in single-sex education creates the desired unique educa-

tional benefits for both sexes. As noted by both courts below, the

concrete benefits of same-gender education cannot be achieved

for one sex unless the other is not present.’ For that reason, the

district court found and the Fourth Circuit agreed that “it would

be impossible for a female to participate in the ‘VMI experience’

... her introduction into the process would change it.” See Pet’r

App. at 155a, 175a. The benefits from this experience, like all

same-gender experiences, flow from its homogeneity. Once a

member of the other sex is introduced into the educational mix,

* Of course, because co-education is the norm and same-gender education

is optional, no one is forced to receive those benefits.

a we

the class becomes coeducational and loses the distinctive ben-

efits of same-gender education for both sexes.‘

Both the district court’s findings of fact and significant inde-

pendent research demonstrate the close fit between the objective

of higher academic achievement and the means of single-sex

education.’ The district court’s findings of fact, upheld by the

court of appeals, establish that “a substantial body of ‘exceed-

ingly persuasive’ evidence supports VMI’s contention that some

students, both male and female, benefit from attending a single-

sex college.” Jd. at 168a. The benefits found by the district court

include growth in self-esteem, pursuit of non-traditional careers,

and higher starting salaries after graduation. /d. at 169a.

Research regarding the benefits of same-gender schools at

both the college and secondary school level supports the district

court’s findings of fact. In November 1995, a new study by

Mikyong Kim and Rodolfo Alvarez concluded that “attending

women-only colleges advantageously affects students’ academic

ability.” The researchers also believe that students in women-

only colleges have better opportunities to be actively involved in

‘The government argues that excluded women who meet VMI's entrance

requirements have a right to experience the “distinctive educational method”

used at VMI. Again, the district court correctly found that the remedy would

be illusory. “A coeducational VMI would offer neither males nor females the

VMI education that now exists. The changes would substantially affect the

method now used to educate citizen-soldiers.” Pet’r App. at 227a. The district

court found that it would be necessary to adapt VMI for privacy, to change

certain physical training programs, and most importantly, to create different

treatment for different classes, thus destroying the egalitarian ethic. /d. at

237a.

* The brief of amici curiae filed in support of the government by the

American Association of University Professors, et al. argues that “the lower

courts relied on palpably insufficient evidence to justify continuing sex

discrimination.” Brief for Amici Curiae, AAUP at 20 (No. 94-1941). The

challenged findings of fact not only are not clearly erroneous, they are

supported by the vast weight of the testimonial and scholarly evidence.

* Mikyong Kim & Rodolfo Alvarez, Women-Only Colleges: Some Unan-

ticipated Consequences, 66 Higher Educ. 640, 661 (1995).

—)

student organizations, to exercise leadership, and to improve

their social self-confidence.’

Cornelius Riordan, who has written a book and conducted

numerous studies on the benefits of single-sex schools,* supports

this notion emphatically:

[single gender schools generally are more effective aca-

demically than coeducational schools. This is true-at all

levels of school, from elementary to higher education.

Over the past decade, the data consistently and persistently

confirm this hard-to-accept educational fact.’”

In the same article, Riordan summarized the intense interest of

educators, parents and students in same-gender education:

“Single-gender schools work. They work for girls and

boys, women and men, whites and nonwhites. Research

has demonstrated that the effects of single gender schools

are greatest among students who have been disadvantaged

historically — females and racial/ethnic/religious minori-

ties (both males and females).”"°

At the secondary school level, researchers have found strong

evidence that same-gender education enhances academic achieve-

ment and promotes greater self-esteem. A 1990 study by Lee and

Marks found that both males and females attending single-sex

schools were more likely than students in coeducational high

"Id.

* See Cornelius Riordan, Girls and Boys in School: Together or Separate?

(1990); Cornelius Riordan, The Case for Single Sex Schools, reprinted in

Office of Educ. Research & Improvement, U.S. Dept. of Educ., Single Sex

Schooling: Proponents Speak (hereinafter DOE Report} Vol. II, 47 (1992),

Cornelius Riordan, Public and Catholic Schooling: The Effects of Gender

Policy, Am. J. of Educ., Aug. 1985, at 518.

* Cornelius Riordan, Reconsidering Same Gender Schools: The VMI Case

and Beyond, Educ. Wk., February 23, 1994, at 48.

10 Id.

=

schools to attend selective four-year colleges and were more

likely to consider applying to graduate schools.'' The study also

determined that young women in all -girls schools showed higher

educational aspirations, more active political involvement, and

ultimate satisfaction with academic and social aspects of college

environment."

At the same time, recent research has also questioned whether

gender equity actually exists in public coeducational schools."’

Indeed, three researchers have found evidence that “coeduca-

tional schools may foster stereotypical sex roles.”’"*

Hence, the district court’s conclusion that same-gender edu-

cation provides educational benefits to some young people is

more than amply supported in the record and by independent

research.' Moreover, this Court has frequently noted its reluc-

"VE. Lee and H.M. Marks, Sustained Effect of the Single-Sex School

Experience on Attitudes, Behaviors, and Values in College, 1990 J. of Educ.

Psychol. 82, 578-592, summarized in DOE Report Vol. I, 13, 37-38 (1992).

Id.

'’ Am. Ass'n of Univ. Women Educ. Found., How Schools Shortchange

Girls 147 (1992) (girls do not receive equitable teacher attention, equitable

attention in course materials or encouragement in math and science).

'*Mary Moore et al., Single Sex Schooling and Educational Effectiveness:

A Research Overview, reprinted in DOE Report Vol. I, 11 (1992).

'S See Richard Hawley, A Case for Boys Schools, reprinted in DOE Report,

Vol II, 11 (boys in boys schools do better than boys in coeducational schools

on some measures — never, apparently, worse); Richard Hawley, A Progres-

sive Case for an Ancient Reform, 92 Tchrs. College Rec. 433, 440 (1991)

(schooling boys within structure designed to realize distinctive developmen-

tal features has resulted in high count of most longstanding and most

demonstrably effective schools in world); Diane Ravitch, Things Go Better

in Single-Sex Schools, Wash. Post, August 31, 1995, at A23 (of top 150

schools in Great Britain, only 14 were coeducational); Ann Zanders, A

Presentation of the Arguments For and Against Single-Sex Schooling, re--

printed in DOE Report, Vol. II, 15 (research shows that girls benefit from

single-sex schools and shows promise and documented successes for African

American children).

= =

tance to disturb findings of fact concurred in by two lower courts.

Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987); United

States v. Doe, 465 U.S. 605, 614 (1984); Rogers v. Lodge, 458

U.S. 613, 623 (1982).

II. A State is Constitutionally Permitted to Provide Same-

Gender Education for One Sex Without Providing it for

the Other.

The evidence clearly indicates that single-sex education can

be substantially related to achieving an important governmental

objective. Of course, offering the educational opportunity to

both sexes is the ideal in that both sexes benefit from the

experience. However, these amici are concerned that transform-

ing this ideal into an inviolable constitutional principle would

impose rigidities on educators that would limit their abilities to

provide promising alternatives to children in their schools. For

many students, single-sex education is beneficial to higher

educational achievement, greater self-esteem and enhanced ca-

reer advancement. The important issue then becomes whether a

state or political subdivision is free to use same-gender educa-

tion to meet the needs of one gender without always offering a

parallel program for the other gender. The Fourth Circuit, at the

liability phase of this trial, found that Virginia had violated the

Constitution by not making the benefits of same-gender educa-

tion available to both sexes. Whether or not this Court agrees

with the court below as to VMI'’s liability, the Court should

clarify that the Constitution does not require this parallelism

every time a state or school district determines that providing

same-gender education for one sex would serve an important

governmental objective.

A school district’s ability to experiment constitutionally with

single-sex schools or classes for only one sex turns on the Court's

interpretation of footnote 17 in Hogan. 458 U.S. at 731 n. 17. In

that footnote, the Court made clear that the issue is not whether

=

the benefited class profits from the classification, but whether

the state’s decision to confer a benefit only upon one class by

means of such a classification is substaniially related to achiev-

ing a legitimate and substantial goal. /d. This determination, of

course, depends on the facts and circumstances of each case.

A. Local Communities and Educators Must Be Per-

mitted to Prioritize the Use of Scarce Resources in

Experimenting with Optional Same-Gender Pro-

grams.

Whether it is at the level of higher or elementary education, the

practical impact of the Fourth Circuit’s decision will be to

discourage states and cities from offering the option of a single-

sex education to students of one gender unless a “substantively

comparable” parallel program is offered to students of the other

gender, regardless of the need or resources required for such a

program. A rigid requirement of parallelism simply is not useful

to the real-life problems faced by school superintendents. ad-

ministrators and teachers.

In 1991, the City of Detroit attempted to establish three all-

male academies.’ The task force recommending the male

academies cited a series of dispiriting statistics to justify its

important interest in exploring the possibilities of same-gender

education. “Males of White, Hispanic and African American

ethnic groups [were] at the greatest risk of dropping out of

Detroit public schools.”'’ Of the 24,000 males enrolled in the

Detroit public high schools, fewer than 30% had cumulative

grade point averages above 2.0.'* Boys were suspended from

Detroit public schools at three times the rate of girls.'? Sixty

'© Note, Inner-City Single-Sex Schools: Educational Reform or Invidious

Discrimination?, 105 Harv. L. Rev. 1741, 1742 (1992).

'’ Detroit Public Schools, Male Academy Grades K-8: A Demonstration

Program for At-Risk Males 15 (December 7, 1990) (working draft).

iu Id.

' Id. at 16.

percent of the drug offenses in Wayne County were committed

by 8th and 9th grade dropouts, and 97% of the offenders were

African American males.” In sum, urban males suffered “a

multitude of educational, social, health, and economic problems

... [MJales appear{fed] to suffer disproportionate rates of school

failure, poverty, violence, delinquency, unemployment, incar-

ceration, illness and death.”

The report demonstrated that Detroit had previously responded

to the problems of young, urban females. “When it was deter-

mined that 40% of the females who drop out of school, do so

because of pregnancy, three schools and several programs were

established to prevent, as well as address, the problems facing

pregnant and parenting teens.”"” The report also showed a

disparity in academic performance between boys and girls in the

Detroit school system. Girls were suspended less often and did

not drop out at the rate of boys. In addition, they outperformed

boys on standardized tests.’

The Detroit academy demonstration program was designed

to offer to boys the educationally sound benefits accompanying

attendance at a single-sex school: self esteem, rites of passage,

role model interaction and academic improvement.” The idea

was popular, with 1200 applying for 560 spots.” The city had

plans to open up similar Female Academies, but resource alloca-

tion forced it to prioritize the implementation of the program,

believing males to be more at risk.”

» Id.

*! Id. at 3.

* Id. at 15. See Kristin Caplice, The Case for Single Sex Education, Harv.

J. L. & Pub. Pol’ y 227, 276 (1994) [hereinafter Single Sex Education) (Detroit

has existing single-sex schools, three for pregnant girls and one for boys in

danger of expulsion).

* Caplice, Single Sex Education, at 276.

* Id. at 275.

8 Id.

*® Id.

—_—

Misapplying Hogan, a federal district court preliminarily

enjoined the academies, finding that “there is no evidence that

the educational system is failing urban males because females

attend school with males.” Garrett v. Board of Educ., 775 F.

Supp. 1004, 1008 (E.D. Mich. 1991). But neither Hogan nor its

progeny required such a showing. The “means-ends” test should

not be interpreted to sequire a strict correlation between a

coeducational environment and educational impairment. In-

stead the burden is a positive one of demonstrating that single-

sex schools and programs contribute to higher academic achieve-

ment, self-esteem and prospects for attending college.”” Provid-

ing these concrete benefits to urban males is an important

governmental interest, and the single-sex admissions standar¢ ot

a school has been shown in independent research to be related,

directly and substantially, to achieving that interest.

To be sure, single-sex academies have different and concrete

benefits for girls. But the Detroit School Board, with very

limited resources, prioritized its needs. The community, with the

input of educational experts, decided first to create schools for

pregnant teenagers, then to turn its attention to at-risk males. Of

course, if Detroit may not constitutionally provide male acad-

emies, then it raises the question whether Detroit was permitted

under the Constituiion to initiate schools for pregnant mothers,

without parallel schools for boys. Amici believe strongly that

schools for pregnant mothers are constitutional in that “the

gender classification is not invidious, but rather reflects the fact

that the sexes are not similarly situated in certain circum-

stances.” Michael M. v. Superior Court of Sonoma County, 450

USS. at 469 (plurality opinion).

A city’s prioritizing decisions are not invidious gender classi-

fications, but rather realistic reflections of the fact that males and

females are not fungible. /d. Just as “a legislature may provide

27 See Note, Inner-City Single-Sex Schools: Educational Reform or Invidi-

ous Discrimination’, 105 Harv. L. Rev. 1741, 1750-51 (1992).

— es

for the special problems of women,” id., citing Weinberger v.

Weisenfeld, 420 U.S. 636, 653 (1975), a city should be able to

respond to the very real needs of urban males, provided that it has

done so in a reasoned way, without relying on “archaic and

stereotypic notions,” Hogan, 458 U.S. at 725, or in a way which

“demean(s] the ability or social status of the affected class.”

Michael M. v. Superior Court, 450 U.S. at 469, citing Parham v.

Hughes, 441 U.S. 347, 354 (1979) (plurality opinion). If the

Fourth Circuit's emphasis on “parallelism” is interpreted to

require that every time a schoo! district initiates an educational

experiment designed to address real problems with one gender it

must simultaneously initiate a “substantively comparable” edu-

cational experiment with the other gender, the courts will have

placed an inadvisable straitjacket on school districts and parents

in the use of single-sex schooling:

“[C]ities [should not be] categorically prevented from

doing what they c[an] to address the particular needs of

specific elements of [their] school-age population simply

because [they] [cannot] simultaneously offer a solution to

every problem facing every group. This is the kind of

flexibility that is essential to the education reform that the

country desperately needs.”

The Constitution does not require absolute and simultaneous

parallelism. “The Constitution requires that [government] treat

similarly situated persons similarly, not that it engage in gestures

of superficial equality.” Rostker v. Goldberg, 453 U.S. at 79.

The practical effect of the Fourth Circuit's test in a poor city

will not be to expand opportunities for girls but instead to quash

the experimentation for boys. If Detroit cannot afford to create

court’s standard effectively requires them to abandon both

projects.

* Caplice, Single Sex Education, at 276.

=

B. Local Communities and Educators Must Be Per-

mitted to Make an Honest Assessment of Needs

Rather than to Engage in Gestures of Superficial

Equality.

In Ventura, California; Manassas, Virginia, Baltimore, Mary-

land; and Philadelphia, Pennsylvania, among other areas, school

districts have offered or proposed to offer classes, programs or

entire schools targeted at girls.” Ventura was told by the

Department of Education to rename classes aimed at females as

classes for the “mathematically challenged,” presumably to

avoid a loss of federal funds or a constitutional challenge.”

Philadelphia and Baltimore each has an all-girls high school,

although each says that boys are free to apply.”

According to one strong supporter of single-sex schools,

“[c}lasses like those in Ventura County ... survive constitutional

challenge by formally opening their doors to men, with a wink

and a nod to keep them from coming in.” Statutory require-

ments aside,”’ amici believe that the Constitution does not

* See Eric Wee, A Lesson in Confidence: Va. Middle School Tries All-Girl

Classes, Wash. Post, May |, 1995, at Al; Catherine Saillant, Ventura's All-

Girl Math Classes Pass Test on Bias; U.S. Civil Rights Authorities Suggest

Courses Be Renamed but Find They Do Not Discriminate Against Boys, L.A.

Times, March 8, 1995, at B!; Laura Rehrmann, Where the Smart Girls are

Away from Boys, Western Students Excel, Balt. Sun, January 27, 1990, at 3B.

* Catherine Saillant, Ventura's All-Girl Math Classes Pass Test on Bias;

U.S. Civil Rights Authorities Suggest Courses Be Renamed but Find They Do

Not Discriminate Against Boys, L.A. Times, March 8, 1995, at B1.

" Laura Rehrmann, Where the Smart Girls are Away from Boys, Western

Students Excel, Balt. Sun, January 27, 1990, at 3B.

® Susan Estrich, For Girls’ Schools and Women's Colleges; Separate is

Better, N.Y. Times, May 22, 1994, § 6, at 39.

* Amici realize that these schools may still encounter opposition from the

federal government under two federal statutes, see Title [X of the Education

Amendments of 1972, 20 U.S.C. § 1681 (1994) and the Equal Educational

Opportunity Act, 20 U.S.C. §§ 1701-1758 (1994).

require the cities of Baltimore, Philadelphia and Ventura to

maintain “gestures of superficial equality,” see Rostker v.

Goldberg, 453 U.S. at 79, by permitting boys to apply to their all-

girls math classes and high schools when the boys’ presence will

change the dynamic believed by educators and researchers to

provide the desired benefits for girls.

Ventura launched high school classes aimed at females be-

cause studies had shown that girls’ grades and interest in math

begin to fall off markedly during junior high.’ The Unified

School District conducted a survey to identify barriers that deter

female students from taking advanced math classes. The school

district then launched an experimental program described as

follows: “[oJur project, E.D.G.E. (Educational Diversity for

Gender Equity), addresses negative perceptions through the

vehicle of an algebra 2 class exclusively for female students.”

As has been demonstrated, same-gender classes have been

proven extremely effective in addressing this specific need.”

Just as Detroit should be free to respond to research regarding

urban males, Ventura should be permitted to do so for females.*’

™ Catherine Saillant, Ventura New Math Class Recruiting Method, L.A.

Times, February 4, 1995, at B2.

* Ventura Unified School District, Educational Diversity for Gender

Equity Proposal, (undated manuscript) at 2 (characterized by Assistant

Superintendent Patricia L. Chandler Ed.D., Ventura Unified School District,

as a “proposal which describes need, goals, and program design” in letter to

Peter Leibold (November 21, 1995)).

* See generally DOE Report Vols. Land II (1992).

” Although amici for petitioner argue that programs on behalf of women

should be subject to less scrutiny than those for men, see Brief for Amici

Curiae, Employment Law Center, et al. at 25-30 (Nos. 94-1941, 94-2107),

this view is shortsighted since optional same-gender education has different

benefits, and few costs, for each sex. In addition, those favoring “affirmative

action” for women alone at the college level must, in making their case, deal

with recent statistics regarding the greater percentages of women in higher

(Footnote 37 continued on next page)

—_— =

Of course, the decision must be reasoned, without employing

archaic stereotypes, and must be targeted at obtaining tangible

benefits. See Hogan, 458 U.S. at 724-25. In addition, the system

as a whole must provide diverse opportunities, with programs

targeted at producing bencficial outcomes, for the other sex.

Amici do not contend that it would be permissible for a school

district to concentrate all of its attention at improving the

educational achievement of one gender while systematically

ignoring the other. This is not to say, though, that a rigid

parallelism is required or that it is always impermissible to

improve the achievement of one gender without improving the

other, if the opportunity presents itself. In addition, efforts on

behalf of each gender should not have to be exactly the same. For

instance, if Ventura’s educational experts do not believe that an

all-male math class would benefit boys but that a coeducational

program to stimulate interest in the arts would be more benefi-

cial, the Constitution should not require a “gesture of superficial

equality,” see Rostker v. Goldberg, 453 U.S. at 79, in order to

justify an all-female math class.

In sum, this Court should clarify the Fourth Circuit’s standard

to rid the decision of its foreseeable consequences: a slavish

fidelity to parallelism, regardless of the circumstances facing a

state or school district.

(Footnote 37 continued)

education in every year since 1978. Anita Blair, Separate and Equal, N.Y.

Times, November 20, 1995, at A15. Following this Court's decisions in City

of Richmond v. J.A. Croson, 488 U.S. 469 (1989) and Adarand Constructors,

Inc v. Pefia, 115 S.Ct. 2097 (1995), “invidious” or “benign” discrimination

receives the same level of scrutiny. This does not mean, of course, that

increased scrutiny will not permit a court from taking “relevant differences”

into account. Adarand, 115 S.Ct. at 2113. “[A] gender based classification

favoring one sex can be justified if it intentionally and directly assists

members of the sex that is disproportionately burdened.” Hogan, 458 U.S. at

728. The burdens accompanying life as an urban male need to be addressed

as well.

—

Ill. When Offering Single-Sex Education to Both Sexes,

Educators Are Constitutionally Permitted to Use Dif-

ferent Educational Methodologies for Each Sex.

In the case at hand, the remedy for the alleged constitutional

violation, extending the benefits of publicly-funded same-gen-

der education to women in a manner considered most effective

by educational experts, certainly meets the standard enunciated

in Hogan.* As has been shown, the objective of providing

women and men with the establishebenefits of single-sex educa-

tion is a legitimate and important one. The remaining question,

then, is whether the means of providing same-gender education,

using different educational methodologies for each sex, substan-

tially serves the achievement of that cbjective.

As stated previously, “[i]f the State’s objective is legitimate

and important, [the Court] next determine(s] whether the requi-

site direct, substantial relationship between objective and means

is present.” Hogan, 458 U.S. at 725. “The purpose of requiring

that close relationship is to assure that the validity of the

classification is determined through reasoned analysis rather

than through the mechanical application of traditional, often

inaccurate, assumptions about the sexes.” /d. at 725-26.

Virginia’s remedy of creating a VWIL to complement VMI

and VPI substantially serves the important governmental objec-

tives of providing a public education and offering the established

* The Fourth Circuit felt compelled to add a third “substantive compara-

bility” prong to the Hogan test. Although amici understand the court's goal,

this requirement is unnecessary. If the government's objective is to provide

the benefits of same-gender education to both sexes, and it does so in a way

that reasoned analysis dictates will not succeed for both genders, the second

prong in Hogan has not been satisfied. The means employed are not

substantially related to achieving the Commonwealth's important goals. In

the case before the Court, however, Virginia has done everything in its power

to see that both programs succeed, including choosing the educational

methodologies which experts believe will make for both a successful VMI

and a successful VWIL.

= =

benefits of increased academic achievement and superior lead-

ership training for both men and women. Respondents have

articulated forcefully and at some length the reasoned analysis

by the Commonwealth and by VMI’s Board of Visitors used in

deciding to retain VMiI's single-sex policy. Brief for Cross-

Petitioners, at 28-32 (No. 94-2107). For present purposes, it is

enough to say that VMI, in exercising its delegated authority

from the Commonwealth, appointed a Mission Study Commit-

tee to consider carefully the “legality and wisdom of VMI's

single-sex policy.” Pet’r App. at 208a. Afterextensive study and

site visits, the Mission Committee recommended remaining a

single-sex institution because attracting women would be diffi-

cult and their admission would “alter the mission of VMI.” Jd.

at 2122, 214a.

After the decision on liability in this case, the Commonwealth

again made a reasoned study of the most effective way to

“provide women the access to a single-sex educational program

which would prepare them for leadership positions in civilian

and military life.” Jd. at 10la. The district court found as a fact

that “[t}he methods by which this goal could be achieved were

the subject of intensive study and planning by professionals who

are leaders in the field of designing and implementing educa-

tional programs for women.” /d. at 63a. Thus, the decisions

regarding admissions and teaching methodology were not made

reflexively, but with care, in a reasoned, informed manner. See

Hogan, 458 U.S. at 726 nn. 11, 12.

The Commonwealth and VMI have crafted a meticulous plan

to make VWIL a success. Virginia, among other things, will

contribute “dollar-for-dollar for VWIL students as it pays for

VMI.” Pet’r App. at 80a n.18. The VMI Foundation will endow

the VWIL program with a contribution of $5.4625 million in

addition to its other contributions. /d. at 120a. The VMI alumni

association will support VWIL graduates with its alumni net-

work. /d. at 120a, 12la. Thus, in its remedial plan, the

—

Commonwealth has used a reasoned approach in making avail-

able the distinct benefits of same-gender education for each

sex.”

As stated earlier, the benefits from the single-sex experience

flow from its homogeneity. Thus, underlying the decision to

provide same-gender schools is not an overbroad generalization

based on sex which is entirely unrelated to any differences

between men and women or which demeans the ability or social

status of the affected class. See Michael M. v. Superior Court,

450 U.S. at 469 (plurality opinion). The Equal Protection Clause

does not “‘demand that a statute necessarily apply equally to all

persons’ or require ‘things which are different in fact to be

treated in law as though they were the same.’” Jd. This Court has

consistently upheld state action where the gender classification

is not invidious but rather realistically reflects the fact that boys

and girls, men and women, do not always have the same needs

and do not always benefit equally from a given approach. /d.

In deciding to offer public single-sex education to both

women and men, Virginia has a right to depend on the reasoned,

respected views of relevant experts in determining the educa-

tional methodology which would be most advantageous to fulfill

each school’s respective mission. As the court of appeals stated,

“we should not reject programs that are aimed at achieving

* The government argues that the forced coeducation of VMI is required

because excluded women must have access to the “intangible qualities”

which make for the greatness of the school. Brief for Petitioner, at 25 (No.

94-1941). If taken to its logical conclusion, this argument does nothing less

than require the abolition of public single-sex schools or at least those schools

deemed to have intangible benefits. There will always be intangible differ-

ences in distinct schools. Not borne of malice or invidious discrimination,

some schools will have better teachers. Others will have wealthier alumni.

These “intangible qualities” are the product of the fact that all schools are

unique. If any individual of one sex has a right to obtain admission to another

school, limited to the opposite sex, because that school is different, public

single-sex schools by definition will be a thing of the past.

—_ =

similar results, not generally available from other institutions of

higher learning, simply because they differ in approach.” Pet'r

App. at 26a. The Constitution does not require cookie-cutter,

single-sex schools, all forced to offer their students the exact

same educational methodology for fear of being dragged into

court. Such a requirement would go well beyond Hogan or

anything this Court has even implied.

CONCLUSION

Virginia’ s remedy in this case fully satisfies the requirements

of the Fourteenth Amendment. The result of a holding against

VMI would be to threaten every single-sex public school in the

country and possibly to endanger numerous single-sex private

schools.”

Recent experimentation with same-gender classes for both

sexes in Baltimore and other cities, which have a track record of

“ In an amici curiae brief submitted in support of the government, 26

private women’s colleges struggle mightily to distinguish themselves from

VMI. While citing numerous cases on the “state action” doctrine, the brief

contains no persuasive argument to differentiate this Court’s decision in

Norwood v. Harrison, 413 U.S. 455 (1973). In Norwood, this Court found

that the provision of free textbooks to students attending racially discrimina-

tory schools constituted unconstitutional state action: “A State's constitu-

tional obligation requires it to steer clear, not only of operating the old dual

system of racially segregated schools, but also of giving significant aid to

institutions that practice racial or other invidious discrimination.” Norwood,

413 U.S. at 467 (emphasis added). The amici women's colleges offer the

following less-than-convincing distinction: “th{is}] Court's broad reading of

the state action in th[is] case has been limited to circumstances in which the

challenged action involves invidious racial discrimination.” Brief for Amici

Curiae, Twenty-six Private Women's Colleges, at 19 n.12 (Nos. 94-1941, 94-

2107). If this Court accepts the government's invitation to make gender a

suspect class or requires all public schools to be coeducational, we do not feel

as confident as those amici that aid given to private, same-gender schools

would be insulated from attack.

= we

increasing achievements among disadvantaged children,*' would

be jeopardized. This would be a tragedy for those children —

one not required by the Constitution or this Court’s precedents.

We urge the Court to find Virginia’s chosen remedy for the

alleged constitutional violation below consistent with the Four-

teenth Amendment, and at the very least, to clarify the standard

enunciated below regarding the need for a strict parallelism in

the offering of same gender opportunities. For the foregoing

reasons, the judgment of the Fourth Circuit in No. 94-1941

should be affirmed.

Respectfully submitted.

John C. Danforth

(Counsel of Record)

Thomas C. Walsh

Peter M. Leibold

Bryan Cave LLP

One Metropolitan Square

211 North Broadway, Suite 3600

St. Louis, Missouri 63102-2750

(314) 259-2000

Attorneys for Amici Curiae

*' See Caplice, Single-Sex Education, at 277 (reporting the success of same

gender classes for both boys and girls in Baltimore, Milwaukee, Washington,

D.C., Norfolk, and Dade County); see also Letter from Cornelius Riordan to

Senator John C. Danforth (June 30, 1994), reprinted in Cong. Rec. $10,205

(daily ed. August |, 1994) (preliminary data on single-sex classrooms in a

public elementary school that is 98 percent African- and Hispanic-American

showed that students in single-gender classes outperformed co-educational

classes in NCE reading and mathematics tests, higher attendance rates, lower

suspension rates and higher parental participation rates).

APPENDIX

APPENDIX

Women’s Schools Together, Inc.

Women's Schools Together, Inc. is a national coalition of

Catholic high schools for young women. The group is commit-

ted to ensuring the option of women’s single-gender education

and to revisioning the education of women for the 21st century.

Women’s Schools Together includes approximately 150 Catho-

lic women’s high schools nationwide.

Boys Schools: An International Coalition

The coalition is an association of educators representing 150

schools dedicated to understanding and promoting the develop-

ment of school-age boys. In promoting schools and school

programs that focus on the distinctive tempo, sequence, and style

of boys’ learning, the Coalition aims to insure a future in which

humane and capable boys will bring their gifts to bear on the

creation of a just and livable world.

Robert C. Bobb

Robert C. Bobb is the City Manager of Richmond, Va. He has

served previously in that capacity for Kalamazoo, Michigan and

Santa Ana, California. Mr. Bobb has served on the Virginia State

Crime Commission and presently serves on the Commission on

Parole Abolition and Sentencing Reform. Governor L. Douglas

Wilder appointed Mr. Bobb to the Board of Visitors of the

Virginia Military Institute. He is also a Fellow of the National

Academy of Public Administration. Mr. Bobb’s interest in this

case stems not only from his seat on the Board of Visitors of VMI

but also from his deep commitment to improving the lives of

urban youth. Mr. Bobb believes that same-sex education can

play a valuable role in accomplishing that task.

Thomas H. Butler, Ed.D.

Thomas H. Butler is the President of the Governing Board of

Tempe Preparatory Academy (TPA) in Tempe, Arizona. TPA

will be a co-ed, publicly and privately funded Arizona Charter

Ye

school with ultimate enrollment of 216 students in grades seven

through twelve. TPA envisions itself as a community of learn-

ers, both teachers and students, promoting personal integrity,

diligent scholarship, creative imagination, community service,

and a life-long quest for learning. It is TPA’s belief that the

greatest educational achievement in its Charter School can be

made if boys and girls are in single-sex classrooms.

Dr. Roy J. Dawson

Dr. Roy J. Dawson Jr. is Superintendent of Schools in Camden

City, New Jersey. He also is an adjunct professor at Glassboro

State College. He has served in numerous capacities for the City

of Camden, including as the Director of its Title I program and

as the Acting Assistant Superintendent responsib!e for Compen-

satory Education, Migrant Education, Bilingual Education and

Staff Development programs in Camden City. At the present

time, he is responsible for 34 schools, and 20,000 students in

Camden. Camden City presently employs same-gender experi-

mentation in its schools and has a keen interest in the continua-

tion of this experimentation with this valuable pedagogical tool.

Peter M. Flanigan

Peter M. Flanigan is a Director of Dillon, Read & Co., a New

York City international investment banking firm. He is the

founder and the Chairman of the Finance Committee of the

Student/Sponsor Partnership, a Trustee of the Manhattan Insti-

tute for Policy Research and the founder of its Center for

Educational Innovation. He is a member of the New York City

Partnership's Education Committee and is committed to provid-

ing the benefits of single-sex education to the youth of New York

City.

Dr. Richard Hawley

Dr. Richard Hawley is headmaster of the University School,

an all-boys school in Cleveland, Ohio. In 1994, he was elected

President of Boys’ Schools: An International Coalition. Dr.

—"

Hawley has written extensively on the subject of single-sex

education for boys and has taught courses in history, govern-

ment, economics and philosophy. He has lectured and spoken

extensively on child development and education issues.

Frank Hayden

Frank Hayden is former president of the Detroit Board of

Education and was the chairman of the board committee that

recommended the establishment of three all-male academies

after studying the academic performance and disciplinary prob-

lems of urban male students.

Dr. Spencer Holland

Dr. Spencer Hoiland is President of Project 2000, Inc., a

nonprofit corporation whose primary mission is to provide

to inner-city African American males from 7th to 12 grades. He

founded the Center for Educating African-American Males and

has served in a variety of teaching and administrative positions

in urban public school systems. He has worked closely with the

Baltimore City Public Schools in implementing same-gender

classroom organization in elementary schools and with the

Camden puolic schools at the middle school level.

Nancy E. Kussrow

Ms. Nancy E. Kussrow is the Executive Director of the

National Association of Principals of Schools for Girls. The

Association exists to serve the cause of education for women and

girls. Organized in 1920 and operated exclusively for charitable

and educational purposes, the NAPSG is an association of

approximately 550 members: heads and other administrators of

independent schools enrolling girls, and executives of colleges

representing wide geographical diversity. Ms. Kussrow has

been the Executive Director of the NAPSG since 198! and

before that served as a principal and teacher in Kentucky and

Michigan.

= ee

Professor Mary R. Lefkowitz

Professor Mary R. Lefkowitz is the Andrew W. Mellon

Professor in the Humanities at Wellesley College. She is the

author of many books on the ancient world, including Lives of the

Greek Poets and Women in Greek Myth, as well as articles for

The Wall Street Journal and The New Republic. She is the co-

editor of Women’s Life in Greece and Rome and ot the forthcom-

ing Black Athena Revisited. She teaches at one of the most

prestigious all-women’s colleges in America and has a signifi-

cant interest in the success of same-sex schools.

Kathleen S. McCreary

Kathleen S. McCreary is a senior tax attorney at the Metlife

Insurance Company. She serves on the Boards of Directors of

the Catholic League for Religious and Civil Rights and the

Center for Law and Religious Freedom. She is a graduate of

Wellesley College and a strong advocate of the benefits of same-

gender education.

Joan S. McMenamin

Ms. Joan S. McMenamin is the Headmistress Emerita of the

Nightingale-Bamford School. She is on the Board of Trustees of

the Lawrenceville School and a member of the Headmasters

Association and the Headmistresses Association of the East. She

previously served as President of the New York State Associa-

tion of Independent Schools, the National Association of Princi-

pals of Schools for Girls and the Headmistresses Association of

the East.

Joseph W. McPherson

Joseph W. McPherson has been headmaster of The Heights

School since 1984. The Heights is an independent college

preparatory day school for boys in grades three through twelve.

The school was founded in 1959.

ae Ss

Dr. Angela Pienkos

Dr. Angela Pienkos is chief administrator of Divine Savior

Holy Angeles High School. She has served in that capacity for

twenty years. The Catholic all-girls high schools has an enroll-

ment of 570, and this institution as well as its chief administrator

have a keen interest in continuing to provide the benefits of a

single-sex institution to young women..

Dr. Diane Ravitch is a Senior Research Scholar at New York

University. She served as an Assistant Secretary of Education

for the Office of Educational Research and Improvement under

President George Bush. While at the Department, she commis-

sioned an impartial review of research on single-gender school-

ing. She has written on the subject and believes that same-gender

opportunities should be available for both young women and

young men. She has a deep interest in the educational achieve-

ment of young Americans in the setting most appropriate for

each child.

Dr. Cornelius Riordan

Dr. Cornelius Riordan is Professor of Sociology at Providence

College. He received an M.A. in Sociology from Clark Univer-

sity, his doctorate in Sociology from Syracuse University, and he

completed two years of postdoctoral work in educational re-

search at Johns Hopkins University. His area of specialization

is the social organization of schools and the educational out-

comes that are related to school organization. He has studied the

affects of single-gender education at all levels of schooling for

the past decade. He is the author of Girls and Boys in School:

Together or Separate? and numerous professional articles on

Dr. Joseph P. Spirito

Dr. Joseph P. Spirito is the Superintendent of Schools for the

Ventura Unified Schools District in Ventura, California. He

—_S

oversees a budget of $65 billion budget, 16,300 students, and

1,200 employees. Ventura has initiated the “Educational Diver-

sity for Gender Equity” proposal. The proposal was designed to

address the underrepresentation of women in careers that require

a math and/or science background. Because of his involvement

in this issue, the superintendent has a keen interest in the

constitutional analysis used to evaluate same-gender classes and

schools.

Michael M. Uhlmann

Michael M. Uhimann is a senior fellow in Law and Public

Policy at the Ethics and Public Policy Center in Washington,

D.C., concentrating in education policy, among other issues. He

has taught law at the George Mason University Law School and

served in the United States Department of Justice. He served as

a Special Assistant to President Ronald Reagan and has a deep

and abiding interest in the continuation of single-sex schools for

both young men and young women..

The Honorable Arnold W. Webster, Ph.D.

The Honorable Arnold W. Webster has been the Mayor of the

City of Camden since January 1994. He has served in Camden

City public education for more than two decades. He served as

superintendent of schools from July 1986 until January 1994. He

was assistant superintendent for eleven of the twelve years

preceding 1986. The Mayor has received numerous awards,

including the Youth of Camden’s Outstanding Citizen Award.