Not only that, it reminded me of a fascinating case from my youth, United States. v. Virginia. Justice Ginsburg wrote the opinion of the Court in this case, in which it was decided that women should be permitted to attend Virginia Military Institute (VMI), a state-funded and at that time all-male military college. This case was decided in 1996 and I remember it so well because 1) I was a high school junior living in Virginia at the time, and 2) my best friend and I – no kidding – almost ran over the VMI marching band in my ’92 Ford Probe when we went up to attend a “hop” (dance) that winter. The fact that they were calling it a hop in 1996 tells you something about their commitment to tradition. Founded in 1839 and unchanged to a striking degree since that time, the school’s reluctance to enroll female cadets cannot be overstated.
In the RBG movie, Bill Clinton noted that Justice Ginsburg’s SCOTUS nomination was approved 93-3, which is unheard of in the partisan political climate today. In the case of U.S. v. Virginia, the lawsuit brought against the Commonwealth of Virginia was initiated in 1990, by the George H.W. Bush Administration’s Justice Department – not known for liberal rabble rousing. It is also worth noting that the traditionally conservative Fourth Circuit Court of Appeals, in hearing the initial appeal of this case, found in favor of the United States, noting that Virginia’s efforts to offer a diversity of educational experiences to students ought to extend to men and women alike and that the Commonwealth had offered no justification for its failure to do so. The Fourth Circuit suggested three possible solutions: 1) admit women to VMI, 2) go private, or 3) establish comparable programs or institutions for women.
Virginia attempted the last solution, developing a proposed plan for women to be housed at Mary Baldwin College, a private liberal arts school. The difference between the experience afforded by VMI (which is somewhat like four years of Marine Corps boot camp) and the proposed Mary Baldwin plan (more like four years at Girl Scout camp) was upheld by the District Court and by a divided Fourth Circuit. According to the District Court, “[i]f VMI marches to the beat of a drum, then Mary Baldwin marches to the melody of a fife and when the march is over, both will have arrived at the same destination.”
This did not fly with the Supreme Court, which held both Virginia’s remedial plan and its underlying premise of gender-based exclusion from enrollment in a public college were unconstitutional on Fourteenth Amendment equal protection grounds. The Court’s opinion as written by Justice Ginsburg required that any gender-based government action demonstrate an “exceedingly persuasive justification” for that action:
Valuable as [the Mary Baldwin program] may prove for students who seek the program offered, Virginia’s remedy affords no cure at all for the opportunities and advantages withheld from women who want a VMI education and can make the grade… In sum, Virginia’s remedy does not match the constitutional violation; the Commonwealth has shown no “exceedingly persuasive justification” for withholding from women qualified for the experience premier training of the kind VMI affords.
It is worth noting that the Court’s opinion did not require VMI to lower its standards for female applicants. The first female students enrolled in August of 1997, had their heads shaved and went to work. VMI is now about 89% male and 11% female.
DAWG BONE: EFFORTS TO PROVIDE A ‘DIVERSITY OF OPPORTUNITY’ CAN’T HAVE THE IMPACT OF PROVIDING THAT DIVERSE OPPORTUNITY TO ONLY ONE CLASS OF PEOPLE.
Tomorrow: The Relevance of this Decision to K-12 Educators 20+ Years Later