Faulkner v. Jones

• Decision Date: 17 November 1993
• Docket Number: No. 93-2030,93-2030
• Citation: 10 F.3d 226
• Parties: 87 Ed. Law Rep. 394 Shannon Richey FAULKNER, individually and on behalf of all others similarly situated; United States of America, Plaintiffs-Appellees, v. James E. JONES, Jr., Chairman, Board of Visitors of The Citadel, the Military College of South Carolina; Carroll A. Campbell, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; T. Easton Marchant, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Barbara S. Nielsen, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; William F. Prioleau, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; William E. Jenkinson, III, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Leonard C. Fulghum, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; James M. Leland, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; John A. McAllister, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Davis S. Boyd, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Julian G. Frasier, III, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Larry J. Ferguson, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Steve D. Peper, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Wallace I. West, Jr., Director of Admissions and Recruiting at The Citadel, the Military College of South Carolina; Claudius E. Watts, III, President of The Citadel, the Military College of South Carolina; State of South Carolina; The Citadel, the Military College of South Carolina; The Board of Visitors of the Citadel, the Military College of South Carolina, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 226

10 F.3d 226

87 Ed. Law Rep. 394

Shannon Richey FAULKNER, individually and on behalf of all

others similarly situated; United States of

America, Plaintiffs-Appellees, v. James E. JONES, Jr., Chairman, Board of Visitors of The

Citadel, the Military College of South Carolina; Carroll A.

Campbell, Jr., Member of the Board of Visitors of The

Citadel, the Military College of South Carolina; T. Easton

Marchant, Member of the Board of Visitors of The Citadel,

the Military College of South Carolina; Barbara S. Nielsen,

Member of the Board of Visitors of The Citadel, the Military

College of South Carolina; William F. Prioleau, Jr., Member

of the Board of Visitors of The Citadel, the Military

College of South Carolina; William E. Jenkinson, III,

Member of the Board of Visitors of The Citadel, the Military

College of South Carolina; Leonard C. Fulghum, Jr., Member

of the Board of Visitors of The Citadel, the Military

College of South Carolina; James M. Leland, Jr., Member of

the Board of Visitors of The Citadel, the Military College

of South Carolina; John A. McAllister, Jr., Member of the

Board of Visitors of The Citadel, the Military College of

South Carolina; Davis S. Boyd, Jr., Member of the Board of

Visitors of The Citadel, the Military College of South

Carolina; Julian G. Frasier, III, Member of the Board of

Visitors of The Citadel, the Military College of South

Carolina; Larry J. Ferguson, Member of the Board of

Visitors of The Citadel, the Military College of South

Carolina; Steve D. Peper, Member of the Board of Visitors

of The Citadel, the Military College of South Carolina;

Wallace I. West, Jr., Director of Admissions and Recruiting

at The Citadel, the Military College of South Carolina;

Claudius E. Watts, III, President of The Citadel, the

Military College of South Carolina; State of South

Carolina; The Citadel, the Military College of South

Carolina; The Board of Visitors of the Citadel, the

Military College of South Carolina, Defendants-Appellants.

No. 93-2030.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 27, 1993.

Decided Nov. 17, 1993.

Morris Dawes Cooke, Jr., Barnwell, Whaley, Patterson & Helms, Charleston, SC, Griffin Boyette Bell, King & Spalding, Atlanta, GA, Robert Holmes Hood, Hood Law Firm, Charleston, SC, argued (William A. Clineburg, Jr., King & Spalding, Atlanta, GA, Robert H. Patterson, Jr., William G. Broaddus, Anne Marie Whittemore, Frank B. Atkinson, McGuire, Woods, Battle & Boothe, Richmond, VA, on brief), for defendants-appellants.

Valorie Kay Vojdik, Shearman & Sterling, New York City, David Kevin Flynn, Civ. Rights Div., U.S. Dept. of Justice, Washington, DC (Jonathan L. Greenblatt, Henry Weisburg, Shearman & Sterling, New York City, James P. Turner, Acting Asst. Atty. Gen., Thomas E. Chandler, U.S. Dept. of Justice, Washington, DC, Isabelle Katz Pinzler, Sara L. Mandelbaum, Women's Rights Project, Am. Civ. Liberties Union Foundation, New York City, Suzanne E. Coe, Silver & Coe, Greenville, SC, Robert R. Black, Charleston, SC, Stephen J. Henry, Taylor, Stephenson & Henry, Greenville, SC, on brief), for plaintiffs-appellees.

Before HALL, NIEMEYER, and HAMILTON, Circuit Judges.

OPINION

NIEMEYER, Circuit Judge:

Shannon R. Faulkner was conditionally admitted to The Citadel, a South Carolina state military college, to begin classes in the fall of 1993. When her female gender was discovered, however, The Citadel withdrew its acceptance in accordance with its 150-year-old policy of admitting only males. Faulkner then filed this suit to compel her admission, contending that the college's policy of excluding females violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

The district court issued a preliminary injunction ordering that Faulkner be admitted to day classes at The Citadel, but not, consistent with her request, to its Corps of Cadets. Pending briefing and argument on appeal, we stayed the order, concluding that "public interest demands that resolution of an issue of such extraordinary complexity not be compressed into a proceeding solely to determine whether a stay is granted." Balancing the relative harms of the parties on a scale adjusted by the plaintiff's likelihood of success on the merits, we now conclude that the district court did not abuse its discretion in issuing the preliminary injunction and affirm.

I

The Citadel, established in 1842, is a state-supported four-year military college, located in Charleston, South Carolina. Although it provides undergraduate, evening and graduate courses to a total student population of almost 3,800, The Citadel's unique undergraduate education incorporating a rigorous military training is made available only to its Corps of Cadets, consisting of approximately 2,000 students. By means of an adversative military methodology which the parties characterize as being similar to that employed by the Virginia Military Institute in Lexington, Virginia, described in United States v. Commonwealth of Virginia, 766 F.Supp. 1407 (W.D.Va.1991), The Citadel seeks, according to its mission statement, "to educate male undergraduate students as members of the South Carolina Corps of Cadets and to prepare them for postgraduate positions of leadership through academic programs of recognized excellence supported by the best features of a disciplined military environment and rigorous training." Throughout its 150-year history, The Citadel has maintained a policy of admitting only men to its Corps of Cadets. It has, however, admitted women to other educational programs.

Shannon R. Faulkner, as an honor student at Wren High School in Anderson County, South Carolina, applied for admission to The Citadel in January 1993. The Citadel was her first choice for college because she hoped "to attend a college in a military environment" and believed The Citadel's program to be "unique" in South Carolina and to offer "many advantages which [she] could not receive at any other college in South Carolina." The Citadel, not realizing that Faulkner was female, ¹ admitted her on a provisional basis, as it does for every student. When The Citadel discovered that Faulkner was female a short time thereafter, it promptly revoked her admission.

Alleging that the male-only admissions policy of The Citadel denied her equal protection of the laws, Faulkner filed suit in March 1993. Shortly thereafter, in May 1993, the South Carolina General Assembly passed a joint resolution which affirmed a state policy of favoring single-gender educational institutions. The resolution declares that:

South Carolina has historically supported and continues to support single-gender educational institutions as a matter of public policy based on legitimate state interests where sufficient demand has existed for particular single-gender programs thereby justifying the expenditure of public funds to support such programs.

The General Assembly also formed a ten-member committee to examine the need for single-gender educational opportunities for women in South Carolina and to submit recommendations for the General Assembly to consider at the beginning of its 1994 session.

On July 8, 1993, Faulkner filed a motion in the pending litigation for a preliminary injunction mandating that she be permitted to attend day classes pending the outcome of the litigation. Her motion did not request that she be admitted to the Corps of Cadets. Faulkner argued that even The Citadel's expert testimony conceded that her attendance in the classroom only would not have harmful effects. On August 12, 1993, following a hearing, the district court granted Faulkner's motion for a preliminary injunction, concluding that the "irreparable harm that [Faulkner] will suffer if her constitutional rights are continued to be denied her far outweighs any irreparable harm The Citadel will sustain if she is admitted to the Day Program." Indeed, the court concluded that it was "unable to perceive of any significant irreparable harm or harm that will be suffered by The Citadel if this plaintiff is admitted to the Day Program."

This appeal followed, and, to allow for full briefing and argument, we stayed the effect of the district court's preliminary injunction and ordered an expedited schedule for briefing and argument.

II

The Fourteenth Amendment, which was adopted after the Civil War to provide the newly-freed blacks with the same protection of the laws as that afforded to other persons, states in deceptively simple language, "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." Although the clause clearly provides that a law must apply with equal force to all persons within a class defined by the law, it does not require that a law, which is limited in its scope to a particular class, apply in the same way to persons outside of that class. While it may be popular to believe that the Equal Protection Clause prohibits distinctions even in classifications--for that conclusion is suggested by the overly generalized statement that "all men are created equal" ²--the clause accommodates the opposite notion, that people are created differently. Fundamental injustice would undoubtedly result if the law were to treat different people as though they were the same. See Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971) ("Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike."). Thus, different classes are routinely defined by legislation without objection. For example, statutes limit the licensing of drivers to a class of persons 16 and over, or drinking to a class of persons 18 and over. In addition, classifications by gender have been utilized to require men to register for the draft, but not women, see Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981), and to qualify only men for employment in maximum security...