44 F.3d 1229 (4th Cir. 1995), 94-1667, United States v. Com. of Va.

Docket Nº:94-1667, 94-1712.
Citation:44 F.3d 1229
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. COMMONWEALTH OF VIRGINIA; George F. Allen, Governor, of the Commonwealth of Virginia; Virginia Military Institute; Joseph M. Spivey, III, President of the Virginia Military Institute Board of Visitors; John Williams Knapp, Superintendent of Virginia Military Institute; The Board of Visitors of Virgi
Case Date:January 26, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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44 F.3d 1229 (4th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellant,

v.

COMMONWEALTH OF VIRGINIA; George F. Allen, Governor, of the

Commonwealth of Virginia; Virginia Military Institute;

Joseph M. Spivey, III, President of the Virginia Military

Institute Board of Visitors; John Williams Knapp,

Superintendent of Virginia Military Institute; The Board of

Visitors of Virginia Military Institute; VMI Foundation,

Incorporated; VMI Alumni Association; The Virginia State

Council of Higher Education and its Members and Officers;

Thomas N. Downing; Elizabeth P. Hoisington, Brig. Gen.;

Robert Q. Marston; A Courtland Spotts, III, Daniel F.

Flowers; B. Powell Harrison, Jr.; Robert H. Spilman;

Samuel E. Woolwine; James W. Enochs, Jr.; William A.

Hazel; Harvey S. Sadow; Douglas K. Baumgartner; Daniel D.

Cameron; Glen N. Jones; John W. Roberts, Defendants-Appellees,

and

Gordon K. Davies, Defendant.

The National Women's Law Center; American Association of

University Women; American Civil Liberties Union;

California Women's Law Center; Center for Women Policy

Studies; Connecticut Women's Education and Legal Fund;

Equal Rights Advocates; Federally Employed Women, Inc.;

Feminist Majority Foundation; Human Rights Campaign Fund;

Lawyer's Committee for Civil Rights Under Law; National

Association for Girls & Women in Sport; National

Association of Commissions for Women; National Council of

Negro Women; National Education Association; National Gay

and Lesbian Task Force; National Hookup of Black Women;

National Organization for Women; NOW Legal Defense and

Education Fund; National Women's Conference Committee;

National Women's Party; Northwest Women's Law Center;

Trial Lawyers for Public Justice; Women Employed; Women's

Law Project; Women's Legal Defense Fund; YWCA of the

U.S.A.; Mary Baldwin College; Wells College; Saint Mary's

College; Southern Virginia College, Amici Curiae.

UNITED STATES of America, Plaintiff-Appellee,

v.

COMMONWEALTH OF VIRGINIA; George F. Allen, Governor, of the

Commonwealth of Virginia; Virginia Military Institute;

Joseph M. Spivey, III, President of the Virginia Military

Institute Board of Visitors; John Williams Knapp,

Superintendent of Virginia Military Institute; The Board of

Visitors of Virginia Military Institute; VMI Foundation,

Incorporated; VMI Alumni Association; The Virginia State

Council of Higher Education and its Members and Officers;

Thomas N. Downing; Elizabeth P. Hoisington, Brig. Gen.;

Robert Q. Marston; A Courtland Spotts, III, Daniel F.

Flowers; B. Powell Harrison, Jr.; Robert H. Spilman;

Samuel E. Woolwine; James W. Enochs, Jr.; William A.

Hazel; Harvey S. Sadow; Douglas K. Baumgartner; Daniel D.

Cameron; Glen N. Jones; John W. Roberts, Defendants-Appellants,

and

Gordon K. Davies, Defendant.

The National Women's Law Center; American Association of

University Women; American Civil Liberties Union;

California Women's Law Center; Center For Women Policy

Studies; Connecticut Women's Education and Legal Fund;

Equal Rights Advocates; Federally Employed Women, Inc.;

Feminist Majority Foundation; Human Rights Campaign Fund;

Lawyer's Committee for Civil Rights Under Law; National

Association for Girls & Women in Sport; National

Association of Commissions for Women; National Council of

Negro Women; National Education Association; National Gay

and Lesbian Task Force; National Hookup of Black Women;

National Organization for Women; NOW Legal Defense and

Education Fund; National Women's Conference Committee;

National Women's Party; Northwest Women's Law Center;

Trial Lawyers for Public Justice; Women Employed; Women's

Law Project; Women's Legal Defense Fund; YWCA of the

U.S.A.; Mary Baldwin College; Wells College; Saint Mary's

College; Southern Virginia College, Amici Curiae.

Nos. 94-1667, 94-1712.

United States Court of Appeals, Fourth Circuit

January 26, 1995

Argued Sept. 28, 1994.

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ARGUED: Jessica Dunsay Silver, U.S. Dept. of Justice, Washington, DC, for appellant. Anne Marie Whittemore, McGuire, Woods, Battle & Boothe, Richmond, VA; William Henry Hurd, Deputy Atty. Gen. of Virginia, Richmond, VA, for appellees. ON BRIEF: Deval L. Patrick, Asst. Atty. Gen., U.S. Dept. of Justice, Washington, DC, for appellant. Robert H. Patterson, Jr., William G. Broaddus, J. William Boland, McGuire, Woods, Battle & Boothe, Richmond, VA; James S. Gilmore, III, Atty. Gen. of Virginia, Richmond, VA; Griffin B. Bell, William A. Clineburg, Jr., King & Spalding, Atlanta, GA, for appellees. Marcia Greenberger, Ellen J. Vargyas, Nat. Women's Law Center, Washington, DC; Robert N. Weiner, Leigh McAfee, Mark Eckenwiler, Stefanie J. Raker, Arnold & Porter, Washington, DC, for Amici Curiae Nat. Women's Law Center, et al. James W. Tredway, III, Christian, Barton, Epps, Brent & Chappell, Richmond, VA, for Amicus Curiae Mary Baldwin College. David M. Lascell, Rebecca A. Kirch, Hallenbeck, Lascell & Pineo, Rochester, NY, for Amici Curiae Wells College, et al.

Before NIEMEYER, Circuit Judge, PHILLIPS, Senior Circuit Judge, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Senior Judge WARD joined. Senior Judge PHILLIPS wrote a separate dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

At issue is the important question of whether a state may sponsor single-gender education without violating the Equal Protection Clause of the Fourteenth Amendment.

In United States v. Commonwealth of Virginia, (VMI I), 976 F.2d 890 (4th Cir.1992), we concluded that single-gender education was "pedagogically justifiable," id. at 897, and the United States has acknowledged in this case that state sponsorship of single-gender education, if provided to both genders, is not per se a denial of equal protection. Even though single-gender college education yields benefits to both genders, it nevertheless has the secondary effect of excluding men from the women's college and women from the men's college, an effect that becomes yet more complicated when the programs at the two colleges differ to some degree.

We must decide now whether the Commonwealth of Virginia's proposal (1) to continue to provide a single-gender military-type college education for men at the Virginia Military Institute (VMI), (2) to provide, beginning in 1995, a single-gender education with special leadership training for women at Mary Baldwin College, and (3) to continue to provide other forms of college education, including military training, for both men and women at other colleges and universities in the state is constitutionally permissible. After applying a heightened intermediate scrutiny test specially tailored to the circumstances before us and imposing specific performance criteria on the implementation of Virginia's proposal, we affirm the district court's judgment approving the proposal.

I

VMI, established by the Commonwealth of Virginia in 1839 as a four-year military college, has a current enrollment of approximately 1,300 men. The college has always admitted only males and, through an adversative military-type training, it seeks to graduate them as " 'citizen-soldiers, educated and honorable men who are suited for leadership in civilian life and who can provide military leadership when necessary.' " VMI I, 976 F.2d at 893. In VMI I, we affirmed the district court's factual findings, based on studies in evidence, that such a single-gender education is pedagogically justifiable, both for males and females. We concluded:

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It is not the maleness, as distinguished from femaleness, that provides justification for the program. It is the homogeneity of gender in the process, regardless of which sex is considered, that has been shown to be related to the essence of the education and training at VMI.

Id. at 897.

We also affirmed findings of fact that coeducation would destroy aspects of VMI's program which lie near the core of its holistic system and that the admission of women therefore would deny them the very benefit they sought by their admission. The district court found that coeducation would require fundamental changes (1) to the adversative method which pits male against male because that method would not produce the same results when a male is set against a female; (2) to the absence of privacy which was found to be essential to the leveling process; and (3) to physical training, requiring VMI to adopt, as was required at the U.S. military academies, a dual-track program for men and women in order to achieve equality in effect. We concluded that coeducation at VMI would thus

deny those women the very opportunity they sought because the unique characteristics of VMI's program would be destroyed by coeducation. The Catch-22 is that women are denied the opportunity when excluded from VMI and cannot be given the opportunity by admitting them, because the change caused by their admission would destroy the opportunity.

Id. at 897 (footnote omitted).

In view of these findings, we did not direct the Commonwealth of Virginia to change VMI to a coeducational college, but we did find that its failure to offer women comparable benefits constituted a violation of the Equal Protection Clause of the Fourteenth Amendment. We remanded the case to the district court, directing it to require Virginia and the other...

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