US v. Com. of Va.

• Decision Date: 29 April 1994
• Docket Number: Civ. A. No. 90-0126-R.
• Citation: 852 F. Supp. 471
• Parties: UNITED STATES of America, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

852 F. Supp. 471

UNITED STATES of America, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.

Civ. A. No. 90-0126-R.

United States District Court, W.D. Virginia, Roanoke Division.

April 29, 1994.

Earl Montgomery Tucker, Robert P. Crouch, Jr., Richard A. Lloret, U.S. Atty's Office, Roanoke, VA, Nathaniel Douglas, John R. Moore, D. Judith Keith, Michael S. Maurer, Gary A. Haugen, Dana R. Carstarphen, U.S. Dept. of Justice Civ. Rights Div., Washington, DC, for U.S.

James A.L. Daniel, Daniel, Vaughan, Medley & Smitherman, P.C., Danville, VA, Joel I. Klein, Onek, Klein & Farr, Washington, DC, for Com. of Va.

Walter Alexander McFarlane, Com. of VA, Office of the Governor, Richmond, VA, James A. Dunbar, Venable, Baetjer & Howard, Baltimore, MD, for Lawrence Douglas Wilder.

J. William Boland, William G. Broaddus, Robert H. Patterson, Jr., McGuire, Woods, Battle & Boothe, Richmond, VA, for Virginia Military Institute, Board of Visitors of Virginia Military Institute.

J. William Boland, William G. Broaddus, McGuire, Woods, Battle & Boothe, Richmond, VA, William B. Poff, Woods, Rogers & Hazlegrove, P.L.C., Roanoke, VA, Robert H. Patterson, Jr., McGuire, Woods, Battle & Boothe, Richmond VA, for VMI Foundation, Inc., VMI Alumni Ass'n.

James S. Gilmore, III, Office of the Atty. Gen., William Henry Hurd, Richmond, VA, William Raymond Rakes, M. Chris Floyd, Gregory Joseph Haley, Gentry, Locke, Rakes & Moore, Roanoke, VA, for State Council of Higher Educ.

James S. Gilmore, III, Office of the Atty. Gen., William Henry Hurd, Richmond, VA, for George F. Allen.

MEMORANDUM OPINION¹

KISER, Chief Judge.

This phase of this case ("Remedy") is on remand from the Fourth Circuit. Although the Fourth Circuit agreed that single-sex education was a legitimate pedagogical goal, it criticized the Commonwealth's avowed policy of supporting diversity in higher education through VMI in two respects: First, that there had been no authoritative articulation that the Commonwealth sought to diversify its higher education system by offering single-sex education; and, second, that the program — as it now stands — is one-sided, i.e. that VMI offers a single-sex opportunity to young men while there is no comparable opportunity for young women. For these reasons, this case was remanded to this Court to permit the Commonwealth to "... formulate, adopt and implement a plan that conforms to the principles of equal protection...." United States v. Commonwealth of Virginia, 976 F.2d 890, 892 (4th Cir.1992) ("VMI").

There is substantial disagreement between the parties as to what is required by the remanding instructions of the Fourth Circuit and the Equal Protection Clause. It is the position of the United States that the mandate from the Fourth Circuit and the Equal Protection Clause require that if the Commonwealth opts to establish a separate program for young women, it must be in all respects equivalent to, i.e. a mirror image of, the VMI program.² The Commonwealth argues that the United States' position misconstrues both the meaning of the Fourth Circuit's mandate and the requirements of the Equal Protection Clause. The Commonwealth's position is that the mandate of the Fourth Circuit requires Virginia to provide a state-supported all-female college program that will attain an outcome for women that is comparable to that received by young men upon graduation from VMI. The Commonwealth argues that to attain the desired outcome for women, the Fourth Circuit's mandate does not require that an all-female program adopt the same or similar methodology as is used at VMI. The Commonwealth further argues that its view comports with the judicial gloss given, in this context, to the Equal Protection Clause — i.e. that the Commonwealth's system of higher education now satisfies intermediate scrutiny equal protection analysis applicable to sex-based discrimination.

If the United States' position is the correct one, then the Commonwealth's proposed Plan must fail because the Plan differs substantially from the VMI program. If the Commonwealth's position is the correct one, however, then an analysis of its proposed plan is necessary to determine whether it meets both the requirements of the Fourth Circuit's mandate and the requirements of the Equal Protection Clause. I am persuaded that the Commonwealth's position is the correct one and that its proposed plan meets the requirements of the Fourth Circuit's mandate and the requirements of the Equal Protection Clause. Here is why.

Procedural Background

At the outset of this phase of the litigation, this Court ruled that factual findings, which were made by this Court in the liability phase and approved by the Fourth Circuit, would not be open for reexamination. A full recitation of those facts is found in this Court's opinion at 766 F.Supp. 1407. A brief recitation of the operative findings made there will be sufficient for the present purposes.

District Court Opinion

After reviewing the legal principles that apply to intermediate scrutiny under the Equal Protection Clause, I reviewed the expert testimony pertaining to the benefits of a single-sex education and concluded that "viewed in the light of this very substantial authority favoring single-sex education, the VMI board's decision to maintain an all-male institution is fully justified even without taking into consideration the other unique features of VMI's method of teaching and training." Id. at 1412. After making that finding, I then reviewed the effect that the admission of women to VMI would have on its program and concluded "the single-sex status would be lost and some aspects of the distinctive method would be altered if it were to admit women." Id. at 1413. Finally, I observed that there was an absence of a comparable opportunity for women, but concluded that this did not impair the legitimacy of the VMI program, and I did not seek to impose corrective action upon the Commonwealth because "the relief that the United States seeks in this suit is to require VMI to open its doors to women — not to force Virginia to establish an all-female, state-supported college." Id. at 1414.

Fourth Circuit Opinion

At the outset of its opinion, the Fourth Circuit stated,

We accept the district court's factual determination that VMI's unique methodology justifies a single-sex policy and material aspects of its essentially holistic system would be substantially changed by coeducation. ... The Commonwealth of Virginia has not, however, advanced any state policy by which it can justify its determination, under an announced policy of diversity, to afford VMI's unique type of program to men and not to women.

p. 892.

The court stated that it was remanding the case "to the district court to require the Commonwealth of Virginia to formulate, adopt, and implement a plan that conforms to the principles of equal protection discussed herein." Id. at 892. The court then proceeded with its analysis. After reviewing this Court's finding with regard to the benefits of single-sex education in general — and VMI methodology in particular — and after reviewing the pertinent jurisprudence with regard to the proper application of equal protection under the intermediate scrutiny test, the court concluded, "In summary, the record supports the conclusion that single-sex education is pedagogically justifiable, and VMI's system, which the district court found to include a holistic formula of training, even more so." Id. at 898.

The appeals court proceeded to criticize the Commonwealth for failing to articulate, authoritatively and comprehensively, a policy with regard to single-sex education which would include both males and females. In summation, the Court stated:

We are thus left with three conclusions: (1) single-sex education, and VMI's program in particular, 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.

Id. at 899.

Because of these deficiencies, the Fourth Circuit remanded the case to this Court to give the Commonwealth an opportunity to fashion a remedy that would address the constitutional violation identified by the Court. In so doing, the Court instructed:

We do not mean to suggest the specific remedial course that the Commonwealth should or must follow hereafter. Rather, we remand the case to the district court to give the Commonwealth the responsibility to select a course it chooses, so long as the guarantees of the Fourteenth Amendment are satisfied. Consistent therewith, the Commonwealth might properly decide to admit women to VMI and to adjust the program to implement that choice, or it might establish parallel institutions or parallel programs, or it might abandon state support of VMI leaving VMI the option to pursue its own policies as a private institution. While it is not ours to determine, there might be other more creative options or combinations."

Id. at 900.

Interpreting the Fourth Circuit's Opinion

The overarching question in this phase of the litigation is: what does the Fourth Circuit's opinion require of a proposed plan in order to pass constitutional muster? As stated above, the litigants disagree strongly on this issue. Both sides are able to support their arguments by fragmented readings of the Fourth Circuit's opinion. For example, the United States finds support in the statement "whether the unique benefit offered by VMI's type of education can be denied to women by the state under a policy of diversity...." VMI, 976 F.2d at 898. This statement would imply that a program for women must provide a VMI-type education. The United States urges that to...