976 F.2d 890 (4th Cir. 1992), 91-1690, United States v. Com. of Va.

Docket Nº:91-1690.
Citation:976 F.2d 890
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. COMMONWEALTH OF VIRGINIA; Lawrence Douglas Wilder, 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 o
Case Date:October 05, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 890

976 F.2d 890 (4th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellant,

v.

COMMONWEALTH OF VIRGINIA; Lawrence Douglas Wilder, 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; 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, Members of the Board of Visitors of

Virginia Military Institute; VMI Foundation, Incorporated;

VMI Alumni Association, Defendants-Appellees,

and

Gordon K. Davies, Director of the Virginia State Council of

Higher Education; The Virginia State Council of

Higher Education and its Members and

Officers, Defendants.

Virginia Women Attorneys Association; Virginia Chapter of

the American Association of University Women; Virginia

Chapter of the Olderwomen's League; Virginia Federation of

Business and Professional Women's Clubs, Incorporated;

Friends of VMI for Equality; Alexander W. Astin; American

Civil Liberties Union; ACLU Foundation of Virginia;

National Women's Law Center; American Association of

University Women; Center for Women Policy Studies;

National Organization for Women; NOW Legal Defense and

Education Fund; Virginia National Organization for Women;

Virginia Now Legal Defense and Education Fund, Incorporated;

Women's Law Project; Women's Legal Defense Fund, Amici Curiae.

No. 91-1690.

United States Court of Appeals, Fourth Circuit

October 5, 1992

Argued April 8, 1992.

On Petition for Rehearing with Suggestion

for Rehearing In Banc Nov. 19, 1992.

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Jessica Dunsay Silver, Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., argued (John R. Dunne, Asst. Atty. Gen., David O. Simon, Acting Deputy Asst. Atty. Gen., Thomas E. Chandler, on brief), for plaintiff-appellant.

Robert H. Patterson, Jr., McGuire, Woods, Battle & Boothe, Richmond, Va., Griffin B. Bell, King & Spalding, Atlanta, Ga., argued (William G. Broaddus, Anne Marie Whittemore, J. William Boland, Frank B. Atkinson, H. Alexander Wise, McGuire, Woods, Battle & Boothe, Richmond, Va., William A. Clineburg, Jr., King & Spalding, Atlanta, Ga., William B. Poff, Woods, Rogers & Hazlegrove, Roanoke, Va., on brief), for defendants-appellees.

Eileen N. Wagner, Richmond, Va., Karen R. Keesling, Falls Church, Va., Sylvia Clute, Richmond, Va., for amici curiae, Virginia Women Attys. Ass'n, Virginia Chapters of the American Ass'n of University

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Women, Older Women's League, Virginia Federation of Business and Professional Women's Clubs, Inc., Friends of VMI for Equality, Dr. Alexander W. Astin.

Ellen J. Vargyas, Shirley Sagawa, Marcia D. Greenberger, National Women's Law Center, Washington, D.C., Joan E. Bertin, Elisabeth A. Werby, Isabelle Katz Pinzler, Jacqueline A. Berrien, American Civ. Liberties Union Foundation, New York City, Stephen B. Pershing, American Civ. Liberties Union Foundation of Virginia, Richmond, Va., for amici curiae, American Civil Liberties Union, ACLU Foundation of Virginia, National Women's Law Center, American Ass'n of University Women, Center for Women Policy Studies, National Organization for Women, NOW Legal Defense and Educ. Fund, Virginia NOW, Virginia NOW Legal Defense and Educ. Fund, Women's Law Project, Women's Legal Defense Fund.

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

OPINION

NIEMEYER, Circuit Judge:

The male-only admissions policy of Virginia Military Institute (VMI), a state institution of higher education located in Lexington, Virginia, is challenged by the federal government under the Equal Protection Clause of the Fourteenth Amendment and the jurisprudence of Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). The government contends that the school's policy discriminates against women and is not substantially related to the achievement of an important governmental objective.

Following a six-day trial and extensive findings of fact, the district court concluded that VMI's male-only policy "is fully justified" by a generally accepted benefit of single-sex education, and that the admission of women would "significantly" change the "methods of instruction and living conditions" at VMI. Having concluded that "diversity in education" was a legitimate state interest, the district court summarized, "I find that both VMI's single-sex status and its distinctive educational method represent legitimate contributions to diversity in the Virginia higher education system, and that excluding women is substantially related to this mission." 766 F.Supp. 1407, 1411-13 (W.D.Va.1991).

The United States contends on appeal that enhancing diversity by offering a distinctive single-sex education to men only is not a legitimate state objective and that the Commonwealth and VMI have not established a sufficient justification for VMI's male-only admissions policy.

For the reasons that we give more fully below, we accept the district court's factual determinations that VMI's unique methodology justifies a single-gender policy and material aspects of its essentially holistic system would be substantially changed by coeducation. Moreover, all parties appear to acknowledge, as did the district court, the positive and unique aspects of the program. 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.

Because Virginia has failed to articulate an important objective which supports the provision of this unique educational opportunity to men only, we vacate the judgment of the district court and remand 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. We do not, however, order that women be admitted to VMI if adequate alternatives are available.

I

VMI was established by the Virginia legislature in 1839 as a four-year military college, and its graduates have distinguished themselves in the 150 years since. A VMI professor, Thomas "Stonewall" Jackson, achieved notoriety as a confederate general during the Civil War. The VMI cadet corps fought Union troops at New Market, Virginia, and almost 1800 alumni (constituting 94% of all VMI graduates at the time) fought in the Civil War. Among the thousands of alumni who have served this country

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during war is General of the Army George C. Marshall, and six have been awarded the Congressional Medal of Honor. VMI graduates have achieved similarly in civilian life. The school's success and reputation are uncontroverted in this case. Indeed, it is apparently that very success in producing leaders that has made admission to VMI desirable to some women, prompting the government to challenge the policy of excluding women.

VMI is financially supported by the Commonwealth of Virginia and remains "subject to the control of the [Virginia] General Assembly." Va.Code Ann. § 23-92. It is governed by a Board of Visitors, which the Commonwealth expressly charges with prescribing "the terms upon which cadets may be admitted, their number, the course of their instruction, the nature of their service, and the duration thereof." Va.Code Ann. § 23-104.

The 15 state-supported institutions of higher learning in Virginia, 1 including VMI, are generally supervised and coordinated by the State Council of Higher Education for Virginia. While the Virginia General Assembly assigns various responsibilities to the Council of Higher Education, including the responsibility "to review and approve or disapprove of any proposed change in [an existing institution's] statement of mission," it delegates to each institution the right to modify its mission and to establish admissions criteria. See Va.Code Ann. § 23-9.6:1(2).

The mission of VMI is to produce "citizen-soldiers, educated and honorable men who are suited for leadership in civilian life and who can provide military leadership when necessary." 2 Focusing primarily on character development and leadership training through a unique and intense process, characterized as an "adversative" educational model drawn from earlier military training and English public schools, VMI's educational method emphasizes physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination of values. The process is designed to foster in VMI cadets doubts about previous beliefs and experiences and to instill in cadets new values which VMI seeks to impart. The model employs a hostile, spartan environment that is characterized by six interrelated components--the "rat line," the class system, the "dyke" system, the honor code, the barracks life, and the military system.

The rat line refers to the harsh orientation process to which all new cadets ("rats") are subjected during their first seven months at VMI. Designed to be comparable to the Marine Corps' boot camp in terms of physical rigor...

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