U.S. v. Jones, s. 96-2290
| Decision Date | 11 February 1998 |
| Docket Number | Nos. 96-2290,96-2446,s. 96-2290 |
| Citation | 136 F.3d 342 |
| Parties | 124 Ed. Law Rep. 48 UNITED STATES of America; Nancy Mellette, Plaintiffs-Appellees, Shannon Richey Faulkner, individually and on behalf of all others similarly situated, Plaintiff, v. James E. JONES, Jr., Chairman, Board of Visitors of The Citadel, the Military College of South Carolina; Carroll A. Campbell, Jr., Governor of The State of South Carolina; T. Easton Marchant, Adjutant General of the State of South Carolina; Barbara S. Nielsen, Superintendent of Education of the State of South Carolina; William F. Prioleau, Jr.; William E. Jenkinson, III; Leonard C. Fulghum, Jr.; James M. Leland, Jr.; John A. McAllister, Jr.; David S. Boyd, Jr.; Julian G. Frasier, III; James W. Bradin; Larry J. Ferguson; Steven D. Peper, Members 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, in their Official Capacities; 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. Nancy MELLETTE, Plaintiff-Appellant, Shannon Richey Faulkner, individually and on behalf of all others similarly situated; United States of America, Plaintiffs, v. James E. JONES, Jr., Chairman, Board of Visitors of The Citadel, The Military College of South Carolina; Carroll A. Campbell, Jr., Governor of the State of South Carolina; T. Easton Marchant, Adjutant General of the State of South Carolina; Barbara S. Nielsen, Superintendent of Education of the State of South Carolina; William F. Prioleau, Jr.; William E. Jenkinson, III; Leonard C. Fulghum, Jr.; James M. Leland, Jr.; John A. McAllister, Jr.; David S. Boyd, Jr.; Julian G. Frasier, III; James W. Bradin; Larry J. Ferguson; Steven D. Peper, Members of the Board of Visitors of The Citadel, The Military |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Kenneth Paul Woodington, Sr. Asst. Atty. Gen., Columbia, SC, for Appellants. Valorie Kay Vojdik, New York University School Of Law, New York City; Thomas Evans Chandler, United States Department of Justice, Washington, DC, for Appellees. ON BRIEF: Charles Molony Condon, Atty Gen., Treva G. Ashworth, Deputy Atty. Gen., Reginald I. Lloyd, Asst. Atty. Gen., Columbia, SC; M. Dawes Cooke, Jr., Barnwell, Whaley, Patterson & Helms, Charleston, SC; Robert H. Hood, Hood Law Firm, Charleston, SC, for Appellants. Deval L. Patrick, Asst. Atty. Gen., Jessica Dunsay Silver, United States Department Of Justice, Washington, DC, for Appellee United States. Robert R. Black, Charleston, SC; Suzanne E. Coe, Greenville, SC; Henry Weisburg, Susan R. Schwaiger, Shearman & Sterling, New York City, for Appellee Mellette.
Before WIDENER, NIEMEYER, and HAMILTON, Circuit Judges.
August 14, 1996 Order affirmed in part and vacated in part and Orders of July 22, 1994, July 24, 1995, October 3, 1995, affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WIDENER and Judge HAMILTON joined.
This appeal adds yet another chapter to the continuing litigation over The Citadel's formerly male-only admissions policy. Following the Supreme Court's decision in United States v. Virginia, 518 U.S. 515, 116 S.Ct 2264, 135 L.Ed.2d 735 (1996) (), The Citadel announced that it had abandoned its male-only policy and was admitting women to its Corps of Cadets. Thereafter, on August 14, 1996, the district court entered an order declaring that The Citadel's earlier proposed parallel program at Converse College was unconstitutional and enjoining The Citadel to end its male-only policy. Contending that the court's order, as well as other orders entered earlier by the court, were moot and unnecessary, The Citadel and the State of South Carolina appealed. Nancy Mellette, the private plaintiff in this case, cross-appealed, challenging the district court's refusal to certify a class action under Federal Rule of Civil Procedure 23.
For the reasons that follow, we vacate portions of the district court's August 14, 1996 order and affirm the remainder. We also affirm the other orders challenged by The Citadel and Mellette.
The Citadel is a state-supported four-year military college located in Charleston, South Carolina. Throughout its 154-year history, until 1996, The Citadel maintained a policy of admitting only men to its Corps of Cadets. It did admit women to other educational programs.
In early 1993, The Citadel admitted Shannon Faulkner, not aware of her gender. When it discovered that Faulkner was female, however, it revoked her admission. Faulkner filed this action, on her own behalf and on behalf of a class, alleging that The Citadel's actions denied her equal protection of the laws because of her sex in violation of the Fourteenth Amendment and seeking an order compelling her admission and prohibiting The Citadel's discriminatory admissions policy. Shortly thereafter, the United States intervened as plaintiff and named South Carolina as an additional defendant.
In August 1993, the district court entered a preliminary injunction, ordering that Faulkner be allowed to attend day classes at The Citadel but not, pending the litigation, to enter the Corps of Cadets. In affirming that order, we concluded that "[w]hile the presence of a female in the day classes may be disruptive in the first days, an order permitting Faulkner's attendance is not tantamount at this time to integrating or altering the military program at The Citadel." Faulkner v. Jones, 10 F.3d 226, 233 (4th Cir.1993). We also noted that as of that time South Carolina had not indicated an interest in creating a parallel women's program, which we had indicated, in connection with similar litigation involving the Virginia Military Institute, was available to remedy an equal protection violation. See United States v. Virginia ("VMI I "), 976 F.2d 890, 900 (4th Cir.1992), aff'd, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996).
Following a two-week bench trial in the spring of 1994 on the merits of Faulkner's claim, the district court found that The Citadel's male-only admissions policy violated the Equal Protection Clause and ordered The Citadel to admit Faulkner to the Corps of Cadets beginning in the fall of 1994 and to plan for the admission of other women in the fall of 1995. See Faulkner v. Jones, 858 F.Supp. 552, 569 (D.S.C.1994). Pending appeal, we stayed that order with the effect that it postponed Faulkner's admission date. In April 1995, we affirmed the district court's determination on the merits but modified the remedy. See Faulkner v. Jones, 51 F.3d 440, 442 (4th Cir.), cert. denied, 516 U.S. 938, 116 S.Ct. 352, 133 L.Ed.2d 248 (1995). Recognizing that August 12, 1995, was the latest date that Faulkner could enter the Corps of Cadets if she were to be admitted, we ruled that she would have to be admitted at that time, unless before then the State of South Carolina offered a satisfactory parallel program for women, approved by the district court.
In response to our decision, The Citadel and the State of South Carolina filed a proposed plan on June 5, 1995, to create a parallel program at Converse College called the South Carolina Institute of Leadership for Women (SCIL). The discovery that followed thereafter in connection with the district court's consideration of the plan was highly contested, requiring continuous court intervention. On July 24, 1995, the district court issued an order concluding that discovery could not be completed before August 12, 1995, when Faulkner was required to report as a member of the Corps of Cadets, and accordingly it scheduled a discovery cutoff for October 15, 1995, with a trial to commence on November 6, 1995. In ruling, the court said:
The problem is, the defendants have not done what they said they would. Instead of speeding the discovery process up, they have slowed it down. Instead of being open and fair as they promised, it has been business as usual for the defendants. They have failed to respond properly to discovery requests in violation of the rules of this court, and they have made legitimate objections to discovery that seem to serve little or no useful purpose for them but delay the completion of discovery significantly.
From entry of this order, The Citadel and South Carolina sought a stay from us in order to postpone Faulkner's entry into the Corps of Cadets, which we denied. See Faulkner v. Jones, 66 F.3d 661, 662 (4th Cir.), cert. denied, 516 U.S. 938, 116 S.Ct. 352, 133 L.Ed.2d 248 (1995).
Faulkner joined the Corps of Cadets on August 12, 1995. Shortly thereafter, however, on August 18, 1995, she withdrew because of illness.
When Faulkner withdrew from The Citadel, The Citadel and South Carolina moved to dismiss her suit as moot. In response Nancy Mellette, another applicant to The Citadel, moved to intervene as a plaintiff. With her motion, she also renewed Faulkner's motion for class certification, on which the court had not yet ruled. By order dated October 3, 1995, the district court granted Mellette's motion to intervene, granted the defendant's motion to dismiss Faulkner's...
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