US v. Com. of Va., Civ. A. No. 90-0126-R.

• Decision Date: 14 June 1991
• Docket Number: Civ. A. No. 90-0126-R.
• Parties: UNITED STATES of America, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

766 F. Supp. 1407

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.

June 14, 1991.

Dick Thornburgh, Atty. Gen., James P. Turner, Acting Asst. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., E. Montgomery Tucker, Asst. U.S. Atty., John P. Alderman, U.S. Atty., Roanoke, Va., Nathaniel Douglas, John R. Moore, D. Judith Keith, U.S. Dept. of Justice, Civil Rights Div., Educational, Opportunities Litigation Section, Washington, D.C., for plaintiff.

Walter A. McFarlane, Office of the Governor, Richmond, Va., Benjamin R. Civiletti, John H. Lewin, Jr., James A. Dunbar, Vanable, Baetjer & Howar, Baltimore, Md., for Lawrence Douglas Wilder, Governor.

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 Bd. of Visitors of Virginia Military Institute, Gordon K. Davies, Director of the Virginia State Council of Higher Educ. and The Virginia State Council of Higher Educ. and its Members and Officers.

Griffin B. Bell, William A. Clineburg, Jr., King & Spalding, Atlanta, Ga., Robert H. Patterson, Jr., William G. Broaddus, Anne Marie Whittemore, J. William Boland, McGuire, Woods, Battle & Boothe, Richmond, Va., William B. Poff, Woods, Rogers & Hazlegrove, Roanoke, Va., for Virginia Military Institute, its Superintendent and its Bd. of Visitors.

James A.L. Daniel, Daniel, Vaughan, Medley & Smitherman, Danville, Va., Joel

I. Klein, Onek, Klein & Farr, Washington, D.C., pro hac vice, for Com. of Va.

MEMORANDUM OPINION¹

KISER, District Judge.

The Controversy

It was in May of 1864 that the United States and the Virginia Military Institute (VMI) first confronted each other. That was a life-and-death engagement that occurred on the battlefield at New Market, Virginia. The combatants have again confronted each other, but this time the venue is in this court. Nonetheless, VMI claims the struggle is nothing short of a life-and-death confrontation—albeit figurative.

The conflict between the parties arises out of the United States' challenge to VMI's all-male admissions policy. The United States asserts that as a state-supported college, VMI's refusal to admit females to the Institute, regardless of their qualifications, violates the Equal Protection Clause of the Fourteenth Amendment. VMI counters by saying that although it discriminates against women, the discrimination is not invidious but rather to promote a legitimate state interest—diversity in education. Thus, the issue to be resolved is whether VMI's practice of excluding women can pass muster under the equal protection clause, as glossed by the decisions of the Supreme Court. I find that it can, for the reasons that I hereafter state.

Jurisdiction

This Court's jurisdiction was properly invoked under Title IV of the Civil Rights Act, 42 U.S.C. § 2000c-6, which permits the United States to bring actions alleging discrimination in violation of either the United States Constitution or other federal statutes.

Because single-sex colleges and single-sex military schools are exempted from Title IX of the Civil Rights Act, 20 U.S.C. 1681(a)(4) and (5), the United States alleged only a constitutional violation and no statutory violation. The Department of Justice's authority to bring a suit under Title IV is not limited by Title IX. United States v. Massachusetts Maritime Academy, 762 F.2d 142, 147-51 (1st Cir.1985). Of course, although Congress could deprive the Attorney General of the authority to bring this action, it could not pass a statute that would exempt VMI's alleged equal protection violations from judicial review. Mississippi University for Women v. Hogan, 458 U.S. 718, 733, 102 S.Ct. 3331, 3340, 73 L.Ed.2d 1090 (1982).

Procedural Background

This case originated from a complaint filed by the United States Department of Justice on behalf of a female high school student who wanted to be considered for admission to VMI. The named defendants were the Commonwealth of Virginia; Governor Lawrence Douglas Wilder; Virginia Military Institute, its president, superintendent, and members of its Board of Visitors; and Virginia's State Council of Higher Education and its members. The State Council of Higher Education and its members have been dismissed from the suit. The Commonwealth has been granted a stay relieving it of the duty to appear at trial, under the condition that it be bound by any ruling of this Court. Governor Wilder was relieved of the duty to respond to any subpoenas requiring him to testify at trial. In response to an earlier motion, he stated that he did not oppose entry of summary judgment against himself and the other defendants. The VMI Foundation and the VMI Alumni Association, private organizations associated with VMI, have intervened as defendants in the case over the United States' objection. See ruling of November 27, 1990.

A six-day trial was held beginning April 4, 1991. Nineteen witnesses testified, including four experts on education, one expert on college facilities, and one expert on human physiology. All defendants, except Governor Wilder, were represented by common counsel. Governor Wilder was represented by counsel, but he did not personally appear or participate in the trial.

Standard of Review

The VMI Board of Visitors decides the admissions policy of VMI. The seventeen members of this Board are appointed by the Governor of Virginia, subject to approval by the General Assembly, including the State Adjutant General, who is a member ex officio. Va.Code § 23-93; Va. Code § 44-11 (Adjutant General also nominated by Governor subject to General Assembly approval). Twelve of the members must be VMI alumni.

All parties recognize that this case concerns educational policy, and the proper standard of review should be derived from cases concerning higher education. The principle of academic freedom, an aspect of the freedom of association guaranteed by the First Amendment, has been recognized by the Supreme Court as a reason to defer to academic decisionmaking by a university. Regents of the University of California v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 2759, 57 L.Ed.2d 750 (1978).² The essential freedoms of a university include the freedom to choose who may be admitted to study. Id. (Quoting Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957) (Justice Frankfurter concurring)). "Attainment of a diverse student body ... is a constitutionally permissible goal for an institution of higher education." Id. While Bakke involved diversity within a single graduate program³, other courts have extended the rationale of that decision to include the freedom to create different missions at different state universities, in order to promote diverse educational opportunities within the state. Williams v. McNair, 316 F.Supp. 134, 137 (D.S.C.1970) (three-judge panel), aff'd, 401 U.S. 951, 91 S.Ct. 976, 28 L.Ed. 235 (1971) (per curiam); Ayers v. Allain, 914 F.2d 676, 687 (5th Cir.1990 en banc), cert. granted sub nom. United States v. Mabus, ___ U.S. ___, 111 S.Ct. 1579, 113 L.Ed.2d 644 (1991).

However, deference to university decisions is not absolute. The Supreme Court ordered racial integration of graduate programs long before it ordered desegregation of lower public schools. Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938); Sipuel v. Board of Regents, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247 (1948); Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950). Courts have, in some cases, entered injunctions that have the effect of overruling discretionary educational decisions of individual colleges, where those decisions tend to perpetuate unconstitutional discrimination. In Norris v. State Council of Higher Education, 327 F.Supp. 1368 (4th Cir.), aff'd, 404 U.S. 907, 92 S.Ct. 227, 30 L.Ed.2d 180 (1971), a three-judge panel of the Fourth Circuit entered an injunction preventing Richard Bland College, a two-year branch of the College of William and Mary, from expanding into a four-year college, because that would have impeded desegregation of nearby Virginia State College.

Sex Discrimination

The first court challenge to sex segregation in Virginia higher education appeared in Kirstein v. Rector and Visitors of the University of Virginia, 309 F.Supp. 184 (E.D.Va.1970) (three-judge panel) (approving consent order). In that case, the court found that "we think it fair to say from the evidence that the most prestigious institution of higher education in Virginia is the University of Virginia in Charlottesville." Id. at 186. The court was reluctant to "interfere with the internal operation of any Virginia college or university," but it encouraged a settlement that required the university to admit women. But the court refused to enter an order requiring Virginia to admit both sexes to all of its universities:

We are urged to go further and to hold that Virginia may not operate any educational institution separated according to the sexes. We decline to do so. Obvious problems beyond our capacity to decide on this record readily occur. One of Virginia's educational institutions is military in character. Are women to be admitted on an equal basis, and, if so, are they to wear uniforms and be taught to bear arms?

Id. at 187.

Another early Fourth Circuit decision, affirmed by the Supreme Court, involved Winthrop College in Rock Hill, South Carolina. Williams v. McNair, supra. In that case, male students wanted to attend an all-female college. The Court noted that South Carolina had one public all-male college (The Citadel, which like VMI offers a military program), and several coeducational institutions. The court n...