United States v. Virginia

Majority decision

Writing for the majority, Justice Ruth Bader Ginsburg found that VMI had failed to show "exceedingly persuasive justification" for its sex-based admissions policy, violating the Fourteenth Amendment's Equal Protection Clause. In an attempt to satisfy equal protection requirements, the state of Virginia had proposed a parallel program for women, called the Virginia Women's Institute for Leadership (VWIL), located at Mary Baldwin College, a private liberal arts women's college.

Justice Ginsburg found, however, that the VWIL would not provide women with the same type of rigorous military training, facilities, courses, faculty, financial opportunities, and alumni reputation and connections that VMI affords male cadets, a decision evocative of Sweatt v. Painter (1950), in which the Court ruled that segregated law schools in Texas were unconstitutional, since a newly formed black law school clearly did not provide the same benefits to its students as the state's prestigious and long-maintained white law school. In her opinion, she stated: "The VWIL program is a pale shadow of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence."

Rehnquist concurrence

Chief Justice William Rehnquist wrote a concurrence agreeing to strike down the male-only admissions policy of the Virginia Military Institute, as violative of the Fourteenth Amendment's Equal Protection Clause. However, he declined to join the majority opinion's basis for using the Fourteenth Amendment, writing: "Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation." This rationale supported separate but equal facilities separated on the basis of sex: "[I]t is not the 'exclusion of women' that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any—much less a comparable—institution for women ... It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber."

Scalia dissent

Justice Scalia's lone dissent argued that the standard applied by the majority was closer to a strict scrutiny standard than the intermediate scrutiny standard applied to previous cases involving equal protection based on sex. Notably, however, the opinion for the Court eschewed either standard; its language did not comport with the "important governmental interest" formula used in prior intermediate scrutiny cases. Scalia argued: "[I]f the question of the applicable standard of review for sex-based classifications were to be regarded as an appropriate subject for reconsideration, the stronger argument would be not for elevating the standard to strict scrutiny, but for reducing it to rational-basis review."

Scalia made sure to provide Ginsburg with a copy of his dissent as quickly as he could, in order for her to better respond to it in her majority opinion. Ginsburg later recalled that Scalia "absolutely ruined my weekend, but my opinion is ever so much better because of his stinging dissent".

Aftermath

The senior justice in the majority, John Paul Stevens, had assigned Sandra Day O'Connor to write the opinion, but in an act of generosity, she demurred, saying, "This should be Ruth's." With the VMI decision, the high court effectively struck down any law which, as Justice Ginsburg wrote, "denies to women, simply because they are women, full citizenship stature — equal opportunity to aspire, achieve, participate in and contribute to society." Nina Totenberg, journalist and legal affairs correspondent for National Public Radio, hailed Ginsburg's majority opinion as "the jewel in the crown of Ginsburg majority opinions". Professor of law at the University of Texas School of Law Steve Vladeck was highly positive of the Ginsburg decision: "The majority opinion in the VMI case is perhaps the best-known and most important majority opinion Justice Ginsburg has penned in her 24 years on the Supreme Court. That case, more than any other, epitomized the justices’ effort to establish true sex equality as a fundamental constitutional norm, and its effects are continuing to reverberate today."

Following the ruling, VMI contemplated going private to exempt itself from the 14th Amendment, and thus this ruling. The Department of Defense warned the school that it would withdraw all ROTC programs from the school if this privatization took place. As a result of the DOD action, Congress amended , to prohibit the military from withdrawing or diminishing any ROTC program at one of the six senior military colleges, including VMI. However, VMI's Board of Visitors had already voted 9–8 to admit women and did not revisit the issue after the law was amended.

VMI was the last all-male public university in the United States. Justice Ginsburg told cadets of the Virginia Military Institute in 2018 that she knew her opinion “would make VMI a better place”. She also thought that those who were initially opposed would learn from their women classmates “how much good women could do for the institution.”

References

• Stockel, Eric J. (1996). "Note, United States v. Virginia: Does Intermediate Scrutiny Still Exist?" 13 TOURO L. REV. 229 (1996)

References

1. (June 27, 1996). "Supreme Court Invalidates Exclusion of Women by VMI". The Washington Post.
2. Philippa Strum. (2002). "Women in the Barracks: The Vmi Case and Equal Rights". University Press of Kansas.
3. "United States v. Virginia :: 518 U.S. 515 (1996) :: Justia U.S. Supreme Court Center". Justia Law.
4. (September 22, 2020). "The Ginsburg-Scalia Act Was Not a Farce". The New York Times.
5. (December 4, 2020). "How the "Notorious R.B.G." Used Persuasion to Advance Equality". The University of Chicago Harris School of Public Policy.
6. (February 13, 2016). "What made the friendship between Scalia and Ginsburg work". The Washington Post.
7. (September 1, 2015). "Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World". Harper.
8. (September 1, 2015). "Author Interviews: Ruth Bader Ginsburg And Sandra Day O'Connor, 'Sisters In Law'". [[National Public Radio]].
9. (September 18, 2020). "Ruth Bader Ginsburg's most notable Supreme Court decisions and dissents". CNN.
10. "United States Code § 2111a. Support for senior military colleges".
11. "United States v. Virginia, 518 U.S. 515 (1996): Justia Opinion Summary and Annotations". [[Justia]].