United States v.

Virginia
(Federal Government)

v.

(State

Government)

518 U.S. 515, 116 S.Ct. 2264 (1996)

SUPREME COURT REQUIRES AN "EXCEEDINGLY PERSUASIVE JUSTIFICATION" TO SUPPORT

GENDER-BASED CLASSIFICATIONS

INSTANT FACTS A female applicant seeking

admission to the all-male Virginia Military Institute, a public university, filed a claim against the
state of Virginia challenging the school's policy
against admitting women.
BLACK LETTER RULE State's must proffer an
exceedingly persuasive justification for gender
classifications which categorically excludes women from educational opportunities.

PROCEDURAL BASIS
Appeal to the United States Supreme Court from a decision of the Fourth Circuit Court of Appeals,
which upheld the constitutionality of an all-male public military institution.

FACTS

Among its 15 public institutions of higher education, the state of Virginia (D) maintained the Virginia
Military Institute (VMI) as an all-male military school. VMI (D) provides cadets with a unique educational
opportunity based on an "adversative method" of training. The purpose of this training was to impart on
students a strong moral code and instill physical and mental discipline. That VMI (D) had the largest
per-student endowment of all public universities in the country evinced the school's success in
developing civilian and military leaders. After the Fourth Circuit ruled that VMI's (D) policy of excluding
women was in violation of equal protection, the state of Virgina (D) proposed a parallel program for
women at Mary Baldwin College. However, many of the features which made VMI (D) such a unique
opportunity were absent from the program at Mary Baldwin College, not to mention the fact that VMI (D)
conferred a wider range of degrees and employed a more educated faculty than did Mary Baldwin.

ISSUE

Can a state constitutionally deny to capable and willing women certain public educational opportunities?
DECISION AND RATIONALE
(Ginsburg, J.) No. State's must proffer an exceedingly persuasive justification for gender classifications
which categorically exclude women from educational opportunities. Virginia (D) has failed to meet this
burden. Its assertion that single-sex education provides important education benefits and contributes to
diversity in educational approaches must be dismissed. Virginia (D) has not proved that VMI (D) has
been maintained as an all-male school in an effort to diversify educational opportunities within the state.
Our cases establish that the justification proffered in defense of a gender-based classification must be
an actual purpose, not a post hoc rationalization. Virginia (D) also claims that the admission of women
into VMI (D) would modify the school's adversative method to such an extent that neither sex would
benefit from the transformation. In other words men would be deprived of the opportunities currently
available to them and women would fail to realize the benefits of those currently available opportunities.
H I G H

C O U R T

C A S E

S U M M A R I E S

435

United States v. Virginia (Continued)

However, this notion is one which is hardly proved, and is no different than many of the "self-fulfilling
prophecies" once used to deny rights or opportunities. Surely VMI's (D) goal of producing "citizensoldiers" is one that can accommodate women. Turning to the issue of whether Virginia's (D) parallel
program at Marry Baldwin College sufficiently remedies the constitutional violation, we find that it does
not. The proper remedy for an unconstitutional exclusion aims to "eliminate the discriminatory effects of
the past" and to "bar like discrimination in the future." Virginia (D) has taken the opposite routeit has
chosen to perpetuate and leave unchanged VMI's (D) exclusionary policy. Admittedly the parallel
program does not come near to "the entirely militaristic experience of VMI (D)," a failure which Virginia
has sought to justify on the ground that the parallel program is designed for women who do not expect
to pursue military careers. This justification is inappropriate in light of the fact that only 15% of VMI (D)
graduates pursue a career in the Armed Forces. The only proper remedy is one that does not exclude
women from the educational opportunity afforded at VMI (D) simply because of their sex.

DISSENT

(Scalia, J.) The Court today rejects the factual findings of the lower courts, ignores established
precedent and rejects the history of our people. First, the Court today ignores the fact that there exist
"gender-based developmental differences" supporting the exclusion of women from the adversative
method and supporting the notion that all-male composition is essential to VMI's unique experience.
Second, the majority drastically revises this Court's established standards for reviewing sex-based
classifications. Finally, the decision today gives little credence to the national long history of supporting
all-male military institutions. The Court has essentially written into the Constitution notions of current
societal preferences.

Analysis:
This case is interesting from the standpoint that the court appears to require a level of scrutiny for
gender-based classifications that exceeds the intermediate level announced in Craig v. Boren, but that
does not, on the surface, purport to reach the level of strict scrutiny applicable to race-based
classification. Justice Ginsburg's opinion states that sex-based classifications are valid only when there
is an "exceedingly persuasive justification." However, the majority's opinion in Craig clearly states that
gender classifications must serve important governmental objectives and must be substantially related
to achievement of those objectives. Nothing in Craig appears to require "exceedingly persuasive
justifications." Nevertheless, Virginia appears to leave us with this definition of intermediate scrutiny.

CASE VOCABULARY
ADVERSATIVE METHOD: A philosophy of instruction, employed at Virginia Military Institute, which aims
at developing physical and mental discipline.
EXCEEDINGLY PERSUASIVE JUSTIFICATION: The burden imposed on the government if it wishes to
support a gender-based classification

436

H I G H

C O U R T

C A S E

S U M M A R I E S