Are all 'rats' equal? The Supreme Court looks at VMI.

In 1954 the Supreme Court did the nation a great favor when, in Brown v. Board of Education, it repudiated racial apartheid, American-style. And Congress moved the ball a lot further when it prohibited discrimination on the basis of race, sex, and religion in the most important statute of this century, the Civil Rights Act of 1964. But that doesn't mean that all forms of discrimination are equally abhorrent. For example, single-sex schools like Wellesley or Saint Mary's College are expressly protected under Title IX of the 1972 federal statute that otherwise prohibits sex discrimination in federally funded educational programs. That suggests that governmental classifications based on gender are not quite the same as those based on race. But may state or federal funds be used to support military institutions that exclude women? Would separate facilities for men and women who want training that would enable them to serve in the military necessarily violate the equal protection clause? In other words, do we need to be discriminating about discrimination?

These questions are squarely presented in a case on the Supreme Court's docket this term involving a challenge by the federal government to the males-only admissions policy of the Virginia Military Institute (VMI). The lower courts found that this policy was unconstitutional and ordered the State of Virginia to correct this violation of women's rights by setting up a comparable program for women known as the Virginia Women's Institute for Leadership (VMIL). The federal government has pulled out all the stops in its briefs, arguing not only that VWIL is itself unconstitutional because it is a separate facility available only to women, but also that "all classifications that deny opportunities to individuals based on their gender should be subjected to strict judicial scrutiny."

"Strict scrutiny" is a legal buzzword for invalidating a governmental classification with a discriminatory effect. For several decades the Court has said that racial classifications must be reviewed under this standard, and has--with the sole exception of some affirmative-action cases--nearly always found racial classifications to be constitutionally impermissible. The whole point of Brown was to reject the idea that "separate but equal" schools were really providing equal educational opportunity when children were segregated along racial lines. But in 1973 only four justices thought that the "strict scrutiny" standard should be extended to classifications based on gender, and none of those justices now sits on the Court.

It is unlikely that a majority of the Court will now adopt this standard in the VMI case. First, the government only raised this claim in the Supreme Court, and the Court could reject the claim as not properly preserved by the government in this record. Second, the federal government could prevail in the VMI case by proving that Virginia's maintenance of separate facilities for military training of men and women does not "serve important governmental objectives," to quote the standard that currently governs sex discrimination cases. But even if five justices agree with this view of the present case, they may still hesitate to change the standard for future cases.

It is by no means a foregone conclusion that the only constitutional remedy in the VMI case is to require that institution to open its doors to women. Some might think of a kinder and gentler female military as a multiple oxymoron, but one might also wonder whether the only path to equal dignity for women is one that puts women into the VMI's notoriously abusive "rat line." The federal government's brief describes this strict seven-month regimen as one in which first-year cadets, or "rats," are "treated miserably," like "the lowest animal on earth." The brief suggests that this "strict system of punishments and rewards" creates a "sense of accomplishment and bonding" between the "rats" and their "fellow sufferers and tormentors." Maybe so, but other educators might strive to achieve a sense of accomplishment and bonding without a rat line. I don't know what the federal government was trying to prove when it acknowledged in its brief that the "principal object" of the VMI environment is "to induce stress" in "stark and unattractive rooms, with poor ventilation, unappealing furniture, windowed doors with no locks and no window coverings." But I cannot see much harm in allowing the VWIL to try to train women for military leadership in a different environment and with a different educational purpose in mind.

Virginia has argued that its objectives in operating a separate facility for women at the VWIL are not based on archaic stereotypes about the role of women in the military or in society. The state maintains that the VWIL offers educational benefits to women that are comparable to those provided to men at the VMI and that any differences between the VMI and the VWIL are pedagogically justified. And it insists that, in the formation of its educational policy, it may take into account real differences between the sexes, with at least as much freedom as that enjoyed by single-sex academies under Title IX.

The VMI case is a close one. The Court could rely heavily on a 1982 decision that rejected a state-operated nursing college available only to women. Or the Court could rely instead on a 1975 case in which it granted women longer tenure than men before mandatory discharge because the Navy had not given women an equal opportunity to have seagoing experience. No matter which way the Court rules in the case, it will offer all of us another opportunity to reflect about the ways in which we value women in our society and to reflect as candidly about the ways in which we have placed them, to quote former Justice William Brennan, "not on a pedestal but in a cage" by denying them adequate opportunities to be their fullest and truest selves. And the VMI case gives us a chance to rethink the equation of equality with sameness, and to acknowledge that real differences between the sexes can be accommodated and even celebrated without abandoning our commitment to equality.

Edward McGlynn Gaffney, Jr., is the dean of the Valparaiso University School of Law.