Facts—The Virginia Military Institute (VMI), a state-supported institution, offered an education to men but not to women. Women seeking admission un- der the equal protection clause of the Fourteenth Amendment initially lost in a U.S. District Court, which found that the education at VMI had “substantial benefits,” including adding diversity to the Virginia state system of higher education. The U.S. Fourth Circuit Court subsequently mandated that VMI should accept women, that the state should establish a parallel institution, or that VMI should become private. VMI subsequently set up a parallel program at Mary Baldwin College, with less emphasis on the “adversative system” and other military components of education at VMI. The District Court and a divided Circuit Court upheld this plan.

Question—Does VMI’s continuing exclusion of women constitute a denial of equal protection under the Fourteenth Amendment of the U.S. Constitution?

Decision—Yes.

Reasons—J. Ginsburg (7–1; Thomas [whose son attended VMI] not participating). Ginsburg argued that individuals seeking to maintain gender classifications “must demonstrate an ‘exceedingly persuasive justification’ for that action” and must show that the means it employs are “substantially related” to such action. Physical differences between men and women are enduring, but are not the cause for reinforcing stereotypes. Although Virginia argues that single-sex education affords pedagogical benefits, its arguments in this case appear to be mere rationalizations for keeping things as they are. Arguments that women will not fit into VMI’s program, or would not, for the most part, want to attend, tend to be self-fulfilling. Virginia’s establishment of a program at Mary Baldwin College is significantly different and is neither tangibly or intangibly equal to that provided at VMI. This program does not provide equal protection for Virginia’s sons and daughters.

C.J. Rehnquist’s concurrence objected to the majority’s requirement that Virginia must show an “exceedingly persuasive justification” for its education practices. He agrees, however, that the system at Mary Baldwin fell short of equality and thus of the equal protection standard articulated in the Fourteenth Amendment. J. Scalia’s dissent focused on the majority’s deprecation of history and tradition. Because the Constitution was silent as to the best method of education, he thought that the Court should be as well. He associated the majority decision with “smug assurances” of the age rather than with constitutional mandates.