Gender Discrimination:
State-Funded Single-Sex Education
Mississippi University for Women v. Hogan
United States v. Commonwealth of Virginia
Law and Social Science
Prof. Jeffrey Fagan
March 8, 2006
Sara Froikin
Mississippi University for
Women v. Hogan
U.S. Supreme Court, 1982
Remedial Purposes of
Sex-Segregated Schools
Facts:
• 1884: MUW created by MS legislature as an allfemale school.
– Mission include training for needlework, typing,
bookkeeping, other artistic endeavors, and other
topics to “fit them for the practical affairs of life.”
• 1971: MUW opens nursing school.
• 1974: Joe Hogan begins practicing as a nurse,
attains level of supervisor.
• 1979: Joe Hogan applies to MUW nursing
school, is denied admissions based on his
gender.
Lower Court Findings
• Hogan files suit in District Court, seeking
injunctive and declaratory relief, and
compensatory damages.
• District Court applies “rational relationship” test,
enters summary judgment for the State
• 5th Cir. Court of Appeals:
– Applies “substantially related to” test: State must
show gender based classification is substantially
related to an important govt objective
– State has significant interest in providing education to
all citizens; providing opportunity here only to women
doesn’t accomplish this.
– Hogan’s rejection denies him equal protection of the
law
Lower Court Findings continued…
• Court of Appeals Rehearing
– State argues: Title IX, §901(a)(5) of the
Education Amendments of 1972 exempts
“public undergraduate institutions that
traditionally have used single-sex admissions
policies from the gender discrimination
prohibition of Title IX.”
– Court: 14th Amendment §5 doesn’t grant
Congress power to create exceptions to the
14th Amendment
• Supreme Court then affirmed the Court of
Appeals ruling…
O’Connor Majority
• Establishes the intermediate level
of review since applied to gender
discrimination cases
– Racially discriminatory policies are inherently
suspect, and receive “strict scrutiny” review
– State action involving economic transactions
receives “rational basis” review
– O’Connor here establishes review of genderbased distinctions based on “exceedingly
persuasive justification” for the classification
Two Stages of Proof
Party seeking to uphold gender-discriminatory
statute carries burden of showing “exceedingly
persuasive justification” for the classification
Burden is only met by showing the classification
1) Serves “important government objectives” and
2) Discriminatory means are “substantially related to
the achievement of those objectives”
This test must applied “free of fixed notions
concerning the roles and abilities of males and
females”
Meeting This Standard
State Argues:
• MUW Nursing School objective is remedial, educational
affirmative action for women.
Court Responds:
• Looks to whether this is substantively true.
• No proof women lacked opportunities to study nursing,
get leadership nursing positions in the past
• MUW single-sex policy exacerbates stereotypic view of
nursing as woman’s job.
– 1970: women earn 94% BSN degrees in MS, 98.6% in MS
– 1969: women earned 100% BSN degrees in MS, 98.9% in MS
• Concludes MUW Nursing School doesn’t accomplish
goal of increasing opportunity for women
Meeting This Standard 2
Linking the gender-based classification to the state
objective: Court finds state made no showing
• Court also finds excluding men from MUW doesn’t affect
women’s classroom experience:
– MUW lets men audit classes.
– Experts testify women aren’t negatively affected by the auditing,
men don’t affect the classroom teaching style and men don’t
dominate the classroom
No 14th Amendment Exemption
• O’Connor counters State’s Title IX exemption
argument:
– 14th Amendment only gives Congress power to adopt
measures enforcing the Amendment; it grants no
powers to “restrict, abrogate, or dilute” 14th
Amendment rights.
– Congress and States both barred from passing valid
laws denying 14th Amendment rights – such a law,
conflicting with the Constitution, can’t be applied by
judges.
– If Title IX, §901(a)(5) is an exemption
from 14th Amendment, it’s unconstitutional.
Dissents
• Burger:
– emphasizes majority opinion’s limited scope, applying
only to state-run single-sex nursing schools
• Blackmun:
– Hogan has enough opportunity: state offers 2 other
public coed nursing schools
– Majority takes formalist rules regarding sex
discrimination too far, eliminating options and harming
other values.
– Majority opinion jeopardizes all state single-sex
programs
Dissents continued
• Powell: Majority finds victimless discrimination.
– Equal protection intended to protect women, the
historically disadvantaged group. MUW excluding
men does not harm women; women in MS have equal
opportunity in MS higher ed.
– Single-sex ed options are valuable
• Historically popular, reflects student preferences
• Cites Astin study on value to both sexes of single-sex ed
– Advocates lower “rational basis” analysis, but MUW
wins on intermediate analysis as well
• 2000 women “evidence their preference” by attending MUW
• MUW Nursing School founded 10 years after Jackson coed
program
• Women’s opportunities aren’t reduced on other campuses as
result of MUW program
– There’s no constitutional right to attend a state-funded
university in one’s hometown!
Astin CIRP Study Methods
• Goal:
– Isolate effects of attending college.
• Universe:
– All undergraduate-age Americans
• Cluster Sampling:
– Many institutions, 6 classes
– All freshmen surveyed
– 300 follow-up surveys/institution
• Mailed: 40-65% response rate
– Yearly sample groups: 5,351 – 34,346 students
• Control Groups:
– No non-attendee control group
– Examined varying degrees of college exposure
• 1) time of exposure and 2) intensity of exposure
Astin Questionnaires
• Self-report questionnaires: 2 question types
– Pretests (frosh)/ Posttests (upperclass)
• Different years surveyed for different outcomes
– Personal characteristic measures (frosh only)
• Control Groups:
– No non-attendee control group
– Examined varying degrees of college exposure
• 1) time of exposure and 2) intensity of exposure
• Analysis:
– Multiple regression analysis
– Controlled for nonrespondents through weighing
similarrespondents
Astin Findings on
Single-Sex Colleges (SSC)
• **SSC increases academic involvement, interaction with
faculty, verbal aggressiveness, intellectual self esteem
• **SSC students more satisfied with all aspects of college
life, except social life (cited by dissent)
• Men:
– Better athletic achievement/participation and grades
– More likely to enter business, college teaching, law
– Get higher starting salaries (due to school connections)
• Women:
– Worse athletic achievement/participation and grades; fewer
honors program participants
– More likely to reach leadership positions, be in student govt,
develop high aspirations, graduate.
– Are more likely to be schoolteachers, less likely to be nurses or
go into business
Strengths and Weaknesses
• Strengths:
– Large sample size
– Cross-section of institutions
– Controlled for many background factors
• Weaknesses:
– No zero-attendance control group
– Potential additional non-considered factors
– Weighing disregards differences between
respondents/nonrespondents within similar
background
– Time period: Shifting cultural values,
recent/impending switches from single-sex to coed
Case Result:
MUW Nursing School must admit men.
Today:
MUW admits
men and women
to all of its
programs.
United States v.
Commonwealth of Virginia
U.S. District Court, W.D. Viriginia, 1991
...to U.S. Court of Appeals, 4th Cir., 1992
...and back to U.S. District Court, W.D. Viriginia, 1994
from
then through the Appeals Court again and up to…
Supreme Court of the United States, 1996
Pluralism: Diversity Purposes of Sex-Segregated Schools
Virginia Military Institute
• All-male military academy. Entire school
fought in Civil War (for south).
• Goal: Produce citizen-soldiers.
• Adversative education system:
• rat line: value indoctrination, egalitarianism, rituals,
minute behavior monitoring, punishment, physical
rigor, no privacy
• class system: uses upperclassmen to teach new
values and behaviors VMI promotes
• dyke system: mentor for support
• honor code
Plaintiff and Defendant
• US argues:
– VMI is a state-supported public
college. Refusal to admit women
violates Equal Protection Clause
of 14th Amendment.
• VMI argues:
– Sex discrimination promotes state interest in
diversity of education, thus is allowed under
Hogan’s intermediate analysis.
District Court (Kiser)
• All-male VMI promotes diverse education
options within the state public education system
• Single-sex ed benefits males and females
– cites Astin
• VMI education system is unique in country,
further adding diversity
• Women would fundamentally change VMI's
adversative system
– physical rigor, privacy, cross-sex relationship stress
• If VMI went coed, it would offer “neither males
nor females the VMI education that now exists”
District Court Finds Men and
Women are Different!
• Physiological differences:
– Women are weaker and slower than men, especially
in upper body strength. Most women perform in very
bottom of male strength range.
• Developmental differences:
– Dr. Richardson: most women do best in supportive,
positive motivation environments. Education
opportunities should cater to the rule, not exception.
– Males learn best with “ritual combat” atmosphere,
women with cooperative atmosphere.
– Dr. Conrad: counters that gender differences are
tendencies, individuals deviate.
4th Circuit Court of Appeals
(Niemeyer)
• Single-sex ed at VMI is legitimate and relevant
to VMI's institutional mission. Mission itself
favors neither sex (merely must be single-sex).
• Opening VMI to women would materially change
the program in which women seek to participate
• But, VMI's policy fails to support VA objective of
diversity: provides diverse opportunity only to
men.
• Court vacates and remands. VMI must create
plan to provide women with VMI-like opportunity.
Doesn't order women be allowed at VMI.
District Court on Remand (Kiser)
• Accepts proposed remedial plan creating state-funded
all-female cadet corps at Virginia Women's Institute for
Leadership (VWIL), on Mary Baldwin College campus, a
private all-women university
• Plan need not create opportunity identical to VMI. Plan
can account for relevant gender differences. VWIL is not
mirror-image, but is comparable. Differences are based
on evidence, not stereotypes.
• VWIL mission: produce female citizen soldiers. VWIL
doesn't use military model, doesn't parallel VMI
academics (limited engineering, other options).
• Lots of experts! Court discredits Astin and Jacklin
critiques, favors Fox-Genovese and Richardson support.
U.S. Supreme Court, 1996
• Ginsburg:
– VWIL's different structure invalid b/c based on
stereotypic gender roles (even if those roles are
supported by expert evidence)
– Women on whose behalf case was brought want and
could do well in adversative system
– VWIL not the equivalent of VMI, remands for further
proceedings
• Scalia dissent:
– Excluding women is substantially related to an
important govt objective
– Single-sex ed is beneficial to both sexes
– lower court relied on expert evidence in finding
gender-based developmental differences, not
stereotypes
Social Science Evidence
• Lots of Expert Witnesses testified for both
sides in these cases. Experts seem highly
qualified – many wrote many books on
related subjects.
• Few specific studies were cited in the
opinions
– Astin CIRP, Four Critical Years
– Bressler and Wendell, The Sex Composition
of Selective Colleges and gender Differences
in Career Aspirations
Bressler and Wendell, 1980
• Universe: American college students
• Used part of 1967/1971 class of Astin survey
data (most recent data before all-men’s colleges
became “extinct”)
– 1,619 academically capable, white, middle-class male
(678) and female (941) undergraduates continuously
enrolled in 30 selective residential men’s, women’s,
and coed colleges
• Why “elite” populations?
– “removing contaminating effects of [socioeconomic
standing] and academic ability” which affect level of
job goals
• Excluded minorities
– low representation at included institutions
Method
• Testing: Different effect on career
aspirations between single-sex and coed
institutions
• Compared freshman and senior selfreported job goals, even-higher ed goals.
• Classified each job category as
masculine/feminine based on % of
freshmen aspiring to the job
Results
• Men at SSC
– More aspire to masculine jobs to start, feminine jobs as seniors
than at coed colleges
• Women at SSC
– More aspire to feminine jobs to start
– Much larger shift toward masculine job aspirations as seniors;
SSC women seniors much more likely than coed women seniors
to aspire for masculine jobs
– As seniors, more aspire to be professors, lawyers
• Coed
– Men and women’s masculine/feminine aspirations remained
stable
• “Sexual parity in the occupational domain might be better
served if larger numbers of young women were to enroll
in single-sex colleges.”
Strengths and Weaknesses
• Strengths
– Sample size
• Weaknesses
– Only looks at white, upper-class students
– Examines job goals, not actual job paths
– Top colleges for women (and men) were
single-sex (Radcliffe, Barnard, etc.)
– Time effects
– Possible other external factors
Since then…
In 1996, the U.S. Supreme Court found that
the VWIL program was not “substantially
comparable” to the VMI program.
VMI began admitting
women in 1997.
VWIL is now the country’s
only all-female cadet corps.
Food for Thought
• Expert evidence, including social
science studies, shows gender differences
in average learning methods.
• Should courts consider these differences?
• Should education policy be formed blind to
those difference?
• What role should social science play here?