Teaching Strategy/Secondary
Equal Educational Opportunity for Women: How Should It Be Defined?
By Julius Menacker
Objectives
Students will be able to
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
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Explain the meaning of the Equal Protection Clause.
Appreciate the extent to which females have been subjected to unequal treatment in public
education.
Understand the difference in applying the strict scrutiny standard (which applies to racial
discrimination) or the intermediate level of scrutiny (which applies to gender discrimination)
to determine the outcome of cases such as U.S. v. Commonwealth of Virginia.
Evaluate and appreciate the positive and negative consequences of a policy requiring all
public educational institutions to be coeducational rather than permitting single-sex
institutions where the state deems them appropriate.
Target Group: Secondary level students
Time Needed: 3-4 class periods (can be less if a lawyer, judge or other resource person is only
available for a period—see “Expedited Procedures” below).
Materials Needed: Student Handouts
Procedures
1.
2.
3.
Distribute photocopies of all materials (except for the decision) for student
review. Clarify, elaborate on, and answer questions about the materials in a class
discussion.
Divide the class into four groups, one composed entirely of girls, one entirely of
boys, and two composed of equal numbers of boys and girls if possible. Have
each group appoint a member to report the major results of the group's
investigation to the class. Each group should:
 Identify any evidence in your school of girls receiving unequal treatment,
compared to that of boys.
 Present opinions about whether single-sex institutions or coed institutions
have more advantages or disadvantages.
After discussing the group reports, help the class identify any significant
differences among the attitudes of the single-sex and mixed-sex groups, as well as
between girls and boys. Have the class suggest reasons for any differences.
4.
5.
6.
Create four new groups with the same gender distributions, but with a different
mix of individuals. Assign all groups the task of discussing whether or not VMI
should be required to admit female students based upon the facts of the case. Ask
students to pay particular attention to the matters of the proper level of scrutiny to
apply and the issue of the "separate-but-equal" solution proposed by VMI. A
reporter from each group should present the major outcomes of the group's
discussion, followed by teacher-led discussion of the reports. Again, note any
attitude differences that may be based on the gender composition of groups.
Have students submit papers presenting their decision as judges of this case,
supporting their judgment with both legal analysis regarding the Equal Protection
Clause and the proper level of scrutiny to be applied in the case and opinions
about why their decision is good public policy.
Pass our copies of the final handout—the decision in the case. Ask students to
reevaluate their decision in light of the actual court decision. Does the Court’s
reasoning persuade them? Why or why not?
Expedited Procedures
To do this strategy in one class period, pass out only the following handouts: “A Case of Alleged
Sex Discrimination,” “Background,” “The Fourteenth Amendment,” and the “Legal Factors
Related to Equal Protection Cases.” Divide the class into several “courts” and ask them to
discuss the case and the legal principles involved, then come to a decision (step 4 above). Have
them report back orally on their decision. Then share with them the handout entitled “The
Decision” and ask them to reevaluate their decision in light of the actual decision (step 6 above).
Student Handouts
Terms
gender discrimination--Unfair and unequal treatment that is based solely on whether a person is
male or female.
intermediate level of scrutiny—A level of scrutiny applied by courts that is easier for the
government to meet than the strict scrutiny test (see below), but more difficult than the “rational
relationship” test. The rational relationship test merely requires the government to show that
there is a logical (rational) relationship between the government’s action (e.g., law) and the law’s
purpose. With intermediate level of scrutiny, usually applied by courts in cases alleging
discrimination by gender, courts require the government to show that it has an important reason
to justify classifying people by gender. There must be a close relationship between the
government’s act and its purpose.
separate but equal--The idea that each race should have its own housing, schools, churches, jobs,
public transportation, and so on; racially segregated.
strict level of scrutiny--A very close examination by courts of a law challenged because it
allegedly discriminates on the basis of race, national origin, alien status, or a fundamental right
such as freedom of speech or religion. Under strict scrutiny, the government’s actions (e.g., the
law in question) are very closely examined, with the government required to show that that it has
a compelling interest—in other words an extremely important reason—for treating people
differently on one of these bases. It must also show that this governmental action is the least
restrictive means to achieving its purpose and is narrowly tailored to advance this compelling
interest. This is a very hard test for the government to meet, so when it’s applied the outcome is
often weighted in favor of the challenger.
A Case of Alleged Sex Discrimination
U.S. v. Commonwealth of Virginia and Commonwealth of Virginia v. U.S.
Facts
An all-male, state-supported college, The Virginia Military Institute (VMI) emphasizes rigorous
physical and mental training. All cadets are required to wear the same uniforms, live in the same
austere quarters, attain the same level of physical fitness, and undergo the same constant scrutiny
by other cadets.
In response to a complaint from a female high school student, the United States brought suit
against Virginia and VMI for allegedly violating the prohibitions against sex discrimination.
The case went back and forth between the federal district and appeals courts. Finally, the Fourth
Circuit ruled that establishment of a separate Virginia Women’s Institute for Leadership (VMIL)
satisfied the antisex bias provisions of the law. The court concluded that VMI and VWIL are
substantially comparable because “both seek to teach discipline and prepare students for
leadership. The missions are similar and the goals are the same. The mechanics for achieving
the goals differ… but the difference is attributable to a professional judgement of how best to
produce the same opportunity.”
The Supreme Court granted both the government’s petition challenging the adequacy of
Virginia’s parallel-program remedy and VMI’s separate petition as to whether or not the
appellate court was correct in imposing a parallel program at all.
While conceding that some women may wish to attend VMI and could succeed there, Virginia
nevertheless sought judicial deference to its single-sex policy to take into account the differing
educational needs and interest of male and female students. The state noted that it supports not
only four coeducational public colleges, but also a number of private institutions of higher
learning, including four that are all-female and one that is all-male. Virginia also argues that the
appeals court’s requirement for a college separate from VMI to be created for women disregards
student needs and preferences, the professional judgment of educators, and the irrationality of
having to expend limited public resources on a VWIL program – the demand for which is
virtually nonexistent.
The government argued that Virginia has no law or written policy regarding single-sex
education, that the exclusion of women from VMI is unconstitutional per se, and that the merits
or demerits of single-sex education have no bearing on the case. The government also
challenged the creation of VWIL as an equal entity because it does not insist upon the same level
of harassment as VMI and there are no barracks at the facility. Students at VWIL live in housing
provided by the sponsoring women’s college and are afforded a level of privacy not available at
VMI.
Background
The struggle for making the Constitution's Fourteenth Amendment Equal Protection Clause a
reality for all Americans has often centered on issues of educational opportunity. In Plessy v.
Ferguson, 163 U.S. 537 (1896), the Supreme Court decided that railroads could segregate
passengers by race, under the doctrine of "separate-but-equal." This doctrine was soon applied to
segregating students in public schools by race. It was reversed by the decision in Brown v. Board
of Education of Topeka, Kansas, 347 U.S. 483 (1954), in which the Court declared segregation in
public education violated the Equal Protection Clause because such segregation was inherently
unequal.
While national policy makers struggled to make integrated education a reality, the call for equal
educational opportunity sounded by the Brown decision led to action to equalize such
opportunity in areas other than race. The Rehabilitation Act and the Education for All
Handicapped Children Act (reauthorized in 1990 as the Individuals with Disabilities Education
Act) provided improved educational opportunities for students with special needs related to
physical, mental, and emotional disabilities. Also, the Bilingual Education Act and the Equal
Educational Opportunity Act equalized opportunity for students whose native language is not
English.
The concern for equal opportunity in education has also focused on inequalities experienced by
female students. This concern caused Congress to pass Title IX of the Education Amendments of
1972, which required that girls be given school program opportunities equal to those of boys. In
the development of policy for gender equality in education, whether based on Title IX or (as in
U.S. v. Commonwealth of Virginia and Commonwealth of Virginia v. U.S.) on the Equal
Protection Clause of the Fourteenth Amendment, one of the issues has been deciding when and
where activities should provide for "separate-but-equal" programs and when and where the
"separate-but-equal" doctrine was as invalid in matters of gender discrimination as in racial
discrimination.
U.S. v. Commonwealth of Virginia and Commonwealth of Virginia v. U.S. is a recent case in
which the Supreme Court was asked to decide a matter of equal protection in education. Virginia
and the Virginia Military Institute (VMI) claimed that, in order to be effective, the military
program at VMI must be limited to males only. In response to demands for female admission to
VMI, Virginia proposed funding a "comparable" military-training program for women at a
private women's liberal arts college in the state. The Supreme Court was called upon to decide
whether the Equal Protection Clause can be satisfied with this "separate-but-equal" arrangement,
given the special, unique needs associated with military training, or whether equal protection
requires VMI to become coeducational regardless of the claimed benefits of all-male military
training.
The Fourteenth Amendment
The Fourteenth Amendment, which was proposed and ratified after the Civil War, was intended,
among other things, to establish the citizenship of former slaves and to ensure that the states did
not deny equal rights to any person. The part of the Fourteenth Amendment that is referred to as
the Equal Protection Clause reads: ". . . nor shall any state . . . deny to any person within its
jurisdiction the equal protection of the laws." The Supreme Court has often relied on the phrase
"equal protection of the laws" as the basis for its civil rights rulings, including its decision in
Brown v. Board of Education.
Coed v. Single-Sex Education
1.
2.
3.
4.
A growing body of scholarly literature points to the benefits of single-sex
education.
A prominent Harvard sociologist claims that "for many men, a single-sex college
is optimal."
The American Association of University Professors and the Center for Women
Policy Studies argue that single-sex education has been shown to be primarily of
benefit to young women in secondary school.
The benefits to females from single-sex education comes from the elimination or
reduction of discrimination favoring males in coeducational settings.
5.
"Sex, like race, is an immutable and highly visible characteristic that frequently
bears no relation to ability to perform or contribute to society." (Quoting the
Supreme Court opinion in Frontiero v. Richardson, 411 U.S. 677 (1973).
Legal Factors Related to Equal Protection Cases
Levels of Scrutiny
1.
Strict scrutiny. When it is determined that the basis for student classification and
differential treatment is race or ethnicity, courts employ the strict scrutiny test. This test requires
that the public institution justify its policy of differential treatment by showing that it is
necessary to accomplish a compelling state purpose and is the least restrictive means that is as
narrowly tailored to that purpose as possible. This is very difficult for the public institution (e.g.,
public school) to do.
2.
Substantial relation (intermediate level of scrutiny). When it is determined that a public
school is classifying on the basis of gender, courts employ this intermediate-level test. Although
not as demanding as strict scrutiny, it still places the burden for justifying the policy of
differential treatment on the government. Gender-based classifications will be upheld only if the
government can demonstrate that they are substantially related to the achievement of an
important government purpose. While this is still a difficult barrier for the public school to
surmount, it is easier to meet than the strict scrutiny standard is. The test was applied in an
education setting in Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). There the
Supreme Court held that gender distinctions should be measured by intermediate judicial
scrutiny, which requires an important governmental objective and asks whether gender
distinctions are substantially related to the objective.
Legal Principles Applied to Equal Protection
1.
2.
3.
The general concept behind the Equal Protection Clause is that government
should not invidiously (i.e., with bad intent) discriminate among classes of
persons within its jurisdiction. All should be equal before the law.
Certain factors, such as race, are inherently suspect, face strict scrutiny in the
courts, and are almost always deemed unconstitutional in discrimination cases.
However, schools may discriminate when a rational basis for discrimination is
established, such as, for example, age.
Courts may consider intangible social and psychological effects of discrimination
as evidence in deciding whether equal protection principles have been violated.
The Decision: U.S. Supreme Court Orders VMI to Admit Women
--------------------------------------------------------------------------------------------------------United States v. Virginia, et al. and Virginia et al. v. United States, consolidated cases decided
June 26, 1996, in which the U.S. Supreme Court affirmed the initial decision of the Fourth
Circuit Court of Appeals and reversed the second decision of the Fourth Circuit.
-----------------------------------------------------------------------------------------------------------DECISION: The Virginia Military Institute (“VMI”) is an all-male, publicly-funded university.
It was established in 1839 and is now one of the most celebrated institutions of higher education
in the United States, boasting the largest per-student endowment of all undergraduate schools in
the country.
VMI is known for its military-style educational program, which is referred to as “adversative.”
An adversative educational model employs intense mental and physical stress to train students to
perform successfully under adverse conditions and to teach them to recognize and cope with
their individual limitations. Like most military-style programs, VMI students have little privacy
and their daily lives are regulated in great detail. Despite the acknowledged rigors of VMI, those
students who graduate have the personal satisfaction of having met and mastered challenges that
their non-VMI counterparts can only imagine.
VMI’s curriculum reflects the overall quality of the educational experience it provides. VMI
offers advanced courses in mathematics, the sciences, and engineering. Its faculty is well trained
and well compensated. As a result of VMI’s educational program and resources, its graduates
are among the most successful in the country and often stand ready to assist new VMI graduates
in finding suitable positions.
There’s only one problem: No females need apply. Indeed, as of the 1980s, VMI had received
admissions inquiries from 347 females but had not responded to any of them. In 1990, a female
high school student filed a complaint with the United States Attorney General regarding VMI’s
male-only admissions policy.
The complaint prompted the United States to sue VMI, the Commonwealth of Virginia, and
others (collectively, “Virginia” or the “Commonwealth”). The Government’s federal lawsuit
alleged that VMI’s male-only admissions policy violated the Equal Protection Clause.
Round one of the litigation went to the Commonwealth. The district court ruled that VMI’s
single-sex educational environment yields substantial benefits would be lost if females were
admitted. 766 F. Supp. 1407 (W.D. Va.1991).
Round two of the litigation went to the Government. On the Government’s appeal, the Fourth
Circuit vacated the district court’s decision after holding that Virginia had not provided the
requisite justification for denying VMI’s unique educational experience to female applicants who
otherwise met VMI’s admissions criteria. The appellate court gave the Commonwealth three
options to remedy the equal protection violation: admit females; establish a comparable allfemale program; transform VMI from a public to a private institution. 976 F.2d 890 (4th Cir.
1992).
Virginia responded to the Fourth Circuit’s decision by developing a “comparable” program on
the campus of Mary Baldwin College, a privately-funded, all-female college. The program,
called the Virginia Women’s Institute for Leadership (“VWIL”), does not employ the
adversative model but, instead, relies on “cooperative methods which reinforce self-esteem.”
The curriculum available to VWIL students is limited to the liberal arts; no degrees are awarded
in science or engineering. The faculty has fewer advanced degrees and is paid significantly less
than the faculty of VMI. Students admitted to the VWIL program have lower test scores than
their VMI counterparts.
The financial resources available to VWIL are substantially less than VMI’s. For example,
VWIL has a total endowment of $54 million compared to VMI’s total endowment of $351
million.
With VWIL in place, Virginia commenced round three of the litigation by returning to federal
district court in search of a declaration that VWIL cured the equal protection violation created by
VMI standing alone. The United States opposed the Commonwealth, arguing that VWIL simply
does not offer an educational experience comparable to that offered by VMI. This round went to
the Commonwealth. 852 F. Supp. 471 (W.D. Va. 1994).
Round four also went to the Commonwealth; it prevailed on the Government’s second appeal to
the Fourth Circuit. In deciding the case, the appellate court deferred to Virginia’s asserted
interest in establishing and maintaining diversity in the educational experiences available to its
post-secondary students and agreed that Virginia’s single-sex institutions further this interest.
44F.3d 1229 (4th Cir. 1995).
Round five of the litigation was contested before the Supreme Court. This time the United States
prevailed. The Court reversed the Fourth Circuit for several reasons. First, the Court concluded
that the appellate court failed to apply the correct level of judicial scrutiny to Virginia’s policy of
single-sex higher education. On this point, the Court made it clear that a state seeking to defend
any classification based solely on gender must establish an exceedingly persuasive justification
and also show that the classification at issue is substantially related to the state’s identified
persuasive justification.
The Court went on to reject the justifications proffered by Virginia. As to the justification of
educational diversity, the Court pointed out that Virginia had shown no interest in such diversity,
at least with respect to females, until 1972 when it finally opened the publicly-funded University
of Virginia to females. Throughout most of its history, Virginia has viewed higher education as
the province of males. In essence, the Court concluded that VMI’s male-only admissions policy
simply reflected its historical male-only approach to higher education, not a policy of educational
diversity.
The Court also rejected Virginia’s claim that admitting females to VMI would destroy the
uniqueness of the its program. The Court acknowledged that some adjustments would have to be
made for female students. The Court stressed, however, that all parties agreed that VMI’s
adversative program could be applied to females and that there were females who could succeed
in such a program.
The Court went on to reject Virginia’s proposed solution for its equal protection violation –-establishing VWIL. The Court held that VWIL was unequal in kind and facilities to VMI.
According to the Court, the startling lack of comparability between the two schools begins with
the educational experience itself and extends to the full range of educational resources available
to the schools, e.g., educational programs, faculty training and salaries, financial resources, and
career opportunities for graduates.
It is important to note, however, that the Court did not hold that gender-based classifications are
per se unconstitutional; the Court merely held that they must be closely scrutinized. In other
words, that Virginia failed the careful, heightened scrutiny the Court has applied to gender-based
classifications since the 1970s does not mean that such classifications can never pass muster
under the Equal Protection Clause. Accordingly, the Court’s decision says little about the
constitutionality of single-sex educational programs currently being operated around the country.
Julius Menacker is a professor and chair of the Policy Studies Area in the College of Education
at the University of Illinois at Chicago. This article is adapted from one originally appearing in
the ABA’s publication, Update on the Courts, volume 4/no.3 (1996)
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