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?