By now, anyone not holed up in a cave for the past few months must be aware that, in a seven to one decision handed down on June 26, the U.S. Supreme Court ordered the Virginia Military Institute (VMI), a publicly supported, all-male, collegiate-level academy in Lexington, Virginia, to open its doors to women. Barring an unlikely effort by VMI alumni to privatize the institution by purchasing it from the state of Virginia—an effort that could cost anywhere from $100 million to $400 million, and would almost certainly end up making VMI a target for further litigation—this ends a long, expensive, and emotional legal battle, and with it 157 years of tradition at one of the nation’s most venerable and tradition-conscious institutions.
The school’s superintendent, Major General Josiah Bunting III, has vowed that VMI will continue its mission of creating “citizen-soldiers” equipped for leadership in civilian and military life, a task it undertakes through a uniquely harrowing “adversative method” designed to build physical and mental discipline and moral character among its “rats,” or cadets. But Bunting also acknowledges that with the admission of women, “the architecture of VMI will be changed” in ways that cannot be anticipated. Virtually no one thinks it can continue to be the same institution it has been.
That fact is cause for celebration in some quarters, lamentation in others. But even those who sympathize with VMI’s plight—and there seem to be a goodly number of Americans who do—are likely to conclude that its day has passed. Indeed, on the basis of established civil-rights law and the equal-protection clause of the Fourteenth Amendment, this case (and the similar case of the all-male Citadel in South Carolina, which received national publicity during the Shannon Faulkner episode of 1995) would appear to have been a virtual slam-dunk. The Court had already addressed the general issue of single-sex public colleges in its 1982 Hogan opinion, written by Justice Sandra Day O’Connor, which ordered the nursing program at the Mississippi University for Women to admit men even though there were comparable programs at other public institutions in that state which already did so. The outcome of Hogan ought to have alerted VMI to its own problematic future as a public single-sex institution, and have spurred it to devise some kind of solution. But it did not—at least, not until it was too late.
The school’s troubles began in earnest in 1989, when, in response to an anonymous complaint by a female high-school student in Virginia, the Justice Department challenged VMI’s all-male admissions policy. Not satisfied with the school’s response that the presence of women would disrupt its extraordinarily demanding physical and mental regimen and thereby undermine its pedagogical raison d’être, then-Attorney General Richard Thornburgh filed suit on the young woman’s behalf.
That action initiated a lengthy and tangled sequence of legal events and directives, mostly revolving around state efforts to devise a single-sex academy for women that would be sufficiently “comparable” to VMI to pass judicial muster. But the resulting Virginia Women’s Institute for Leadership (VWIL), located at Mary Baldwin College in Staunton, Virginia, has now been dismissed by the Court as a “pale shadow” of VMI, even though it has been in operation only for one year. It is no coincidence that the opening sentence of the Court’s majority opinion, written by Ruth Bader Ginsburg, refers to VMI as an “incomparable military college”—a double-edged commendation if there ever was one.
Justice Ginsburg’s (perhaps intended) pun illuminates a genuine problem at the heart of the separate-but-equal strategy which the state of Virginia had attempted to pursue. For what would it have meant for a newly founded women’s institution to be “comparable” to VMI? Should such an institution have attempted to offer all the same “adversative” features, only with a strictly female cast of characters? Or should it have reflected prevailing differences between men and women, not only in their physical attributes but also in their cognitive styles and modes of leadership? Were these to be women from Mars—or from Venus? And, more importantly, was there any chance one could find and recruit enough of them to create and sustain an institution comparable in size and scope to VMI? Probably not.
But an equally compelling point could be made against the opposite, “integrationist” strategy now commanded by the Court. In fact it was the point made by Bunting and VMI supporters: namely, that the presence of women would so change the institution as to deny all its students the kind of distinctive education they might have hoped to get there. As Jeffrey Rosen put it in the New Republic, the tiny minority of women who might come to a coeducational VMI “will be unable to achieve the precise benefits they seek,” because “the Institute in its current form will no longer exist.” They will, by their very presence, transform the school beyond recognition.
That transformation is coming anyway, thanks to the Supreme Court. However distinguished VMI’s history, however praiseworthy its graduates (who include the likes of General George C. Marshall), however successful its operation, however great its public benefits, it cannot be allowed to stand if those benefits are not universally distributed. Thus spoke the Court, and the New York Times editorial page wasted no time before swooning over “the powerful eloquence and bold sweep” of Ginsburg’s opinion, which, the paper intoned, was “sure to be remembered as one of this term’s high points.” Remembered it will be, though bold it was not.
Upon closer examination, the decision proves to be yet another of those confusing and un-definitive texts, full of opacities and loose ends, that we have recently come to expect from the Court. The Clinton administration had sought to use the VMI case toward a clear if questionable end: namely, to extend the exacting legal principle of “strict scrutiny,” currently used to assess questions of racial discrimination, into the areas of sex discrimination. But this Ginsburg declined to do, suggesting only a vague standard of “skeptical scrutiny” (which would require an “exceedingly persuasive justification” before discrimination could be permitted), a standard that seems to be a bit higher than that of “intermediate scrutiny” (which requires merely that the discrimination serve “important” government objectives). Then again, it is hard to say anything definite about such jelly-like language. Perhaps a more reliable indicator is the fact that spokeswomen for both the National Organization for Women and the Women’s Legal Defense Fund tempered their satisfaction at the defeat of VMI by protesting bitterly about the circumscribed scope of Ginsburg’s ruling.
Why did she hold back? Ginsburg’s opinion seems to reflect many of the contradictions and ambivalences of contemporary feminist thought. On the one hand, there is the core vision of strict equality: “Women seeking and fit for a VMI-quality education cannot be offered anything less under the state’s obligation to afford them genuinely equal protection.” And: “However well this plan serves Virginia’s sons, it makes no provision whatever for her daughters.” As for the notion that women are not up to the “adversative” training meted out by VMI, Ginsburg will have none of that: “VMI’s ‘implementing methodology’ is not inherently unsuitable to women”; “some women . . . do well under [the] adversative model”; “some women are capable of all of the individual activities required of cadets, and can meet the physical standards VMI now imposes upon men.” To contend otherwise, according to Ginsburg, is merely to indulge that “ancient and familiar fear” which formerly kept women out of, for example, the legal profession.
That, as I say, is on the one hand. On the other hand, despite her disdain for gender stereotypes, Ginsburg ends up employing them herself. Thus she argues that admitting women to VMI “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements and to adjust aspects of the physical training programs” (emphasis added). But if that is “undoubtedly” so, then just which standards does Ginsburg have in mind when she asserts that VMI’s methods are not “inherently unsuitable” to women? We are not here speaking of small changes on the margins of VMI’s “implementing methodology,” as Gins-burg’s language would seem to imply. Rather, the complete absence of individual privacy, the uniformity of standards, all the way down to the shaved head of every “rat,” are central features of VMI life. (At the formerly all-male Citadel, changes to protect female cadets’ privacy—and to allow lipstick and nail polish—are already being planned, subject of course to review by the federal courts.)
It may be, then, that Ginsburg held back from a standard of “strict scrutiny” in this case because she understood what a torrent of opportunistic litigation it would unleash, leading in unpredictable directions and perhaps threatening areas of collective special treatment for women, particularly in the military and in affirmative-action programs, and perhaps in women’s single-sex colleges. Whatever the reasons, her ambivalence did not make for boldness or judicial clarity.
Similar contradictions peppered the statements of feminist leaders who blasted the hoary “stereotypes” about women’s inability to withstand the rigors of VMI’s boot-camp-like “rat line,” or insisted as a matter of right that women deserved entry into the educational experience and professional network offered by VMI—and then, when it was useful to do so, turned around and denigrated VMI as a veritable cesspool of violence, abuse, and misogyny, “the very rear of the rear guard.”
When the decision itself came down, Judith Lichtman of the Women’s Legal Defense Fund enthused that “it unequivocally outlaws the use of gender-based stereotypes.” But a week later, Marcia Greenberger of the Women’s National Law Center warned that any attempt to impose identical physical standards on males and females at VMI would be “in conflict with both the letter and spirit of the Supreme Court decision,” and would be challenged in court. Apparently, both stereotyping and non-stereotyping are now actionable offenses.
In any event, it is unthinkable that the “rat line” could survive as a common base-line experience at a coeducational VMI, if only because it is hard to imagine well-mannered VMI men routinely dishing out such treatment to women—and just as hard, in our current litigious climate, to imagine women taking it for very long.
Is it, then, “difference” or uniformity that lies at the heart of Justice Ginsburg’s vision, and that is expressed in her reading of the Fourteenth Amendment? Some observers have seen in the Court’s past term a movement toward strict, individualistic, rights-based, nonprivileged, and nonclassificatory egalitarianism, a theme which supposedly unites such otherwise disparate actions as the VMI ruling; the case (Romer v. Evans) in which the Court struck down a Colorado state constitutional amendment prohibiting a “protected status based on homosexual, lesbian, or bisexual orientation”; the rejection of racial gerrymandering (Bush v. Vera and Shaw v. Hunt); and perhaps also the decision to let stand a lower court’s anti-affirmative-action ruling in Hopwood v. Texas.
If this is indeed a trend, there is something to be said for it, especially at a moment when group identity has become such a pernicious and pervasive influence on our social life and legal codes. But there is also a clear sense in which today’s expansive and assertive doctrine of individual rights, based on an expansively understood Fourteenth Amendment, worsens what is already an ominous trend in our national life by severely retarding our ability to deal sensibly with real human difference.
One such unalterable difference is sex. While one may be grateful that the Court has not yet taken the analogy between race and sex to the limit, Ginsburg’s own inconsistencies on the subject reveal just how dangerous it is to pretend that, when it comes to differences between the sexes, one size fits all, or that all human beings and human relationships can easily be placed on a commensurable scale. It is the failure to recognize this—or the unwillingness to recognize it—that makes the VMI decision so appalling, however convinced one may be of the abstract principle that public funds should not be used to support exclusive institutions.
It is especially strange, on the face of it, that this repudiation of human difference should come at a moment when single-sex colleges for women have gotten a new lease on life, after being nearly swamped by the wave of coeducation, and when there is a new appreciation of the advantages of keeping students at some remove from the strains and distractions of the dating/mating game. True, little of this has carried over so far into perceptions of all-male institutions, which rightly feel themselves opposed by a hostile Zeitgeist. Although David Riesman and Elizabeth Fox-Genovese, strong supporters of single-sex schools for men and women alike, testified on behalf of VMI and the Citadel, and argued forcefully for the many admirable and distinctive qualities that those institutions cultivated in their students, their words went almost completely unheeded.
Nevertheless, the VMI decision, and the direction it represents, will surely affect the prospects of all public single-sex schools. Witness, for example, the flap over the proposed public junior-high school for girls in Harlem: the ACLU, in opposing the project, has based itself explicitly on the strictly egalitarian reading of the VMI decision. Or witness the federally directed disbanding of Men of Madison, an imaginative after-school program for black males in suburban Washington, D.C. In fact, one of the notable virtues of VMI and the Citadel—though apparently one the Court did not find “exceedingly persuasive”—is their extraordinary success with black students, who thrive in circumstances where the “adversative” method levels the playing field, reduces consciousness of racial difference, and breaks down traditional barriers to interracial friendship and comradeship.
The Court’s decision will make it exceedingly hard to create more such environments, or even to maintain the ones that already exist. In addition, it may well have a snowball effect upon all sorts of public institutions, calling into question the legitimacy of single-sex classes, single-sex sports teams, etc. As Justice Antonin Scalia observed in his withering dissent in the VMI case, the main hope of such institutions now lies in the Court’s penchant for unprincipled and inconsistent decision-making.
In the long run, the VMI decision is likely to threaten the future of private single-sex colleges as well. The distinction between public and private in American education may be clear enough in theory, but it is very permeable in practice. Given that many private colleges and universities absolutely depend upon large sums of federal assistance, including such indirect support as student-loans, there will be no stopping Uncle Sam from jerking their chain, whenever he wishes and for whatever reason he wishes.
Women’s colleges, it is true, may continue to argue for their exclusionary admissions policies on the grounds that they play a kind of compensatory, affirmative-action role (a function that men, of course, being universally cosseted and all-powerful, do not need). But that argument is already pretty hard to swallow when one considers the socioeconomic profile of, say, Smith or Wellesley students; it becomes utterly implausible in light of the roughly equivalent numbers of men and women entering the nation’s most prestigious graduate and professional schools. The 26 private women’s colleges which offered a brief in support of the suit against VMI may thus some day come to regret their shortsightedness.
“Diversity” is as close as one can come to an unassailable ideal in American life today, and it was invoked reverentially by all parties in the long VMI battle. Like any ideal, however, it can be employed to cover a multitude of sins, and even to mean its opposite—namely, a deadening uniformity. That certainly seems to be the case here. For what is being lost in the manic leveling of the Court is, precisely, the diversity of American higher education.
There is both a dated and a mechanical quality to the perspective offered by Justices Ginsburg and O’Connor: one would think we still lived in a world in which women were being excluded from Harvard, Yale, Princeton, and the professional schools, rather than one in which coeducation is overwhelmingly the norm. In the current environment, the perpetuation of a few single-sex institutions takes on a very different meaning. Even the liberal columnist Ellen Goodman, in her joy at the Court’s ruling, admitted that VMI was “less a threat to women’s rights than an anachronism.”
Besides, if diversity were truly our goal, why should institutional diversity be ruled out of court? The self is formed in culture, and, as David Riesman has often argued, a college is a culture. As such, it has to have certain principles of organization which give it cohesiveness and purpose, and help it produce individuals who will stand for something distinctive in the mix of American society. In other words, the preservation of individual diversity may require the preservation of institutions that are themselves, in some respect, not diverse, and that may even be exclusive. VMI has exemplified this insight to a very high degree, and its supporters well understand that, having lost its principle of exclusion, it will also lose its ability to produce anything very distinctive.
Needless to say, not all forms of institutional diversity are worth preserving, and some forms of exclusion are intolerable. But this particular form eminently deserves preservation, and for the very same reasons that it came under assault in the first place. We are living in an era of extraordinary confusion with regard to the respective characteristics of men and women, and to the best ways of educating them. Every kind of institution, so long as it is not actively harmful to the conduct of our collective life, is, potentially, a national resource, a bit of evidence bearing upon the larger questions that confound us. In this respect, VMI’s “anachronism” is precisely its virtue. It is because coeducation is now the standard—and a far from unproblematic one—that we should do all we can to preserve other examples, other ways of doing things, as a hedge against an uncertain future.
Hence the power, in the VMI case, of Justice Scalia’s lapidary dissent, which excoriates the arrogance of those who fancy they are living in the age of ultimate truths, and that all vestiges of the past deserve to be erased. Yes, Scalia admits, our forebears were closed-minded, “as every age is, including our own.” But this much can be said for them: “they left us free to change.” The same, however, cannot be said of
this most illiberal Court, which has embarked upon a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our Basic Law.
How, indeed, do the Justices, or their fans and cheerleaders, know? How can they be so sure? Do the unbridled social and sexual pathologies in which we are awash give them not a moment’s doubt that we may be on a disastrously wrong path? VMI may have had its problems, and certainly could have dealt with them better than it did. Nor will the world come to an end when VMI changes. But neither, one fears, will the fanaticism of its opponents, who in the name of equality and individual rights are bent on stamping out the very freedom they claim to dream of.