Virginia Military Institute (VMI) is the only single-sex school of higher education in VA.
VMI's goal is to create "citizen-soldiers" through an adversative method.
The Fourth Circuit ruled that VMI's classification violated Equal Protection.
In response, VMI proposed a parallel program for women: Virginia Women's Institute for Leadership (VWIL).
4th Circuit held the classification unconstitutional but VWIL remedy cured constitutional problem.
SCOTUS held the classification unconstitutional and VWIL remedy unconstitutional.
Does VMI's classification based upon gender violate Equal Protection?
Does VMI's proposed remedy violate Equal Protection? If so, what is the necessary remedy?
VMI's classification based upon gender violates Equal Protection.
VMI's proposed remedy also violates Equal Protection; VMI must make its program available to women.
Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action.
This heightened review standard does not make sex a proscribed classification. Supposed inherent differences are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring.
But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.
Virginia has given no persuasive justification for the exclusion of women.
Virginia contends that single-sex education provides important educational benefits and contributes to diversity in educational approaches.
VA has not shown that VMI was established or has been maintained with a view to diversifying, by its categorical exclusion women, educational opportunities within VA.
A tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.
Virginia contends that the school's adversative approach would have to be modified were VMI to admit women.
The notion that admission of women would downgrade VMI's stature is a judgment hardly proved, a prediction hardly different from other self-fulfilling prophecies once routinely used to deny rights or opportunities.
Virginia's goal is not substantially advanced by women's categorical exclusion, in total regard for their individual merit, from VMI.
The remedy created by VA is not acceptable; they make generalizations and assume that women are not suitable for VMI.
Their methods are 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 VMI cadets.
It is on behalf of these women that the suit was filed, and it is for them that a remedy must be crafted.
The Court rejects the factual findings of two courts below, sweeps aside precedent, and ignores history.
It rejects the facts that there exist gender-based differences supporting VA's restriction of the adversative method to only a men's institution and the finding that the all-male composition is essential to the institution's character.
It uses the wrong test for gender classifications.
It ignores the long tradition of men's military colleges.
The Court has been moved by the current preferences of society, not by anything Constitutional in nature.
Constitutional amendment should be used to make such a change, not a judicial remedy that relies on the wavering will of the people (probably minority opinion in this case).