WASHINGTON -- The Justice Department has decided to go to a higher court to keep alive a major constitutional controversy over state support of single-sex colleges -- the issue at stake in a case against Virginia Military Institute.
The department lost the first round in that case in June when a federal judge in Roanoke, Va., ruled that VMI may continue to keep out women while receiving nearly $150,000 a year in state scholarship money.
Attorney General Richard L. Thornburgh said yesterday that the department will press its constitutional challenge in the 4th U.S. Circuit Court of Appeals in Richmond, Va. "The important issues in this case" should be settled at a higher level, Mr. Thornburgh said.
If VMI ultimately loses the case, it will have the options of admitting female students or becoming a purely private college, which would allow it to continue its men-only policy.
VMI, a 152-year-old military college in Lexington, is the only remaining single-sex institution among Virginia's 15 state-supported colleges. It has about 1,300 students, 35 of whom have their entire educations paid for by state scholarship funds.
It is considered to be the toughest military school in the nation because of its tradition of seeking to break down cadets' prior views and habits so that it can remold them as rigorously disciplined "citizen-soldiers." Thousands of rules govern every facet of cadet life, and violations are punished swiftly.
It makes heavy use of hazing of entering students, who are called "rats," and its program is also considered unusually demanding physically.
The college has never admitted women and, for the past two years, has refused even to reply when a woman seeks admission. Over a recent three-year period, it reported that it had received inquiries from 347 women, but it was unclear how many sought to attend the school.
Graduates of the institute are considered to be among the state's most influential business and political figures.
Virginia's legislature has refused repeatedly to withdraw state funds from VMI and has refused efforts to match the scholarship program with similar aid to female students in the state, according to State Sen. Emilie F. Miller, a Fairfax Democrat who has sought a legislative way to end the fight over VMI.
Ms. Miller said yesterday she was "very delighted" that the Justice Department was appealing the case. "It will have to be settled in the courts, because we can't seem to settle it legislatively," she said. The "real issue" in the case, she said, is the constitutionality of using "tax dollars for discrimination."
VMI's attorney, Robert H. Patterson Jr. of Richmond, said the college and its attorney had hoped the Justice Department would let the case die in the wake of U.S. District Judge Jackson L. Kiser's ruling June 14 in favor of VMI.
"We are confident, with the appeal now taken, that we'll prevail," he said.
Judge Kiser ruled that the Constitution does not require all publicly funded colleges to admit the sexes equally if a particular college can prove that its one-sex policy contributes to "diversity" in public higher education and if it can show that it is able to make that contribution only by remaining a one-sex school.
VMI, he concluded, met those tests.
"VMI truly marches to the beat of a different drummer, and I will permit it to continue to do so," the judge wrote.
The Justice Department filed the lawsuit after being asked to do so by an unidentified Virginia woman who wants to enroll at VMI.
Gov. L. Douglas Wilder and other top state officials refused to let the state defend VMI's men-only policy in court, so the VMI Foundation and VMI alumni have done so.