Sex discrimination unlikely to undergo new legal standard Supreme Court considers VMI's exclusion of women

January 18, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Justice Sandra Day O'Connor appeared yesterday to squelch chances that the Supreme Court would soon proclaim a tough constitutional ban on sex discrimination in the nation.

Ten minutes into a hearing on a case testing the exclusion of women from Virginia Military Institute, Justice O'Connor ridiculed the idea that the court should adopt a new standard that would nullify nearly all laws or government rules that treat men and women differently.

The constitutionality of VMI's male-only admissions seemed unclear after the one-hour hearing, although five of the justices closely questioned the college's lawyer about the 157-year-old policy.

Justice O'Connor, seemingly rejecting the plea of the Clinton administration and women's rights advocates that the court remains free to switch to a strict new standard, declared: "It is not exactly an open question."

Since the vote and support of the court's first woman justice almost certainly would be needed for a majority to take a bold new step against sex discrimination, her comments made it appear that the VMI case would result in a fairly narrow ruling, leaving sex equality law about where it now is.

She noted that the court had issued a series of rulings in recent years that do not go as far as it is now being asked to go. In those rulings, the justices have used a more lenient constitutional test than the one being put forth; the existing test leaves government officials and agencies with a wide degree of latitude to treat the sexes differently.

"Why was this case singled out for adopting a different standard?" Justice O'Connor demanded of a Clinton administration lawyer, Deputy Solicitor General Paul Bender.

In reply, he did not make a full-scale defense of the ban the administration sought. He simply said that the court had indicated repeatedly that the option of going that far remained open.

Mr. Bender also told Justice O'Connor that the court "absolutely" could decide the case without laying down a new standard. The existing one, he said, would nullify VMI's male-only policy.

Joining Justice O'Connor in criticizing the plea for a nestandard was Justice Anthony M. Kennedy, another member of the court's controlling bloc of centrist justices. He said that a nearly total ban on sex-based government action would undermine the choice of parents to send their children to boys-only or girls-only high schools.

Justice Kennedy suggested that nearly all single-sex educatiowould fail if the strictest constitutional test were used.

Justice Ruth Bader Ginsburg, who has championed the toughesconstitutional standard for judging sex bias, did not join in the discussion of that issue at yesterday's one-hour hearing.

With eight justices taking part in the case -- Justice Clarence

Thomas disqualified himself apparently because his son attends the Lexington, Va., college -- it appears that the winning side will be the one that gains the votes of either Justice O'Connor or Justice Kennedy, or perhaps both.

Justice Antonin Scalia repeatedly defended VMI's right to keeout women, and Chief Justice William H. Rehnquist appeared sympathetic to the policy.

Several members of the court, especially Justices Ginsburg anStephen G. Breyer, asked questions that sounded critical of the exclusion of women from a government-financed institution that offers a special brand of aggressive military training to prepare future military and civilian leaders.

Justice Breyer suggested that, if VMI could keep out women barguing that their presence in the school would change it -- as the school has -- the same argument could be used by colleges to keep out racial minorities, too.

When VMI's lawyer, Washington attorney Theodore B. Olson, took the podium to defend the males-only policy as necessary to its academic program, Justice O'Connor joined in aggressive questioning of the reasons he gave in defense of the institution.

The VMI case poses two key constitutional questions for the court about the VMI approach to education: whether it is unconstitutional to keep women out when the school claims its whole nature would be destroyed if they were let in, and if that is unconstitutional, what VMI must do as a remedy.

Justice O'Connor was particularly sharp in questioning Mr. Olson about the first issue. The VMI lawyer argued in reply that educational experts had come to the defense of VMI's program, and of the creation of a separate women's military leadership program at a nearby all-female institution, Mary Baldwin College.

Mr. Olson contended that VMI's insistence on remaining a male-only military college was not based upon any biased assumptions about women, but rather upon the views of educational experts that its particular kind of rigorous training is better suited to education of men.

A final ruling is expected by the early summer.

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