VMI before the court Tough questions: Justices seem skeptical of 'separate but comparable' education.

January 21, 1996

STATE-SUPPORTED, all-male military education was in the spotlight again last week, as the Supreme Court heard arguments in a case involving Virginia Military Institute's obstinate claim that the presence of women would substantially change the nature of its educational mission and rob young men of a valuable option in higher education. That claim met with great skepticism from the justices, and rightly so.

If that skepticism came as no surprise, the court's seeming dismissal of another aspect of this case did raise some eyebrows. As part of its appeal of this case, the Department of Justice is also asking that the court agree to elevate issues of sex discrimination to a higher level of judicial scrutiny. Not long into the hearing, Justice Sandra Day O'Connor ridiculed that notion.

Although women's rights advocates have long sought for the court to impose the same strict standard of scrutiny for sex discrimination as it holds for cases of racial discrimination, there are strong arguments now that such a move is no longer as desirable as it once was. For one thing, according to the current court, a strict standard of review can cut two ways -- outlawing such remedies as affirmative action programs or race-based scholarships because they treat people of different racial backgrounds differently. The same thing could happen to programs designed with the aim of helping women.

Moreover, in many areas of law, most glaring differences in the treatment of men and women have already been changed. In family law, for instance, gender distinctions have been removed from divorce, alimony and custody laws. Any such lingering laws would, if challenged, quickly fall under current standards of review. In custody cases, a presumption toward "maternal" custody has been replaced with gender-neutral language such as "primary caretaker." This is especially true in states such as Maryland, which have an equal rights amendment in their state constitutions.

But a fair resolution of the VMI case never depended on a higher level of judicial scrutiny. It's enough to say that Virginia's attempt to set up a "comparable" leadership institute for women is too little, too late. If West Point and Annapolis can integrate women successfully into their ranks, then it is hard to understand why VMI finds this challenge so difficult -- or why VMI thinks this kind of education will adequately train young men for a military in which they could well find themselves reporting to a female commanding officer.

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