Alignment of the single-sex admission policy of Virginia Military Institution (VMI) aligns with the equal protection clause of the Fourteenth Amendment was the issue raised in United States v. Virginia. VMI has been an all-male institution since its inception in 1839.
In deciding that the single-sex admission policy of VMI violated the equal protection clause, the majority opinion relied on ‘intermediate scrutiny’ test applied in the prior case of Mississippi University for Women v. Hogan. In the Hogan case, the Court employed the ‘intermediate scrutiny’ test, but applied this in terms of the ‘exceedingly persuasive justification’ standard. The standard involved proof of the government objective/s addressed by the single-sex admission policy, employment of the policy is necessary to the fulfillment of the government objective/s, and use of gender categorization does not come from stereotypical notions of gender characteristics and roles. The Hogan case deviated, to some extent, from the ‘intermediate scrutiny’ established for gender equality issues because the case involved a male complainant against an all-female learning institution. In adopting the Hogan test, the majority opinion in United States v. Virginia found that VMI failed to comply with the test. On the issue of fulfillment of a government objective, the majority opinion did not find merit in VMI’s contention that its policy advocated diversity. The majority opinion pointed out that pursuit of diversity was never a consideration during the establishment and continued implementation of the all-male admission policy of VMI. With regard to the issues of necessity of the policy in achieving the government objective and stereotyping in using gender categorization, the majority opinion also did not find merit in the argument raised by VMI. VMI argued that the all-male admission policy aligned with the customization of the adversative philosophy to all-male students, which meant that it is not applicable to females without changing the philosophy. The majority opinion further explained that this argument made by VMI expresses the stereotyping of male and female characteristics and abilities. Moreover, the Virginia Women’s Institute for Leadership failed to provide equal opportunities for female students as VMI provided to male students. As such, in not satisfying the ‘exceedingly persuasive justification’ test, the majority opinion ruled against VMI.
Dissenting opinion from Justice Scalia centered on discrediting the analysis used by the majority. Justice Scalia reiterated that ‘intermediate scrutiny’ is the established test for gender equality issues. As such, he argued that use of this test in terms of the ‘exceedingly persuasive justification’ standard by the majority exceeded the ‘intermediate scrutiny’ test. In applying the ‘intermediate scrutiny’ test in its true sense, the Court should have found that VMI passed the test. VMI’s provision of effective college education is an important government objective. A single-sex admission policy was necessary in addressing this government objective as part of the long tradition of the institution and single-sex education benefits both male and female students. In addition, Justice Scalia also argued that the issue of single-sex schools is a matter for political and not judicial consideration.
The majority decision in United States v. Virginia is a landmark case with the Court ruling against single-sex learning institutions that offer unique benefits. However, it was silent on the constitutionality of single-sex schools that offer benefits capable of duplication and if the state established equivalent single-sex schools for males and females.
Political and Legal Attack against Segregation
Brown v. Board of Education highlighted the political and legal arguments against segregation based on race in the public school system. Prior to the decision in this case, state laws provided for the establishment of separate schools for white and African American students. The Court consolidated four similar cases filed in Kansas, South Carolina, Virginia, and Delaware. The cases involved the denial of entry of African American students in schools attended by white children. Federal district court decision on the cases in Kansas, South Carolina, and Virginia adhered to the ‘separate but equal’ rule, set out in Plessy v. Ferguson, which rendered constitutional the state laws providing for racial segregation in public schools as long as equal facilities exist. The federal district court in Delaware allowed entry of African American students in schools attended by white students because the facilities in white schools were superior to the facilities in African American schools.
In the context of racial segregation in the public school system sanctioned by state laws, the Court adopted a broader approach to the issue. It considered the impact of segregation on public education, instead of limiting the focus on equality of physical or tangible facilities as in Plessy v. Ferguson. The Court held that segregation in the public school system denied equal educational opportunities to African American children. In many states, especially in the south, segregation expressed stark differences in public school facilities for white and African American children. Many schools for African American children were inferior in terms of school building, number of classrooms to support separate classes per grade, teacher training, and facilities for academic and extracurricular activities. In the northern states, there were also disparities in the public schools attended by white and African American children, albeit less blatant than in the southern states. As such, there are actual differences in the facilities of public schools for white and African American children that reflect inequality. States justified the continuity of segregation by implementing equalization programs intended to ensure similar facilities in public schools for white and African American children. In the South Carolina case, the district court found inequalities in the school facilities attended by white and African American children and directed the state government to make changes in order to equalize public school facilities for the segregated students. However, the Court in Brown v. Board of Education posited that even if facilities for African American schools become similar with facilities in schools attended by white children, the nature of segregation builds a sense of inferiority on the part of African American children. As such, segregation in the American public school system is innately unequal. Equalizing facilities is not enough to establish equality of education opportunities for all children.
Apart from rendering racial segregation in the public school system unconstitutional because the innate nature of segregation violates the equal protection clause, Brown v. Board of Education also tackled the nature of education as a right accorded equally to all. Education is necessary to the future success of children. Education prepares white and African American children to take on important roles in society, from joining the military to building a professional career, which result to the betterment of society. Removing segregation to facilitate equal education opportunities is also a political issue.
The case also brought to light evidence of the adverse effects of segregation on educational outcomes. Studies on segregation of African American children in the public school system showed that the institutional reinforcement of the inferiority of African American children led to negative effects on educational attainment and personal development. Removing segregation to address these negative effects becomes a public policy concern.
Original Intent of the Fourteenth Amendment
The Fourteenth Amendment is the lengthiest part of the Constitution and the only amendment covering multiple subjects. Difficulties in comprehending the intent and meaning of the different provisions are due to the wide range of subjects and issues that the amendment covers (Finkelman 1020). Identifying the original intent of the Fourteenth Amendment involves consideration of paramount issues in 1866 until 1868.
Based on conditions during the deliberations until the adoption of the Fourteenth Amendment, the focus of lawmakers were on sections 2, 3 and 4. Finkelman (1021) explained that these sections were on suffrage for the freed black slaves as well as controlling the rise to power of Civil War leaders in the south. On one hand, the northerners who won the civil war wanted to emancipate slaves in the southern states to weaken southern power. On the other hand, they also wanted to prevent the increasing influence of southern leaders in Congress. Freeing slaves and recognizing their right to vote meant an increase in the citizen population in the south and representatives in Congress. Efforts succeeded in enfranchising blacks, but not so much in limiting the influence of southern representatives in Congress.
The Supreme Court’s initial response to the protections offered in the Fourteenth Amendment was negation of the intent of the amendment provisions. In The Slaughterhouse Cases, the Court denied the petition to render unconstitutional a state law that granted exclusive right to a company to operate a slaughterhouse because the ‘privileges and immunities’ expressed by the Fourteenth Amendment referred to matters affecting American citizens in general and not to issues between states and their citizens. In Elk v. Wilkins, the Court denied citizenship to a claimant by ruling that citizenship comes from the status of parents. Children born in the United States to parents who are not citizens cannot exercise citizenship rights.
Works Cited
Cases
Brown v. Board of Education, 347 U.S. 483 (1954)
Elk v. Wilkins, 112 U.S. 94 (1884)
Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)
Plessy v. Ferguson, 163 U.S. 537 (1896)
The Slaughterhouse Cases, 83 U.S. 36 (1873)
United States v. Virginia, 518 U.S. 515 (1996)
Secondary Source
Finkelman, Paul. “Original Intent and the Fourteenth Amendment: Into the Black Hole of Constitutional Law.” Chicago-Kent Law Review 89.3 (2014): 1019-1063.
