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Ginsburg was not convinced that the VWIL was equivalent to VMI in terms of either education and training or post-graduation advantages. She thus considered not only the program itself but the benefits that it would provide to its graduates in the long term. The standard of review in the majority opinion arguably seemed higher than the usual intermediate scrutiny for gender-based justifications, since Ginsburg stated that an exceedingly persuasive justification was required from the state. While Rehnquist agreed that this specific situation was unconstitutional, he felt that Virginia's separate-but-equal system could be acceptable if it had been implemented more diligently so that the quality of education between institutions was roughly comparable. This contrasted with Ginsburg's evident belief that the all-male policy was unconstitutional on its face, regardless of the alternatives offered by the state.

In the second phase of the litigation, Virginia presented its remedial plan-maintain VMI as a male-only college and create VWIL as a separate program for women. The plan met District Court approval. The Fourth Circuit, in turn, deferentially reviewed the Commonwealth's proposal and decided that the two single-sex programs directly served Virginia's reasserted purposes: single-gender education, and "achieving the results of an adversative method in a military environment.

Inspecting the VMI and VWIL educational programs to determine whether they "afford[ed] to both genders benefits comparable in substance, [if] not in form and detail," id. The United States challenges this "remedial" ruling as pervasively misguided. The school admitted its first African-American cadets in Lee at ceremonies and sports events.

As the District Court noted, VMI established a program on "retention of black cadets" designed to offer academic and social-cultural support to "minority members of a dominantly white and tradition-oriented student body. The school maintains a "special recruitment program for blacks" which, the District Court found, "has had little, if any, effect on VMI's method of accomplishing its mission. A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in "the position they would have occupied in the absence of [discrimination].

The constitutional violation in this suit is the categorical exclusion of women from an extraordinary educational opportunity afforded men. A proper remedy for an unconstitutional exclusion, we have explained, aims to "eliminate [so far as possible] the discriminatory effects of the past" and to "bar like discrimination in the future.

Virginia chose not to eliminate, but to leave untouched, VMI's exclusionary policy. For women only, however, Virginia proposed a separate program, different in kind from VMI and unequal in tangible and intangible facilities. Bray v. Lee, F.

Measuring VMIIVWIL against the paradigm, Judge Phillips said, "reveals how far short the [Virginia] plan falls from providing substantially equal tangible and intangible educational benefits to men and women.

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If the VWIL program could not "eliminate the discriminatory effects of the past," could it at least "bar like discrimination in the future"? See Louisiana, U. A comparison of the programs said to be "parallel" informs our answer.

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See supra, at The VWIL House is not a military-style residence and VWIL students need not live together throughout the 4-year program, eat meals together, or wear uniforms during the schoolday. VWIL students thus do not experience the "barracks" life "crucial to the VMI experience," the spartan living arrangements designed to foster an "egalitarian ethic. VWIL students receive their "leadership training" in seminars, externships, and speaker series, see F. Virginia maintains that these methodological differences are "justified pedagogically," based on "important differences between men and women in learning and developmental needs," "psychological and sociological differences" Virginia describes as "real" and "not stereotypes.

The Task Force charged with developing the leadership program for women, drawn from the staff and faculty at Mary Baldwin College, "determined that a military model and, especially VMI's adversative method, would be wholly inappropriate for educating and training most women.

See also 44 F. The Com. Students at VMI are expelled forthwith for honor code violations, see F. As earlier stated, see supra, atgeneralizations about "the way women are," estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.

Notably, Virginia never asserted that VMI's method of education suits most men.

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It is also revealing that Virginia accounted for its failure to make the VWIL experience "the entirely militaristic experience of VMI" on the ground that VWIL "is planned for women who do not necessarily expect to pursue military careers. In contrast to the generalizations about women on which Virginia rests, we note again these dispositive realities:.

VMI's "implementing methodology" is not "inherently unsuitable to women," F. It is on behalf of these women that the United States has instituted this suit, and it is for them that a remedy must be crafted,19 a remedy that will end their.

See Brief for Petitioner ; cf. Nor can the VWIL graduate anticipate the benefits associated with VMI's year history, the school's prestige, and its influential alumni network. The Mary Baldwin faculty holds "significantly fewer Ph. VMI awards baccalaureate degrees in liberal arts, biology, chemistry, civil engineering, electrical and computer engineering, and mechanical engineering.

Experience shows such adjustments are manageable. Vitters, N. VWIL students attend a school that "does not have a math and science focus," F. For physical training, Mary Baldwin has "two multipurpose fields" and "[o]ne gymnasium. VMI has "an NCAA competition level indoor track and field facility; a number of multi-purpose fields; baseball, soccer and lacrosse fields; an obstacle course; large boxing, wrestling and martial arts facilities; an ll-laps-to-the-mile indoor running course; an indoor pool; indoor and outdoor rifle ranges; and a football stadium that also contains a practice field and outdoor track.

Her diploma does not unite her with the legions of VMI "graduates [who] have distinguished themselves" in military and civilian life. Virginia, in sum, while maintaining VMI for men only, has failed to provide any "comparable single-gender women's institution. Instead, the Commonwealth has created a VWIL program fairly appraised as a "pale shadow" of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence. Virginia's VWIL solution is reminiscent of the remedy Texas proposed 50 years ago, in response to a state trial court's ruling that, given the equal protection guarantee, African-Americans could not be denied a legal education at a state facility.

See Sweatt v. As originally opened, the new school had no independent faculty or library, and it lacked accreditation. Nevertheless, the state trial and appellate courts were satisfied that the new school offered Sweatt opportunities for the study of law "substantially equivalent to those offered by the State to white students at the University of Texas.

Before this Court considered the case, the new school had gained "a faculty of five full-time professors; a student body of 23; a library of some 16, volumes serviced by a full-time staff; a practice court and legal aid association; and one alumnus who ha[d] become a member of the Texas Bar. This Court contrasted resources at the new school with those at the school from which Sweatt had been excluded.

The University of Texas Law School had a full-time faculty of 16, a student body ofa library containing over.

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More important than the tangible features, the Court emphasized, are "those qualities which are incapable of objective measurement but which make for greatness" in a school, including "reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. Facing the marked differences reported in the Sweatt opinion, the Court unanimously ruled that Texas had not shown "substantial equality in the [separate] educational opportunities" the State offered.

When Virginia tendered its VWIL plan, the Fourth Circuit did not inquire whether the proposed remedy, approved by the District Court, placed women denied the VMI advantage in "the position they would have occupied in the absence of [discrimination]. Instead, the Court of Appeals considered whether the Commonwealth could provide, with fidelity to the equal protection principle, separate and unequal educational programs for men and women.

The Court of Appeals further observed that VMI is "an ongoing and successful institution with a long history," and there remains no "comparable single-gender women's institution.

Nevertheless, the appeals court declared the substantially different and significantly unequal VWIL program sat. The court reached that result by revising the applicable standard of review. The Fourth Circuit displaced the standard developed in our precedent, see supra, atand substituted a standard of its own invention. We have earlier described the deferential review in which the Court of Appeals engaged, see supra, ata brand of review inconsistent with the more exacting standard our precedent requires, see supra, at Quoting in part from Mississippi Univ.

Recognizing that it had extracted from our decisions a test yielding "little or no scrutiny of the effect of a classification directed at [single-gender education]," the Court of Appeals devised another test, a "substantive comparability" inquiry, id.

The Fourth Circuit plainly erred in exposing Virginia's VWIL plan to a deferential analysis, for "all gender-based classifications today" warrant "heightened scrutiny. Valuable as VWIL may prove for students who seek the program offered, Virginia's remedy affords no cure at all for the opportunities and advantages withheld from women who want a VMI education and can make the grade. See supra, at It is an ancient and familiar fear.

Compare In re Lavinia Goodell, 39 Wis. The habitual presence of women at these would tend to relax the public sense of decency and propriety. A generation ago, "the authorities controlling Virginia higher education," despite long established tradition, agreed "to innovate and favorably entertain[ed] the [then] relatively new idea that there must be no discrimination by sex in offering educational opportunity.

Commencing inVirginia opened to women "educational opportunities at the Charlottesville campus that [were] not afforded in other [state-operated] institutions. A federal court approved the Commonwealth's innovation, emphasizing that the University of Virginia "offer[ed] courses of instruction The court further noted: "[T]here exists at Charlottesville a 'prestige' factor.

Ironically, in that most undemocratic system of government, the Republic, women's native ability to serve as guardians was not seriously questioned. The concern was over the wrestling and exercise class in which all candidates for guardianship had to participate, for rigorous physical and mental training were prerequisites to attain the exalted status of guardian.

And in accord with Greek custom, those exercise classes were conducted in the nude. Plato concluded that their virtue would clothe the women's nakedness and that Platonic society would not thereby be deprived of the talent of qualified citizens for reasons of mere gender.

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Jowett transl. Virginia, not bound to ancient Greek custom in its "rigorous physical and mental training" programs, could more readily make the accommodations necessary to draw on "the talent of [all] qualified citizens. VMI, too, offers an educational opportunity no other Virginia institution provides, and the school's "prestige"-associated with its success in developing "citizen-soldiers"-is unequaled. Virginia has closed this facility to its daughters and, instead, has devised for them a "parallel program," with a faculty less impressively credentialed and less well paid, more limited course offerings, fewer opportunities for military training and for scientific specialization.

Sweatt, U. VMI, beyond question, "possesses to a far greater degree" than the VWIL program "those qualities which are incapable of objective measurement but which make for greatness in a Women seeking and fit for a VMI -quality education cannot be offered anything less, under the Commonwealth's obligation to afford them genuinely equal protection.

A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignored or excluded.

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Morris, The Forging of the Union,p. New claims will arise; women will demand a vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing, will demand an equal voice with any other, in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level. Adams ed. There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the "more perfect Union.

For the reasons stated, the initial judgment of the Court of Appeals, F. While I agree with these conclusions, I disagree with the Court's analysis and so I write separately. Two decades ago in Craig v. Boren, U.

See Califano v. Orr, U.

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Mohammed, U. Passman, U. Feeney, U. Califano v. Westcott, U. Superior Court, Sonoma Cty. Mathews, U. While the majority adheres to this test today, ante, at, it also says that the Commonwealth must demonstrate an "'exceedingly persuasive justification'" to support a gender-based classification. See ante, at,, It is unfortunate that the Court thereby introduces an element of uncertainty respecting the appropriate test.

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While terms like "important governmental objective" and "substantially related" are hardly models of precision, they have more content and specificity than does the phrase "exceedingly persuasive justification.

To avoid introducing potential confusion, I would have adhered more closely to our traditional, "firmly established," Hogan, supra, at ; Heckler, supra, atstandard that a gender-based classification "must bear a close and substantial relationship to important governmental objectives.

Our cases dealing with gender discrimination also require that the proffered purpose for the challenged law be the actual purpose. See ante, at It is on this ground that the Court rejects the first of two justifications Virginia offers for VMI's single-sex admissions policy, namely, the goal of diversity among its public educational institutions.

While I ultimately agree that the Common. VMI was founded inand, as the Court notes, ante, atadmission was limited to men because under the then-prevailing view men, not women, were destined for higher education. However misguided this point of view may be by present-day standards, it surely was not unconstitutional in The adoption of the Fourteenth Amendment, with its Equal Protection Clause, was nearly 30 years in the future.

The interpretation of the Equal Protection Clause to require heightened scrutiny for gender discrimination was yet another century away.

Long after the adoption of the Fourteenth Amendment, and well into this century, legal distinctions between men and women were thought to raise no question under the Equal Protection Clause. The Court refers to our decision in Goesaert v. Likewise representing that now abandoned view was Hoyt v. Florida, U. The Court noted that despite advances in women's opportunities, the "woman is still regarded as the center of home and family life. Then, inwe decided Reed v. But its facts have nothing to do with admissions to any sort of educational institution.

An Idaho statute governing the administration of estates and probate preferred men to women if the other statutory qualifications were equal. The statute's purpose, according to the Idaho Supreme Court, was to avoid hearings to determine who was better qualified as between a man and a woman both applying for letters of administration. This Court held that such a rule violated the Fourteenth Amendment because "a mandatory preference to members of either.

The brief opinion in Reed made no mention of either Goesaert or Hoyt. Even at the time of our decision in Reed v. Reed, therefore, Virginia and VMI were scarcely on notice that its holding would be extended across the constitutional board.

They were entitled to believe that "one swallow doesn't make a summer" and await further developments. Those developments were 11 years in coming. In Mississippi Univ. Hogan, supra, a case actually involving a singlesex admissions policy in higher education, the Court held that the exclusion of men from a nursing program violated the Equal Protection Clause.

This holding did place Virginia on notice that VMI's men-only admissions policy was open to serious question. But the committee ended up cryptically recommending against changing VMI's status as a single-sex college.

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After three years of study, the committee found "'no information'" that would warrant a change in VMI's status. Even the District Court, ultimately sympathetic to VMI's position, found that "[t]he Report provided very little indication of how [its] conclusion was reached" and that "[t]he one and one-half pages in the committee's final report devoted to analyzing the information it obtained primarily focuses on anticipated difficulties in attracting females to VMI.

The reasons given in the report for not changing the policy were the changes that admission of women to VMI would require, and the likely effect of those changes on the institution. That VMI would have to change is simply not helpful in addressing the constitutionality of the status after Hogan.

Before this Court, Virginia has sought to justify VMI's single-sex admissions policy primarily on the basis that diversity in education is desirable, and that while most of the public institutions of higher learning in the Commonwealth are coeducational, there should also be room for single-sex institutions.

I agree with the Court that there is scant evidence in the record that this was the real reason that Virginia decided to maintain VMI as men only. I think that after Hogan, the Commonwealth was entitled to reconsider its policy with respect to VMI, and not to have earlier justifications, or lack thereof, held against it. Even if diversity in educational opportunity were the Commonwealth's actual objective, the Commonwealth's position would still be problematic.

The difficulty with its position is that the diversity benefited only one sex; there was single-sex public education available for men at VMI, but no corresponding single-sex public education available for women. When Hogan placed Virginia on notice that. Of course, those are not the same thing. I do not read the Court as saying that the diversity rationale is a pretext for discrimination, and I would not endorse such a proposition.

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We may find that diversity was not the Commonwealth's real reason without suggesting, or having to show, that the real reason was "antifeminism," post, at Our cases simply require that the proffered purpose for the challenged gender classification be the actual purpose, although not necessarily recorded.

The dissent also says that the interest in diversity is so transparent that having to articulate it is "absurd on its face. Apparently, that rationale was not obvious to the Mission Study Committee which failed to list it among its reasons for maintaining VMI's all-men admissions policy.

VMI's admissions policy possibly was unconstitutional, VMI could have dealt with the problem by admitting women; but its governing body felt strongly that the admission of women would have seriously harmed the institution's educational approach. Was there something else the Commonwealth could have done to avoid an equal protection violation?

Since the Commonwealth did nothing, we do not have to definitively answer that question. I do not think, however, that the Commonwealth's options were as limited as the majority may imply. The Court cites, without expressly approving it, a statement from the opinion of the dissenting judge in the Court of Appeals, to the effect that the Commonwealth could have "simultaneously opened single-gender undergraduate institutions having substantially comparable curricular and extra-curricular programs, funding, physical plant, administration and support services, and faculty and library resources.

If this statement is thought to exclude other possibilities, it is too stringent a requirement. VMI had been in operation for over a century and a half, and had an established, successful, and devoted group of alumni. No legislative wand could instantly call into existence a similar institution for women; and it would be a tremendous loss to scrap VMI's history and tradition.

In the words of Grover Cleveland's second inaugural address, the Commonwealth faced a condition, not a theory. And it was a condition that had been brought about, not through defiance of decisions construing gender bias under the Equal Protection Clause, but, until the decision in Hogan, a condition that had not appeared to offend the Constitution. Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation.

I do not believe the Commonwealth was faced with the stark choice of either admitting women to VMI, on the. But, as I have noted, neither the governing board of VMI nor the Commonwealth took any action after If diversity in the form of single-sex, as well as coeducational, institutions of higher learning were to be available to Virginians, that diversity had to be available to women as well as to men.

The dissent criticizes me for "disregarding the four allwomen's private colleges in Virginia generously assisted by public funds. The private women's colleges are treated by the Commonwealth exactly as all other private schools are treated, which includes the provision of tuition-assistance grants to Virginia residents.

Virginia gives no special support to the women's single-sex education. But obviously, the same is not true for men's education.

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Had the Commonwealth provided the kind of support for the private women's schools that it provides for VMI, this may have been a very different case. For in so doing, the Commonwealth would have demonstrated that its interest in providing a single-sex education for men was to some measure matched by an interest in providing the same opportunity for women. Virginia offers a second justification for the single-sex admissions policy: maintenance of the adversative method.

I agree with the Court that this justification does not serve an important governmental objective. A State does not have substantial interest in the adversative methodology unless it is pedagogically beneficial.

While considerable evidence shows that a single-sex education is pedagogically beneficial for some students, see F. The Court defines the constitutional violation in these cases as "the categorical exclusion of women from an extraordinary educational opportunity afforded to men. By defining the violation in this way, and by emphasizing that a remedy for a constitutional violation must place the victims of discrimination in "'the position they would have occupied in the absence of [discrimination],'" ibid.

As the foregoing discussion suggests, I would not define the violation in this way; it is not the "exclusion of women" that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any-much less a comparable-institution for women.

Accordingly, the remedy should not necessarily require either the admission of women to VMI or the creation of a VMI clone for women. An adequate remedy in my opinion might be a demonstration by Virginia that its interest in educating men in a single-sex environment is matched by its interest in educating women in a single-sex institution.

To demonstrate such, the Commonwealth does not need to create two institutions with the same number of faculty Ph. Do's, similar SAT scores, or comparable athletic fields. See ante, at Nor would it necessarily require that the women's institution offer the same curriculum as the men's; one could be strong in computer science, the other could be strong in liberal arts.

It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber. If a State decides to create single-sex programs, the State would, I expect, consider the public's interest and demand in designing curricula. And rightfully so. But the State should avoid assuming demand based on stereotypes; it must not assume a priori, without evidence, that there would be.

In the end, the women's institution Virginia proposes, VWIL, fails as a remedy, because it is distinctly inferior to the existing men's institution and will continue to be for the foreseeable future. I therefore ultimately agree with the Court that Virginia has not provided an adequate remedy. Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. To achieve that desired result, it rejects contrary to our established practice the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people.

As to facts: It explicitly rejects the finding that there exist "gender-based developmental differences" supporting Virginia's restriction of the "adversative" method to only a men's institution, and the finding that the all-male composition of the Virginia Military Institute VMI is essential to that institution's character. As to precedent: It drastically revises our established standards for reviewing sex-based classifications.

And as to history: It counts for nothing the long tradition, enduring down to the present, of men's military colleges supported by both States and the Federal Government.

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Much of the Court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closedminded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly.

That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: They left us free to change.

The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society and in some cases only the countermajoritarian preferences of the society's law-trained elite into our Basic Law.

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Today it enshrines the notion that no substantial educational value is to be served by an all-men's military academy-so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others.

Since it is entirely clear that the Constitution of the United States-the old one-takes no sides in this educational debate, I dissent. I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: "rational basis" scrutiny, intermediate scrutiny, or strict scrutiny.

These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have said, is reserved for state "classifications based on race or national origin and classifications affecting fundamental rights," Clark v.

Jeter, U. It is my position that the term "fundamental rights" should be limited to "interest[s] traditionally protected by our society," Michael H. Gerald D.

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So far it has been applied to content-neutral restrictions that place an incidental burden on speech, to disabilities attendant to illegitimacy, and to discrimination on the basis of sex. FCC, U. Habluetzel, U.

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I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it.

Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that "equal protection" our society has always accorded in the past.

But in my view the function of this Court is to preserve our society's values regarding among other things equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees.

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For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot supersede-and indeed ought to be crafted so as to reflect-those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts.

More specifically, it is my view that "when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.

Republican Party of Ill. The same applies, mutatis mutandis, to a practice asserted to be in violation of the post-Civil War Fourteenth Amendment. Superior Court of Cal. Due Process Clause ; J. Casey, U. The all-male constitution of VMI comes squarely within such a governing tradition.

Founded by the Commonwealth of Virginia in and continuously maintained by it since, VMI has always admitted only men. And in that regard it has not been unusual.

For almost all of VMI's more than a century and a half of existence, its single-sex status reflected the uniform practice for government-supported military colleges. Another famous Southern institution, The Citadel, has existed as a state-funded school of South Carolina since And all the federal military colleges-West Point, the Naval Academy at Annapolis, and even the Air Force Academy, which was not established until admitted only males for most of their history.

Their admission of women in upon which the Court today relies, see ante, atnn. In other words, the tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-Iaw.

And the same applies, more broadly, to single-sex education in general, which, as I shall discuss, is threatened by. Government-run nonmilitary educational institutions for the two sexes have until very recently also been part of our national tradition. From grade school through high school, college, and graduate and professional training, much of the Nation's population during much of our history has been educated in sexually segregated classrooms.

These traditions may of course be changed by the democratic decisions of the people, as they largely have been. Today, however, change is forced upon Virginia, and reversion to single-sex education is prohibited nationwide, not by democratic processes but by order of this Court. Even while bemoaning the sorry, bygone days of "fixed notions" concerning women's education, see ante, atand n. To reject the Court's disposition today, however, it is not necessary to accept my view that the Court's made-up tests cannot displace longstanding national traditions as the primary determinant of what the Constitution means.

It is only necessary to apply honestly the test the Court has been applying to sex-based classifications for the past two decades. We have denominated this standard "intermediate scrutiny" and under it have inquired whether the statutory classification is "sub. Notwithstanding our above-described precedents and their" 'firmly established principles,'" Heckler, supra, at quoting Hogan, supra, atthe United States urged us to hold in this litigation "that strict scrutiny is the correct constitutional standard for evaluating classifications that deny opportunities to individuals based on their sex.

This was in fiat contradiction of the Government's position below, which was, in its own words, to "stat[e] unequivocally that the appropriate standard in this case is 'intermediate scrutiny. The Court, while making no reference to the Government's argument, effectively accepts it. Although the Court in two places recites the test as stated in Hogan, see ante, at, which asks whether the State has demonstrated "that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives," U.

When it engages in analysis, the Court instead prefers the phrase "exceedingly persuasive justification" from Hogan. The Court's nine invocations of that phrase, see ante, at,,and even its fanciful description of that imponderable as "the core instruction" of the Court's decisions in J. That is essential to the Court's result, which can only be achieved by establishing that intermediate scrutiny is not survived if there are some women interested in attending VMI, capable of undertaking its activities, and able to meet its physical demands.

Thus, the Court summarizes its holding as follows:.

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Similarly, the Court states that "[t]he Commonwealth's justification for excluding all women from 'citizen-soldier' training for which some are qualified Only the amorphous "exceedingly persuasive justification" phrase, and not the standard elaboration of intermediate scrutiny, can be made to yield this conclusion that VMI's single-sex composition is unconstitutional because there exist several women or, one would have to conclude under the Court's reasoning, a single woman willing and able to undertake VMI's program.

Intermediate scrutiny has never required a least-restrictive-means analysis, but only a "substantial relation" between the classification and the state interests that it serves. Thus, in Califano v. We reasoned that "women The reasoning in our other intermediate-scrutiny cases has similarly required only a substantial relation between end and means, not a perfect fit.

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Favorite Saving. Latest in 30th Anniversary Issue Beaver threatens monetary policy. Oct 30, When we were finished shopping for antiques at Historic Savage Mill, we went out to our rental car which would not start.

Long story short It crosses the Potomac River. And then on through windy roads of lovely colors. We had to hurry through some of these parts because we lost those hours waiting on a new rental car We were told that the colors of the Parkway this year were 'average' due to an earlier storm that stripped many of the trees and left others less than spectacular.

Our Fall trip to New England and Martha's Vineyard was much more spectacular with colors, but we still enjoyed this so much! I gathered a huge bag of acorns to bring home for our Thanksgiving tablescape One of the vistas along the parkway.

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