Single-Sex Education

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August 13, 1996 EvaS: Our guest tonight is LisaSmall, a feminist attorney in Washington, DC. Lisa, what was really at stake at the Citadel and the Virginia Military Institute controversies?

LisaSmall: The Citadel of South Carolina and VMI are the last two //publicly-funded// all-male schools in the nation. Both were formed in the years immediately preceding the Civil War; both were limited to white males for almost all of their history; both were, and are, supported by the taxes of the entire population of their states, even those citizens who are forbidden entry on the basis of their sex (and formerly, race). For the past decade, women who wanted admission to these schools have been agitating for change, and in 1990, this resulted in a federal lawsuit against VMI demanding the admission of women. That litigation wasn't resolved until about seven weeks ago, when the U.S. Supreme Court ordered that the state of Virginia (and, implicitly, the state of S. Carolina) halt this discrimination. That leaves the schools with only two choices: open up to women, or become private. The Citadel has already admitted three women who will start next week and graduate with the class of the Year 2000; VMI is still kicking and squalling and trying to figure out a way to keep those icky girls out.

WLV Sage: Interesting that the entire tax base is paying, while only males can attend! What are VMI & the Citadel?

LisaSmall: a Virginia taxpayer, it makes my fingers bleed when I write out my state taxes. Sage, I just explained that they are all-male military academies funded by public money with a 150+ year history of discriminating against women.

DXSMac: How can they PREVENT women from joining when VMI is state supported?

LisaSmall: Mac, that was the whole issue: how could they get away with this? And the answer is that several federal courts //agreed// with the nonsense that the State of Virginia put forward as a reason sufficient to justify discrimination. See, the Constitution does not //forbid// discrimination ... Constitutional case law just sets different tests for different types of discrimination. In order for a government unit to legally discriminate on the basis of race, for example, the discrimination must meet the Constitutional test of "strict scrutiny" -- meaning that the discrimination must be narrowly tailored to meet a vital government objective. Sex discrimination has always fallen to a lower level, called "intermediate scrutiny," requiring only that the discrimination be "substantially related" to an "important" government objective. In the VMI case, Justice Ruth Bader Ginsburg has created a new level of scrutiny sandwiched between "strict" and "intermediate." She calls it "skeptical scrutiny," and what she's added to the intermediate level is that not only must the discrimination be substantially related to an important government interest, the discriminating government unit must also present an "exceedingly persuasive justification" for that action....they can't just present a false reason -- as Virginia tried to do in the VMI case -- and expect the Court to accept it. It is the role of all courts, now, to be "skeptical" and to examine the rationale for the discrimination very closely and very critically.

Dearest: The Citadel debacle was, of course, all over the media, but I'm curious as to whether you had any personal involvementin this incident.

LisaSmall: Mostly no... except that I attended the Supreme Court arguments, and worked with one of the attorneys preparing an amicus brief. I personally didn't get to write any of the briefing materials, just got to listen in on the strategy discussions. It was terrific. The Supreme Court argument was VERY disappointing, however; the Department of Justice did not put one of its best people up.

Dearest: Very interesting... thanks :)

EvaS: Amici brief? Friend of the court?

LisaSmall: Right -- there were numerous amici (friends) filing briefs called "amicus briefs," meaning friend of the court, on both sides of the issue...

EvaS: Thanks, Lisa:) Dakota, your turn now. Go ahead, please:)

Dakota0704: Who set these levels and how does sex discrimination only rank as intermediate ?

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