No. 94-2107

In the Supreme Court of the United States

OCTOBER TERM, 1995

COMMONWEALTH OF VIRGINIA, ET AL.,
CROSS-PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys

Department of Justice
Washington. D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the court of appeals correctly held that a
policy of admitting only men to the Virginia Military
Institute's rigorous military-style educational pro-
gram, while offering no parallel program to women,
violated the Equal Protection Clause.

(I)

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TABLE OF CONTENTS

                               Page

Opinions  below . . . . 2
Jurisdiction . . . . 2
Statement . . . . 3
Argument . . . . 4
Conclusion . . . . 9

TABLE OF AUTHORITIES

Cases:

Dandridge v. Williams, 397 U.S. 471 (1970) . . . . 8
J.E.B. v. Alabama ex rel. T. B., 114 S. Ct. 1419 (1994) . . . . 5
Mississippi Univ. for Women v. Hogan, 458 U.S. 718. . . . 3, 5, 6, 7
VMI v. United States, 113 S. Ct. 2431 (1993) . . . . 2
Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142. . . . 7

Constitution:

U.S. Const.:
Amend. XIV (Equal Protection Clause) . . . . 3, 4

Miscellaneous:

R.L. Stern, E. Gressman, S.M. Shapiro & K.S. Geller,
Supreme Court Practice (7th ed. 1993) . . . .8

(III)

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IN THE SUPREME COURT OF UNITED STATES
     
OCTOBER TERM, 1995

No. 94-2107

COMMONWEALTH OF VIRGINIA, ET AL.,
   CROSS-PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

On May 26, 1995, the United States filed a petition
for a writ of certiorari (No. 94-1941) seeking review of
the judgment of the United States Court of Appeals
for the Fourth Circuit entered on January 26, 1995
(VMI  II). In that decision, the court of appeals upheld
the Commonwealth of Virginia's plan to remedy its
unconstitutional sex-based exclusion of women from
the Virginia Military Institute by offering women a
separate and substantially different program at Mary
Baldwin College.  Cross-petitioners have filed an
opposition to that petition, along with a conditional
cross-petition for a writ of certiorari (No. 94-2107)

(1)

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2

seeking review of the court of appeals' underlying
decision on liability (VMI I). Cross-petitioners as-
sert that their conditional cross-petition should be
granted if the Court grants the United States' peti-
tion in No. 94-1941. As set forth below, the con-
ditional cross-petition for a writ of certiorari should
be denied.

       OPINIONS BELOW

The opinion of the court of appeals regarding
liability (VMI I) (App. 134a-157a) 1. is reported at 976
F2d 890. The opinion of the district court regarding
liability (App. 158a-245a) is reported at 766 F. Supp.
1407. The opinion of the court of appeals regarding
remedy (VMI II) (App. la-52a) is reported at 44 F.3d
1229. The opinion of the district court regarding
remedy (App. 53a-131a) is reported at 852 F. Supp. 471.

       JURISDICTION

The judgment of the court of appeals regarding
liability (VMI I) was entered on October 5, 1992. A
petition for rehearing was denied on October 5, 1992.
This Court denied a petition for a writ of certiorari.
VMI  v. United States, 113 S. Ct. 2431 (1993). The dis-
trict court on remand approved a remedy. The United
States appealed to challenge the remedy as in-
adequate, and cross-petitioners cross-appealed to
challenge the original finding of liability. The judg-
ment of the court of appeals regarding remedy ( VMI
II) was entered on January 26, 1995. The court of
appeals voted sua sponte not to grant rehearing en

___________________(footnotes)

1. References to the appendix are to page numbers in the
appendix to the petition for a writ of certiorari in United
States v. Virginia, No. 94-1941 (filed May 26, 1995).

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3

banc, and entered an order to that effect on April 28,
1995 (App. 246a-257a).
On April 28, 1995, the Chief Justice extended the
time within which to file a petition for a writ of
certiorari to and including May 26, 1995. The United
States filed a petition on that date (No. 94-1941). The
conditional cross-petition for a writ of certiorari was
filed on June 23, 1995. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).

        STATEMENT

The procedural and factual background is set forth
in the statement in the United States' petition for a
writ of certiorari in No. 94-1941. Cross-petitioners
conditionally challenge the court of appeals' initial
decision in VMI   I that providing a military-oriented
education at the Virginia Military Institute (VMI)
exclusively to men, while admittedly providing no
opportunity for such an educational experience to
women, violates the Equal Protection Clause. Cross-
Pet. 34. They thus seek to argue, in the event that
this Court grants certiorari in No. 94-1941, that the
Commonwealth of Virginia may constitutionally
maintain an all-male admissions policy at VMI and
take no remedial steps whatsoever.
The court of appeals held in VMI   I that VMI's male-
only admissions policy violated the Equal Protection
Clause under Mississippi Univ. for Women v.
Hogan, 458 U.S. 718 (1982). The court concluded that
neither prong of the Hogan test was satisfied. First,
VMI had not advanced the "exceedingly persuasive"
justification for excluding women from VMI that
Hogan requires. Id. at TM. In fact, cross-petitioners
had not "advanced any state policy by which it can
justify its determination * * * to afford VMI's

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4

unique type of program to men and not to women."
App. 137a (emphasis added); see also id. at 152a-155a.
Second, even if the Commonwealth had demonstrated
that it had a policy of providing single-gender
education, and even if that policy constituted an
important governmental interest, the court of ap-
peals concluded that VMI's male-only admissions
policy was not substantially related to furthering
such an interest:  "[T]he explanation of how [the
Commonwealth's] policy is furthered by affording a
unique educational benefit only to males is lacking. A
policy of diversity which aims to provide an array of
educational opportunities, including single-gender
institutions, must do more than favor one gender."
Id. at 153a-154a. The court of appeals thus held that
cross-petitioners had violated the Equal Protection
Clause, and remanded for consideration of an appro-
priate remedy.
The district court approved a remedial plan that
establishes an all-female Virginia Women's Institute
for Leadership (VWIL) at Mary Baldwin College, a
private, women's liberal arts college. App. 53a-131a.
The VWIL plan was not based on the VMI model, and
admittedly "differs substantially from the VMI
program." Id. at 55a. The court of appeals affirmed.
Id. at la-52a. Our petition for a writ of certiorari (No.
94-1941) to review the remedial decision is now
pending.
        
ARGUMENT

The court of appeals' holding that the Equal
Protection Clause prohibits the Commonwealth of
Virginia from offering the benefits of the Virginia
Military Institute's unique educational program only
to men, while offering no parallel program to women,

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5

turns on a straightforward application of Mississippi
Univ. for Women v. Hogan, 458 U.S. 718 (1982). The
parties and courts below all recognized that VMI's
male-only admissions policy must satisfy the Hogan
test, and the court of appeals correctly concluded that
it failed to do so. That decision does not conflict with
any decision of this Court or any other court of
appeals. As this Court has already determined in
denying the cross-petitioners' earlier petition for a
writ of certiorari to review the liability judgment,
that decision warrants no further review.
The cross-petition is based entirely on the errone-
ous assertion that "the court of appeals conceded that
VMI's single-sex admissions policy satisfies both
prongs of the Hogan test." 2. Cross-Pet. 4. The court
of appeals made no such "concession." Rather, as to
the first prong, the court of appeals held in VMI I that
the Commonwealth "failed to articulate an impor-
tant policy that substantially supports offering the
unique benefits of a VMI-type education to men and
not to women." App. 155a.3 Even assuming that the

___________________(footnotes)

2. Under that test, the Commonwealth had the burden to
show "an exceedingly persuasive justification" for VMI's
exclusion of women, i.e. that VMI's admissions policy (1) serves
important governmental objectives, and (2) is substantially
related to the achievement of those objectives. Hogan, 458 U.S.
at 724 see also J.E.B. v. Alabama ex rel. T. B,, 114 S. Ct. 1419,
1425 (1994).
3. See App. 137a (Virginia had not "advanced any state
policy by which it can justify its determination, under an
announced policy of diversity, to afford VMI's unique type of
program to men and not to women"); id. at 152a ("the
Commonwealth of Virginia has not revealed a policy that
explains why it offers the unique benefit of VMI's type of
education and training to men and not to women"); id. at 155a

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6

Commonwealth had asserted the required "important
governmental objective; Hogan, 458 U.S. at 724, the
court further held in VMI I that VMI's male-only ad-
missions policy was not substantially related to
achieving that objective. The court stated that Vir-
ginia "has not adequately explained how the main-
tenance of one single-gender institution gives effect
to * * * the governmental objective advanced to
support VMI's admissions policy, a desire for educa-
tional diversity." App. 154a. 4.
Cross-petitioners attempt to characterize the court
of appeals' liability judgment in VMI  I as conflicting
rather than comporting with Hogan by quoting out-
of-context from the decision in VMI II upholding the
remedy in this case. They thus suggest (Cross-Pet.
4-6) that the court's conclusions in VMI II about the
importance of single-sex education when provided to
both men and women supports providing single-sex
education to men only. They further suggest (id. at

___________________(footnotes)

(As the record stands, * * * evidence of a legitimate and
substantial state purpose is lacking."). Indeed, the court noted
that the only policy statement in the record "in which the
Commonwealth has expressed itself with respect to gender
distinctions" requires that its colleges and universities treat
students "without regard to sex, race, or ethnic origin.' App.
153a (emphasis in opinion).
4 See App. 153a-154a ("If VMI's male-only admission policy
is in furtherance of a state policy of `diversity,' the explanation
of how the policy is furthered by affording a unique educa-
tional benefit only to males is lacking. A policy of diversity
which aims to provide an array of educational opportunities,
including single-gender institutions, must do more than favor
one gender."} id. at 154a ("no explanation is apparent as to
how one institution with autonomy, but with no authority over
any other state institution, can give effect to a state policy of
diversity among institutions").

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7

6-6) that the court's characterization of the exclusion
of women from VMI and men from VWIL as a means
"perfectly tailored" to the achievement of dual single-
sex schools helps to justify a policy of excluding
women from VMI without providing them any par-
allel opportunity. As the court held in VMI I, pro-
viding single-sex education exclusively to males is
not an important objective under Hogan; 5. at no stage
of this litigation did the court of appeals hold
otherwise.
Petitioners also contend that the court of appeals in
VMI I "imperrmissibly engraft[ed] a third require-
ment onto the two-pronged Hogan test." Cross-Pet.
6. Here, again, cross-petitioners quote out-of-context
from the court of appeals' VMI II decision regarding
remedy, 6.  attempting to attack the court's liability

___________________(footnotes)

5 The Hogan Court expressly rejected the same argument-
i.e., that the women-only admissions policy of the Mississippi
University for Women's School of Nursing was justified by the
State's interest in preserving for women the benefit of an all-
women's school:
Since any gender-based classification provides one class a
benefit or choice not available to the other class, * * *
that argument begs the question. The issue is not whether
the benefited class profits from the classification, but
whether the State's decision to confer a benefit only upon
one class by means of a discriminatory classification is
substantially related to achieving a legitimate and sub-
stantial goal.
458 U.S. at 731 n.17 see also Wengler v. Druggists Mutual Ins.
Co., 446 U.S. 142, 151 (1980).
6 In evaluating the VWIL remedy, the court of appeals
concluded that:
the alternatives left available to each gender by a classi-
fication based on homogeneity of gender need not be the

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8

determination by reference to the three-part "special
intermediate scrutiny test" announced in its remedy
decision-a test that did not even exist at the time
liability was established. And even if that three-part
test were applicable to review of the liability judg-
ment, the third step would not come into play because
the court of appeals at the liability stage correctly
held that the first two steps had not been satisfied?

___________________(footnotes)

same, but they must be substantively comparable so that, in
the end, we cannot conclude that the value of the benefits
provided to one gender tends, by comparison to the bene-
fits provided to the other, to lessen the dignity, respect, or
societal regard of the other gender. We will call this third
step an inquiry into the substantive comparability y of the
mutually exclusive programs provided to men and women.
App. 17a.
7 In defending the judgment of liability, we do not endorse
all aspects of the reasoning of the court of appeals' liability
decision; nor, of course, would this Court implicitly do so by
denying the cross-petition. Correspondingly, to the extent that
the court of appeals' remedial determination seeks support in
that court's earlier opinion on liability, this Court would remain
free, in reviewing No. 94-1941, to reject any of the reasoning of
the lower court in either opinion. See Dandridge v. Williams,
397 U.S. 471, 475 n.6 (1970);R.L. Stern, E. Gressman, S.M.
Shapiro & K.S. Geller, Supreme Court Practice 363-364 (7th ed.
1993).

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9

CONCLUSION

The petition for a writ of certiorari should be denied.
   Respectfully submitted

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys

July 1995

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No.94-2107

In he Supreme Court of the United States
OCTOBER TERM, 1995

COMMONWEALTH OF VIRGINIA, ET AL.,
CROSS-PETITIONERS

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE CROSS-RESPONDENT

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

CORNELIA T.L. PILLARD
Assistant to the Solicitor General

JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the exclusion of women from the Virginia
Military Institute, based solely on their sex, violates
the Equal Protection Clause of the Fourteenth
Amendment.

(I)

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TABLE OF CONTENTS     Page

Opinions below . . . .1
Jurisdiction . . . .2
Constitutional provision involved . . . . 2
Statement . . . .2
Summary of argument . . . .8
Argument:
I. VMI's admissions policy is unconstitutional be
  cause it excludes qualified women from a unique
  educational opportunity solely because of their
  sex . . . . 12
A. The unconstitutionality of VMI's policy is
   clear . . . .12
   1. VMI's policy substantially harms women..
   2. Established law compels invalidation of
    VMI's policy . . ..15
  B. Cross-petitioners have not established that
   the actual reasons for excluding women from
   VMI are legitimate . . . . 15
  C. Cross-petitioners' post-hoc rationalizations
   also do not justify excluding women from
   VMI . . . .18 

1. Virginia has no state policy of advancing
diversity in higher education through the
provision of single-sex, military-style
education . . . .21

2. Virginia cannot enhance the diversity of
choices in higher education for men alone.. 23

3. VMI need not exclude women in order to
offer "a distinctive program of military-
style education" . . . . 28

(III)

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IV

Argument-Continued:             Page

II. The legality of private single-sex education would
  be unaffected by a holding that VMI's admissions
  policy is unconstitutional . . . . 35
Conclusion . . . . 38


    TABLE OF AUTHORITIES

Cases:

Blum V. Yaretsky, 457 U.S. 991 (1982) . . . .  37
City of Richmond V. J.A. Croson Co., 488 U.S. 469
(1989) . . . . 23
Dothard V. Rawlinson, 433 U.S. 321 (1977) . . . .  35
Faulkner V. Jones, 51 F.3d 440, motion to stay man-
date denied, 66 F.3d 661 (4th Cir.), application
for stay of enforcement denied, No. A-127 (Aug.
11, 1995), cert. dismissed, 116 S. Ct. 331, cert.
denied, 116 S. Ct. 352 (1995) . . . . 13-14. 33,34
Garrett v. Board of Educ., 775 F. Supp. 1004 (E.D.
Mich. 1991) . . . .  15
International Bhd. of Teamsters V. United States,
431 U.S. 324 (1977) . . . . 35
International Union, United Automobile Workers
v. Johnson Controls, Inc., 499 U.S. 187 (1991) .... 16
J.E.B. V. Alabama ex rel. T.B., 114 S. Ct. 1419
(1994) . . . . 15,17
Kirstein V. Rector and Visitors of Univ. of Vir-
ginia, 309 F. Supp. 184 (E.D. Va. 1970) . ...15.17,19,25
McCabe V. Atchison, T. & S.F. Ry., 235 U.S. 151
(1914) . . . .  33
Michael M. V. Superior Court of Sonoma County,
450 U.S. 464 (1981) . . . . 16
Mississippi Univ. for Women V. Hogan, 458 U.S.
718 (1982) . . . .4, 9, 17, 18, 19, 24, 25
Missouri ex rel. Gaines V. Canada, 305 U.S. 337
(1938) . . . . 33
Moose Lodge No. 107 V. Irvis, 407 U.S. 163 (1972 ) . . . . 37
Newberg V. Board of Pub. Educ., 478 A.2d 1352
(Pa. Super. Ct. 1984) . . . . 15
Nowood V. Harrison, 413 U.S. 455 (1973) . . . . 37

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 V

Cases-Continued:            Page

Regents of Univ. of California V. Bakke, 438 U.S.
265 (1978) . . . . 23
Rendell-Baker V. Kohn, 457 U.S. 830 (1982) . . . . 36
Rostker V. Goldberg, 453 U.S. 57 (1981) . . . . 16
Runyon V. McCary, 427 U.S. 160 (1976) . . . .  36
Schlesinger V. Ballard, 419 U.S. 498 (1975) . . . . 16.
Shelley V. Kraemer, 334 U.S. 1 (1948) . . . .  36
Sweatt V. Painter, 339 U.S. 629 (1950) . . . . 34
United States V. Hinds  County School Bd., 560 F.2d
619 (5th Cir. 1977) . . . . 15
VMI V. United States, cert. denied, 113 S, Ct. 2431
(1993) . . . .8
Vorchheimer v. School Dist., 532 F.2d 880 (3d Cir.
1976), aff'd by an equally divided Court, 430 U.S.
703 (1977) . . .. 15
Weinberger v., Wiesenfeld, 420 U.S. 636 (1975 )....18
Wender V. Druggists Mutual Ins. Co., 446 U.S. 142
 (1980) . . . .  17,24
Williams V. McNair, 316 F. Supp. 134 (D.S.C.
  1970), aff'd mem., 401 U.S. 951 (1971) . . . . 19
Wygant V. Jackson Bd. of Educ., 476 U.S. 267
  (1986) . . . . 23
Constitution, statutes and regulations:
U.S. Const. Amend. XIV (Equal Protection
  Clause) . . . .2, 3,6,12,31,36
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
  et   seq. . . . 16, 35
Education Amendments of 1972, Tit. IX, 20 U.S.C.
  1681 et seq. ...27,35,36
   20 U.S.C. 1681 . . . . 27
   20 U.S.C. 1681 (a) . . . .  36
   20 U.S.C. 1681 (a) (1) . . . . 36
42 U.S.C. 1981 . . . .  36
1995 Va. Acts of. 582 (to be codified at Va. Code
  Ann. $22.1-212.1:1 (Michie Supp. 1995)) . . . .  27
34 C.F.R.:
   Section 106.3 . . . .  27
   Section 106.34 (c) . . . .  27
   Section 106.34 (e) . . . .  27

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VI

Miscellaneous:              Page

Dianne Avery, Institutional Myths, Historical Nar-
  ratives, and Social Science Evidence: Reading
  the "Record" in the Virginia Military Institute
  Case, 5 S. Cal. Rev. L. & Women's Stud. (manu-
  script) (forthcoming Spring 1996) . . . . 18
Martin Binkin & Shirley J. Bach, Women and the
  Military (1977) . . . .  19
44 Fed. Reg. 71,419 (1979) . . . .  35
Traci Johnson Mathena, Best Western: As It Cele-
  brates Its Vaunted Past, the City's All-Girls
  High School Prepares for a Future That Will
  Keep It at the Head of the Class, Balt. Sun, Oct.
  30, 1994, at 8 (Magazine) . . . .  26-27
Ann Firor Scott, The Southern Lady: From Pedes-
  tal to Politics, 1880-1930 (1970) . . . .19

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IN THE SUPREME COURT OF THE UNITED STATES
     OCTOBER TERM, 1995

     NO. 94-2107

COMMONWEALTH OF VIRGINIA, ET AL.,
    CROSS-PETITIONERS

        v.

  UNITED STATES OF AMERICA

   ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT

BRIEF FOR THE CROSS-RESPONDENT

       OPINIONS BELOW

The opinion of the court of appeals regarding lia-
bility ( VMI I) (Pet. App. 134a-157a), is reported
at 976 F.2d 890. The opinion of the district court
regarding liability (Pet. App. 158a-245a) is reported
at 766 F. Supp. 1407. The opinion of the court of
appeals regarding remedy ( VMI II) (Pet. App. la-
52a) is reported at 44 F.3d 1229. The opinion of the
district court regarding remedy (Pet. App. 53a-131a)
is reported at 852 F. Supp. 471.

___________________(footnotes)

1 References to "Pet. App." are to the appendix to the peti-
tion for a writ of certiorari filed in United States V. Common-
wealth of Virginia, No. 94-1941 (filed May 26, 1995).

(1)

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2

      JURISDICTION

The judgment-of the court of appeals regarding
liability (VMI I)" was entered on October 5, 1992.
A petition for rehearing was denied on November 19,
1992. Pet. App. 157a. A petition for a writ of cer-
tiorari was denied on May 24, 1993. Pet. App. 132a-
133a. The district court on remand approved a rem-
edy. The United States appealed to challenge the
remedy as inadequate, and cross-petitioners cross-
appealed to challenge the original finding of liability.
The judgment of the court of appeals regarding rem-
edy (VMI II) was entered on January 26, 1995. The
court of appeals voted sua sponte not to rehear the
case en- bane, and entered an order to that effect on
April 28, 1995 (Pet. App. 246a-257a). On April 18,
1995, the Chief Justice extended the time within
which to file a petition for a writ of certiorari to and
including May 26, 1995. The United States filed a
petition for a writ of certiorari on May 26, 1995 (No.
94-1941 ). The cross-petitioners filed a conditional
cross-petition for a writ of certiorari on June 23,
1995. This Court granted the petition and Cross-
petition on October 5, 1995. 116 S. Ct. 281. The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).
  CONSTITUTIONAL PROVISION INVOLVED
The Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution pro-
vides that "[n] o State shall * * * deny to any person
within its jurisdiction the equal protection of the
laws."   

   STATEMENT

This brief addresses cross-petitioners' challenge
(No. 94-2107) to the court of appeals' VMI I decision
regarding liability, in which that court held that the

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 3

sex-based exclusion of women students from the Vir-
ginia Military Institute (VMI) violates the Equal
Protection Clause of the Fourteenth Amendment. We
earlier filed a brief in support of our challenge (No.
94-1941 ) to the court of appeals' VMI II decision ap-
proving as a remedy for that violation the establish-
ment of a new, separate college program that would
exclude men. The procedural and factual background
of the case is set forth in the Statement in our brief
in No. 94-1941, at 2-15. That Statement is supple-
mented below with a further description of the lia-
bility holdings.
1. The proceedings in the district court were
bifurcated. After a trial regarding liability, the dis-
trict court on June 14, 1991, entered judgment in
favor of cross-petitioners, holding that VMI's exclu-
sion of women did not violate the Equal Protection
Clause. Pet. App. 158a-245a. The district court rec-
ognized and found that "[t] he system of education
at VMI is not offered elsewhere in the United States,"
id. at 192a, 2 and that women therefore "are denied
a unique educational opportunity that is available
only at VMI," id. at 218a.3

___________________(footnotes)

2 The district court acknowledged that the Virginia Poly-
technic Institute and State University (VPI), although it has
a coeducational residential program offering military-style
training, is a "dramatically different institution []" offering
"dramatically different experiences" from those offered at
VMI. Pet. App. 192a.
3 Women also have no opportunity to compete for the VMI
State Cadetships, a group of state-funded college scholarships
that the Commonwealth of Virginia awards exclusively to men
who attend VMI. The Commonwealth awarded $147,104 in
VMI-designated scholarship funds to 35 male VMI cadets in
1990-1991. Pet. App. 189a.

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4

The court held, however, that VMI's exclusion of
women met the constitutional test for sex-based clas-
sifications set forth in Mississippi Univ. for Women
v. Hogan, 458 U.S. 718 (1982). See Pet. App. 164a-
165a. Under that test, VMI's policy is unconstitu-
tional unless cross-petitioners can show that that
exclusion "serves important governmental objectives
and that the discriminatory means employed are sub-
stantially related to the achievement of those objec-
tives." 458 U.S. at 724 (internal quotation marks
omitted).
During the proceedings regarding. liability, the
Commonwealth of Virginia denied that VMI's dis-
criminatory policy fostered any state objectives.'
Counsel for the VMI Foundation, Inc., and the VMI
Alumni Association, private organizations that inter-
vened as defendants, represented VMI, its super-
intendent and its" Board of Visitors at trial. Those
defendants asserted two "governmental" objectives
allegedly supporting VMI's discriminatory exclusion
of women: "educating cadets for lives as `citizen-
soldiers,'" and fostering "system-wide diversity by
providing an opportunity for single-sex education and
by providing a distinctive program of military-style

___________________(footnotes)

4 The Governor stated in his Answer that "no person should
be denied admittance to a state supported school because of
his or her gender." Pet. App. 142a (L. 7-8). The Virginia
Attorney General concluded that the "positions of the Gov-
ernor and the Commonwealth" were "inseparable." VMI I
C.A. App. 134 (L. 25); see Pet. App. 142a. Because neither
the Governor of Virginia nor the Commonwealth defended
VMI's sex-based exclusionary policy at the trial on liability,
id. at 142a, 160a, the Commonwealth obtained a stay of the
proceedings against it on the condition that it would be bound
by any liability determination, id. at 160a.

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5

education." R. 152 (VMI Defendants' Proposed Find-
ings of Fact and Conclusions of Law (liability phase)
(Apr. 26, 1991)), at 114    Par. (28), 115 Par.   (38).
The district court determined that system-wide
"diversity in education" is a "legitimate objective"
for a State to pursue, Pet. App. 167a; see id. at 159a,
and that, because "some students, both male and
female, benefit from attending a single-sex college,"
single-sex education is a constitutionally legitimate
form of diversity within an educational system, id.
at 168a. It also concluded that "VMI's unique method
of instruction" contributes to diversity in Virginia's
educational offerings. Id. at 176a.5
The district court next determined that VMI's ex-
clusion of women was substantially related to the
achievement of diversity in Virginia's higher educa-
tion system, because " [VMI's] single-sex status would
be lost, and some aspects of the distinctive method
would be altered if it were to admit women." Pet.
App. 173a. The court noted that "[t] he sole way to
attain single-gender diversity is to maintain a policy
of admitting only one gender to an institution," id.
at 167a, and that, "even though some women are
capable of all the individual activities required of
VMI cadets, a college where women are present would
be significantly different from one where only men
are present," id. at 170a.  6 The court acknowledged

___________________(footnotes)

5 The district court did not address the asserted interest in
educating cadets for lives as citizen-soldiers.
6  The court found that VMI would have to adopt less strin-
gent physical education requirements for women, even though
the court credited " [e]xpert testimony establish [ing] that
* * * some women are capable of all of the individual activities

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 6

that the successful assimilation of women at West
Point shows that, "[w]ithout a doubt, VMI could do
likewise." Id. at 172a n.8. But " [t]he VMI Board
has decided that providing a distinctive, single-sex
educational opportunity is more important than pro-
viding an education equally available to all." Id. at
170a. The court concluded that VMI's desire to avoid
the changes that admitting women would bring "pro-
vide [s] sufficient constitutional justification for con-
tinuing the single-sex policy." Id. at 172a.
2. The court of appeals vacated and remanded,
holding that VMI's admissions policy violated the
Equal Protection Clause. Pet. App. 134a-156a (VMI
1). The court held that neither prong of the Hogan
test was satisfied: The Commonwealth of Virginia,
the court noted, "failed to articulate an important
objective which supports the provision of [VMI's]
required of VMI cadets." Pet. App. 170a-171a, 233a-235a. The
court also found that VMI would have to alter its facilities
to allow men and women privacy from the other sex during
activities such as undressing and showering, id. at 171a, 233a,
and that the presence of women would add "a new set of
stresses on the cadets," id. at 171a.

___________________(footnotes)

7 As a preliminary matter, the court determined that
"single-sex education is pedagogically justifiable" for " [b]oth
men and women" and that "VMI's male-only policy is justified
by its institutional mission." Pet. App. 150a-151a. But those
conclusions did not answer the question "whether the unique
benefit offered by VMI's type of education can be denied to
women by the state under a policy of diversity, which has
been advanced as the justification and which was relied on
by the district court." Id. at 151a. The court emphasized that,
by "commenting on the potential benefits of single-gender
education," the court "d [id] not mean to suggest the specific
remedial course that the Commonwealth should or must fol-
low." Id. at 155a-156a.

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 7

unique educational opportunity to men only." Id. at
137a; see id. at 155a. The court rejected the district
court's attribution to Virginia of the objective of pro-
viding single-sex education to promote a diverse array
of educational options. Id. at 152a-153a? It found
that Virginia lacked any "stated policy justifying
single-sex education in state-supported colleges and
universities"; Virginia's only policy statement "with
respect to gender distinctions" in higher education
required that its colleges and universities treat stu-
dents "without regard to sex, race, or ethnic origin,"
id. at 153a (emphasis added by court of appeals)?
The court noted that Virginia has in fact abandoned
public single-sex education at every institution of
higher education other than VMI. Id. at 154a  10
The court of appeals also found no substantial rela-
tionship between an interest in diversity and the cate-
gorical exclusion of women from VMI: Even " [i]f
VMI's male-only admissions policy is in furtherance
of a state policy of `diversity,' the explanation of how
the policy is furthered by affording a unique educa-

___________________(footnotes)

8 Cross-petitioners did not assert on appeal, and the court
did not consider, the interest in training students for lives
as citizen-soldiers.
" Moreover, " [t] he lack of a state-announced policy to jus-
tify gender classifications is aggravated by the reluctance of
the Commonwealth, as a party, and its governor to participate
in this case and in this appeal." Pet. App. 153a. Indeed, as
the Commonwealth's policy was articulated by the governor,
"VMI's single-sex admissions policy violates state policy."
Ibid. (emphasis added).

___________________(footnotes)

10 Several of Virginia's public colleges had previously been
single-sex, but " [a] 11 Virginia statutes requiring individual
institutions to admit only men or women have been repealed."
Pet. App. 188a.

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 8

tional benefit only to males is lacking. A policy of
diversity which aims to provide an array of educa-
tional opportunities, including single-gender institu-
tions, must do more than favor one gender." Pet.
App. 153a-154a.
Cross-petitioners sought review in this Court, which
denied certiorari. VMI v. United States, 113 S. Ct.
2431 (1993) (Pet, App. 132a-133a). 11 After the
court of appeals affirmed the decision approving
VMI's  proposed remedy, "the Court granted the United
States' petition challenging the remedy and also
granted the conditional cross-petition challenging the
liability holding. United States v. Commonwealth of
Virginia, 116 S. Ct. 281 (1995).

     SUMMARY OF ARGUMENT

The court of appeals applied established equal pro-
tection principles to hold that the Virginia Military
Institute unconstitutionally excludes women based
on their sex, That holding is constitutionally un-
assailable. The Commonwealth of Virginia reserves
VMI for men, and thus provides no opportunity for
women to enjoy -its benefits. The Commonwealth
offers nothing to meet the needs of women who are,
but for their sex, qualified for VMI and want to at-
tend. A formal state policy that offers an educational
opportunity to men that is not offered to women is
presumptively unconstitutional.

___________________(footnotes)

11 On remand, the district court approved a remedial plan
that continues to exclude women from VMI and establishes an
all-female Virginia Women's Institute for Leadership (VWIL)
at Mary Baldwin College, a private, liberal arts college pri-
marily for women. Pet. App. 53a-131a. The court of appeals
affirmed. Id. at la-52a (VMI II). We have addressed that
remedial plan in the Brief for the United States in No. 94-
1941.

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 9

That presumption is especially strong where, as
here, the policy not only denies women a valued
opportunity, but in doing so relies on and reinforces
harmful and archaic sex-role stereotypes. VMI's rig-
orous, military-style education is renowned, and the
Institute's alumni network is an extraordinarily
powerful one, especially in historically male-dominated
fields. In defending its exclusionary policy, VMI has
relied on archaic notions that men are more confident
and aggressive than women and has concluded that
men alone would therefore want and benefit from
VMI's military-style educational method. VMI's ex-
clusion of women echoes and reinforces historical pat-
terns of discrimination and stereotyping that, for
most of our history, closed to women the most rigor-
ous educational opportunities and excluded them from
leadership roles in business and public life.
Such formal sex-based barriers, and the stereo-
types that support them, have no place under our
modern Constitution. This Court's equal protection
cases squarely reject governmental reliance on the
kinds of psychological and sociological generalizations
about women and men that cross-petitioners assert.
Although the United States believes that strict scru-
tiny is the correct standard of constitutional review
for official discrimination based on sex, the uncon-
stitutionality of VMI's exclusionary admissions policy
is evident under intermediate scrutiny as well. In-
deed, this Court's decision in Mississippi University
for Women v. Hogan, 458 U.S. 718 (1982), alone
compels affirmance of the liability determination in
this case. Just as Mississippi could not constitu-
tionally reserve a public nursing school for women
based on "a stereotyped view of nursing as an ex-

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10

elusively women's job," so, too, is Virginia's reserva-
tion for men of a stereotypically male form of
military-style leadership training constitutionally
forbidden.
Cross-petitioners have failed to show that VMI's
exclusionary admissions policy is necessary to serve
any important governmental objective. This Court's
cases require that the policy be evaluated with refer-
ence to the State's actual goals in employing it. The
actual objective of excluding women from VMI when
that policy was initiated at the founding of the school
in 1839 reflected the assumptions of that time-
assumptions that men alone were fit, for military and
leadership roles. Before this litigation was initiated,
Virginia never sought to supply a valid, contemporary
rationale for VMI's exclusionary policy. That failure
itself renders the VMI policy invalid.
In any event, no current rationale justifies con-
tinuing to exclude women from VMI. The only
objective cross-petitioners have asserted, post-hoc, is
an interest in enhancing the "diversity" of options in
Virginia's system of public higher education. As
the court of appeals correctly observed, however, Vir-
ginia does not in fact have any policy of enhancing
diversity by providing single-sex, military-style edu-
cation. And the court of appeals correctly concluded
that, in any event, a policy of diversity in higher
education is patently inadequate to justify providing
men, but not women, an enhanced diversity of
choices.
Cross-petitioners' assertion that a State must be
able to provide single-sex education to one sex alone
amounts  to a contention that single-sex education is
constitutional per se. This Court in Hogan rejected

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 11

that view, and instead required an exceedingly per-
suasive justification in each instance in which a State
excludes persons from an educational opportunity
based on their sex. Although it is possible that single-
sex education for only one sex may be constitutionally
justifiable in order to compensate for discrimination
that only one sex has suffered, no such rationale is
present here, And, contrary to cross-petitioners' con-
tention, the fact that private colleges in Virginia
offer single-sex education to women provides no ex-
cuse for VMI's policy of excluding women. No other
school in Virginia, public or private, provides to
women the opportunity they are denied at VMI,
and private schools cannot, in any event, alleviate
the Commonwealth's constitutional obligation to treat
the sexes equally.
VMI need not exclude women in order to continue
to offer "a distinctive program of military-style edu-
cation. " It is undisputed that some women can per-
form all the tasks required at VMI and would thrive
under VMI's military-style methodology. Although
minor changes in physical training and privacy ac-
commodations would accompany the admission of
women, the Commonwealth has no interest in avoid-
ing such changes, and certainly none strong enough
to justify the continued exclusion of women. VMI
could continue effectively to fulfill its stated mission
of educating citizen-soldiers if both qualified men
and women were admitted as students.

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12

       ARGUMENT

I. VMI's ADMISSIONS POLICY IS UNCONSTITU-
TIONAL BECAUSE IT EXCLUDES QUALIFIED
WOMEN FROM A UNIQUE EDUCATIONAL OP-
PORTUNITY SOLELY BECAUSE OF THEIR SEX
A. The unconstitutionality of VMI's policy is clear
The Virginia Military Institute (VMI), a state
college," has an admissions policy that bars all women
as students solely on account of their sex. The policy
excludes women without regard to their actual
qualifications. No woman is permitted to experience
VMI's unique, military-style educational program, or
take advantage of VMI's enormous prestige and
alumni network. Cross-petitioners ask this Court to
hold that the Equal Protection Clause permits a State
to offer a unique and prestigious educational pro-
gram at a 150-year-old institution of higher educa-
tion only to men, without offering any alternative
whatsoever to women.
In our opening brief in No. 94-1941, we argue
that the only way to achieve equal protection here is
to admit women to VMI, and that the Virginia
Women's Institute for Leadership (VWIL) is a pat-
ently inadequate and unconstitutional alternative.
Cross-petitioners have argued in that ease that VWIL

___________________(footnotes)

12 VMI is one of 15 state institutions of higher education
in Virginia. Pet. App. 138a. It is "financially supported by
the Commonwealth of Virginia and remains `subject to the
control of the [Virginia] General Assembly.' Va. code Ann.
$23.92. It is governed by a Board of Visitors, which the
Commonwealth expressly charges with prescribing `the terms
upon which cadets may be admitted, their number, the course
of their instruction, the nature of their service, and the dura-
tion thereof.' Va. Code Ann. $23-104." Ibid.

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13

provides an adequate remedy to women for the un-
constitutionality of VMI's admissions policy. Here
they make the much more extreme contention that
they can continue to operate VMI for men only, with-
out offering any alternative whatever to women. No
conceivable theory of equal protection can sustain that
proposition.
  1. VMI's policy substantially harms women
The practical consequences for women of VMI's
exclusionary policy are pernicious. The policy deprives
women who seek to attend VMI of valued educational
benefits-benefits that cross-petitioners themselves
have repeatedly characterized as "unique." VMI is
a small college offering a rigorous, military-style edu-
cational program. It has been successful in "in-
stilling physical and mental discipline, character, and
a kind of moral code." Pet. App. 204a. The barracks-
centered military program at VMI is unavailable
elsewhere in Virginia. See 94-1941 U.S. Br. 2-5,
16,22.
VMI's policy also excludes women from life-long
opportunities, responsibilities, and powerful connec-
tions that VMI has long afforded its graduates. VMI's
alumni network is "enormously influential," 94-1667
& 94-1717 ( VMI II) Tr. 1227, especially in the male-
dominated fields of engineering, the military, busi-
ness, and public service, in which VMI graduates most
often tend to pursue careers, id. at 1228. This case,
like the parallel case against the similar exclusionary
policy of The Citadel in South Carolina, therefore
concerns not only education, but also "wealth, power,
and the ability of those who have it now to determine
who will have it later." Faulkner v. Jones, 51 F.3d

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14

440, 451 (Hall, J., concurring), motion to stay man-
date denied, 66 F.3d 661 (4th Cir.), cert. dismissed,
116 S. Ct. 331, cert. denied, 116 S. Ct. 352 (1995).
See 94-1941 U.S. Br. 2-3,16,22-23.
The sex-based distinction at issue in this case is
particularly harmful to women because of its reliance
on sexual stereotypes. Rejection of sex-stereotyping
lies at the core of the equal protection concern with
classifications based on sex. VMI's exclusion of
women from the Commonwealth of Virginia's
military-style leadership educational program com-
municates the message that, in the Commonwealth's
official view, rigorous, military-style training is not
appropriate for women. That impermissible state
policy is vividly highlighted by cross-petitioners' de-
fense of the exclusion of women in this case, which
rests in large part on archaic and overbroad notions
about men's and women's personalities and prefer-
ences, including the view that men are more confident,
aggressive, and suited to hierarchy than women,
and that women are more emotional, caring, and
interested in marrying than men. See 94-1941 U.S.
Br. 37-42.  13 In this context, cross-petitioners' sug-
gestion ( Br. 26) that "single-sex education performs

___________________(footnotes)

13 To invalidate VMI's exclusion of women because it is
based on overbroad stereotypes is not to denigrate individuals
for whom such stereotypes are accurate, but rather to reject
the premise that, merely because stereotypes are true for some
individuals, the State has a right to apply them to everyone.
Reliance on stereotypes is harmful because it forecloses indi-
vidual opportunity for persons who do not fit the traditional
mold. Such reliance impedes accurate, current assessment of
the needs and abilities of individual members of both sexes. See
94-1941 U.S. Br. 40-44 (discussing case law prohibiting reli-
ance on overbroad sex-based generalizations and stereotypes).

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15

a valuable service in uprooting inaccurate stereo-
types" is bewildering.
  2. Established law compels invalidation of VMI's
    policy
No modern sex discrimination case has upheld a
policy of excluding one sex from an educational in-
stitution to the advantage of the other. 14. Nor have
any of this Court's modern cases accepted sociological
or psychological generalizations about men and women
as rendering the sexes not similarly situated for equal
protection purposes." The Court has found women
to be differently situated in the equal protection con-
text only because of biological sex differences," un-

___________________(footnotes)

14 See United States V. Hinds County School Bd., 560 F.2d
619 (5th Cir. 1977) (invalidating system of separate single-
sex public high schools); Garrett v. Board of Educ., 776
F. Supp. 1004 (E.D. Mich. 1991) (granting preliminary
injunction against males-only public elementary schools);
Kirstein V. Rector and Visitors of Univ. of Virginia, 309
F. Supp. 184 (E.D. Va. 1970) (requiring women's admission
to University of Virginia); Newberg V. Board of Pub. Educ.,
478 A.2d 1352 (Pa. Super. Ct. 1984) (requiring girls' Adams-
sion to Philadelphia's boys-only Central High School); but
see Vorchheimer V. School Dist., 532 F.2d 880, 881-882, 886
(3d Cir. 1976) (upholding Central High School's exclusionary
admissions policy in litigation in federal court in which plain-
tiff "d [id] not allege a deprivation of an education equal to
that which the school board makes available to boys"), aff'd
by an equally divided Court, 430 U.S. 703 (1977).

___________________(footnotes)

15  Indeed, this Court in  J.E.B. V. Alabama ex rel. T.B., 114
S. Ct. 1419, 1428 (1994), invalidated sex-based preemptor
challenges based on the sociological generalization that women
"hold particular views simply because of their gender."
16 In approving a statutory rape law that applied differently
to men and women, this Court expressly disavowed relying,

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16

challenged legal disabilities, 17. or for compensatory 
18. Cross-petitioners ask this Court to rely, reasons,
for the first time, on sociological and psychological
stereotypes to restrict educational opportunity for
women. That position is contrary to the established
meaning of equal protection, and should be rejected.
As we argued in our opening brief in No. 94-1941,
at 33-36, we believe that strict scrutiny is the correct
constitutional standard for evaluating classifications
that deny opportunities to individuals based on their
sex. Because this. Court has not previously applied

___________________(footnotes)

as the lower court did here, on males' greater aggressiveness,
and instead relied on the anatomical fact that "females can
become pregnant as a result of sexual intercourse; males can-
not." Michael M. V. superior Court of Sonoma County, 450
U.S. 464,473,475,476 (1981) (opinion of Rehnquist, J.) ("the
statute does not rest on the assumption that males are gen-
erally the aggressors"); but cf. International Union, United
Automobile Workers v. Johnson Controls, Inc., 499 U.S. 1.87
(1991) (holding that a sex-based policy of excluding women
with childbearing capacity from lead-exposed job constitutes
sex discrimination under Title VII).

___________________(footnotes)

17  See Rostker V. Goldberg, 453 U.S. 57, 78 (1981) (uphold-
ing draft registration for men and not for women because
unchallenged combat restrictions on all women made men
and women "simply not similarly situated for purposes of a
draft or registration. for a draft").
l8 In Schlesinger V. Ballard, 419 U.S. 498 (1975), for ex-
ample, the Court upheld a federal statute that afforded women
Navy officers longer than men to gain promotion or face
mandatory discharge, not because of any notion that women's
personalities or sociological role make them achieve promo-
tions more slowly, but because legal restrictions on all women
in combat and sea duty-which were not challenged-made
women and men "not similarly situated with respect to op-
portunities for professional services." Id. at 508.

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17

strict scrutiny to sex-based classifications, however,
we argued below, and show here, that cross-petitioners
have not established that VMI's exclusionary policy
satisfies intermediate scrutiny. Indeed, VMI's ex-
clusion of women fails even meaningful rational-
basis review. See Kirstein v. Rector and Visitors of
Univ. of Virginia, 309 F. Supp. 184 ( E.D. Va. 1970)
(requiring admission of women to the University of
Virginia).
Under intermediate scrutiny, "the party seeking
to uphold a statute that classifies individuals on the
basis of their gender must carry the burden of show-
ing an 'exceedingly persuasive justification' for the
classification." Mississippi Univ. for Women v.
Hogan, 458 U.S. 718, 724 (1982) ; see also J.E.B. v.
Alabama ex rel. T.B., 114 S. Ct. 1419 (1994). That
burden is met "only by showing at least that the
classification serves `important governmental objec-
tives and that the discriminatory means employed "
are `substantially related to the achievement of those
objectives,' " Hogan, 458 U.S. at 724, quoting Weng-
ler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150
(1980). Cross-petitioners fail to meet both parts of
that burden.
Cross-petitioners' liability is evident from a
straightforward application of Hogan. Just as this
Court's "searching analysis" in Hogan revealed that
the State lacked any actual compensatory objective
for excluding men from a state educational program,
458 U.S. at 728-730 & n.16, the objectives proffered
here for the exclusion of women are not actual, non-
discriminatory reasons for the challenged policy,
Like the single-sex admissions policy in Hogan, which
rested on the "stereotyped view of nursing as an

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18

exclusively woman's job, " id. at 729, cross-petitioners'
justifications reflect archaic stereotypes, and rein-
force the view that men alone are fit for leadership
and military careers. And just as the exclusion of
men from the Mississippi University for Women
(MUW) was not necessary to Mississippi's educa-
tional goals, id. at 731, VMI's men-only admissions
policy is not necessary to serve any valid educational
goals asserted here.
B. Cross-Petitioners Have Not Established That The
  Actual Reasons For Excluding Women From VMI
   Are Legitimate
A sex-based classification must be evaluated with
reference to the actual reason the State has chosen
to employ it. Hogan, 458 U.S. at 730 & n.16. Courts
"need not in equal protection cases accept at face
value assertions-of [state] purposes, when an exami-
nation of the [challenged sex-based classification]
and its history demonstrates that the asserted purpose
could not have been a goal" of the classification.
Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16
(1975). Yet, despite cross-petitioners' burden to jus-
tify VMI's policy in terms of the actual reasons it
was adopted, they have not sought to identify and
rely on those reasons.
VMI adopted its men-only admissions policy at its
founding in 1839, and it has never changed that
policy. See Dianne Avery, institutional Myths, His-
torical Narratives, and Social Science Evidence:
Reading the "Record" in the Virginia Military 1n-
stitute Case, 5 S. Cal. Rev. L. & Women's Stud.
(forthcoming Spring 1996), manuscript at 59-92 (re-
garding VMI early history) (lodged with the Court
and served on opposing counsel). In 1839, prevailing

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19

social norms presumed that men alone were capable of
military or leadership training. See, e.g., Pet. App.
41a-43a (Phillips, J., dissenting) ; Ann Firor Scott,
The Southern Lady: From Pedestal to Politics, 1830-
1930, at 68 (1970) (referring to severely restricted
educational opportunities for women in the antebel-
lum South). Even by the end of the nineteenth cen-
tury, few women had access to any public higher
education at all, and that education was focused on
practical, "feminine" skills such as typing, drawing,
cooking, needlework and housekeeping. See, e.g.,
Hogan, 458 U.S. at 720 n.1 (regarding MUW,
founded in 1884) ; Williams v. McNair, 316 F. Supp.
134, 136 n.3 (D.S.C. 1970) (regarding Winthrop
College for girls, founded in 1891), aff'd mem., 401
U.S. 951 (1971 ). Rigorous public higher education
was reserved for men, see, e.g., Kirstein, supra, as
was service in the military, see, e.g., Martin Binkin
& Shirley J. Bach, Women and the Military 4-6
(1977).
The original grounds for VMI's admissions policy,
founded on officially unquestioned and harmfully con-
straining assumptions about men's and women's
proper roles, are patently illegitimate today. Before
this litigation was instituted, neither VMI nor the
Commonwealth identified or acted upon any other
basis for continuing to exclude women from VMI's
student body. 19. To affirm the court of appeals' lia-

___________________(footnotes)

19 In the 1980s VMI conducted a Mission Study Of its ex-
clusionary admissions policy in the wake of this Court's deci-
sion in Hogan, supra. Pet. App. 208a. The Mission Study
failed to supply any current, constitutional rationale for con-
tinuing to exclude women from VMI. The Committee's final
report rejected admission of women, but " [t] he Report pro-

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20

bility holding, this Court need go no further than to
recognize the current constitutional invalidity of the
reasons for which VMI initially adopted its discrim-
inatory admissions policy.
C. Cross-Petitioners' Post-Hoc Rationalizations Also
  Do Not Justify Excluding Women From VMI
Cross-petitioners have not sought to defend VMI's
admissions policy in terms of the actual reasons for
which it was adopted. They have, instead, proffered
a post-hoc objective. They now assert (Br. 28) that
women must be excluded from VMI to serve the
Commonwealth's interest in "offering a diversity of
choices in higher education." 20   As cross-petitioners
describe it, the diversity interest has two components:
(1) enhancement of diversity by offering single-sex
education within a system that is otherwise coeduca-
tional, and (2) enhancement of diversity by provid-
ing a distinctive style of military education. The
court of appeals considered and correctly rejected
that post-hoc "diversity" objective. This Court should
do the same.

___________________(footnotes)

tided very little indication of how this conclusion was
reached." Id. at 212a; see generally L, 103-109,-110-117 (Mis-
sion Study Committee data); L. 195-199 (Final Report of
Mission Study Committee). The report stated in a conclusory
fashion that admission of women would "alter. the mission" of
VMI, and that, "[g]iven the experience of the U.S. Service
Academies," demand among women from VMI would be
inadequate. L. 196.
20 Cross-petitioners do not assert here the second objective
upon which they relied in the district court: an interest in
producing citizen-soldiers. See pages 4, 5 n.5, 7 n.8, supra.

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 21

  1. Virginia has no state policy of advancing diver-
  sity in higher education through the provision
 of single-sex, military-style education
Cross-petitioners have failed to demonstrate that
either of the two components of system-wide diversity
that they identify-enhancing diversity by providing
single-sex education and a distinctive military-style
educational method-are actually aspects of the Com-
monwealth of Virginia's interest in diversity in its
higher education system. The court of appeals cor-
rectly held that Virginia lacks any state policy of
advancing diversity in its system of higher education
through the provision of single-sex education, Pet.
App. 151a-154a; see also 94-1941 U.S. Br. 46-47.  21

___________________(footnotes)

21 State policy requires each institution of higher education
to deal with students without regard to sex. Pet. App. 153a.
The Governor of Virginia thus stated in his Answer in this
case that "no person should be denied admittance to a State
supported school because of his or her gender." L. 7. The
absence of a state policy in f aver of single-sex education in
higher education is borne out by the fact that all state statutes
that formerly required single-sex admissions policies at certain
institutions of higher education have been repealed, and none
of Virginia's public colleges, other than VMI, is single-sex.
More women than men in Virginia are enrolled in private
single-sex institutions of higher education in Virginia, Pet.
App. 189a, and the district court thus concluded that demand
for single-sex public higher education is "greater among
women than among men," id, at 190a. This suggests that, if
the Commonwealth actually had a policy of offering single-sex
education as an aspect of system-wide diversity in higher
education, it would have offered such single-sex education to
women. In light of those facts, cross-petitioners' contention
(Br. 30) that the absence of single-sex public higher education
for women in Virginia for almost a quarter of a century is the
result of "an historical anomaly" in the application of an

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22

Cross-petitioners appear to acknowledge (Br. 31)
that Virginia does, in fact, lack any such policy
at the state level . 22 . Instead, they argue (Br. 31-32)
that, because the Commonwealth delegates the au-
thority for setting admissions policies to each in-
dividual state institution of higher education, VMI's
own "decision to pursue the benefits of single-sex
education and the VMI method" is a state purpose.
The Commonwealth of Virginia's delegation of ad-
missions-policy authority to VMI, however, under-
mines, rather than supports, cross-petitioners' posi-
tion. If single-sex, military-style education is offered
by the Commonwealth for its educational benefits for
some students, the state educational system must in-
clude both men's and women's military-style single-
sex options (and presumably a coeducational option
as well). No single institution of higher education
has the capability to provide more than one of those
options. Delegation to individual institutions thus
cannot be a rational means of implementing a non-
discriminatory state policy of enhancing educational
diversity by providing single-sex military-style edu-
cation. As the court of appeals correctly concluded,
"if responsibility for implementing diversity has
otherwise consistent policy favoring single-sex education is
wholly implausible.

___________________(footnotes)

22 Cross-petitioners' only suggestion to the contrary relies
on the fact that, during the remedial stage of this case, state
officials, including the Governor, made statements supporting
the remedial plan to offer women a public single-sex leader-
ship program at Mary Baldwin College. Cross-Pet. Br, 31
n.15; see L. 289-296. Those statements were made after the
Commonwealth's liability had already been determined, and
are thus irrelevant to a review of the court of appeals' lia-
bility determination.

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23

somehow been delegated to an individual institution,
no explanation is apparent as to how one institution
with autonomy, but with no authority over any other
state institution, can give effect to a state policy of
diversity among institutions." Pet. App. 154a. 23.
 2. Virginia cannot enhance the diversity of choices
 in higher education for men alone
The basic flaw in cross-petitioners' diversity ration-
ale is that it completely fails to justify offering a
diversity of choices to men but not to women. A
State may not maintain a sex-based classification
merely by showing that it confers a benefit on the
favored sex; it must also justify benefiting that sex
alone. The Court in Hogan rejected dissenting Justice
Powell's suggestion that a public nursing school's

___________________(footnotes)

23 Whether a subdivision of a State can assert the State's
objective in support of a challenged classification depends in
each instance on the subdivision's authority and the nature of
the objective. For example, in Regents of Univ. of California
V. Bakke, 438 U.S. 265 (1978), Justice Powell concluded that
an interest in diversity within the student body of any single
institution was the kind of interest that a single institution
was competent to assert. Id. at 311-312 (opinion of Powell, J.).
And the opinions in City of Richmond v. J.A. Croson Co., 488
U.S. 469 (1989), and Wygant V. Jackson Bd. of Educ., 476
U.S. 267 (1986), upon which cross-petitioners also rely (Br.
32), determined only that a city or school district may take
steps to remedy its own discrimination, not, as cross-petitioners
assert here, that those entities could assert interests beyond
their own ability to effectuate. See Croson, 488 U.S. at 491
(opinion of O'Connor, J.) ("a state or local subdivision (if
delegated the authority from the State) has the authority to
eradicate the effects of private discrimination within its own
legislative ,jurisdiction"); Wygant, 476 U.S. at 277 (opinion of
Powell, J.) (a public employer may adopt remedial affirmative
action if it has "a strong basis in evidence" for doing so).

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24

exclusion of men could be justified by the State's
interest in providing to women the additional educa-
tional option of attending a single-sex nursing school.
The Court observed that reliance on the value of a
benefit provided to one class "begs the question" of
"whether the State's decision to confer a benefit only
upon one class by means of a discriminatory classifi-
cation is substantially related to achieving a legiti-
mate and substantial goal." 458 U.S. at 731 n.17;
see also Wengler, 446 U.S. at 151. If the rule were
otherwise, virtually all discriminatory classifications
would be self-justifying. A State could, for example,
designate its only engineering or medical school for
men or its only school of education or art for women.
In each of those cases, the favored class, like
the men who attend VMI, would have a more diverse
range of educational options from which to choose
than they would in the absence of the single-sex
school.
The Commonwealth's interest in fostering system-
wide diversity of educational choices can therefore be
a legitimate, nondiscriminatory rationale only insofar
as the Commonwealth offers diversity for both men
and women equally. As the court of appeals correctly
held, "[i]f VMI's male-only admissions policy is in
furtherance of a state policy of `diversity)' the ex-
planation of how the policy is furthered by affording
a unique educational benefit only to males is lacking."
Pet. App. 153a-154a. The addition of a men-only
VMI to the educational options otherwise available
in Virginia to both men and women cannot be sub-
stantially related to a nondiscriminatory interest in
diversity.
Cross-petitioners contend (Br. 38) that a State that
offers a single-sex, military-style education to en-

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25

hance diversity need not offer such education to both
sexes, and they point to Hogan for support. The
interest asserted by the State in Hogan, however, was
not diversity, but compensation for discrimination
against women. 458 U.S. at 727. Offering a single-
sex educational option exclusively to one sex alone
can, perhaps, be justified on compensatory grounds.
Unlike an interest in enhancing diversity, an interest
in compensating one sex for discrimination is not
undermined by the absence of an equal opportunity
for the other sex. The goal of providing compensa-
tion for prior or present discrimination against one
sex is necessarily served by providing benefits only
to the disadvantaged group. Because the plaintiffs
in Hogan argued (albeit unsuccessfully) that MUW
excluded men in order to compensate women for dis-
crimination, the Court did not view "the absence of
any state-provided single-sex educational opportunity
for the excluded gender [as] itself sufficient to render
the challenged admissions policy unconstitutional."
Cross-Pet. Br. 38. The absence of an opportunity for
women is, however, dispositive in this case, where no
compensatory rationale is present. 24.
To the extent that cross-petitioners assert that VMI
itself has an interest in providing the pedagogical
benefits of single-sex education to men only, VMI's

___________________(footnotes)

24 To the extent that cross-petitioners mean to suggest that
VMI serves a compensatory rationale (Br. 46) ("VMI's males-
only admissions policy serves to roughly equalize overall
single-sex educational opportunities in Virginia for men and
women" (internal quotation marks omitted) ), they have their
history backward. It is women, not men, who have experi-
enced discrimination in higher education in Virginia. See,
e.g., Kirstein, 309 F. SUPP. at 187.

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 26

admissions policy certainly serves that interest. Their
argument ( Br. 36-42 ) that single-sex education may
constitutionally be provided to men alone, however, is
simply a contention that single-sex education, whether
or not provided equally to women and men, is con-
stitutional per se. Under cross-petitioners' analysis,
it would be a matter of constitutional indifference
whether a State or school district offered some or
all of its education through single-sex institutions,
even if all or almost all the single-sex institutions
were for men only. This Court considered and re-
jected that argument in Hogan
Hogan contemplated that single-sex education might
be permissible where its benefits for particular popu-
lations serve legitimate, important governmental ob-
jectives that cannot be served by sex-neutral alterna-
tives. But the exclusion of one sex from an educa-
tional institution reserved for the other is clearly not
a valid end in itself.. A decision invalidating VMI's
men-only admissions policy will not, contrary to
cross-petitioners' suggestion ( Br. 41-42 ), invalidate
single-sex public education in all circumstances; it
will, however, properly invalidate it where, as here,
it is not justified by an important, nondiscriminatory
state interest; 25. A decision upholding VMI's policy

___________________(footnotes)

25 As a practical matter, single-sex public education in the
United States is extremely rare. There are only three public
colleges in the United states that have sex-based admissions
policies: VMI and The Citadel, both of which are men-only
military schools, and the women-only Douglass College, in
New Brunswick, New Jersey, on the Rutgers University
campus. Pet. App. 189a-190a, At the high school level, there
appear to be only two public single-sex schools: Girls High
School in Philadelphia, and Western High School in Balti-
more, both exclusively for girls. See Traci Johnson Mathena,

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27

would, on the other hand, sweep away any meaningful
constitutional scrutiny of programs that exclude per-
sons based on sex.
Cross-petitioners contend ( Br. 45) that the exclu-
sion of women from VMI must be evaluated in the
context "of the range of educational opportunities
and public financial assistance afforded to women in
Virginia's higher education system," including four
private women's colleges in Virginia and one private
men's college. They suggest (Br. 46) that VMI
"helps fill a gap created by the private sector's failure
to provide greater or more attractive single-sex op-
portunities for male college students." But, as the

___________________(footnotes)

Best Western: As It Celebrates Its Vaunted Past, the City's
All-Girls High School Prepares for a Future That Will Keep
It at the Head of the Class, Balt. Sun, Oct. 30, 1994, at 8
(Magazine). We are unaware of any single-sex public ele-
mentary schools. With respect to single-sex classes in coedu-
cational schools, Title IX (the federal statute that bars sex
discrimination by educational institutions that receive federal
funds) prohibits the provision of courses separately on the
basis of sex, except in certain limited circumstances. See
20 U.S.C. 1681; 34 C.F.R. 106.34 (c) (certain physical educa-
tion classes), (e) (classes dealing exclusively with human
sexuality); 34 C.F.R. 106.3 (permitting sex-based remedial
action).
In citing examples of circumstances in which it believes
public single-sex education may be beneficial, VMI refers (Br.
41) to a Virginia statute as "authorizing local school boards
to offer single-sex classes in the Commonwealth's public
schools." The statute, however, expressly notes that its au-
thorization is limited to circumstances in which offering such
classes would be " [c]onsistent with constitutional principles."
1995 Va. Acts ch. 582 (to be codified at Va. Code Ann. $22.1-
212.1:1 ( Michie Supp. 1995)). To the extent that Virginia's
public schools receive federal funds, Title IX's limitations
would also apply.

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28

court of appeals correctly noted, "[n]o other school
in Virginia or in the United States, public or private,"
offers to women what they are denied at VMI Pet.
App. 151a (emphasis added) .26. In any event, the
existence of private women's colleges in Virginia has
no bearing on the Commonwealth's constitutional ob-
ligation to treat men and women equally within its
own system of public higher education. The Constitu-
tion requires that the State treat all persons equally.

3. VMI need not exclude women in order to offer "a
distinctive program of military-style education"

a. Cross-petitioners assert (Br. 27) that "VMI's
methodology has proven to be particularly beneficial
to the adolescent male students it attracts." But it is
undisputed that some women can do everything that
is required of cadets at VMI, Pet. App. 170a, and
that "some women will thrive in the adversative en
vironment," id, at 172a. There is therefore no valid
justification for providing VMI's military-style edu-
cation to men and not to women.
If VMI admitted women, the diversity of educa-
tional options in Virginia's system of public higher
education would remain enhanced by the VMI pro-
gram, but that diversity interest would be served in
a legitimate, nondiscriminatory manner. The lower

___________________(footnotes)

26 A state may of course design its public education system
with an eye to the offerings already available in the private
sector, and thus, for example, set up a medical school but not
a law school to complement. a private system that includes a
law school but not a medical school. But the permissibility of
viewing public and private resources as. a whole for such sex-
neutral purposes, see, e.g., Pet. App. 191a, cannot detract from
the State's obligation to treat men and women equally in its
own institutions.

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29

courts recognized that VMI is strikingly different
from every other college in Virginia for a multitude
of reasons beyond its exclusion of women. 27. Cross-
petitioners' claim ( Br. 34) that admission of women
would eliminate the "very aspects of [VMI's] pro-
gram that distinguish it from * * * other institutions
of higher education in Virginia" is thus simply
incorrect.
Although admission of women to VMI would re-
quire some changes at that institution, those changes
also do not justify excluding women. The only
changes that the court of appeals anticipated would

___________________(footnotes)

27 VMI's suggestion ( Br. 9-10, 36) that Virginia Polytechnic
Institute and State University (VPI) is a coeducational equiv-
alent to VMI was correctly rejected by the district court and
the court of appeals. Indeed, cross-petitioners themselves
previously repudiated that position. See, e.g., R. 152 (VMI
Defendants' Proposed Findings of Fact and Conclusions of
Law (liability phase) (Apr. 26, 1991) ), at 97 (Par.  536). The
court of appeals in its liability opinion concluded that VPI is
not similar to VMI. Pet. App. 151a n.8. The district court,
too, concluded that "VMI and the military barracks at [VPI]
are dramatically different institutions that offer dramatically
different experiences, " id. at 192a, and that " [t] he differences
between VPI and VMI's educational experiences outweigh the
similarities, independent of gender," id. at 218a. VPI main-
tains only a 394-person residential corps of cadets within a
larger, non-military-oriented student body of 18,000. Id. at
214. Thus, a coeducational VMI "would remain the only
small college campus in Virginia offering a military pro-
gram." Id. at 173a-174a; see also id. at 218a. The district
court also contrasted the operation of the respective corps:
"VMI emphasizes uniformity, hierarchy, and the adversative
method. VPI recognizes individual differences and is more
in formal." Ibid. And, moat importantly, VPI's corps of
cadets lacks the traditions, prestige and alumni ties that VMI
enjoys. Id. at 192a.

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30

result from admitting women to VMI are changes in
"physical training, the absence of privacy, and the
adversative approach." Pet. App. 147a-148a. Cross-
petitioners have failed to identify any state interest
whatsoever in preserving those particular attributes
of VMI's method in exactly their current form-and
they certainly have not identified any such interest
sufficiently important to justify excluding women
from VMI.
Admission of women would not require VMI to
change materially the distinctive, military-style edu-
cational benefits it currently affords. See 94-1941
U.S. Br. 28-33.28. As we argued in our opening brief,
accommodations necessary to preserve privacy or ac-
count for physical differences would be minimal, and
would not adversely affect the ability of VMI to con-
tinue to fulfill its mission of producing "citizen-
soldiers" through its -military-style program. The
court of appeals' concern that the "decency that still
permeates the relationship between the sexes" (Pet.
App. 23a) would suffer if the "adversative" method

___________________(footnotes)

28 VMI asserts (Br. 34, 36) that it is " [t]he simple truth
* * * that `VMI's mission can be accomplished only in a single-
gender environment,' " and that "that factual issue was re-
solved against the Government by both courts below." The
United States does not contest that some limited changes, such
as separate toilets, would be needed. The dispute focuses,
rather, on the legal conclusions to be drawn regarding such
changes-specifically, whether the admission of women would
change VMI in a manner material to any actual state interest
of the Commonwealth, and whether the refusal to make those
changes is constitutional in light of the fact that the result of
that refusal is the exclusion of women from a unique educa-
tional program. These are purely legaI issues subject to de
novo review.

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31

were conducted in a coeducational environment is con-
stitutionally invalid; women who are qualified to
attend VMI and who want to go there cannot be ex-
cluded in the name of advancing archaic notions of
appropriate interaction between women and men. 29.
Moreover, the benefits to men of attending VMI would
probably be enhanced, rather than diminished, if
women were admitted. Leadership and military
careers in today's society require men and women to
interact in a mature, respectful and professional man-
ner with members of the other sex. See, e.g., Pet.
App. 241a-242a (district court finding that, upon the
admission of women, "[i]f anything, the VMI ROTC
experience would become a better training program
from the perspective of the armed forces, because it
would provide training in dealing with a mixed-
gender army").

___________________(footnotes)

29 Cross-petitioners' assertion (Br. 35) that, if women were
present, "the strict egalitarianism that pervades all aspects of
the program[] would undergo radical change or disappear
altogether" is absurd. Egalitarianism would be advanced, not
hindered, by admitting qualified women to VMI, just as egali-
tarianism was advanced when African American students
were first admitted to VMI in 1968. No one suggests that
"tensions" that are "incompatible with VMI's educational
method" (ibid.) arise because VMI has special programs de-
voted to "Retention of Black Cadets," Pet. App. 229a-230a,
providing them with academic assistance, VMI I C.A. App.
1435, and fostering "[s]ocial-cultural support and black stu-
dent morale within a dominantly white institution,' id. at
1438. See also 94-1941 U.S. Br. 29 (recounting existing dif-
ferences in treatment of male cadets). The notion that egali-
tarianism suffers when women and men are together, because
minor accommodations need to be made, is inconsistent with
the most fundamental meaning of the Equal Protection Clause.

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32

b. Cross-petitioners contend (Br. 43-45) that VMI
may continue to exclude women in the absence of any
alternative because of an asserted lack of demand
among women for a VMI-type education. There is
no factual basis for that argument, and it is also
contrary to established law because based on stereo-
typed views of women's preferences and abilities. 30.
The district court thus correctly viewed the level of
demand as irrelevant as a matter of law. Pet. App.
174a. It found, in addition, that "VMI would be able
to achieve at least 10% female enrollment" and that
" [t]his would be a sufficient `critical mass' to provide
the female cadets with a positive educational experi-
ence." Id, at 232a.  31.
Cross-petitioners do not disagree with that factual
determination. Instead, they allege a lack of demand
for a separate, women-only "VMI." Even if that fac-
tual allegation were supported (which it is not), a low
level of demand for a separate opportunity-even one,
like a school, that requires investment of substantial
resources-cannot justify otherwise unconstitutional
discrimination. Thus, at a time when separate-

___________________(footnotes)

30 VMI's failure to raise this argument in the lower courts
also waived it.
31 See also Pet. App. 231a (crediting cross-petitioners' ex-
pert witness testimony that "successful recruitment of women
would likely yield VMI a cadet corps of approximately 10 %
women, or 130 women"); id. at 174a ("some women, at least,
would want to attend [VMI] if they had the opportunity").
VMI engages in "extensive recruiting activities" to attract
men and makes no effort to recruit women, id. at 228a, yet
"[d]uring the two years preceding the filing of this action,
* * * [VMI] receive[d] over 300 inquiries from women," id.
at 141a; see also id. at 229a (district court finding) ; see, e.g.,
L. 156.

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 33

but-equal racial segregation was constitutionally per-
missible, the Court held that a black person could not
be denied admission to the State's only (all-white)
law school on the ground that not enough blacks
were interested in law to justify the State's establish-
ment of a black law school. Missouri. ex rel. Gaines
v. Canada, 305 U.S. 337 (1938). The equal protec-
tion right of the black law school applicant was "a
personal one," and he was entitled to be furnished
an educational program equal to that provided to
whites "whether or not other negroes also sought the
same opportunity." Id. at 351. And as early as 1914
the Court held that the failure to offer black travelers
luxury railroad accommodations could not be justified
on the ground that the carrier wished to segregate the
races and too few black travelers could afford luxury
accommodations to justify their provision for blacks.
McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151.
Cross-petitioners have failed to cite a single case to
support their demand-based defense, and we know of
none. 32.
As a factual matter, cross-petitioners failed to
show that there is an actual lack of demand for a
separate, women's VMI. The only evidence cited re-
garding allegedly low levels of presumed demand for
a women's VMI was offered in the remedial proceed-
ings, in an effort to justify VWIL's substantial differ-
ences from VMI. That evidence is avowedly com-
pletely speculative and not based on empirically re-

___________________(footnotes)

32 But see Faulkner V. Jones, 51 F.3d at 445 (emphasis
omitted) (speculating, in absence of evidence of lack of de-
mand, whether established rule that "demand is not relevant
to an equal protection analysis" might differ when the State
confers not a "civil right" but an "economic benefit").

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34

liable surveys or other reliable methodology?' and
was, in all events, introduced too late to be relevant
to the already completed liability proceeding.
It would, moreover, be impossible suddenly to cre-
ate a new institution for women only that would be
equal to VMI. See 94-1941 U.S. Br. 20-25. Given the
inevitable deficiencies in facilities, faculty, prestige,
traditions and alumni connections of a new, separate
"women's VMI," it thus would not be at all sur-
prising if some women who are interested in attend-
ing VMI itself would not want to attend such a new,
separate institution. The impossibility of quickly
duplicating for women an established and successful
men-only college is a reason that qualified women
must be admitted to the existing institution, not a
justification for continuing to exclude them. See
Sweatt v. Painter, 339 U.S. 629 (1950) (requiring
admission of black plaintiff to whites-only law school
due to absence of constitutionally adequate separate
alternative for blacks) ; Faulkner v. Jones, 51 F.3d
440, 450 (requiring admission of woman plaintiff
to men-only military college if the State failed to
provide a constitutionally adequate single-sex alter-
native for women), motion to stay mandate denied,
66 F.3d 661 (4th Cir. ), application for stay of en-
forcement denied, No. A-127 (Aug. 11, 1995).
Demand is also a product of the historical avail-
ability of opportunities. The fact that Virginia has

___________________(footnotes)

33 One of the experts whose testimony cross-petitioners cite
merely extrapolated from his own conclusions about women's
personalities to conclude that there would be little demand
for a women's VMI. Pet. App. 73a-74a. A second expert
arrived at the same conclusion by referring to demand among
women for West Point and VPI, id. at 75a n.12, both of which
in fact successfully appeal to ample numbers of women.

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35

never offered-and still does not offer-a VMI edu-
cation to women thus undoubtedly plays a large role
in the apparent level of women's interest in such an
institution. 34. Sex-based official policies that restrict
opportunity based on stereotypes are harmful pre-
wisely because they reinforce restrictive roles for men
and women. When the roles deemed appropriate for
men and women are thus restricted, individuals' sense
of possibility is artificially curtailed. Arguments
based on "demand" are accordingly especially us-
pet in this setting."

II. THE LEGALITY OF PRIVATE SINGLE-SEX EDU-
  CATION WOULD BE UNAFFECTED BY A HOLD-
  ING THAT VMI's ADMISSIONS POLICY IS UN-
  CONSTITUTIONAL
Contrary to cross-petitioners' suggestion (Br. 41),
the unconstitutionality of VMI's men-only admissions
policy, like the unconstitutionality of the MUW
women-only admissions policy invalidated in Hogan,
does not affect the continued legality of private single-

___________________(footnotes)

34 Cf. Dothard v. Rawlinson, 433 U.S. 321, 330 (1977)
(under Title VII, the actual applicant pool for a particular
position may be artificially depressed "since otherwise quali-
fied people might be discouraged from applying because of a
self-recognized inability to meet the very standards challenged
as being discriminatory"); International Bhd. of Teamsters V.
United States, 431 U.S. 324,365-367 (1977).
35 It is noteworthy, for example, in light of the 1972 enact-
ment of Title IX, that, from 1971 to 1978, girls' participation
in organized high school sports rose by over 600 % (notwith-
standing a 5 % decrease in overall enrollment of girls in high
school during that period). See 44 Fed. Reg. 71,419 (1979).
Women's participation in college intramural and intercolle-
giate sports rose by over 100% during the same period. Ibid.

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 36

sex education. Private entities are not state actors
under the United States Constitution; thus a ruling
that VMI cannot constitutionally continue to exclude
women would not, for example, require private, men's
institutions such as Hampton-Sydney and Morehouse
Colleges, or private, women's institutions such as
Randolph-Macon and Spelman Colleges, to admit
members of the other sex. 36.
Because the Fourteenth Amendment "erects no
shield against merely private conduct, however dis-
criminatory or wrong ful," Shelley v. Kraemer, 334
U.S. 1, 13 (1948), such a ruling also will not pre-
vent governments from providing financial assistance
to private educational institutions, including single-
sex institutions, pursuant to nondiscriminatory gov-
ernmental assistance programs. 37. The provision of
even substantial public assistance has been held not
to convert an otherwise private entity into a govern-
mental actor. See 94-1941 U.S. Br. 45 n.31. In
Rendell-Baker v. Kohn, 457 U.S. 830, 843 (1982),
for example, the Court held that, even where public

___________________(footnotes)

36 With certain specified exceptions, private educational in-
stitutions that receive federal financial assistance may main-
tain single-sex admissions policies without violating the non-
discrimination requirements of Title IX, 20 U.S.C. 1681 (a).
But see 20 U. S. C. 1681 (a) (1) (excepting private "institu-
tions of vocational education, professional education, and
graduate higher education"). Under federal law, private
schools may not, however, refuse admission to qualified in-
dividuals based on race-a prohibition that applies without
regard to receipt of federal funds. See 42 U.S.C. 1981; Runyon
v. McCray, 427 U.S. 160 (1976). Section 1981 is inapplicable
to sex discrimination.
37 That would be true whether intermediate or strict scrutiny
applies.

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 37

funds accounted for virtually all of a private school's
operating budget, the school was not subject to con-
stitutional constraints. A State is held constitution-
ally liable for a private institution's policies "only
when it can be said that the State is responsible for
the specific conduct of which the plaintiff complains";
such responsibility exists only where the State has
"exercised coercive power or has provided such sig-
nificant encouragement, either overt or covert, that
the choice must in law be deemed to be that of the
State." Blum v. Yaretsky, 457 U. S. 991,1004(1982).
"Mere approval of or acquiescence in the initiatives
of a private party is not sufficient to justify holding
the State responsible for those initiatives under the
terms of the Fourteenth Amendment." Id. at 1004-
1005. Cross-petitioners err in contending (Br. 41-42)
that this Court's decision in Norwood v. Harrison,
413 U.S. 455 (1973), is to the contrary. Norwood
held that a State that was under a federal desegre-
gation order, and that therefore had an affirmative
constitutional duty to dismantle its segregated sys-
tem of education, could not provide aid to all-white
private schools founded in order to avoid public
school desegregation. Id. at 467-468. Providing pub-
lic assistance to private institutions that admit only
members of certain groups has not been held to vio-
late equal protection when that aid is part of a non-
discriminatory government program serving legiti-
mate governmental objectives. See, e.g., Moose Lodge
No. 107 v. Irvis, 407 U.S. 163, 176 (1972) (State's
grant of valuable liquor license to private club does
not render State liable for club's policy of racial
exclusion).

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38

        CONCLUSION

The judgment of the court of appeals on liability
should be affirmed.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

CORNELIA T.L. Pillard
Assistant to the Solicitor General

JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys

DECEMBER 1995