PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

COMMONWEALTH OF VIRGINIA;

L. DOUGLAS WILDER, Governor of

the Commonwealth of Virginia;

VIRGINIA MILITARY INSTITUTE;

JOSEPH M. SPIVEY, III, President of

the Virginia Military Institute Board

of Visitors; JOHN WILLIAMS KNAPP,

Superintendent of Virginia Military

Institute; THE BOARD OF VISITORS OF

VIRGINIA MILITARY INSTITUTE;

THOMAS N. DOWNING; ELIZABETH P.

No. 91-1690

HOISINGTON, Brig. Gen.; ROBERT Q.

MARSTON; A. COURTLAND SPOTTS, III;

DANIEL F. FLOWERS; B. POWELL

HARRISON, JR.; ROBERT H. SPILMAN;

SAMUEL E. WOOLWINE; JAMES W.

ENOCHS, JR.; WILLIAM A. HAZEL;

HARVEY S. SADOW; DOUGLAS K.

BAUMGARTNER; DANIEL D. CAMERON;

GLEN N. JONES; JOHN W. ROBERTS,

Members of the Board of Visitors

of Virginia Military Institute; VMI

FOUNDATION, INCORPORATED; VMI

ALUMNI ASSOCIATION,

Defendants-Appellees,

and
GORDON K. DAVIES, Director of the

Virginia State Council of Higher

Education; THE VIRGINIA STATE

COUNCIL OF HIGHER EDUCATION AND

ITS MEMBERS AND OFFICERS,

Defendants.

VIRGINIA WOMEN ATTORNEYS

ASSOCIATION; VIRGINIA CHAPTER OF

THE AMERICAN ASSOCIATION OF

UNIVERSITY WOMEN; VIRGINIA

CHAPTER OF THE OLDER WOMEN'S

LEAGUE; VIRGINIA FEDERATION OF

BUSINESS AND PROFESSIONAL WOMEN'S

CLUBS, INCORPORATED; FRIENDS OF

VMIFOR EQUALITY; ALEXANDER W.

ASTIN; AMERICAN CIVIL LIBERTIES

UNION; ACLU FOUNDATION OF

VIRGINIA; NATIONAL WOMEN'S LAW

CENTER; AMERICAN ASSOCIATION OF

UNIVERSITY WOMEN; CENTER FOR

WOMEN POLICY STUDIES; NATIONAL

ORGANIZATION FOR WOMEN; NOW

LEGAL DEFENSE AND EDUCATION

FUND; VIRGINIA NATIONAL

ORGANIZATION FOR WOMEN; VIRGINIA

NOW LEGAL DEFENSE AND

EDUCATION FUND, INCORPORATED;

WOMEN'S LAW PROJECT; WOMEN'S

LEGAL DEFENSE FUND,

Amici Curiae.

 2
UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

COMMONWEALTH OF VIRGINIA;

GEORGE F. ALLEN, Governor, of the

Commonwealth of Virginia;

VIRGINIA MILITARY INSTITUTE;

JOSEPH M. SPIVEY, III, President of

the Virginia Military Institute Board

of Visitors; JOHN WILLIAMS KNAPP,

Superintendent of Virginia Military

Institute; THE BOARD OF VISITORS OF

VIRGINIA MILITARY INSTITUTE; VMI

FOUNDATION, INCORPORATED; VMI

No. 94-1667

ALUMNI ASSOCIATION; THE VIRGINIA

STATE COUNCIL OF HIGHER EDUCATION

AND ITS MEMBERS AND OFFICERS;

THOMAS N. DOWNING; ELIZABETH P.

HOISINGTON, Brig. Gen.; ROBERT Q.

MARSTON; A. COURTLAND SPOTTS, III;

DANIEL F. FLOWERS; B. POWELL

HARRISON, JR.; ROBERT H. SPILMAN;

SAMUEL E. WOOLWINE; JAMES W.

ENOCHS, JR.; WILLIAM A. HAZEL;

HARVEY S. SADOW; DOUGLAS K.

BAUMGARTNER; DANIEL D. CAMERON;

GLEN N. JONES; JOHN W. ROBERTS,

Defendants-Appellees,

and

 3
GORDON K. DAVIES,

Defendant.

THE NATIONAL WOMEN'S LAW

CENTER; AMERICAN ASSOCIATION OF

UNIVERSITY WOMEN; AMERICAN CIVIL

LIBERTIES UNION; CALIFORNIA

WOMEN'S LAW CENTER; CENTER FOR

WOMEN POLICY STUDIES;

CONNECTICUT WOMEN'S EDUCATION

AND LEGAL FUND; EQUAL RIGHTS

ADVOCATES; FEDERALLY EMPLOYED

WOMEN, INC.; FEMINIST MAJORITY

FOUNDATION; HUMAN RIGHTS

CAMPAIGN FUND; LAWYER'S

COMMITTEE FOR CIVIL RIGHTS UNDER

LAW; NATIONAL ASSOCIATION FOR

GIRLS & WOMEN IN SPORT; NATIONAL

ASSOCIATION OF COMMISSIONS FOR

WOMEN; NATIONAL COUNCIL OF

NEGRO WOMEN; NATIONAL

EDUCATION ASSOCIATION; NATIONAL

GAY AND LESBIAN TASK FORCE;

NATIONAL HOOKUP OF BLACK WOMEN;

NATIONAL ORGANIZATION FOR WOMEN;

NOW LEGAL DEFENSE AND

EDUCATION FUND; NATIONAL

WOMEN'S CONFERENCE COMMITTEE;

NATIONAL WOMEN'S PARTY;

NORTHWEST WOMEN'S LAW CENTER;

TRIAL LAWYERS FOR PUBLIC JUSTICE;

 4
WOMEN EMPLOYED; WOMEN'S LAW

PROJECT; WOMEN'S LEGAL DEFENSE

FUND; YWCAOF THE U.S.A.; MARY

BALDWIN COLLEGE; WELLS COLLEGE; 

SAINT MARY'S COLLEGE; SOUTHERN

VIRGINIA COLLEGE,

Amici Curiae.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

COMMONWEALTH OF VIRGINIA;

GEORGE F. ALLEN, Governor, of the

Commonwealth of Virginia;

VIRGINIA MILITARY INSTITUTE;

JOSEPH M. SPIVEY, III, President of

the Virginia Military Institute Board

of Visitors; JOHN WILLIAMS KNAPP,

No. 94-1712

Superintendent of Virginia Military

Institute; THE BOARD OF VISITORS OF

VIRGINIA MILITARY INSTITUTE; VMI

FOUNDATION, INCORPORATED; VMI

ALUMNI ASSOCIATION; THE VIRGINIA

STATE COUNCIL OF HIGHER EDUCATION

AND ITS MEMBERS AND OFFICERS;

THOMAS N. DOWNING; ELIZABETH P.

HOISINGTON, Brig. Gen.; ROBERT Q.

MARSTON; A. COURTLAND SPOTTS, III;

 5
DANIEL F. FLOWERS; B. POWELL

HARRISON, JR.; ROBERT H. SPILMAN;

SAMUEL E. WOOLWINE; JAMES W.

ENOCHS, JR.; WILLIAM A. HAZEL;

HARVEY S. SADOW; DOUGLAS K.

BAUMGARTNER; DANIEL D. CAMERON;

GLEN N. JONES; JOHN W. ROBERTS,

Defendants-Appellants,

and

GORDON K. DAVIES,

Defendant.

THE NATIONAL WOMEN'S LAW

CENTER; AMERICAN ASSOCIATION OF

UNIVERSITY WOMEN; AMERICAN CIVIL

LIBERTIES UNION; CALIFORNIA

WOMEN'S LAW CENTER; CENTER FOR

WOMEN POLICY STUDIES;

CONNECTICUT WOMEN'S EDUCATION

AND LEGAL FUND; EQUAL RIGHTS

ADVOCATES; FEDERALLY EMPLOYED

WOMEN, INC.; FEMINIST MAJORITY

FOUNDATION; HUMAN RIGHTS

CAMPAIGN FUND; LAWYER'S

COMMITTEE FOR CIVIL RIGHTS UNDER

LAW; NATIONAL ASSOCIATION FOR

GIRLS & WOMEN IN SPORT; NATIONAL

ASSOCIATION OF COMMISSIONS FOR

WOMEN; NATIONAL COUNCIL OF

NEGRO WOMEN; NATIONAL

EDUCATION ASSOCIATION; NATIONAL

GAY AND LESBIAN TASK FORCE;

 6
NATIONAL HOOKUP OF BLACK WOMEN;

NATIONAL ORGANIZATION FOR WOMEN;

NOW LEGAL DEFENSE AND

EDUCATION FUND; NATIONAL

WOMEN'S CONFERENCE COMMITTEE;

NATIONAL WOMEN'S PARTY;

NORTHWEST WOMEN'S LAW CENTER;

TRIAL LAWYERS FOR PUBLIC JUSTICE;

WOMEN EMPLOYED; WOMEN'S LAW

PROJECT; WOMEN'S LEGAL DEFENSE

FUND; YWCAOF THE U.S.A.; MARY

BALDWIN COLLEGE; WELLS COLLEGE;

SAINT MARY'S COLLEGE; SOUTHERN

VIRGINIA COLLEGE,

Amici Curiae.

On Remand from the United States Supreme Court.

(S. Ct. Nos. 94-1941 & 94-2107)

Decided on Remand: September 19, 1996

Before NIEMEYER, Circuit Judge, PHILLIPS, Senior Circuit

Judge, and WARD, Senior United States District Judge for the

Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Remanded by published per curiam opinion.

_________________________________________________________________

COUNSEL

Deval L. Patrick, Assistant Attorney General, Kerry Alan Scanlon,

Deputy Assistant Attorney General, Thomas E. Chandler, Jessica

Dunsay Silver, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Robert H.

 7
Patterson, Jr., Anne Marie Whittemore, William G. Broaddus, J. William Boland, Frank B. Atkinson, H. Alexander Wise, MCGUIRE,

WOODS, BATTLE & BOOTHE, Richmond, Virginia; James S. Gilmore, III, Attorney General of Virginia, William Henry Hurd, Deputy

Attorney General of Virginia, Richmond, Virginia; Griffin B. Bell,

William A. Clineburg, Jr., KING & SPALDING, Atlanta, Georgia;

William B. Poff, WOODS, ROGERS & HAZLEGROVE, Roanoke,

Virginia, for Appellees. Eileen N. Wagner, Richmond, Virginia;

Karen R. Keesling, Falls Church, Virginia; Sylvia Clute, Richmond,

Virginia, for Amici Curiae Virginia Women Attorneys Association, et

al. Marcia D. Greenberger, Ellen J. Vargyas, Shirley Sagawa,

NATIONAL WOMEN'S LAW CENTER, Washington, D.C.; Joan E.

Bertin, Elisabeth A. Werby, Jacqueline A. Berrien, AMERICAN

CIVIL LIBERTIES UNION FOUNDATION, New York, New York;

Stephen B. Pershing, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF VIRGINIA, Richmond, Virginia; Robert N.

Weiner, Leigh McAfee, Mark Eckenwiler, Stefanie J. Raker,

ARNOLD & PORTER, Washington, D.C., for Amici Curiae National

Women's Law Center, et al. James W. Tredway, III, CHRISTIAN,

BARTON, EPPS, BRENT & CHAPPELL, Richmond, Virginia, for

Amicus Curiae Mary Baldwin College. David M. Lascell, Rebecca A.

Kirch, HALLENBECK, LASCELL & PINEO, Rochester, New York,

for Amici Curiae Wells College, et al.

_________________________________________________________________

OPINION

PER CURIAM:

In United States v. Commonwealth of Virginia, 976 F.2d 890 (4th

Cir. 1992), we held that single-gender education is pedagogically justifiable for both males and females, and therefore that "the homogeneity of gender in the process, regardless of which sex is considered"

warrants a state's offering single-gender education. Id. at 897. But

because the Commonwealth of Virginia was offering single-gender

education to males at Virginia Military Institute (VMI) without offering single-gender education anywhere in the state to females, we

found that it was violating the Equal Protection Clause of the Fourteenth Amendment. We remanded the case to the district court with

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instructions to require Virginia to formulate, adopt, and implement a

plan conforming with the Equal Protection Clause. We concluded:

Consistent therewith, the Commonwealth might properly

decide to admit women to VMI and adjust the program to

implement that choice, or it might establish parallel institutions or parallel programs, or it might abandon state support

of VMI, leaving VMI the option to pursue its own policies

as a private institution. While it is not ours to determine,

there might be other more creative options or combinations.

Id. at 900. The Supreme Court affirmed our judgment in United States

v. Virginia, 116 S. Ct. 2264, 2287 (1996).

On remand to the district court, Virginia developed a proposal to

establish the Virginia Women's Institute for Leadership (VWIL), a

parallel program at Mary Baldwin College, providing women with

single-gender education together with special leadership training. Virginia did not, however, propose to duplicate the military-type training

offered at VMI. Following a trial, the district court approved the

VWIL plan and directed Virginia "to proceed with all deliberate

speed . . . to have the Plan operational for the academic year commencing in the Fall of 1995." United States v. Commonwealth of

Virginia, 852 F. Supp. 471, 485 (W.D. Va. 1994).

On appeal, we affirmed the district court's judgment. United States

v. Commonwealth of Virginia, 44 F.3d 1229 (4th Cir. 1995). Applying

an expanded intermediate scrutiny test to the state's program, we concluded:

[I]f the conditions that we impose below are fulfilled, the

opportunities that would be open both to men and women

are sufficiently comparable. We therefore are satisfied that

the special intermediate scrutiny test defined for this case

has been met, insofar as a proposed program can meet this

test, by the VWIL program proposed at Mary Baldwin College.

Id. at 1241. The conditions to our approval were that the program be

"headed by a well-qualified, motivated administrator"; that the pro-

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gram be "well-promoted to potentially qualified candidates"; that the

program include an adequate funding commitment; and that the program be reviewed on a continuing basis by qualified professional educators to assure that it remains "aimed not only at providing a quality

bachelor's degree but also at affording the additional element of

taught discipline and leadership training for women." Id.

In United States v. Commonwealth of Virginia, 116 S. Ct. 2264

(1996), the Supreme Court reversed our judgment, holding that the

VWIL program at Mary Baldwin College was not an adequate remedy for the equal protection violation. Writing for the Court, Justice

Ginsburg reasoned:

In myriad respects other than military training, VWIL

does not qualify as VMI's equal. VWIL's student body, faculty, course offerings, and facilities hardly match VMI's.

Nor can the VWIL graduate anticipate the benefits associated with VMI's 157-year history, the school's prestige, and

its influential alumni network.

Id. at 2284. The Court also found no "persuasive evidence" in the

record that VMI's male-only admission policy furthered a state policy

of diversity. Id. at 2279. At bottom, the Court concluded that Virginia

had "shown no `exceedingly persuasive justification' for withholding

from women qualified for the experience premier training of a kind

VMI affords." Id. at 2287. The Court remanded the case for further

proceedings consistent with its opinion. Id.

We now vacate the district court's judgment and remand this case

to require Virginia to formulate, adopt, and implement a plan that

conforms with the Equal Protection Clause of the Fourteenth Amendment as applied to this case by the Supreme Court.

IT IS SO ORDERED

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