United States v Virginia 116 S.Ct. 2263 (1996)
This case involved a single-sex male college operated by the Commonwealth of Virginia, the Virginia Military Institute. The US challenged VMI's male-only policy on equal protection grounds. The District Court decided for VMI, but the Fourth Circuit reversed and ordered that the constitutional violation be remedied. The remedy proposed was a women-only program that was purported to be "substantially comparable" to the VMI program.
Justice Ginsburg, writing for the majority, concluded that if some women were qualified for the VMI program, all women could not be excluded. While the majority opinion did not state it was creating a more difficult test for sex-based classifications, the language used by the majority indicated that sex-based government action "must demonstrate an exceedingly persuasive justification for that action." The Court rejected the parallel program because granting only men the unique educational opportunities of VMI violated equal protection. The majority found that intangible benefits, such as prestige and faculty stature, precluded equality of the two programs, and thus a parallel program did not resolve the constitutional problems relevant to the exclusion of women. The Court seemed to suggest that the diversity in education justification that was proffered in support of the single-sex education al option was a post-hoc rationalization. The Court argued that justifications for categorical exclusions must describe the state's actual purposes, and thus, Virginia would have to demonstrate that VMI's male only policy was created in order to diversify educational opportunities, which it did not.
The Commonwealth argued that VMI's mission was to produce "citizen solders," which the Commonwealth argued, required a male-only policy because of the adversarial nature of the training. This method of training, Virginia argued, involved a loss of privacy, in addition to physical and mental discipline. The Court presumed that most women would not want to subject themselves to VMI's adversarial method of training, but said that those interested in and qualified for the program could not be excluded.
The Court acknowledged that admitting women into VMI would require making accommodations in housing arrangements, etc in order to provide reasonable privacy to both sexes.
The Chief Judge concurred in the opinion, but was concerned about an element of uncertainty in appropriate test.