INTRODUCTION

In 1996, in United States v. Virginia, Justice Ruth Bader Ginsburg wrote one of her first important women's rights opinions. The case was initiated by the Justice Department after an unidentified woman complained that she was denied the opportunity to attend Virginia Military Institute (“VMI”), a public military college, because of her gender. In writing for the majority that VMI's male-only admissions policy was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, Justice Ginsburg noted that “[h]owever ‘liberally’ this plan serves the Commonwealth's sons, it makes no provision whatever for her daughters. That is not equal protection.”

Reading her majority opinion from the bench, Justice Ginsburg made clear that the Constitution does not permit women to be excluded from public educational opportunities. VMI vehemently opposed the decision, and debated taking the institution private, a proposal narrowly defeated by its Board of Visitors. Although women's groups responded optimistically to the decision, the actual legacy has not proven quite as rosy. At VMI today, women comprise only about 10 percent of the VMI student body, and many leadership roles are still held by men. Moreover, equal protection remains elusive for the women of VMI, as the Department of Education Office of Civil Rights recently found violations of Title IX at VMI, including that VMI created an “environment hostile to [women] both in the barracks and in the classroom” and maintained discriminatory tenure and promotion standards for women faculty.

THE FACTUAL AND LEGAL ISSUES

At the time of the litigation, VMI was a publicly funded, elite, single-sex military institute, founded in 1839, when Virginia offered public education only to men. VMI prided itself on creating “citizen soldiers” who were prepared for military and civilian life through the “adversative” method as well as strict physical and mental discipline and a strong moral code. This type of training and formation, combining rigorous academics with demanding military training based on a moral code, was unavailable elsewhere in Virginia.

The Justice Department sued, alleging that VMI's male-only admission policy violated equal protection. The District Court ruled in VMI's favor, and Justice appealed. The Court of Appeals for the Fourth Circuit reversed and suggested that VMI had three options: it could admit women, establish a parallel program, or reject state funding and go private.