By the 1980s,
shifted from racial segregation in the public schools to separate
education based on gender. In the 1982 case
University for Women v. Hogan, the Court narrowly found the
admission policy at a state nursing school to be a denial of equal
of the laws to a male who had sought admission to the program.
The Court said the Mississippi could not justify the policy as an
affirmative action program because it failed to show Mississippi
females were disadvantaged in seeking nursing jobs--in fact, the
evidence suggested that the policy had the effect of reinforcing gender
stereotypes. The Court hinted that a female-only admission policy
for a business or engineering school might have fared better.
in 1996, the Court found Virginia to be in violation of the
in the closely-watched case of United States v. Virginia, a
to the male-only admission policy of the Virginia Military
The Court ruled that a somewhat similar program for women, the
Women's Institute for Leadership, was not "substantially equal" to the
program of VMI, as required by the Equal Protection Clause.
In Rostker v Goldberg, the Court, by a
6 to 3 vote, rejected the argument that the Fifth Amendment's equal
protection aspect was violated by the Selective Service Act in its
"authorizing the President tp require the registration of males and not
females." Justice Rehnquist's majority opinion emphasized that
congressional decisions affecting the military were due great
deference. The Court nonetheless applied heightened
scrutiny. It found the law substantially furthered the
government's important interest in raising a combat-ready
military. Accepting the government's contention that women are
less suitable for combat, the Court concluded that the "classification
is not invidious, but rather realistically reflects the fact that the
sexes are not similarly situated."
2. Does the test used by the Court in the VMI case come closer to intermediate scrutiny or strict scrutiny?
3. Could Virginia have created a female-only military school that would have satisfied the Court's demand for gender equality?
4. Should gender separateness ever be tolerated in public education? What, if any, benefit might gender-specific programs have?
5. Does a public school violate the equal protection clause when it offers varsity wrestling or football programs that are open only to boys? Volleyball or cheerleading programs that are open only to girls? Although sports competition is governed by Title IX, does the Constitution in some cases go further in requiring schools to open up programs?
6. Are there important reasons to restrict combat service to males? What are they? Other nations allow women to serve in combat positions. Should the experiences of those nations be considered in evaluating the strength of the military's justification for limiting combat service in the U. S. armed forces to males?
7. Even assuming that important reasons exist to limit combat service to males, are there equally important reasons to limit application of the military registration program to males?
8. What is the source of the Court's conclusion that gender classifications concerning the military are entitled to more deference than gender classifications affecting other operations of government?