Analysis: Court gave same-sex schools an F

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  May 10, 2002 at 8:00 AM
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WASHINGTON, May 10 (UPI) -- The Bush administration announced this week its decision to support same-sex, taxpayer-supported schools.

But the emergent policy may be doomed from the start.

The administration's proposal appears to run afoul of 1996's United States vs. Virginia, in which a powerful 7-1 Supreme Court majority struck down the all-male cadet corps at the Virginia Military Institute as unconstitutional.

In contrast, a looming Supreme Court opinion in a Cleveland case may support the administration's stance on the use of publicly financed school vouchers for religious schools.

Writing for the majority in the 1996 VMI case was Justice Ruth Bader Ginsburg, who as a lawyer for the American Civil Liberties Union argued the concept of gender discrimination into law in a series of brilliant appearances before the Supreme Court in the 1970s.

VMI's male-only admissions policy violated the Constitution's equal protection guarantees, Ginsburg wrote in 1996, but she and the court majority left open a window. Same-sex government programs can survive court scrutiny, she said, but only if the government supports them with an "exceedingly persuasive justification."

That sets the bar very high, in legal terms, for the new administration initiative.

Though same-sex education has some surprising defenders -- Sen. Hillary Rodham Clinton, D-N.Y., has said all-girl schools in the inner cities could be beneficial, and it was actually encouraged by language in the massive education reform bill passed last year -- women's rights organizations such as the National Organization for Women have already announced their opposition.

And if the administration is counting on the support of some old allies, their response might be surprising as well. The 1996 Supreme Court decision forced VMI to accept women, despite near unanimous opposition from the alumni, faculty and cadet corps. That opposition has largely evaporated.

"Frankly, our reaction to this is, for whatever reason, VMI made the decision that we're going to be a co-educational institution," VMI spokesman Chuck Steenburgh said from Lexington, Va., Thursday. "That decision has been made. We like being a co-educational institution. I'm not sure this," the new administration policy, "makes any difference one way or the other."

Steenburgh pointed out that it "takes more than a change in administration policy to overcome a Supreme Court decision."

About 5 percent of VMI's current graduating class, the second co-educational graduating class in the school's 163-year history, is female.

In her 1996 majority opinion, Ginsburg's elegant cadences don't entirely close the door to same-sex public institutions, but come reasonably close.

"Single-sex education affords pedagogical benefits to at least some students ... and that reality is uncontested in this litigation," Ginsburg said. "Similarly, it is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the state. In cases of this genre, our precedent instructs that 'benign' justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded."

In other words, a state's justification for a same-sex school can make use the goals of diversity. Some defenders of girl-only inner-city schools use the same rationale: Young females will not flower academically if they're constantly being intimidated by aggressive males.

However, Ginsburg anticipated this argument in her ruling, and pointed out that the "exceedingly persuasive justification" needed to sustain same-sex education was a standard first articulated in an earlier Supreme Court case, one in which the all-female admissions policy of a Mississippi nursing school was struck down.

Justice Clarence Thomas did not participate in the 1996 ruling because at the time his son was a VMI cadet. Only Justice Antonin Scalia dissented in language that might be echoed by the defenders of same-sex education in 2002. Men and women are different, Scalia argued, and VMI's "adversative" method of education was so physically rigorous it might not be suited to women.

"Today the court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half," Scalia said in his lonely dissent. "To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this court, and ignores the history of our people. As to facts: it explicitly rejects the finding that there exist 'gender-based developmental differences' supporting Virginia's restriction of the 'adversative' method to only a men's institution, and the finding that the all-male composition of the Virginia Military Institute (VMI) is essential to that institution's character. As to precedent: it drastically revises our established standards for reviewing sex-based classifications. And as to history: it counts for nothing the long tradition, enduring down to the present, of men's military colleges supported by both states and the federal government."

On a different front, the Bush administration's off-again, on-again efforts to promote the use of school vouchers might receive kinder treatment from the Supreme Court.

Administration officials and other defenders say school vouchers give parents a choice when public schools are failing. School-voucher opponents object to public money being used to underwrite religious education, and say the proposal would drain needed money from public education to do so.

In fact, the Supreme Court is poised to rule on the constitutionality of school vouchers, and could do so as early as next week, but certainly before the end of June.

The underlying case -- actually three cases combined -- involves a pilot voucher program in Cleveland. The program grew out of a crisis in the Cleveland schools, considered substandard in the mid-1990s.

In 1995, a federal judge overseeing a Cleveland desegregation case ordered the state superintendent to take over control of the local school district.

Ohio's General Assembly then adopted the pilot voucher project, applying it to any school district taken under the jurisdiction of a federal court -- actually, Cleveland's was the only school district in Ohio affected.

The program gives private school scholarships to Cleveland school district children from kindergarten through the eighth grade, and requires participating private schools to cap their annual tuition at $2,500. For low-income families, the program provides 90 percent of the costs of going to a private school. If money is left over after low-income families apply, the program pays 75 percent of the costs for other families.

For the 1999-2000 school year, 3,761 students enrolled in the program; 60 percent were from families at or below the poverty level.

Though the program was designed to give scholarships to non-sectarian and sectarian schools, 96 percent of those enrolled in 1999-2000 used the money to attend religious schools.

Of the 56 schools registered to participate in the program for that school year, 46, or 82 percent, were religious. A federal appeals court noted that "the handbooks and mission statements of these schools reflect that most believe in interweaving religious beliefs with secular subjects ... (include) instruction in religion ... interweaving Christian doctrines with science and language art classes .... "

The appeals court also ruled 2-1 that the program violates the Constitution because it "has the primary effect of advancing religion" and "constitutes an endorsement of religion and sectarian education."

When the case was heard by the Supreme Court last February, however, a majority of the justices appeared ready to reverse the appeals court and support school vouchers.

Two of the court's key swing votes, Justices Sandra Day O'Connor and Anthony Kennedy, were particularly vocal from the bench in support of the Cleveland program.

If that vocal support translates into votes -- it doesn't always -- the Supreme Court may finally be ready to open the public money tap for the support of religious schools.

(No. 94-2107, United States vs. Virginia et al; No. 00-1751, Supt. Zelman et al vs. Simmons-Harris et al; No. 00-1777, Hanna Perkins School et al vs. Simmons-Harris et al; and N0. 00-1779, Taylor et al vs. Simmons-Harris et al)

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