by Colleen Brugger, Associate Member, University of Cincinnati Law Review Vol. 91
How do you solve a problem that has never been solved before? That is the question the United States Supreme Court faced in United States v. Virginia in 1996.1United States v. Virginia, 518 U.S. 515 (1996). The Court left available several options which would place the young women challenging Virginia Military Institute’s (“VMI”) single-sex admission policy in their rightful position.2See Abigail Perdue, Everafter: The Stories Told About U.S. v. Virginia, 28 Second Draft 14, 16 (2015). The rightful position is the set of circumstances these young women would have been in if the admission policy had no negative impact upon them.3See Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263, 1270-71 (2021). The exclusion of these women is ironic for the once adaptable VMI, which previously had voluntarily diversified its student body.4Perdue, supra note 2, at 15. Throughout that expansion period, VMI never altered its educational methods–which were later weaponized against the challenging women.5Meredith Johnson Harbach, With Gratitude from Our Daughters: Reflecting on Justice Ginsburg and United States v. Virginia, 55 U. Rich. L. Rev. 1, 17 (2020). The United States v. Virginia case not only had a sweeping impact for the continued evaluation of gender discrimination, but for how the rightful positions of plaintiffs appeared.6See generally Johnson Harbach, supra note 5.
This article explores the remedy in United States v. Virginia and how it established the rightful position for young women. Section II provides background on the rightful position and the history of the VMI litigation. Section III explores each of the options provided to Virginia and VMI following the Supreme Court’s review of United States v. Virginia and explains why its ultimate conclusion exemplified the power of correctly conceptualizing the rightful position. Finally, Section IV concludes by outlining the exemplary remedial nature of the VMI decision.
Remedies either cure harm or prevent harm from occurring by incentivizing a party’s behavior.7Bayefsky, supra note 3, at 1263. VMI and Virginia had their choice of remedy to fulfill the court order once their liability was determined.8Johnson Harbach, supra note 5, at 26; Perdue, supra note 2, at 16. However, each potential remedy available to VMI contemplated a different rightful position.9See Perdue, supra note 2, at 16.
A. Defining the Rightful Position
Parties come to courts seeking to cure harm, and the goal is to ensure the harmed party is whole.10Bayefsky, supra note 3, at 1271. The rightful position, in reference to the plaintiff in civil litigation, is the benchmark.11Bayefsky, supra note 3, at 1307. It references where the party would have been if a wrong did not occur, or maintains the party’s position in advance of a wrong.12Bayefsky, supra note 3, at 1270-71; Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 588 (2016). However, modifying party behavior to return to, or maintain, a place where there is no harm for the other party depends not only on the relief sought but how it is characterized.13Bray, supra note 12, at 553. The conceptualization of the rightful position is dependent upon the court.14See Bayefsky, supra note 3,at 1271.
There are a variety of remedies available to the harmed, or imminently harmed, parties.15Bray, supra note 12, at 541-42. The main remedies in the United States are either damages or injunctions or a sub-variation thereof.16Id. However, the injunction is the best tool when the court conceptualizes the remedy as a direct change of behavior.17Id. at 553; see Bayefsky, supra note 3, at 1263. Injunctions allow greater flexibility in the behavior modification than any change which may follow the payment of damages.18Bray, supra note 12, at 568. This flexibility can shape the choices defendants make when expected to comply with the court order.19Id. at 569. However, whatever the form of the final remedy the adjudicating court settles on, the remedy must not only give the complying party clear direction, but also be tailored to the harm which results in removal from the rightful position.20Id. at 579; Bayefsky, supra note 3, at 1271. In United States v. Virginia, the Fourth Circuit ultimately ordered an injunction 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.”21United States v. Virginia, 96 F.3d 114, 117 (4th Cir. 1996).
B. VMI–the Institution and the Litigation
VMI was the nation’s first military school, chartered by the Virginia legislature in 1839.22Perdue, supra note 2, at 14. At the time of the litigation, VMI was the only public single-sex educational institution in the state of Virginia.23Johnson Harbach, supra note 5, at 9. In fact, VMI existed as the only single-sex educational institution for decades–all other single-sex institutions for women had become coeducational or closed.24Id. However, VMI was no stranger to adapting with the times.25Id. at 15. At multiple points, before the litigation, VMI increased the diversity of its students,26Id. admitting those of Asian descent in the early 1900s and voluntarily admitting African American students beginning in the late 1960s.27Id. None of these changes prompted a change in VMI’s educational methods, which was the main argument against admitting women to VMI.28Johnson Harbach, supra note 5, at 17.
At the core of United States v. Virginia was the question of whether Virginia had violated the Equal Protection Clause of the Fourteenth Amendment by denying women admission to VMI and, if in violation, what was the appropriate remedy.29United States v. Virginia, 518 U.S. 515, 530-31 (1996). The litigation begun with a complaint in 1990 to the United States Attorney General by one young woman who sought admittance at VMI following high school.30Id. at 523. The lower courts found Virginia and VMI in violation of the Equal Protection Clause and approved of Virginia’s selected remedy of a parallel program.31Id. at 530. The parallel program, the Virginia Women’s Institute of Leadership (“VWIL”), was hosted at a private single-sex college.32Id. at 528-29.
However, dissatisfied with Virginia’s selected remedy, the challenge continued to the United States Supreme Court.33Id. at 558. Justice Ginsburg, writing for the Court, applied intermediate scrutiny when evaluating VWIL as a remedy.34Id. at 532. This level of scrutiny, as applied in United States v. Virginia, requires not only that the remedy bear an important governmental purpose, but the justification for the purpose be “exceedingly persuasive.”35Id. at 532-33 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). In United States v. Virginia, the analysis focused on the alleged benefits of single-sex education and VMI’s unique adversative method.36Id. at 534-35. The brunt of the analysis focused on the overall differences between the remedy of VWIL and VMI.37Id. VMI’s adversative method “employs extreme physical rigor, intense mental stress, an almost complete absence of privacy, and draconian regulation of behavior to instill strength of character, honor, and integrity in” students.38Perdue, supra note 2, at 14. By contrast, VWIL employed a cooperative educational system and the leadership aspect of the program was characterized as extracurricular.39United States v. Virginia, 518 U.S. at 527. Therefore, the Court reversed the appellate approval of the VWIL remedy.40Id. at 558.
Following the determination by the Supreme Court that VWIL was not an adequate remedy, Virginia and VMI still possessed some discretion in the selection of remedy.41See id. at 588, 525-26. The only limit on the remedy was that it had to place female applicants to VMI in the position they would have been if they were not excluded.42Bayefsky, supra note 3, at 1270-71; Bray, supra note 12, at 588. However, the Court made clear that a parallel program would not meet that limit. The potential remedies included (1) VMI transitioning to a private school and making no changes, (2) VMI changing their educational methods, or (3) VMI instituting coeducational options. The coeducational options included that (a) both VMI and VWIL could become coed, or (b) VMI alone could become coeducational, which was the remedy ultimately selected.43Perdue, supra note 2, at 16. While not all potential remedies discussed below were expressly considered by the Court, they existed as options.
The first potential remedy, VMI becoming a private institution, is not a remedy at all. Federal courts were only able to adjudicate the issue of VMI’s single-sex admission policy because it was under the control of the Virginia legislature.44United States v. Virginia, 518 U.S. at 521. If VMI became a private school, it had no obligation to meet the Equal Protection standard. Therefore, while being a private school would resolve the controversy for the Court, it provided no relief for the “actual women desirous of and qualified for a VMI education.”45Johnson Harbach, supra note 5, at 22. VMI as a private institution merely preserved the status quo of gender discrimination.
Second, the suggestion that VMI move away from the adversative method also did not provide a remedy to the challengers. The Court emphasized that not all men desire to attend VMI and participate in its adversative method.46United States v. Virginia, 518 U.S. at 542. Therefore, the remedy to be crafted was not for every student in Virginia, merely the ones capable of attending VMI.47Id. at 523, 525, 540-41, 550, 558. To substantially change VMI’s methodology for the admission of women would not place women in their rightful position.
Changing the teaching methodology would not put women at VMI, it would place women at a modified VMI. A modified VMI would be no different than the parallel program of VWIL. VWIL was no remedy–in large part due to the diverging methods between the two programs.48Id. at 526-28. VMI received over 340 admission inquiries from women in the two years prior to litigation.49Id. at 523. Those women seeking education at VMI were seeking the adversative method. Adding women to VMI only changed one thing about the student body: gender. VMI had repeatedly demonstrated that it could expand its student body without changes to its methodology. Accordingly, changing the methods used at VMI was an inadequate remedy.
The final set of potential remedies included both genders in one or both of the programs existing at the time of the Supreme Court’s opinion. Operating both programs, VMI and VWIL, coeducationally was never expressly contemplated by the Court, which spent most of its opinion disparaging the VWIL program.50Id. at 542-43. While Virginia, funding both programs, facilitated access to both the cooperative education of VWIL and the adversative education of VMI for all Virginians; it failed to fully address the rightful position of women applicants to VMI. The rightful position for women applicants was that they obtain the leadership skills and prestige inherent in the completion of a VMI degree. VMI’s alumni included members of Congress, generals, and business executives. The VWIL program was–and would continue to be in the years after the Court decision–in its infancy and could not provide those connections.51Id. at 520.
While operating both VMI and VWIL coeducationally would satisfy an objective of educational diversity, it failed to ensure that women would attend VMI. By leaving both programs open to all, VMI could have easily denied admission to women. And despite its infancy, a coeducational, state funded VWIL provided an alternative, which would enable VMI to possibly survive another Equal Protection challenge. Both programs would generally expand education and act as a remedy, but failed to ensure women attain their rightful position fully and promptly.
The final remedy, and the one selected by VMI, is the admission of women to VMI, with minimal changes (e.g., increased privacy).52Id. at 525. VMI has had a history of changes, none of which damaged the adversative system it fought to exclude women from.53Johnson Harbach, supra note 5, at 17. The women who desired admission to VMI sought out VMI due to its methods and prestige.54See United States v. Virginia, 518 U.S. at 554. This remedy directly spoke to the relief the women sought. State-funded single-sex education could not continue55Justice Scalia’s dissent championed state-funded single-sex education as an important governmental objective, even if there was no alternative. Id. at 567 (Scalia, J., dissenting). Ironically, despite many higher education institutions in Virginia beginning a single-sex, VMI had been the only one left standing for a decade before the litigation commenced. Johnson Harbach, supra note 5, at 9. separate but equally.56Johnson Harbach, supra note 5, at 18.
VMI, as a school for both genders, illustrates the full recognition of the rightful position of the challengers of VMI’s single-sex admission policy–and became the solution to a previously unsolved problem. By becoming a coeducational school, women accessed resources and training that could only come from the school itself, such as VMI’s unique methods and prestige. Other remedial options lacked either one or both of those features. VMI was no stranger to change within its student body, and those changes did not impact their educational methods or prestige. The changes at VMI following United States v. Virginia placed young women capable of attending VMI where they would have been as if no harm, through the consideration of gender, had occurred, solving the previously unsolvable problem.
- 1United States v. Virginia, 518 U.S. 515 (1996).
- 2See Abigail Perdue, Everafter: The Stories Told About U.S. v. Virginia, 28 Second Draft 14, 16 (2015).
- 3See Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263, 1270-71 (2021).
- 4Perdue, supra note 2, at 15.
- 5Meredith Johnson Harbach, With Gratitude from Our Daughters: Reflecting on Justice Ginsburg and United States v. Virginia, 55 U. Rich. L. Rev. 1, 17 (2020).
- 6See generally Johnson Harbach, supra note 5.
- 7Bayefsky, supra note 3, at 1263.
- 8Johnson Harbach, supra note 5, at 26; Perdue, supra note 2, at 16.
- 9See Perdue, supra note 2, at 16.
- 10Bayefsky, supra note 3, at 1271.
- 11Bayefsky, supra note 3, at 1307.
- 12Bayefsky, supra note 3, at 1270-71; Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 588 (2016).
- 13Bray, supra note 12, at 553.
- 14See Bayefsky, supra note 3,at 1271.
- 15Bray, supra note 12, at 541-42.
- 17Id. at 553; see Bayefsky, supra note 3, at 1263.
- 18Bray, supra note 12, at 568.
- 19Id. at 569.
- 20Id. at 579; Bayefsky, supra note 3, at 1271.
- 21United States v. Virginia, 96 F.3d 114, 117 (4th Cir. 1996).
- 22Perdue, supra note 2, at 14.
- 23Johnson Harbach, supra note 5, at 9.
- 25Id. at 15.
- 28Johnson Harbach, supra note 5, at 17.
- 29United States v. Virginia, 518 U.S. 515, 530-31 (1996).
- 30Id. at 523.
- 31Id. at 530.
- 32Id. at 528-29.
- 33Id. at 558.
- 34Id. at 532.
- 35Id. at 532-33 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).
- 36Id. at 534-35.
- 38Perdue, supra note 2, at 14.
- 39United States v. Virginia, 518 U.S. at 527.
- 40Id. at 558.
- 41See id. at 588, 525-26.
- 42Bayefsky, supra note 3, at 1270-71; Bray, supra note 12, at 588.
- 43Perdue, supra note 2, at 16.
- 44United States v. Virginia, 518 U.S. at 521.
- 45Johnson Harbach, supra note 5, at 22.
- 46United States v. Virginia, 518 U.S. at 542.
- 47Id. at 523, 525, 540-41, 550, 558.
- 48Id. at 526-28.
- 49Id. at 523.
- 50Id. at 542-43.
- 51Id. at 520.
- 52Id. at 525.
- 53Johnson Harbach, supra note 5, at 17.
- 54See United States v. Virginia, 518 U.S. at 554.
- 55Justice Scalia’s dissent championed state-funded single-sex education as an important governmental objective, even if there was no alternative. Id. at 567 (Scalia, J., dissenting). Ironically, despite many higher education institutions in Virginia beginning a single-sex, VMI had been the only one left standing for a decade before the litigation commenced. Johnson Harbach, supra note 5, at 9.
- 56Johnson Harbach, supra note 5, at 18.