United States v. Virginia

Week 12 — Sex Discrimination — VMI

Facts

  • Virginia operated the Virginia Military Institute (VMI) as an all-male public school.
  • After litigation, Virginia attempted to remedy the male-only policy by creating the Virginia Women's Institute for Leadership (VWIL) at a separate women's college.
  • The United States challenged VMI's exclusion of women.

Issue

Whether Virginia's exclusion of women from VMI—and its creation of the VWIL as a parallel program—satisfied intermediate scrutiny.

Holding

No. The exclusion violated the EPC, and VWIL was not an adequate alternative.

Reasoning

  • The state actor must show an "exceedingly persuasive justification" for the sex classification.
  • Evidence of an important governmental objective must be the actual purpose behind the challenged action—not a post-hoc realization.
  • Denying equal opportunity based on broad generalizations or sex stereotypes will not withstand intermediate scrutiny.
  • Alternative, remedial measures must be:
    1. A close fit to the constitutional violation; and
    2. Place the victims of discrimination in the position they would have been in absent the discrimination.
  • VWIL did not constitute a valid alternative opportunity—it was not remotely comparable to VMI.

Notes

  • VMI gives us the "exceedingly persuasive justification" buzzword for intermediate scrutiny.
  • Application reinforced in Mississippi University for Women v. Hogan.
  • Drop the VMI buzzword as Step 2 of the intermediate-scrutiny analysis framework.