Washington. -- To the astonishment of just about everyone who has followed the case, Virginia Military Institute has won its second battle against the U.S. government. A federal judge in Virginia has ruled that VMI may continue its policy of limiting enrollment to men only.
As students of the Civil War will recall, the first battle between VMI and the feds occurred in mid-May 1864 at New Market, Virginia. There the 247 VMI cadets, led by one of their professors, charged valiantly against Yankee infantry. Ten cadets died in that one-day battle and 47 were wounded, but it was, briefly, a glorious victory. Less than a year later, of course, the Yankees won the war.
I hate to say it, for I hold a great affection for VMI and its traditions, but history is likely to repeat itself. The opinion by U.S. District Judge Jackson L. Kiser is certain to be appealed. Judge Kiser held that in this unusual case, diversity in higher education is of greater value than absolute equality of opportunity. Appellate judges, looking at precedents involving racial discrimination, may not be quite so agreeable.
But who knows? Judge Kiser said that he had been guided to his decision by the opinion of the Supreme Court in the 1982 case of Joe Hogan. In that case, Hogan sued for admission to the all-female Mississippi University for Women. He wanted to take a degree in nursing, and though Mississippi had two other schools of nursing that were open to him, Hogan demanded admission to a nursing school in his own hometown.
Judge Kiser must have meant that he was guided to his opinion in the VMI case by the dissenters in the Mississippi case, for Hogan won in the Supreme Court. Justice Sandra Day O'Connor, writing for five justices, held flatly that a state policy of one-sex-only violates the equal-protection clause of the 14th Amendment.
This precedent did not faze Judge Kiser. He was much more impressed by the dissenting opinions of Chief Justice Warren Burger, Justice Harry Blackmun and Justice Lewis Powell (who was joined by Justice William Rehnquist). This is what Mr. Blackmun said at the time:
"I have come to suspect that it is easy to go too far with rigid rules in this area of claimed sex discrimination, and to lose -- indeed destroy -- values that mean much to some people by forbidding the state to offer them a choice while not depriving others of an alternative choice."
Justices Burger and Powell have retired from the court, but Justices Blackmun and Rehnquist are still there. It is entirely possible, on appeal, that Justices Anthony Kennedy, Antonin Scalia and David Souter would join them to make a decisive majority for diversity above equality.
Judge Kiser relied upon this line of reasoning in upholding VMI's policy of male cadets only. Young women in Virginia have an alternative choice of military instruction in Virginia Polytechnic Institute, just 75 miles down the road. In forcing themselves upon VMI, the women might well destroy the very values they seek.
Evidence in the VMI case came from experts in education who testified in behalf of the military institute. In their view, as Judge Kiser said, "single-gender education at the undergraduate level is beneficial to both males and females." Moreover, the evidence established that if women were admitted to the rigorous barracks life of VMI, the institute would be "fundamentally altered and the distinctive ends of the system would be thwarted."
One study in evidence, Judge Kiser noted, demonstrates that single-sex colleges provide better educational experiences than coeducational institutions. Students of both sexes become more academically involved and show larger increases in intellectual self-esteem.
All this may be quite true, but it also may be quite irrelevant. Judge Kiser mentioned, but merely in passing, a whole string of Supreme Court cases involving the unsuccessful efforts of blacks to gain admission to white-only universities. Without exception, these cases have held that equal opportunity is the be-all and end-all. No Supreme Court precedent supports the power of a state to maintain a college for one race only.
As Judge Kiser said, VMI is unique. Its traditions of spartan living and harsh discipline are even more severe than those of the Citadel in South Carolina, the only other state-supported male-only college in the nation. I would leave the two institutions alone. In this instance, conformity comes at too high a price.
James J. Kilpatrick is a syndicated columnist.