WASHINGTON -- Virginia Military Institute, battling to save its 154-year policy of keeping women out of its cadet ranks, lost a skirmish in the Supreme Court yesterday but vowed to fight on.
The justices left intact a lower court ruling that could mean the state of Virginia would have to set up a separate military college for women or cut VMI loose from state money and all state ties unless VMI starts admitting women.
VMI could end the siege in court that has surrounded its men-only policy for more than three years simply by choosing to become a private institution. But its legal fate may not be settled without one more trip to the Supreme Court.
Justice Antonin Scalia, in fact, all but invited the college to come back after another round in lower courts. No other justice joined in that comment. Justice Clarence Thomas, whose son, Jamal, is a sophomore at VMI, took no part in the court's action.
The college's main lawyer, Robert H. Patterson Jr. of Richmond, said the Supreme Court's action settles nothing about VMI's legal right to continue to exclude women, and added that VMI's commitment to single-sex education "remains undiminished."
VMI's public relations director, Lt. Col. Mike Strickler, said the college has no plans to switch to private status. "We will continue with the court proceedings," he said.
The Supreme Court issued only a brief order yesterday, so it is unclear whether the VMI case will make new constitutional law in the future on single-sex public colleges in general. VMI has been treated by the courts as if it were an unusual institution, offering an approach all its own to military education.
But the 4th U.S. Circuit Court of Appeals in Richmond ruled in October in the VMI case that it is unconstitutional sex bias for a state to operate or pay for a public college that offers a truly unique program and allows students of only one sex to attend.
Single-sex colleges, the Circuit Court said, would satisfy the Constitution if they were the only way to serve a significant state educational need. But it ruled that Virginia had offered no proof that it needed to have the unique program at VMI for men and not women.
2l Whatever happens ultimately to VMI could also apply to the nation's only other public college for men, the Citadel, a military institution in Charleston, S.C.
The Citadel is being sued for sex discrimination for refusing to accept female applicants.
It is unclear whether the two remaining public women's colleges, Texas Women's University in Denton and Douglass College in New Brunswick, N.J., will be forced to accept men or give up their links to state governments.
A federal judge, Jackson L. Kiser of Danville, Va., must decide what happens next to VMI in the sex bias case the federal government has been pursuing against it since early 1990.
The Circuit Court, while saying that VMI need not admit women in order to satisfy the state of Virginia's constitutional duties, did order the state to offer some alternative.
The court mentioned three options but said that Judge Kiser could offer more.
The three choices are to have VMI admit women and adjust its rigorous physical and mental disciplinary program to accommodate both sexes, to set up a parallel college or parallel programs elsewhere, or to "abandon state support of VMI."
VMI, which has produced some of the nation's top military leaders and many leading figures in U.S. business life, takes a break-down-the-will approach of every student who enters so that it can remold each into a future "citizen-soldier." It allows no students to have privacy and subjects all to a harsh code of behavior.
The Justice Department sued VMI in early 1990, contending that the single-sex approach was a violation of constitutional guarantees of equality.
The department recently joined in pending cases against the Citadel to make a similar argument.