WASHINGTON -- A federal appeals court, voting to let Virginia Military Institute continue excluding women as cadets, gave governments broad new authority yesterday to set up separate and similar but not equal programs for men and women.
The 4th U.S. Circuit Court of Appeals in Richmond, Va., spelled out an apparently new theory of constitutional law on the treatment of the sexes, saying that government is not always required to give men and women equal opportunity to take part in public programs.
Public agencies, it ruled, need only provide "substantially comparable" benefits when physical or other differences between the sexes indicate there is value in separating them, because they would not derive the same benefit from a program opened to all.
"Two programs for two different classes of people," it commented, cannot be "identical," and the Constitution does not require that they be.
The ruling, if upheld by the Supreme Court, seems likely to have an impact on separate public programs in sports, health, public safety and perhaps military areas.
In the 2-1 ruling, the majority sharply rejected a dissenting judge's complaint that the decision endorsed a new "separate-but-equal" doctrine -- this one for the sexes. The Supreme Court struck down "separate-but-equal" public programs for the races in its school desegregation ruling in 1954.
The appeals court also rejected the Clinton administration's argument that since VMI provides a unique form of military education, women must be given an equal chance to take part in it.
VMI has admitted only men since it opened in 1839. It has 1,300 cadets, and this year is receiving about $10 million from the state.
VMI is one of two all-male military colleges. The other is The Citadel, in Charleston, S.C. A federal judge has ruled that The Citadel must admit a woman as a full-fledged cadet. That order has been blocked, however. The appeals court that issued yesterday's ruling on VMI will hold a hearing Monday on The Citadel's appeal.
The VMI case appears headed for the Supreme Court, giving the justices the option of fundamentally re-examining constitutional doctrine on sex equality -- something they have not done in 19 years. They also may settle the question of whether the sexes are entitled to as full a guarantee of equality as are the races.
Marcia Greenberger, co-president of the National Women's Law Center here, denounced the ruling, saying it would bring "such gross inequity" that the Supreme Court should strike it down, even without writing new constitutional rules on sex equality. The appeals court, she said, made "a mockery" of Supreme Court decisions going back to 1976 that give women more constitutional protection.
The Justice Department did not say immediately whether it would take the case on to the Supreme Court, although that step appears likely.
The appeals court said that military education in a physically demanding and sometimes punitive environment like the all-male one at VMI would not be suitable for both sexes.
The appeals court stopped short of upholding the constitutionality of plans by the state of Virginia to maintain VMI for male cadets while offering women who want "leadership education" with some military training a chance to attend a separate and new state-financed program at a private, all-women's college: Mary Baldwin College in Staunton.
Mary Baldwin's Virginia Women's Institute for Leadership is to open Aug. 23. It has accepted 15 students from among the 300 women who have shown interest. It plans a "charter" class of 25.