WASHINGTON -- The Supreme Court, taking on its most significant sex equality case in nearly two decades, agreed yesterday to settle the simmering constitutional dispute over the ban on women at Virginia Military Institute.
The case appears to test whether "separate but equal" public education is as unconstitutional for women as it has been for blacks since the ruling in Brown vs. Board of Education in 1954.
VMI, a prestigious military college in Lexington, Va., that is partly financed with state money, has allowed only men to enter during its 156-year existence. Rather than admit women, VMI and state officials have set up a separate leadership institute at all-women Mary Baldwin College in Staunton, Va.
The case before the court tests both the constitutionality of that alternative, as well as the basic question of VMI's right to allow only men to enter. The Clinton administration, the state of Virginia and VMI took the dispute to the Supreme Court after a lower court allowed VMI to keep out women, but only on the condition that a separate program be set up for them.
The nation's other men-only military college, The Citadel in Charleston, S.C., is awaiting Supreme Court action on a separate case.
The cases have the potential for producing a new, and tougher, constitutional standard for judging sex discrimination by government institutions.
For 19 years, the court has had higher tolerance of different government treatment based on sex than the tolerance shown when races are treated differently.
But that may not be the last word on the subject, and one justice -- Ruth Bader Ginsburg -- has hinted broadly that she wants the court to consider expanding constitutional protection for women. Women's rights advocates have urged the court to use the VMI case or The Citadel case for such an expansion.
When the court takes up the VMI case again, at a hearing likely to be in January, only eight justices will be reviewing it. Justice Clarence Thomas, whose son, Jamal, is a senior cadet at VMI, disqualified himself from the case.
That raised at least the possibility of a 4-4 split in the court. If that should happen, the result would set no precedent, although it would allow VMI for the time being to remain a male-only institution.
The court might then simply move on to review The Citadel case and deal with the same constitutional questions; the answers then would apply to VMI's situation, too.
There is no indication that Mr. Thomas would stay out of The Citadel's case.
The Citadel case has been complicated by Shannon R. Faulkner's admission under court order as a cadet, and then her withdrawal less than a week later. Her lawyers are seeking either to keep her involved in the case, since she might someday want to apply there again, or to have a North Carolina high school senior, Nancy Mellette, stand in for her to keep the case going.
Even if the court does strengthen sex equality under the Constitution in one or the other of the military college cases, that would not necessarily mean the end of all single-sex colleges in the nation. Most such colleges are private, and thus the Constitution's demand for equality in government action does not generally apply to them.
Moreover, the court may be willing to allow some single-sex colleges that get state or federal money to remain sex-segregated, if they do not offer unique programs that the excluded sex could get nowhere else, or if they prove they had some basis for their program not based on traditional views of women's or men's limitations as a group.
There are 1,300 cadets at VMI and more than 2,000 at The Citadel. About 8,000 cadets are at private, all-male schools.
The court has not ruled on single-sex education in public schools or colleges since 1982, when Justice Sandra Day O'Connor -- then in her first term on the court -- wrote a decision that said any such program based on biased notions about the capacity XTC of men or women would likely be struck down as unconstitutional.