Gender Discrimination

U. S. v. Virginia (1996) Changes the Prevailing Doctrine

What the case is about . . .

Precedents and VMI

VMI

J.E.B. Hogan Craig ?

“Exceedingly Persuasive Justification”

Traditional Intermediate

Scrutiny

The Doctrinal Heart of VMI: EPJ

EPJ is at beginning of Court’s analysis, in its conclusion sentences, and appears 9 times

Cf.: traditional intermediate scrutiny language: Craig not cited; language appears only twice.

Elements of EPJReason for discriminating must be

exceedingly persuasive.Reason must be the actual reason, not

made up after the fact or in litigation.Burden of proof is on the government.Means must be substantially related to

achieving the reason.

Application of EPJ doctrine to VMIVA ‘s goal of diversity: post hoc; not the

reason VMI was established as a single-sex school.

VA’s goal of keeping the adversative method: Ct. just rejects the conclusion that presence of women would end the adversative method. Fact-finder found otherwise!

VWIL (Remedy) Is Inadequate Alternative for Women No opportunity for

women to experience rigorous military training.

VWIL is not military No “feeling of

tremendous accomplishment”

Courses, faculty, and facilities are not comparable to VMI

Post-graduation opportunities not comparable

Some say single-sex schools for true diversity of educational opportunity in a state will be constitutional.

Some say it is the end for single-sex schools (higher education).

What does this mean for single-sex education?