United States v. Virginia – Oral Argument – January 17, 1996

Media for United States v. Virginia

Audio Transcription for Opinion Announcement – June 26, 1996 in United States v. Virginia

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William H. Rehnquist:

We’ll hear argument first this morning in Number 94-1941, United States v. Virginia, and Virginia v. United States.

Mr. Bender.

Paul Bender:

Thank you, Mr. Chief Justice, and may it please the Court–

VMI, the Virginia Military Institute, was established by the Commonwealth of Virginia in 1839 as a State college for young men between the ages of 16 and 25.

Initially, its students were cadets who were assigned to guard the State militia arsenal in Lexington, Virginia, where VMI is located.

VMI since that time has remained a State institution and in 1989-’90, for example, it contributed, the State contributed about $10 million to VMI’s operating budget, that’s about 35 percent of the budget, and the Board of Visitors of VMI, which decides things like its admissions policy, is appointed by the Governor and confirmed by the legislature.

Although it has remained a State institution in that way it has also, at the same time, enormously broadened its educational mission so that it’s no longer just a place to produce cadets for the military.

Indeed, today only about 15 percent of VMI graduates enter the military.

VMI graduates enter the professions, law, medicine, engineering quite a lot, public service quite a lot.

While restricting VMI to men might have been inevitable, indeed required at the time VMI was initially established because the military at that time was all male, as VMI’s mission has broadened that’s obviously no longer true.

VMI nevertheless has continued only to admit men, and continues only to admit men until this day.

During the 150 years or more of VMI’s existence, it has developed what everyone concedes is a unique, adversative method of education.

It is… was developed in an all male context, and it is stereotypically a male form of education.

It emphasizes adversity, it emphasizes competition, it emphasizes standing up to stress, it emphasizes the development of strong character in the face of adversity, of self reliance, of self confidence.

The VMI degree has, through that unique method, become a very valuable asset in two ways, I think.

First of all, it demonstrates that the person who has the degree has succeeded in a highly adversative environment.

Many people value that when looking for leaders and looking for people to hire.

Anthony M. Kennedy:

As you read the findings of the district court and the assessment of those findings in the court of appeals, what is your understanding of those courts’ conclusions as to the extent to which the adversative method would be altered and affected by the admission of women?

Paul Bender:

I think there’s general agreement on what would have to be changed by the admission of women in physical terms.

I think there isn’t agreement about how to characterize that.

For example–

Anthony M. Kennedy:

There is not?

Paul Bender:

–There is not agreement about how to characterize the change.

I think the main… there is, for example, general agreement that for privacy reasons, if women were admitted to VMI there would have to be an opportunity for women and men to go to the toilet, to shower, to dress, without being seen by members of the opposite sex.

Anthony M. Kennedy:

Do we have the institutional competence at this level and are we required in order to decide this case to make our own assessment of the extent to which the adversative method a) would change and b) whether that change would be detrimental to the school?

Paul Bender:

No.

Anthony M. Kennedy:

Is it for us to decide?

Paul Bender:

No, I don’t think that’s necessary in this case.

As you say, another change that is said would have to occur is a change in the adversative method, and that is something that I don’t think is true, and that you can only reach that conclusion that a change would have to be in the adversative method by accepting certain stereotypical characterizations of men and women.

Antonin Scalia:

Didn’t both of the lower courts make that finding, that the effect of admitting women would be to destroy the adversative method?

Paul Bender:

Yes.

I–

Antonin Scalia:

Now, you say that’s wrong, but both of the lower courts found that, didn’t they?

Paul Bender:

–They… that finding was based entirely on a stereotypical view of women and men which says that women… men cannot administer the adversative method to women, women would not be able to survive with the adversative method.

Antonin Scalia:

It was not based on expert testimony?

Paul Bender:

Expert testimony was in turn based on–

Antonin Scalia:

But it was–

Paul Bender:

–exactly those characterizations.

Antonin Scalia:

–I see.

All of these experts are… can be dismissed as stereotypical.

Paul Bender:

No, they can’t be dismissed as stereotypical, Justice Scalia.

Antonin Scalia:

What does stereotypical mean?

When anybody comes out and says something that is what?

What makes it stereotypical?

Paul Bender:

It means what the experts really said, which is not that all women can’t do this, but that most women can’t do this, and we are willing to accept the finding that most women can’t do this.

The question in this case is whether, because most women can’t do it, you are constitutionally… the State is constitutionally entitled to exclude all women–

Antonin Scalia:

As I recall the experts–

Paul Bender:

–even those women who can.

Antonin Scalia:

–it was not that women can’t do it, it was that it would interfere with the kind of relationship among the students that produces the adversative method, that men and women would not engage in the same kind of adversariness that men and men or, perhaps, women and women would, that the sexual difference would make a difference.

It has nothing to do with whether women can take the heat.

That’s not what the experts testified to.

Paul Bender:

It has to do with whether men will perceive that women can take the heat.

That’s right.

Paul Bender:

Well, I don’t think, just as in the area of race–

Antonin Scalia:

And is that stereotypical, too?

Paul Bender:

–Just as in the area of race, an institution would not be able to remain uniracial by saying, if you let black people into VMI, white students would not feel comfortable in applying the adversative method to them, or the other way around, if you let white students into an all black institution that has an adversative method, black people will not feel comfortable in applying the adversative method to them.

Ruth Bader Ginsburg:

Mr. Bender–

Paul Bender:

Just as that cannot be used, this can’t.

Excuse me.

Ruth Bader Ginsburg:

–It’s a predictive thing, isn’t it?

Ruth Bader Ginsburg:

It’s never been tried, so these are opinions of what might be.

Paul Bender:

What I’m saying is that even if you accept them as opinions of what might be, 1) that they are not opinions that are universal… no one could say that men universally would not be able to use the adversative method on women, and to me more fundamentally it rests upon men having a certain perception of what women are capable of.

Anthony M. Kennedy:

And do you want us to make that predictive judgment?

Paul Bender:

No.

Anthony M. Kennedy:

As… to the extent we’re talking about the remedy, I suppose we’d have a certain leeway to do that.

Paul Bender:

I don’t want you to make the predictive judgment.

I think what this Court is called upon to decide is whether a State institution can model its program and its exclusion of women on the assumption that there are certain things that women can’t do in general, there are certain things that men will not do with women because those men think that women are not capable of that, can model its institution and its educational method on the notion that this educational method, developed by men, emphasizing what they think of as manly qualities, is a place that women can’t go, so that women cannot demonstrate that they have the same qualities.

Antonin Scalia:

Can it model it on the assumption that many experts testified to that single sex education has certain advantages–

Paul Bender:

Yes.

Antonin Scalia:

–for at least some men and for at least some women?

Can it model it on that?

Paul Bender:

They can model their institutions on that with regard to single sex education.

Antonin Scalia:

Well, why isn’t that alone enough to support this, then?

Never mind the military, never mind the adversariness, it’s a men’s college.

Paul Bender:

Because, Justice Scalia, in this case what we have is not simply a single sex institution for men and a single sex institution for women that are equal in their treatment of their students, in their objectives, in their feelings about men’s and women’s capabilities.

What we have here is a single sex institution for men that’s designed as a place to teach manly values that only men can learn, to show that men can suffer adversity and succeed, and a single sex institution for women–

Antonin Scalia:

I don’t understand–

Paul Bender:

–that is openly, expressly, deliberately designed to teach to women womanly values, feminine values.

Antonin Scalia:

–Mr.–

–I don’t understand that.

You’re not challenging, then, the ability of a State to run a single sex college.

That is not part of your argument.

Paul Bender:

No, we are not challenging… we are not… it may be difficult–

Antonin Scalia:

What it says here is that it’s a single sex military adversarial college, is that–

Paul Bender:

–That one is that, and that the other is quite a different thing which teaches different values and which teaches different capabilities in the students.

In thinking about this case, Justice Scalia–

Sandra Day O’Connor:

–Well, Mr. Bender, we have two separate questions, I think, one whether the original finding of the lower courts that there was an equal protection violation here of the Constitution for Virginia to have VMI but no comparable program for women, whether that was a correct determination and, secondly, I think we have to decide whether Virginia’s proposed remedy of the development of the Mary Baldwin College program is constitutionally adequate as a remedy.

And the discussion thus far doesn’t really direct us to either of those questions, and I notice that in your brief the Solicitor General urges the Court to adopt the highest standard of strict scrutiny to decide this case.

Does your case depend on that?

Paul Bender:

–No.

Sandra Day O’Connor:

Can it be decided, as the lower courts did, on the basis of intermediate scrutiny–

Paul Bender:

Yes.

Sandra Day O’Connor:

–as the Court has done in the past?

Paul Bender:

Yes, absolutely.

Sandra Day O’Connor:

Well, why is this case singled out, then, for urging us to adopt some different standard?

What advantage is there–

Paul Bender:

The Court–

Sandra Day O’Connor:

–to that?

Paul Bender:

–Justice O’Connor, the Court has said repeatedly, I think on five different occasions over the last 10 years or so, that the question of the standard to be applied to gender discrimination is an open question, and so we thought that the question might come up of asking us what we thought the right standard is.

Sandra Day O’Connor:

Well, it’s not exactly an open question in the sense that the Court has decided a number of cases.

Paul Bender:

Well, whether… whether… the Court has decided–

Sandra Day O’Connor:

Applying a sort of intermediate scrutiny.

Paul Bender:

–Right.

Sandra Day O’Connor:

And if you look at Mississippi University for Women v. Hogan, the Court certainly tried to articulate a standard.

William H. Rehnquist:

And Craig v. Boren–

Paul Bender:

That did not–

William H. Rehnquist:

–they said that was the standard.

Paul Bender:

–That’s right, but since then the Court has said–

William H. Rehnquist:

Well, why do you say it’s an open question?

Paul Bender:

–The Court has said it’s an open question whether there should be a higher level of scrutiny.

Anthony M. Kennedy:

Well, it seems to me–

Paul Bender:

The Court has never found it necessary–

Anthony M. Kennedy:

–not only, Mr. Bender, is there some doubt as to whether or not it’s an open question, it seems to me that strict scrutiny is inconsistent with what I thought you told Justice Scalia, and I’d like to explore with you for just a moment that you say there are certain values to single sex schools, say at the… let’s talk about the secondary level for a moment.

Is it unreasonable for parents to choose a single sex school for a high school–

Paul Bender:

–No.

Anthony M. Kennedy:

–girl or a high school boy?

Paul Bender:

No, it is not.

The–

Anthony M. Kennedy:

But how does that comport with strict scrutiny, then?

Paul Bender:

–You… assuming that you can have single sex education that represents an equal opportunity to both sexes, I don’t think that you can have single sex education that offers to men a stereotypical view of this is what men do.

Paul Bender:

This is a profession that men go into.

Ruth Bader Ginsburg:

Mr. Bender–

Anthony M. Kennedy:

–But how does the first part of your statement square with your urging strict scrutiny?

How can single sex high schools, say, comply with the doctrine of… the rule of strict scrutiny?

I just don’t think they can.

Paul Bender:

Well, I think there are two questions with regard to the extent of the strict scrutiny doctrine.

Our submission here is that in the kind of discrimination that occurs in this case, which is offering a distinctly different opportunity to men and women based on their gender alone, should be subject to strict scrutiny.

I think in the gender area, unlike the race area, the Court… there’s a question the Court needs to decide before deciding whether all gender classifications would be subject to strict scrutiny.

In the race area, the Court has made the decision that racial classification, racial separation is inherently unequal.

The Court has never faced that question except in the Vorchheimer case, which was affirmed by four to four as to whether the same thing is true in the gender area.

Antonin Scalia:

Now, wait a minute.

I don’t understand what you’re saying.

You’re… you started by saying that single sex schools would be okay so long as you’re not depriving anybody of, you know, essentially the same things, but then you say that you may be depriving somebody of essentially the same things if you don’t let a woman go to a man’s school or a man go to a woman’s school.

Is that what you’re–

Paul Bender:

No, that’s not what I’m saying.

Antonin Scalia:

–You’re depriving, certainly, the woman of a men’s school education, or the man of a woman’s school.

Is that enough of a–

Paul Bender:

No.

Antonin Scalia:

–That is not–

Paul Bender:

You’re giving them each the same.

what you can’t do, Justice Scalia, is say we’re going to have a single sex school for men which is the engineering school, and it’s the only engineering school we have–

Ruth Bader Ginsburg:

–Mr. Bender–

Paul Bender:

–and we’re going to have a single sex school for women which is a nursing school.

Ruth Bader Ginsburg:

–may I ask you specifically with respect to this case, do you have any quarrel with Judge Phillips, who said in dissent that if we were starting from scratch we could have in this area what we couldn’t have in the race area, that is, genuine freedom of choice plan, where you would have a VMI for both sexes, and you would have a military academy for men and a military academy for women, and we’re starting them all on the same day, and they all have equal funding and equal engineering and math programs.

Would that be constitutional?

Paul Bender:

We have no problem with that.

Ruth Bader Ginsburg:

Then why doesn’t–

Paul Bender:

If they’re equal.

Ruth Bader Ginsburg:

–this… we have VPI, which as I understand it is coeducational, and we have VWIL, which is one sex, and VMI, which is the other sex.

Why doesn’t that fit–

Paul Bender:

Because they are enormously different programs, in two ways.

One, the nature of the program is different.

None of those other institutions, VPI or VWIL, have the adversative method that VMI has developed as a way of testing one’s ability to survive adversity.

Ruth Bader Ginsburg:

–In terms of opportunity, is that what the concentration is on when the Government is urging that VMI admit people of both sexes?

Is it the adversative method that’s the key?

Paul Bender:

It is two things, it is the adversative method, and it is the value of having the VMI degree as a mark of your ability to survive that program as a member of the, up until now, brotherhood of VMI graduates.

The VMI degree means a lot.

It means you’ve survived the system.

VMI has developed a reputation for producing tough leaders.

What this system does is preclude women from getting that–

William H. Rehnquist:

Mr. Bender–

Paul Bender:

–qualification.

William H. Rehnquist:

–supposing, as Justice Ginsburg’s hypothesis, we were starting from scratch, or Virginia was starting, and they opened VMI for men and a VMI for women, and 200 men signed up to go to the VMI for men, and 10 women signed up to go to the VMI for women, would the State be justified in saying we just… there’s just not enough demand for the VMI for women?

Paul Bender:

It might be justified in saying that, but then I think it would have to permit the women and the men to go to the same… that is, they couldn’t vindicate their single sex education interest in that context.

David H. Souter:

Well, would that be–

Paul Bender:

The single sex education interest–

David H. Souter:

–Would that be true… would that be true if there were no implication of inferiority?

Doesn’t… isn’t the, sort of the essential part of your case the assumption that everybody… certainly that you were making.

I guess your opponents are not… that the fact that the course is not offered, the adversity training is not offered, is in the real world in which we live an indication of an implicit judgment of inferiority.

If there were no implicit judgment of inferiority, if we were sort of starting on the world’s first morning, your answer might be different, wouldn’t it?

Paul Bender:

–Right.

I… that’s right, Justice Souter.

I may have misspoke, or miscommunicated in answering Chief Justice Rehnquist’s question.

I was assuming his question was of a VMI like VMI and a VWIL like VWIL, that is, a VWIL program that didn’t have the adversative method, that was premised, as VWIL is explicitly premised in its planning documents, on the statement that women cannot handle, most women cannot handle–

David H. Souter:

But–

Paul Bender:

–that method.

David H. Souter:

–But… right–

Paul Bender:

Then it’s–

David H. Souter:

–But if we were starting sort of at square 1, and the college for men did not offer a course in home economics and the college for women did not offer adversative training, if there were no reason in that kind of a world to assume that there was an implication of inferiority either against men or against women, you would not make an Equal Protection claim.

Paul Bender:

–Right.

Paul Bender:

I think it’s very hard… I agree completely.

It’s very hard to prejudge how such a system would work out.

Before the court makes a judgment about whether a particular system like that would be valid, I think it’s really important to see the system, to see what the State’s reasons are for setting it up, to see what the differences are, in order to see whether there is this explicit, as here, or implicit assertion that women are not suitable for certain things.

Sandra Day O’Connor:

Mr. Bender–

–Well, Mr. Bender, if VMI were to establish a separate program for women students within VMI, a separate dormitory, and provide adversative training for women but somehow have two parallel tracks, but the degree would be a degree from VMI, would the Government be pressing its case against VMI?

Paul Bender:

It would depend, I think, Justice O’Connor, on whether the separate programs were simply women sleeping in some room set aside for women but still having the barracks experience which is central to the VMI–

Sandra Day O’Connor:

The same, the same thing, just–

Paul Bender:

–No, we would not.

Sandra Day O’Connor:

–like the men have, but–

Paul Bender:

In fact, we assume–

Sandra Day O’Connor:

–they have their own separate track here.

I mean, their… in their–

Paul Bender:

–Well, when you say their own separate track, I–

Sandra Day O’Connor:

–They have a separate dormitory, and they have their own adversative training, just as tough, just as mean.

Paul Bender:

–No, that I don’t think–

[Laughter]

That I don’t think would work, because the thing that women, the opportunity that women are not given in Virginia is to show that they can do it on a level with men.

Sandra Day O’Connor:

Oh, but just the same, the same requirements, and they get a degree from VMI.

Paul Bender:

But it’s not with men.

I think one of the powerful things that’s going on here by excluding women from VMI is the message that women cannot compete in an–

Antonin Scalia:

I thought you said they could do it in a separate institution.

I thought you said before if they had a fully adversative experience in a totally separate institution, that would be okay.

Paul Bender:

–If, as Justice Souter says, it doesn’t express a State notion of inferiority of women, and I think that, coupled with the history of VMI, that men have developed this adversative method, to then say that women are not going to be permitted to show that they can succeed in that same environ… in thinking about this case, Justice Scalia–

Antonin Scalia:

What is your basis for saying that the committee that set up this alternative institution, VWIL, decided not to have the same adversative method that VMI has because it thought women couldn’t handle it, as opposed to the fact, which is what they said, that they thought not enough women would be interested in it?

Paul Bender:

–They said that it would not be appropriate–

Antonin Scalia:

Which is not at all denigrating.

It shows to my mind that they’re pretty smart.

Paul Bender:

–The planning documents–

–says that it’s not appropriate for most women.

Our point is not… we don’t quarrel with, because I think it’s unknowable, whether it’s appropriate for most women or not most women.

Paul Bender:

Our point is that it is inappropriate to say to a particular woman who says I want that training, you can’t have it solely because you’re a woman.

In thinking about this case, Justice Scalia, I’ve tried to relate it, as we’re all trying to relate it to our own situations and things we’re familiar with.

I’ve tried to relate it to something that I’ve had some experience with, which is legal education.

And I thought, what if a State set up a State law school in 1839, all for men, because at that time only men could be lawyers, and over 150 years it developed an extremely adversative method of legal education, the toughest kind of Socratic teaching, tremendous time pressures, tremendous pressures in exams, tremendous combativeness by the faculty, tremendous competitiveness among the students, and developed a reputation for that.

And the graduates of that school… and it was a place that was known as hard to succeed at, and a third or so of the people flunked out in the first year, and the graduates of that school who survived that process became known as expert leading lawyers and judges in that State and Nationwide.

And then as women came into the legal profession and started to apply to the school, to ask it to change its admission policy, the school made a judgment that most women really wouldn’t be comfortable in this environment, and the faculty would have trouble cross examining them in the same way they cross examine women, and other students would have difficulty relating to them in the same competitive way, and so it’s better not to let women into the school.

What we’ll do is, we’ll set up a new women’s law school, and it won’t have the tough Socratic method, it will have a much warmer, a much more embracing environment, and it won’t have large classes with a lot of pressure, it will have seminars, and it won’t have tough exams, it will have papers, and things like that–

[Laughter]

–and every woman has to go to that law school, and no man can, and no woman can go to the old law school.

I think we all understand that that is not by any means equal treatment of women with regard to their access to the legal profession.

Antonin Scalia:

It depends on whether, in fact, those findings that the law school would be destroyed, that its… in the hypothetical you pose, those findings are obviously absurd.

Those findings are not absurd in the context of VMI.

Paul Bender:

I disagree with that.

Antonin Scalia:

That it would destroy the nature of the institution.

Paul Bender:

We disagree with that, and I’d like to turn to that if possible.

I think the principal basis for the State’s and VMI’s assertion that it would destroy VMI to permit women to come in is the finding which we have mentioned before that the adversative method is unsuitable to women, and therefore we couldn’t continue to use the adversative method at VMI.

John Paul Stevens:

No, Mr. Bender, I think the toughest finding is the one that says if you allow women in, you won’t be able to have the same success with the adversative method, and therefore women can’t get what they seek.

That’s the thing that was the hang up for the court of appeals.

Paul Bender:

I don’t think you can say that no woman will be successful with the adversative–

John Paul Stevens:

No, it isn’t whether it will be successful.

The point of the finding that the… I’m wondering if you agree with the court of appeals construction of the district court finding that, in concluding if they were to require the admission of women, so forth and so on, the very opportunity they sought, because it would not be available to them because the characteristics of the institution would be different, and what’s your response to that finding?

Paul Bender:

–My response is the characteristics of the institution would not have to be different if women were admitted.

John Paul Stevens:

Are you saying, then, that the court of appeals misconstrued the district court’s findings, or that the district court’s findings were clearly erroneous?

Paul Bender:

They are clearly erroneous insofar as they have made a decision that it would be impossible to carry on the adversative method with women in the institution.

I think the reason they’re clearly erroneous is because that finding, it can only be based upon an overgeneralization that women would not be able to deal with it–

Ruth Bader Ginsburg:

Mr. Bender–

Paul Bender:

–or that the men would have such respect for women that they wouldn’t do that.

I don’t think… I don’t think that a State is entitled to–

Ruth Bader Ginsburg:

–Mr. Bender, one brief… the women in the military made a point that I didn’t notice the Government making, and I’m wondering what your position is on it, and that concentration was on the men, not the women, and the point was that if women are to be leaders in life and in the military, then men have got to become accustomed to taking commands from women, and men won’t become accustomed to that if women aren’t let in.

Paul Bender:

–And I think that’s true not only in the military but it’s true in the professions, it’s true in corporate leadership.

Paul Bender:

I don’t think, Justice Scalia, that–

Antonin Scalia:

You can’t have any male schools, I guess, because… right?

Paul Bender:

–I think you can have male schools.

I don’t think you can have male schools that are fundamentally different in their educational approach–

David H. Souter:

Well, Mr.–

Paul Bender:

–that only males can go to.

David H. Souter:

–Mr. Bender, does the Government’s case turn on the degree of modification or change that the admission of women would make to this adversative method, or does the Government’s case essentially turn on the… on a more complex analysis, and that is the degree to which the present adversative method can be said to be essential to some different kind of leadership training than is produced in, say, West Point or Annapolis, that don’t have these things?

Because I was assuming, and I guess I’m handing you something, and maybe you will not want it, but I was assuming that even if we say, yes, the adversative method is going to be modified in some obvious respects if women come in, that that’s not the end of the issue.

The issue is, does that destroy the capacity of VMI to produce a distinctive kind of leader that nobody else is producing by another method?

Is that latter way the way you look at it?

Paul Bender:

We… yes.

We look at it both ways.

I don’t think you can assume that the adversative method would have to be changed, but even if you assume that the adversative method would have to be changed, unless the adversative method is essential to what the ultimate objective of the institution is, producing citizen soldiers, then the State has to make that change in the adversative method in order to accommodate women in that citizen soldier program.

I’d like to reserve the rest of my time.

William H. Rehnquist:

Very well, Mr. Bender.

Mr. Olson, we’ll hear from you.

Theodore B. Olson:

Mr. Chief Justice, and may it please the Court–

Although the Government has tried virtually everything in its power to deny it, this case involves the inescapable central question of whether the States can support single sex education.

While 98 percent of Virginia’s higher educational resources go into coeducation, educators are virtually united, both the Government’s experts and the experts for the respondents, that many young men and young women significantly benefit from a single sex education.

John Paul Stevens:

Mr. Olson, may I ask you right there a question that has troubled me right along about this argument?

I assume there are all sorts of people who would like single sex education but who would not like to go through the adversative method.

Theodore B. Olson:

Yes.

John Paul Stevens:

What does Virginia do for them?

Theodore B. Olson:

Well, what Virginia has done is devote 98 percent of its educational resources to single… to coeducation, and it’s created two single sex education programs–

John Paul Stevens:

But what does it do for the male who wants to go to an all male school but not VMI?

Theodore B. Olson:

–Well, the problem, Justice Stevens, is that you cannot create a school without an adequate student body, and resources are limited, and the Government’s–

John Paul Stevens:

Are you then saying there are fewer males who want single sex education… most of those would like the VMI program rather than a less–

Theodore B. Olson:

–What I’m saying is, Virginia has allocated a certain amount of its scarce educational resources to single sex education.

It has turned to experts in education–

John Paul Stevens:

–Yes, but if most people who want single sex education don’t want VMI, it’s discriminating against them.

Theodore B. Olson:

–I think that what the judge… unless… as long as the State is going to be permitted to have single sex education at all, then it must turn over to experts in education the best method, to divine the best method that would succeed for the young men or the young women that seek out and would benefit from single sex education.

That is what Virginia has done.

This system that VMI has developed works well for young men.

The experts–

John Paul Stevens:

It doesn’t help the young man who doesn’t want the adversative method at all.

Theodore B. Olson:

–That’s correct.

John Paul Stevens:

And I would assume that most men who want single sex education don’t want the rigorous training.

Theodore B. Olson:

Well, I… the marketplace in part comes into play here, and the fact that resources are limited.

Virginia could not create a single sex educational school for young men that wanted an adversative system and a single sex education for young men who wanted a less than a co… adversative system.

Ruth Bader Ginsburg:

But Mr. Olson, didn’t–

–Why not?

Wasn’t that what Virginia in fact had until 1972?

It had the Charlottesville facility virtually reserved to men.

The curiosity is that you are defending single sex education when Virginia itself abandoned single sex education in all schools but one.

Theodore B. Olson:

The… there were a number of women’s only public schools in Virginia that chose themselves to go to coeducation because of the demands that occurred and that the trends that were away in the seventies–

Ruth Bader Ginsburg:

Demands from whom?

Theodore B. Olson:

–The trends that were away from single sex education.

The fact is that a growing body of experts throughout the country are… continue to develop the belief that single sex education is valuable for some young people.

Sandra Day O’Connor:

But Mr. Olson–

Theodore B. Olson:

There’s no stereotypes.

Sandra Day O’Connor:

–We get back to the posture of this case, and one issue we have to decide is whether Virginia can provide single sex education to just one sex, to just men.

That’s one of these cases, isn’t it?

Theodore B. Olson:

It… well–

Sandra Day O’Connor:

And you want to defend that.

Theodore B. Olson:

–Well–

Sandra Day O’Connor:

You want to say it is not a violation of the Constitution to provide a single sex education just for men.

Theodore B. Olson:

–It was the posture–

Sandra Day O’Connor:

Well, isn’t that right?

Theodore B. Olson:

–It is the posture of this–

Sandra Day O’Connor:

I mean, that’s one of the cases we have before us.

Theodore B. Olson:

–That’s correct, Justice O’Connor, and the point at which time that liability decision comes up is a point at which Virginia is providing public resources, pursuant to two constitutional amendments, to private schools.

Five private schools in Virginia provide single sex education for women, and the State of Virginia is supporting those programs at that time, and there is not a sufficient demand at that point in time to create a separate institution.

Now, Virginia is nonetheless, despite the fact that it feels that that program is defensible, because when the States choose to develop and finance a program that is for the benefit of people of one gender, it doesn’t necessarily have to create the exact program for the other gender if there isn’t a sufficient demand or need for it.

Sandra Day O’Connor:

Well, I guess that gets us into the second question, which is remedy.

Theodore B. Olson:

Yes, it does, and there are essentially three choices here.

What Virginia has chosen to do is to provide single sex education designed by experts to serve the people who need and want and would benefit from single sex–

Ruth Bader Ginsburg:

Mr. Olson, just to clarify, Virginia didn’t choose to do that, because you are, as Justice O’Connor pointed out, defending keeping things just as they were.

You’re defending the judgment that you wanted to get, which is VMI for all males, and no public program for women.

Theodore B. Olson:

–But at the time of that liability decision, Virginia had a choice to make.

Virginia made the choice to create a remedy in response to the liability decision, and then Virginia had three choices.

As I–

Ruth Bader Ginsburg:

So are we… is that first judge… your brief, the cross appeal, do we take that as being moot?

Theodore B. Olson:

–No, it is not moot.

We are defending that position.

What we are saying, however, because Justice O’Connor has asked the question, an entirely appropriate question, suppose you are not successful on that point, and suppose that the court of appeals was correct and that there must be a remedy, what should that remedy be?

We are saying that the State of Virginia, or the Commonwealth of Virginia had three choices.

It could eliminate single sex education at all, altogether, by allowing men… by allowing women into VMI, and I will come back to this point, but that would change the system at VMI, and there wouldn’t be single sex education.

In other words, it would deprive both men and women of the benefit of single sex education.

Or it could have created an absolutely identical institution like VMI or at VWIL or at some other place, maybe even at VMI, but the fact is that the… we… the State of Virginia put that decision in the hands of experts, how best to design the program.

The experts–

Ruth Bader Ginsburg:

But why are those the only choices?

One choice might be… I think you said in your brief that the State is committed to VWIL and that you will have that… even if you emerge a total winner you’re going to still defend that program.

Theodore B. Olson:

–Yes.

Ruth Bader Ginsburg:

You could have that program at Mary Baldwin.

Mary Baldwin will continue to exist even if VMI either goes private or admits women.

You could still support the program that you’ve just now instituted.

Theodore B. Olson:

Well, if VMI went private, then the State of Virginia would no longer be supporting through its public resources in the same way single sex education for young men.

If single sex education is only available through private schools, it’s only available to the wealthy, the people who can afford it, and there are findings in the record here that people that benefit the most from and derive the most benefit from single sex education are people that are not in the upper income strata.

Ruth Bader Ginsburg:

But couldn’t you continue with VWIL no matter what?

I mean in the interest of diversity, in creating citizen soldiers, leaders–

Theodore B. Olson:

If–

Ruth Bader Ginsburg:

–creating more women who have that capacity, couldn’t you continue VWIL?

Theodore B. Olson:

–You could continue it with… well, I submit that if this Court decides that the VMI program is unconstitutional because it’s unique and has its own tradition and faculty and that sort of thing, then a single sex program that denies men the opportunity to participate in that program will be held unconstitutional on exactly the same grounds.

What Virginia has attempted to do is if it has accepted–

Ruth Bader Ginsburg:

I don’t understand that, because you set yourself at a… you’re assisting a program at a private school for the reason of promoting diversity, is that not so?

Theodore B. Olson:

–The effort is, by Virginia is to promote diversity by creating opportunities in a very, very large coeducational system for people of both sexes to make the choice of single sex education.

William H. Rehnquist:

Well, Mr. Olson, when this lawsuit was brought Virginia funded VMI.

Did it fund any single sex school for women?

Theodore B. Olson:

Yes.

Well, it provided tuition assistance grants to the five single sex colleges for women.

William H. Rehnquist:

And what percent of a student’s expenses in that case would be covered?

Theodore B. Olson:

I’m not sure that the record is completely clear, but the single sex institutions for women in Virginia derive something… I believe the record indicates something between 5 and 10 percent of their resources from either the Federal Government or the State government, plus there’s the factor that the Federal Government and the State government provide tax deductions–

William H. Rehnquist:

Well, I know, but what I’m trying to get at is, is the assistance that is provided by Virginia to these private schools comparable in dollar amount to the assistance that is provided to VMI?

Theodore B. Olson:

–It was smaller in total amounts.

The amount coming from the State of Virginia itself, if you eliminate Federal assistance–

William H. Rehnquist:

Yes.

Theodore B. Olson:

–that was going to those programs, it was smaller than the amount by which Virginia supported VMI.

VMI on an annual basis gets, as Mr. Bender pointed out, about 9… he said 10, but I believe the figure is closer to $9 million, which is about 30 percent of VMI’s revenues, resources per year.

The bulk of VMI’s resources per year on an operating basis come from students in the form of tuition, or from other sources.

Thirty percent comes from the Commonwealth of Virginia.

Our point, with respect to the remedy, and I would–

David H. Souter:

May I ask you one more question about liability?

I think this is implicit in what you’re saying, but I don’t want to make a mistake.

I understand that you’re defending VMI’s position on liability essentially by arguing the basis… by arguing that the combination of single sex education and adversative method is sufficiently valuable to be the State interest, the important State interest which justifies what it’s doing.

I do not understand you to be arguing that this combination of single sex education and adversative method is somehow essential to the accomplishment of the broader objective of producing a distinctive kind of leader who can be distinguished, for example, from the sort of leaders that West Point produces and Annapolis produces.

Am I right that your justification on liability ultimately is, this is a good way to educate people, as distinct from, we are producing a kind of leader who could not otherwise be produced?

Theodore B. Olson:

–I… if I understand your question correctly, I agree with you, and let me restate it as I understand it.

What Virginia has decided, and the experts, both the Government’s experts and the private experts agree, that single sex education is valuable for some young people of both sexes, and there’s no stereotypes whatsoever made in that conclusion.

And so then Virginia has decided that as a matter of education… and this Court has said that the most important function that a State can perform is educating its young citizens.

Now, as a matter of educating its young citizens and performing that important governmental function, single sex education should be an important part of that.

Theodore B. Olson:

Virginia has turned the creation, the design, and the operation of those programs over to the people who have spent their entire life deciding how best to educate young people, and–

Ruth Bader Ginsburg:

But Mr. Olson, how do you factor in title IX?

As I understand it, Virginia, having abandoned all of its public women’s colleges for whatever reason, cannot now set one up.

My understanding is that title IX grandparents schools like VMI, but doesn’t permit the institution of new single sex schools.

Is that wrong?

Theodore B. Olson:

–I don’t think that that has been definitively decided, and I can’t cite the case for you, Justice Ginsburg, but I believe that the one case that has dealt with the issue has suggested that a new system that is… there’s a single sex system from its beginning would meet the definition in 20 U.S.C. 1681 (5), that the words traditionally and continually from its inception may be interpreted to apply to a new institution, but that question has not been decided by the courts.

Ruth Bader Ginsburg:

I thought that the text of the statute says something about if you’ve been that way from the beginning–

Theodore B. Olson:

It–

Ruth Bader Ginsburg:

–you can continue, but that new schools cannot–

Theodore B. Olson:

–The words of the statute say, that traditionally and continually from its establishment has been.

Now, the VWIL program will be continuously and from its establishment a single sex institution.

The only–

Ruth Bader Ginsburg:

–Was there no interpretation of that by the Department of Education?

I don’t have the text of the statute in front of me.

Theodore B. Olson:

–I’m not aware of any.

I am… I looked into that question in preparation for the argument and I read a case in which a… I don’t think it was a college program but a high school program or something of that sort… maybe it was a college program… was created, and that was the interpretation.

I know of nothing inconsistent with that.

Mr.–

Ruth Bader Ginsburg:

–There are guidelines under title IX.

It’s not covered in the guidelines, is it?

Theodore B. Olson:

I can’t answer that.

William H. Rehnquist:

Was title IX involved in this case, Mr. Olson?

Theodore B. Olson:

No.

Well, I don’t… it wasn’t… this case was a constitutional case, and title IX has not been involved in this case.

Ruth Bader Ginsburg:

I was just curious whether by statute Virginia is impeded from setting up a public college.

Theodore B. Olson:

We believe that Virginia is not.

David H. Souter:

Mr. Olson, with respect to the value of single sex education, are there ways to identify in advance the students from a broad mass of 17-year-olds who would benefit from a single sex education from those who would not?

Theodore B. Olson:

I don’t know the answer to that question, Justice Souter.

I suspect that that’s one of those decisions that are made by… there are… it’s a self selective process between–

David H. Souter:

I should say, there’s nothing but self selection–

Theodore B. Olson:

–I… I–

David H. Souter:

–I take it, going on here to match the students with the theory?

Theodore B. Olson:

–Based upon what I know, those tests that they give people to decide whether you might do best in that sort of situation usually are not as successful predictors as the students and the parents themselves.

Our point with respect to the methodology, if I can continue to answer your question, is that the educational experts have not made decisions that men can’t do this or women can’t do that, or women won’t be any more successful or any less successful in one type of institution or another, but that the experts know how best to educate young people.

The experts that set up the VWIL program said we could have created an institution that looked very much like VMI.

We did not feel it would be right to design a program based on litigation considerations because we know… and this is in the record… we know how best to design a program for young people.

If we’re going to have a single sex educational–

John Paul Stevens:

Yes, but Mr. Olson, that didn’t go to academics, because there’s a square finding that the academic program would not be affected by–

Theodore B. Olson:

–The academic program itself is… would not be affected, and in fact the academic–

John Paul Stevens:

–It’s only the adversity and all this–

Theodore B. Olson:

–It’s the–

John Paul Stevens:

–special business.

Theodore B. Olson:

–It’s the environment in which the students learn.

John Paul Stevens:

Right.

Theodore B. Olson:

And the… in fact–

John Paul Stevens:

But that doesn’t go to academic achievement.

It only goes to the–

Theodore B. Olson:

–Well–

John Paul Stevens:

–special ethos at VMI.

Theodore B. Olson:

–But it results in academic achievement, but you’re correct, the–

John Paul Stevens:

Well, but their finding is that on academics it makes no difference.

There’s a square finding on that.

Theodore B. Olson:

–Well, there’s a finding in the record, and I can’t give you the page number, to the effect that people succeed better in a single sex educational program across the board, both young men and young women.

They do better, they achieve more, including the academics–

John Paul Stevens:

Academically or otherwise?

Theodore B. Olson:

–Academically and otherwise.

John Paul Stevens:

But the finding on page 212a of the appendix to the cert petition says squarely the presence of women in the institute would not alter the program academically.

Theodore B. Olson:

I believe, Justice Stevens, that the evidence and the findings that are on page 168 of the appendix, 167, 176, pages 225, page 125–

William H. Rehnquist:

You’ve given us four different pages.

Theodore B. Olson:

–I apologize.

William H. Rehnquist:

Which one do you want us to read?

Theodore B. Olson:

Well–

[Laughter]

Let me start with page 176.

Antonin Scalia:

Well, I gather your point is that it wouldn’t alter the program academically, but it would alter the participant’s capacity to benefit from the program.

Theodore B. Olson:

Well, I agree with that, and I believe that that is implicit.

I’m not sure that if you have a single sex education that you’re going to have a higher distribution of A’s, and I don’t… as opposed to B’s, C’s, or D’s.

What I’m saying is that the experts, including the Government experts, agreed that the outcome, the student learns better, becomes more successful, and I believe, Justice Stevens–

Sandra Day O’Connor:

Mr. Olson, how many States today fund single sex education programs at the college and/or high school level?

Theodore B. Olson:

–There are only two single sex male college… institutions remaining in the United States, and that’s South Carolina–

Sandra Day O’Connor:

The Citadel, in South Carolina, and VMI?

Theodore B. Olson:

–That’s correct.

Sandra Day O’Connor:

And they’re the only two remaining?

Theodore B. Olson:

And there are programs in New Jersey and in Texas for women that are single sex, or have been single sex programs.

It’s my understanding that the program at the University of Texas, the Texas program, has just started to change or is changing and becoming a coeducational program.

Many States do support some level of single sex education through–

Sandra Day O’Connor:

Is it possible for a State to provide tuition funds to students on a per capita basis for higher education and say, now, you take the money and go where you want to go?

Theodore B. Olson:

–Well, I suspect under the Norwood case decided by this Court, if this Court were to determine that single sex education, if supported by a State completely, violated the Equal Protection Clause of the Constitution, the… that it would be similarly unconstitutional for the State to support indirectly through tuition grants or assistance with books, and possibly even tax deduction–

Sandra Day O’Connor:

Although under the religion clauses I don’t think the Court has held, has it, that a State is prohibited from providing aid on a per capita basis of some kind?

Theodore B. Olson:

–I believe that you have that unusual intersection between the First Amendment, Establishment, and Free Exercise Clauses that may make a difference there.

The… if… there… with… if there is a finding by this Court that single sex education violates the Equal Protection Clause of the United States, the Norwood case seems to stand, to me, for the proposition that–

Sandra Day O’Connor:

Well, I mean, how would the Court decide that?

We would only decide whether, in this case, on these facts, at the time this case came up, whether Virginia had violated the Equal Protection Clause.

Theodore B. Olson:

–Well, but my point, and I repeat this point, that if Virginia cannot support single sex education in this context it’s difficult for me to understand how any State can provide support for single sex education, because Virginia has done it–

Ruth Bader Ginsburg:

Mr. Olson, if we think… concentrating on Virginia, I was struck by the resemblance of some aspects of this case to the case against the University of Virginia Charlottesville.

That never came to this Court because it settled, but the three judge court there did make two points, and one was that the University of Charlottesville couldn’t continue all male because there were educational opportunities, opportunities for education at that facility uniquely that were not available to women in the women’s colleges and elsewhere.

And the second point that was made by that three judge court in that litigation was that there exists, because of history, a prestige factor at the Charlottesville facility that was not matched by the other institutions.

Theodore B. Olson:

–And if I… if I may answer the latter part of that question first, one would hope that if single sex education can exist in this country and receive public support, that every single sex institution will have prestige, it will be unique.

Yes, VMI is unique and it does have prestige, but so does the Mary Baldwin program, and–

Ruth Bader Ginsburg:

Which is a private school.

Ruth Bader Ginsburg:

You mentioned in public colleges two women’s colleges, the one in Texas, the one in New Jersey, if it’s Douglas, is part of a… close to the Rutger’s campus, with total cross registration.

Any male can take a course in Douglas, as I understand it, and any woman can take a course at Rutger’s.

Theodore B. Olson:

–Our point, Justice Ginsburg, is if single sex education at the college level can exist, one would hope that it would be very good education, that a single sex institution for boys or young men here would be a distinguished, successful place that anybody would want to go, and the same would be true of a program like VWIL, that it would be distinguished, unique.

Even if… and I come back to this, but that if you’re going–

Ruth Bader Ginsburg:

But this is all imaginary.

What we have here and now is, we have two all male public colleges, they’re both military schools.

We have nothing comparable for women, with the exception of this program just started up in response to a court decree.

Theodore B. Olson:

–And this program, the courts below have examined this program and found that the goals are the same and that the outcome will be the same, and that this will be a successful program.

Hopefully this program will be so successful and continue to be so successful… and it already is unique, and it does deny the opportunity for admission to young men.

If we’re–

Anthony M. Kennedy:

Well, Mr. Olson… Mr. Olson, I’d like, when we’re talking about goals, to get back to the question Justice Souter asked, because I was very interested in your answer.

I’m not sure you were able to complete it.

Does the adversative method produce a different product than the West Point method?

I think the Government is in effect trying to say, don’t worry about changing VMI because the product will be very good.

It will be like West Point in Annapolis, and those are marvelous products.

Is there something in the adversative method that produces a different quality leader?

Theodore B. Olson:

–Let me put it this way–

Anthony M. Kennedy:

And I think that was the thrust of his question, and I wasn’t sure what the answer–

Theodore B. Olson:

–And I’d like to answer that question.

It’s a very good question.

I think that the answer to that question is best answered this way, is that because we are each different, we each respond to different educational methods and different educational stimuli.

The West Point program is designed to create officers of the United States.

The VMI program is designed to create leaders and adults who can operate in the civilian or in the military world, who have a sense of responsibility, the same goals, in other words, that the VWIL program is set up to do.

The fact is that some young people do very well in a coeducational program, and come out the other end to be successful.

Some young men and some young women aren’t successful in coeducational programs.

They are distracted.

There’s a million things that can go on in those programs–

David H. Souter:

–Mr. Olson, I think you’re saying not that there is a distinctive difference in the product, but that there is a distinctive difference in the method of education which is suited to the people who go there, and that really does not answer the question.

Theodore B. Olson:

–I… well, I think that… I am saying that, and if I’m not answering the question, I’m not understanding the question.

David H. Souter:

Let me put the question, or subsume the question in something else.

David H. Souter:

It is… isn’t it true that the district court judge never made any finding that there was a difference in the kind of leadership product, if you want to use that term, that VMI produces from what West Point or Annapolis or the other military schools–

Theodore B. Olson:

That’s correct, but it did make a finding that this system and this methodology works for the people that go to that school, and that–

David H. Souter:

–Okay, which goes to the point which you made quite candidly, that you are resting your case essentially on the position that this is a valuable method of education because it serves a distinct group of people.

You are not resting your case on the proposition that it is necessary to produce a distinctive kind of leader who is produced by it and can only be produced by it.

Theodore B. Olson:

–I agree with you, yes.

Stephen G. Breyer:

Well then, why couldn’t you say exactly the same thing about ethnic or racial or any other kind of… religious, I mean, somebody could have a school, and they say, we’re keeping a religious group, ethnic group or whatever, out of our public school because we have a certain unique kind of education that focuses on certain curricula in a certain way, and once they’re in here they’ll change the nature of that curricula because they won’t have the same backgrounds, et cetera, and therefore we will lose this unique kind of curriculum, method, et cetera, that we had in the past, and there would be some truth to that.

I mean, don’t we have to look at the importance of this thing?

It may be you don’t have exactly the same rat line.

Maybe you don’t have exactly the same hazing type, but not complete hazing activity.

That may be true with any ethnic group coming into a school, any religious group, any kind of a group.

Isn’t the answer to that, so what?

You’d have to show that it’s important enough to maintain this adversative process, and what is it in this record that shows it’s important enough to maintain that–

Theodore B. Olson:

The evidence–

Stephen G. Breyer:

–to overcome the answer to a woman who says I want to go there?

I want to go there.

I want this.

Theodore B. Olson:

–The evidence is overwhelming that that system would not exist in the company of co–

Stephen G. Breyer:

Well, maybe it wouldn’t.

Maybe you wouldn’t have precisely the same system with ethnic groups, racial groups, et cetera, but my question is, what is it that’s so important about this really hard to grasp adversative thing that warrants saying–

[Laughter]

I don’t mean to be facetious about it, either.

I want… I’m serious about it.

What is it that is so important about it that enables you to say to a young woman I’m very sorry, even though you want to go there and you want this result, you can’t?

Theodore B. Olson:

–The answer… the experts testified, and people who are professional educators, who have spent their life in education, saying that the system could not exist.

It would fundamentally have to be changed.

Stephen G. Breyer:

I take that as a given.

What I’m asking is, what’s so important about that particular rat line, et cetera?

Theodore B. Olson:

Because–

Stephen G. Breyer:

You could have the same… are you getting my point?

Theodore B. Olson:

–Yes.

Theodore B. Olson:

The answer is that it works, Justice Breyer, in a single sex environment for young men.

Now, given the opportunity to design something exactly identical to that, the people who spent their life in education designing a system for young women, and the Government experts really don’t disagree with that, say we know what would work, we would know what would attract sufficient numbers of people–

Stephen G. Breyer:

And even a woman who says, I understand that, but for me, she says, for me, I think it would work better at VMI, and it may be true as to her, irrespective of the majority, mightn’t it?

Theodore B. Olson:

–A choice would have to be made, since the system would fundamentally have to be altered in the presence of coeducation.

It will not work.

It may work well with just women.

It may work well with just men, and there’s no stereotypes associated with that.

David H. Souter:

No, but you say–

–But if it–

–there’s no stereotype, but isn’t it the case, as Justice Breyer said, that if you are going to justify your system by its distinctness, then you always have a built in justification, because you can say, if you change it, it’s no longer distinct, the value is gone, and that’s why, it seems to me, under middle tier scrutiny, you’ve got to say the distinctness is worth it for some other reason.

Theodore B. Olson:

The distinction… the distinctiveness is worth it because young people educate differently and we must, in this society, find ways to educate them successfully, and we must develop systems, not a student body for each student, but systems that will attract people, and according to the experts, not to the lawyers, work well for young people.

Now, that is worth it.

That is an exceeding… this Court has said that is the most important governmental function for State and local governments.

Ruth Bader Ginsburg:

The question is, wouldn’t something else work almost as well without denying opportunity to anyone?

Theodore B. Olson:

The experts across the board, and the Government did not deny this, that single sex education for substantial numbers of people work best, and the program–

Antonin Scalia:

And a lot of parents for many years have spent a lot of money to send young men to military schools who supposedly needed the discipline that military training provides without… surely that’s worth something.

Theodore B. Olson:

–That’s absolutely correct.

Antonin Scalia:

It’s a judgment of parents–

Theodore B. Olson:

Because–

Antonin Scalia:

–and of the State that establishes such institutions that it’s worth something.

Theodore B. Olson:

–Unless we’re all to be educated the same, and unless we abandon single sex education, we ought to allow those programs which work to be designed by experts–

John Paul Stevens:

But there’s one flaw in your presentation that troubles me.

You haven’t given the people, the women who go to the other school, the same adversative program that you say is essential–

Theodore B. Olson:

–Because the experts–

John Paul Stevens:

–Yet you say there’s a difference between men and women.

Theodore B. Olson:

–It works for… experts tell us that young men who want a single sex education succeed in that environment, and the experts that designed VWIL say that that program will produce the same results.

William H. Rehnquist:

Thank you, Mr. Olson.

Mr. Bender, you have 2 minutes remaining.

Stephen G. Breyer:

I’ve a very quick question, which is, the main point, single sex education will disappear if we adopt your brief word for word.

Suppose you decided that you needed single sex academies in inner cities.

Stephen G. Breyer:

If we adopt your brief word for word, have we decided that case?

Paul Bender:

No, not at all.

First of all, of course, you haven’t decided the private single sex education for reasons that I think are clear, but even with regard to public single sex–

Antonin Scalia:

Wait, only private single sex education that gets any assistance from the Government.

Paul Bender:

–No, I don’t think that’s true, Justice Scalia.

The Court State action cases since Norwood I think have made very clear that simply giving–

Antonin Scalia:

Can States give money to segregated schools, racially segregated schools, for example?

Paul Bender:

–Can States give money–

Antonin Scalia:

Yes.

Paul Bender:

–to racially segregated schools?

Under this Court’s State action cases I think they can.

They can?

Paul Bender:

Norwood was a different situation.

Antonin Scalia:

That’s the position of the Justice Department–

Paul Bender:

Norwood–

Antonin Scalia:

–that States can provide funding to racially segregated schools?

Paul Bender:

–It depends on the circumstances.

In Norwood–

Antonin Scalia:

It depends on the circumstances.

Paul Bender:

–Yes.

In Norwood–

Antonin Scalia:

That’s astounding.

Paul Bender:

–It was a school system under a desegregation decree.

[Laughter]

Coming back to your question, Justice Breyer, if I may, certainly a compensatory program that is… has a compensatory reason to compensate for prior discrimination, for example, could be a single sex program that would be for only that gender because only that gender has a need for that, so at least in those two areas–

David H. Souter:

No, but I would suppose you could go–

Paul Bender:

–you could have that.

David H. Souter:

–one step further.

I thought you could, consistently with your position, and that is, if you’ve got a school system in which everybody says the results are terrible for everybody, and the school system made a decision that in fact they would get better results for everybody if certain classes at certain levels were segregated by sex, all males schools and all female schools, you wouldn’t start with this implication of inferiority, and I would suppose that that might be okay.

Paul Bender:

That’s also true, right.

Paul Bender:

That’s, I think, the third part of the answer.

Antonin Scalia:

You mean you can do it case by case–

Paul Bender:

Yes.

Antonin Scalia:

–and by a lawsuit.

Paul Bender:

I think single sex education that a State proposes for single sex reasons, unlike this case, where this is done just to comply with a court decree, if a State proposes a single sex system, the issue then is, is it truly an equal system, and that would have to be decided.

Justice O’Connor, with regard to the remedial question you raised before, I just… can I finish the sentence?

Yes.

Paul Bender:

That might be more difficult if it were voluntary.

I think in the remedial context, there’s a lot of problem with that kind of total separation unless it’s necessary.

Thank you.

William H. Rehnquist:

Thank you, Mr. Bender.

The case is submitted.