Full opinion text
MEMORANDUM OPINION KISER, District Judge. The Controversy It was in May of 1864 that the United States and the Virginia Military Institute (VMI) first confronted each other. That was a life-and-death engagement that occurred on the battlefield at New Market, Virginia. The combatants have again confronted each other, but this time the venue is in this court. Nonetheless, VMI claims the struggle is nothing short of a life-and-death confrontation — -albeit figurative. The conflict between the parties arises out of the United States’ challenge to VMI’s all-male admissions policy. The United States asserts that as a state-supported college, VMI’s refusal to admit females to the Institute, regardless of their qualifications, violates the Equal Protection Clause of the Fourteenth Amendment. VMI counters by saying that although it discriminates against women, the discrimination is not invidious but rather to promote a legitimate state interest — diversity in education. Thus, the issue to be resolved is whether VMI’s practice of excluding women can pass muster under the equal protection clause, as glossed by the decisions of the Supreme Court. I find that it can, for the reasons that I hereafter state. Jurisdiction This Court’s jurisdiction was properly invoked under Title IV of the Civil Rights Act, 42 U.S.C. § 2000c-6, which permits the United States to bring actions alleging discrimination in violation of either the United States Constitution or other federal statutes. Because single-sex colleges and single-sex military schools are exempted from Title IX of the Civil Rights Act, 20 U.S.C. 1681(a)(4) and (5), the United States alleged only a constitutional violation and no statutory violation. The Department of Justice’s authority to bring a suit under Title IV is not limited by Title IX. United States v. Massachusetts Maritime Academy, 762 F.2d 142, 147-51 (1st Cir.1985). Of course, although Congress could deprive the Attorney General of the authority to bring this action, it could not pass a statute that would exempt VMI’s alleged equal protection violations from judicial review. Mississippi University for Women v. Hogan, 458 U.S. 718, 733, 102 S.Ct. 3331, 3340, 73 L.Ed.2d 1090 (1982). Procedural Background This case originated from a complaint filed by the United States Department of Justice on behalf of a female high school student who wanted to be considered for admission to VMI. The named defendants were the Commonwealth of Virginia; Governor Lawrence Douglas Wilder; Virginia Military Institute, its president, superintendent, and members of its Board of Visitors; and Virginia’s State Council of Higher Education and its members. The State Council of Higher Education and its members have been dismissed from the suit. The Commonwealth has been granted a stay relieving it of the duty to appear at trial, under the condition that it be bound by any ruling of this Court. Governor Wilder was relieved of the duty to respond to any subpoenas requiring him to testify at trial. In response to an earlier motion, he stated that he did not oppose entry of summary judgment against himself and the other defendants. The VMI Foundation and the VMI Alumni Association, private organizations associated with VMI, have intervened as defendants in the case over the United States’ objection. See ruling of November 27, 1990. A six-day trial was held beginning April 4, 1991. Nineteen witnesses testified, including four experts on education, one expert on college facilities, and one expert on human physiology. All defendants, except Governor Wilder, were represented by common counsel. Governor Wilder was represented by counsel, but he did not personally appear or participate in the trial. Standard, of Review The VMI Board of Visitors decides the admissions policy of VMI. The seventeen members of this Board are appointed by the Governor of Virginia, subject to approval by the General Assembly, including the State Adjutant General, who is a member ex officio. Va.Code § 23-93; Va. Code § 44-11 (Adjutant General also nominated by Governor subject to General Assembly approval). Twelve of the members must be VMI alumni. All parties recognize that this case concerns educational policy, and the proper standard of review should be derived from cases concerning higher education. The principle of academic freedom, an aspect of the freedom of association guaranteed by the First Amendment, has been recognized by the Supreme Court as a reason to defer to academic decisionmaking by a university. Regents of the University of California v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 2759, 57 L.Ed.2d 750 (1978). The essential freedoms of a university include the freedom to choose who may be admitted to study. Id. (Quoting Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957) (Justice Frankfurter concurring)). “[Attainment of a diverse student body ... is a constitutionally permissible goal for an institution of higher education.” Id. While Bakke involved diversity within a single graduate program, other courts have extended the rationale of that decision to include the freedom to create different missions at different state universities, in order to promote diverse educational opportunities within the state. Williams v. McNair, 316 F.Supp. 134, 137 (D.S.C.1970) (three-judge panel), aff'd, 401 U.S. 951, 91 S.Ct. 976, 28 L.Ed. 235 (1971) (per curiam); Ayers v. Allain, 914 F.2d 676, 687 (5th Cir.1990 en banc), cert. granted sub nom. United States v. Mabus, — U.S.-, 111 S.Ct. 1579, 113 L.Ed.2d 644 (1991). However, deference to university decisions is not absolute. The Supreme Court ordered racial integration of graduate programs long before it ordered desegregation of lower public schools. Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938); Sipuel v. Board of Regents, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247 (1948); Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950). Courts have, in some cases, entered injunctions that have the effect of overruling discretionary educational decisions of individual colleges, where those decisions tend to perpetuate unconstitutional discrimination. In Norris v. State Council of Higher Education, 327 F.Supp. 1368 (4th Cir.), aff'd, 404 U.S. 907, 92 S.Ct. 227, 30 L.Ed.2d 180 (1971), a three-judge panel of the Fourth Circuit entered an injunction preventing Richard Bland College, a two-year branch of the College of William and Mary, from expanding into a four-year college, because that would have impeded desegregation of nearby Virginia State College. Sex Discrimination The first court challenge to sex segregation in Virginia higher education appeared in Kirstein v. Rector and Visitors of the University of Virginia, 309 F.Supp. 184 (E.D.Va.1970) (three-judge panel) (approving consent order). In that case, the court found that “we think it fair to say from the evidence that the most prestigious institution of higher education in Virginia is the University of Virginia in Charlottesville.” Id. at 186. The court was reluctant to “interfere with the internal operation of any Virginia college or university,” but it encouraged a settlement that required the university to admit women. But the court refused to enter an order requiring Virginia to admit both sexes to all of its universities: We are urged to go further and to hold that Virginia may not operate any educational institution separated according to the sexes. We decline to do so. Obvious problems beyond our capacity to decide on this record readily occur. One of Virginia’s educational institutions is military in character. Are women to be admitted on an equal basis, and, if so, are they to wear uniforms and be taught to bear arms? Id. at 187. Another early Fourth Circuit decision, affirmed by the Supreme Court, involved Winthrop College in Rock Hill, South Carolina. Williams v. McNair, supra. In that ease, male students wanted to attend an all-female college. The Court noted that South Carolina had one public all-male college (The Citadel, which like VMI offers a military program), and several coeducational institutions. The court noted, It is conceded that recognized pedagogical opinion is divided on the wisdom of maintaining “single-sex” institutions of higher education but it is stipulated that there is a respectable body of educators who believe that “a single-sex institution can advance the quality and effectiveness of its instruction by concentrating upon areas of primary interest to only one sex.” 316 F.Supp. at 137. Unlike Kirstein, there was no feature of Winthrop College other than its single-sex status that made it distinctive, and the plaintiffs’ interest in attending college in the town where they lived was found to be less than compelling. The denial of admission to them was not an equal protection violation. Hogan, supra, guides my decision in this case. In Hogan, the Supreme Court conducted a factual inquiry into the justification for the policy of the Mississippi University for Women of allowing men to audit courses in the nursing program, but not granting them academic credit. It concluded that the policy denied equal protection to the plaintiff, who wished to earn credit for advanced nursing courses at the school. The Hogan court applied the “intermediate scrutiny” test: [T]he party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an exceedingly persuasive justification for the classification. The burden is met only by showing at least that the discrimination serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Hogan, 458 U.S. at 730, 102 S.Ct. at 3339 (citations and punctuation omitted). Where a state offers an educational opportunity to only one gender, The issue is not whether the benefitted class profits from the classification, but whether the State’s decision to confer a benefit only upon one class by means of a discriminatory classification is substantially related to achieving a legitimate and substantial goal. Id. at 731 n. 17, 102 S.Ct. at 3340 n. 17. Finally, [although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. Id. at 724-25, 102 S.Ct. at 3336. Hogan involved admission of a single student into the nursing school, and the Court did not purport to extend its ruling to cover other programs at the school. Id. 458 U.S. at 733, 102 S.Ct. at 3340 (Chief Justice Burger dissenting). These determinations require a fact-intensive examination of the practical considerations underlying the challenged policy. Many of the facts underlying the Supreme Court’s rejection of the justification proferred in Hogan are not present here. In Hogan, Justice O’Connor’s majority opinion emphasized that the uncontroverted record reveals that admitting men to nursing classes does not affect teaching style, ... that the presence of men in the classroom would not affect the performance of the female nursing students, ... and that men in coeducational nursing schools do not dominate the classroom____ In sum, the record in this case is flatly inconsistent with the claim that excluding men from the School of Nursing is necessary to reach any of MUW’s educational goals. Hogan, 458 U.S. at 731, 102 S.Ct. at 3339. The record in this case is directly to the contrary. The record is replete with testimony that single gender education at the undergraduate level is beneficial to both males and females. Moreover, the evidence establishes that key elements of the adversative VMI educational system, with its focus on barracks life, would be fundamentally altered, and the distinctive ends of the system would be thwarted, if VMI were forced to admit females and to make changes necessary to accommodate their needs and interests. One of the most striking differences in the two cases is the reasons proffered to justify the discrimination. In Hogan, Mississippi maintained that a female-only admission policy at MUW was affirmative action which was justified to compensate women for past discrimination whereas, here, Virginia urges that a male-only admission policy at VMI promotes diversity within its statewide system of higher education. The Court found that Mississippi’s proffered explanation failed both prongs of the intermediate scrutiny test, i.e., that it was not an important governmental objective and that the means of advancing the objective were not substantially related to the achievement of that objective. In contrast, diversity in education has been recognized both judicially and by education experts as being a legitimate objective. The sole way to attain single-gender diversity is to maintain a policy of admitting only one gender to an institution. I also note that the plaintiff in Hogan was a resident of the town where Mississippi University for Women was located. He would have had no opportunity to study his chosen profession (nursing) within commuting distance of his home if he could not attend that school, and moving to a different community would have presented him with a significant hardship. Id. 458 U.S. at 735 n. 1, 102 S.Ct. at 3342 n. 1 (Justice Powell dissenting). VMI does not offer an advantage of close-to-home education to any students, male or female, because it requires all cadets to live on campus for all four years of college. Finding III.F.l. The night and Summer courses, which do serve commuting students, are open to both men and women. Findings I & III. Nor does its policy deny the opportunity to study any particular academic program to anyone, because all of the same courses, including military instruction, are available at VPI. Finding III.H.2. Single-sex Education is a Constitutionally Legitimate Form of Diversity A substantial body of “exceedingly persuasive” evidence supports VMI’s contention that some students, both male and female, benefit from attending a single-sex college. Finding VII.B. For those students, the opportunity to attend a single-sex college is a valuable one, likely to lead to better academic and professional achievement. Finding VII.B.10. Astin, Four Critical Years (1977). Most importantly, Dr. Conrad, the United States’ expert witness on higher education, called himself a “believer in single-sex education.” Finding VII.B.7. He believed that single-sex education should be provided only by the private sector, because he also believes that public institutions should be open to all citizens to the extent possible. He concedes that his public/private dichotomy is a personal, philosophical preference rather than one born of educational-benefit considerations. An opinion based on equity rather than appropriate educational methods is entitled to little weight. Finding VII.B.7. Rostker, 453 U.S. at 79-81, 101 S.Ct. at 2659-60. One empirical study in evidence, not questioned by any expert, demonstrates that single-sex colleges provide better educational experiences than coeducational institutions. Students of both sexes become more academically involved, interact with faculty frequently, show larger increases in intellectual self-esteem and are more satisfied with practically all aspects of college experience (the sole exception is social life) compared with their counterparts in coeducational institutions. Attendance at an all-male college substantially increases the likelihood that a student will carry out career plans in law, business and college teaching, and also has a substantial positive effect on starting salaries in business. Women’s colleges increase the chances that those who attend will obtain positions of leadership, complete the baccalaureate degree, and aspire to higher degrees. Alexander Astin, Four Critical Years, (1977); VMI Ex. 731; Finding VII.B.10. This research was cited favorably by Justice Powell in his dissenting opinion in Hogan, 458 U.S. at 738-39, 102 S.Ct. at 3343-44. Viewed in the light of this very substantial authority favoring single-sex education, the VMI Board’s decision to maintain an all-male institution is fully justified even without taking into consideration the other unique features of VMI’s method of teaching and training. Openness and equal treatment by public institutions is a valid legislative goal, but legislators or other decisionmakers may also take other goals into account, even when adopting a policy that discriminates on the basis of sex. Id. The VMI Board has decided that providing a distinctive, single-sex educational opportunity is more important than providing an education equally available to all. Effect of Coeducation at VMI When one considers VMI’s methods of education and the effect that admission of women into the institution will have, the Board’s decision to remain an all-male institution is further reinforced. Expert testimony established that, even though some women are capable of all of the individual activities required of VMI cadets, a college where women are present would be significantly different from one where only men are present. This is true for a variety of reasons discussed more fully in the Findings of Fact. See Findings VIII.D-J. In addition to converting VMI from a single-gender institution to a coeducational institution, changes in methods of instruction and living conditions would occur. As West Point’s experience in converting to coeducation bears out, the presence of women would tend to distract male students from their studies. It would also increase pressures relating to dating, which would tend to impair the esprit de corps and the egalitarian atmosphere which are critical elements of the VMI experience. Finding VIII.H. Allowance for personal privacy would have to be made. Doors would have to be locked, and the windows on all of the doors would have to be covered. This would alter the adversative environment that VMI students must now endure. VIII.D. Finding Physical education requirements would have to be altered, at least for the women. The current program, where every student must pass precisely the same physical test before graduation, would prevent a disproportionate number of women from graduating, thus forcing VMI either to establish different requirements for women, or to eliminate or substantially reduce the requirements so that they could be applied to both sexes, which would remove one important part of the VMI system of education. Finding VIII.E-G. The introduction of women into VMI would add a new set of stresses on the cadets, of a very different kind than the cadets now face. The belief that this would affect the educational program is well-founded in empirical evidence, and not based on an archaic stereotype. Finding VIII.l; Williams, supra; Vorchheimer v. School Dist. of Philadelphia, 532 F.2d 880, 882 (3d Cir.1976), aff'd by an equally divided court, 430 U.S. 703, 97 S.Ct. 1671, 51 L.Ed.2d 750 (1977); see also Justice Powell’s dissenting opinion in Hogan, 458 U.S. at 735-46, 102 S.Ct. at 3341-47. Dr. Riesman testified that the adversative model of education is simply inappropriate for the vast majority of women. He felt that if VMI were to admit women, it would eventually find it necessary to drop the adversative system altogether, and adopt a system that provides more nurturing and support for the students. Evidence supports this theory, including the West Point experience. Dr. Conrad argued that some women will thrive in the adversative environment, and drastic changes in that aspect of the education will not be necessary. But as Dr. Richardson pointed out, educational systems are not designed for the exception but for the mean. Finding VII.B.l. The changes, which all parties agreed would occur, provide sufficient constitutional justification for continuing the single-sex policy. The United States has asserted that VMI’s decision to continue its single-sex policy in 1986, based on the report of its advisory committee, was not based on “reasoned analysis” or on the evidence before it. It is clear that the Committee met with some advocates of coeducation, and that it rejected their recommendations. However, the committee members also had considerable experience in higher education, as well as intimate knowledge of the VMI program. The more thorough self-study undertaken by VMI as part of its accreditation by the Southern Association of Colleges and Schools demonstrates that VMI has applied reasoned analysis to all of its policies, including admissions. The Board of Visitors had available to it a substantial amount of “reasoned analysis” when it considered admissions policy. I find that both VMI’s single-sex status and its distinctive educational method represent legitimate contributions to diversity in the Virginia higher education system, and that excluding women is substantially related to this mission. The single-sex status would be lost, and some aspects of the distinctive method would be altered if it were to admit women. VMI has, therefore, met its burden under Hogan of showing a substantial relationship between the single-sex admission policy and achievement of the Commonwealth’s objective of educational diversity. Of What are Women Deprived Trial testimony established that VMI’s military program is absolutely unique. No other school in Virginia or in the United States, public or private, offers the same kind of rigorous military training as is available at VMI. The military and academic courses are available to women at VPI, but without the intensity of the barracks-centered lifestyle that makes VMI so attractive to many applicants, and so important to its graduates. Finding V.17. It has been established that if VMI were to admit women, it would become more similar to the military barracks at VPI, so its uniqueness would be lost. Even if this were to occur, VMI would remain the only small college campus in Virginia offering a military program. A woman who wished to live in a military barracks, but preferred a campus of 1,300 students over one of 18,000, would benefit from the availability of VMI. Considerable speculation, but very little evidence, was presented on the question of whether there would be any demand for a VMI education among women. Because VMI and VMI alumni direct their recruitment efforts only at men, it cannot be precisely determined how much demand there might be among women. Based on the experience at West Point, as well as VMI’s experience recruiting black applicants, I conclude that some women, at least, would want to attend the school if they had the opportunity. Hogan seems to teach that the court must consider the constitutionality of the policy without regard to the size of the available applicant pool. The Department of Justice filed this suit on behalf of a potential applicant, and that is all that is required to test the constitutionality of VMI’s admissions policy. Absence of Comparable Opportunity for Women Ironically, although much of the testimony at trial concerned the ways that men and women are different, my ruling is based on a trait that men and women share: Both men and women can benefit from a single-sex education. Indeed, it appears that demand for single-sex education is greater among women, and that the beneficial effects of single-sex education are stronger among women than among men. Finding II.B.3-4. Gender discrimination, as a rule, works to the benefit of one group and to the detriment of another. But in a real sense of the word, that is not true in this case because, as the testimony of experts demonstrates, it would be impossible for a female to participate in the “VMI experience.” Even if the female could physically and psychologically undergo the rigors of the life of a male cadet, her introduction into the process would change it. Thus, the very experience she sought would no longer be available. Consequently, it seems to me that the criticism which might be directed toward Virginia’s higher educational policy is not that it maintains VMI as an all-male institution, but rather that it fails to maintain at least one all-female institution. But this issue is not before the Court. The relief that the United States seeks in this suit is to require VMI to open its doors to women — not to force Virginia to establish an all-female, state-supported college. Cf. Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (federal court could not exercise jurisdiction over school districts that had not practiced unconstitutional racial segregation in order to achieve racial balance in another school district). This aspect of the case is very similar to Hogan in that Hogan did not mount a constitutional challenge because there was no corresponding all-male counterpart to the MUW Nursing School but only sought admission to the MUW program. The Court was careful to tailor its decision to the relief sought. Thus, whether Virginia can continue to rely upon private colleges to supply single-gender education to females or whether it must operate a state-supported, all-female college is not an issue to be resolved in this lawsuit. Conclusion In 1970, a three-judge panel of the Fourth Circuit observed that: The trend in this country is away from the operation of separate institutions for the sexes, but there is still a substantial number of private and public institutions, which limit their enrollment to one sex and do so because they feel it offers better educational advantages. While history and tradition alone may not support a discrimination, the Constitution does not require that a classification “keep abreast of the latest” in educational opinion, expecially when there remains a respectable opinion to the contrary[.] Williams, 316 F.Supp. at 137. Through its Board of Visitors at VMI, Virginia has set an objective of providing single-gender education for males. The evidence in the case, which is virtually uncontradicted, supports Virginia’s view that substantial educational benefits flow from a single-gender environment, be it male or female, that cannot be replicated in a coeducational setting. This adds a measure of diversity to Virginia’s overall system of education that would be missing if VMI were coeducational. The diversity is further enhanced by VMI’s unique method of instruction which was applauded by all of the educational experts who testified. Thus, Virginia has sustained the requirement that gender discrimination serves an important state educational objective. Virginia also met the second prong of the Hogan test by proving that the objective of diversity of education is met by providing single-gender education. Obviously, the only means of attaining this goal is to exclude women from the all-male institution — VMI. But Virginia did not stop there. It enlarged on the single-gender diversity by maintaining an institution whose method of instruction is unique in all the world. VMI is a different type of institution. It has set its eye on the goal of citizen-solider and never veered from the path it has chosen to meet that goal. VMI truly marches to the beat of a different drummer, and I will permit it to continue to do so. APPENDIX: FINDINGS OF FACT I. Witnesses A. Expert Witnesses B. Fact Witnesses II. Public Higher Education in Virginia A. VMI’s Contribution to System-Wide Diversity B. Role of Private Colleges C. Public Influence on Private Colleges III. The Unique VMI Educational Method A. The Adversative Model B. Rat line C. Class System D. Dyke System E. Honor Code F. Barracks G. Military System H. Educational System I. Evening and Summer Sessions IV. VMI’s Mission A. Character Development B. Civilian Leadership C. Military Leadership D. VMI Mission Study V. Mission of Military Unit at VPI VI. Contrasting Mission of Federal Service Academies VII. Differences between Men and Women A. Gender-Based Physiological Differences B. Gender-Based Developmental Differences VIII. Anticipated Effects of Coeducation on VMI A. Demand for VMI Education Among Women B. VMI’s Special Recruitment of Blacks C. Recruitment of Women at Other Military Institutions D. Need for Privacy E. Physical Education F. Armed Forces Experience G. West Point Experience H. Impact of Gender Classes I. Impact of Cross-Sex Relationships J. West Point Experience K. Educational and Military Systems L. ROTC Programs M. Physical Facilities I. Witnesses Testimony of the following witnesses, together with stipulations and exhibits supplied the evidence from which these Findings of Fact are made: A. Expert Witnesses 1. Dr. Clifton Conrad testified as the United States’ expert witness on education. He is currently Professor of Higher Education and Coordinator of the doctoral program in Higher Education at the University of Wisconsin-Madison, and previously had been on the faculties of the University of Denver, the College of William and Mary, and the University of Arizona. He holds a Bachelor’s Degree from the University of Kansas and a Ph.D. in higher education from the University of Michigan. His scholarship has focused on academic programs in higher education. His books and monographs include The Undergraduate Curriculum (1978), Liberal Education in Transition (1980, with Jean Wyer), and Curriculum in Transition: Perspectives on the Undergraduate Experience (1990, with Jennifer Haworth). In 1987-88, he served as president of the Association for the Study of Higher Education. He has testified in several other desegregation cases involving higher education on behalf of the United States. U.S. Ex. 160. 2. Mr. James Francis Brewer, III testified as the United States’ expert witness on physical facilities. He has been Director of Physical Plant at the University of Maryland at College Park since 1985. He holds B.S. and M.B.A. degrees from the University of Maryland. U.S. Ex. 161. 3. Dr. Richard C. Richardson, Jr. testified as one of VMI’s experts on educational institutions. He is Professor of Educational Leadership and Policy Studies at Arizona State University. He holds a B.S. degree in education from Castleton State College, an M.A. from Michigan State University, and a Ph.D. from the University of Texas. After earning his Bachelor’s Degree, he served in the Marine Corps for three years, from 1954 to 1957. He taught at a single-sex (women’s) college, Vermont College, from 1958 to 1961, and has both professorial and administrative experience at several colleges and community colleges. His publications include Achieving Quality and Diversity: Universities in a Multicultural Society (with E.F. Skinner, 1991), and Fostering Minority Access and Achievement in Higher Education: The Role of Urban Community Colleges and Universities (with L.W. Bender, 1987). He has previously testified on behalf of the United States in discrimination lawsuits involving higher education. He has served as chair of at least 25 different evaluation teams on behalf of regional higher education accreditation boards, including one team that evaluated West Point. His research in the past 10 years has focused on “the impact of students on colleges and the impact of colleges on students.” Tr. 661-66. 4. Dr. David Riesman, a professor of sociology at Harvard University, testified as a VMI expert on education. He holds a bachelor’s degree from Harvard College earned in 1931, and a law degree from Harvard Law School earned in 1934. After completing a year of postgraduate study, he served as a law clerk to Justice Brandéis at the United States Supreme Court. He held a teaching post at Buffalo School, and then spent a year as a research fellow at Columbia Law School studying sociology and anthropology. He joined the faculty at the University of Chicago in 1946, and returned to Harvard on the faculty in 1958. His publications include The Lonely Crowd (1950), Constraint and Variety in American Education (1956), The Academic Revolution (with Christopher Jencks 1968), and On Higher Education: The Academic Enterprise in an Era of Rising Student Consumerism (with several collaborators 1980). Because he was unable to travel, he appeared only on videotape produced at a de bene esse deposition. 5. Josiah Bunting, III, testified as another VMI expert on educational institutions. Since 1987, he has served as Head Master of The Lawrenceville School, a private preparatory school in New Jersey that changed from all-male to coeducational during his tenure. He graduated from VMI in 1963, and won a Rhodes Scholarship and earned an M.A. at Oxford. He served in the United States Army from 1966 to 1972, serving in the infantry, and as Assistant Professor at West Point. From 1972 to 1973 he was Professor and Acting Head of the U.S. Naval War College. From 1973 to 1977, he served as President of Briarcliff College, then an all-female college. From 1977 to 1987, he was president of Hampden-Sydney College, an all-male private college. 6. Dr. Paul Davis testified as VMI's expert on human physiology. He holds a bachelor’s degree from Columbia Union College, and earned a master’s degree in physical education from the University of Maryland, and a Ph.D. from the University of Maryland College of Health and Human Performance, Department of Kinesiology, with a major in exercise physiology and a minor in research design and statistics. He has taught physical education to both sexes at the elementary school, junior high school and high school levels, and taught applied physiology at the University of Maryland. He has done extensive consulting for the United States Armed Forces on the development of physical training programs for both men and women. Tr. 879-84. B. Fact Witnesses 1. General John William Knapp is the Superintendent of VMI. He graduated from VMI in 1954, holds a Ph.D. from Johns Hopkins University, and has been a professor or administrator at VMI since 1959. He was Dean of Faculty from 1984 to 1989, when he was promoted to superintendent. Tr. 28-30. 2. Colonel Norman M. Bissell is the Commandant of Cadets at VMI, a position comparable to Dean of Students at another college. He graduated from VMI in 1961, and received a master’s degree from the University of Missouri in 1984. He was on active duty in the United States Army from 1961 to 1987, and returned to VMI in 1990. Tr. 95-96. 3. Lieutenant Colonel Mark Steven Sandy is the director of admissions at VMI. He holds a B.S. from Concord College, and has a master’s degree in education administration from Lynchburg College. He assumed his current post in 1988. 4. Colonel Ronald Walker Williams is Professor of Aerospace Studies at VMI. He graduated from VMI in 1964 and earned a master’s degree from Golden Gate University in 1985. He has been on active duty with the Air Force for the past 25 years, and has been posted at VMI by the Air Force for a three year assignment in 1988. He teaches the Air Force ROTC courses at VMI. Tr. 213-14. 5. Colonel William A. Randall is a professor of military science at the University of Virginia, where he is completing a three-year assignment. He holds a B.A. degree from Auburn University and a master’s degree from Duke University. He has been on active duty in the military since 1966. Tr. 243-44. 6. Colonel Rutherford Dean Stickell is Professor of Aerospace Studies and Chairman of the Air Force ROTC program at the University of Virginia. He holds a bachelor’s degree from The Citadel, and a master’s degree from the University of Southern California, and has been in the military for over 20 years. 7. Joseph M. Spivey, III, is Chairman of the Board of Visitors of VMI. He holds a bachelor’s degree from VMI and a law degree from Washington & Lee University. He was admitted to the Virginia bar in 1962, and is a practicing attorney. He was appointed to the VMI Board of Visitors in 1983 and has been chairman since 1987. Tr. 275-76. 8. Dr. Clark King is the head of the Physical Education Department at VMI, and director of the continuing education programs, including both the night and the summer programs. He holds a bachelor’s degree from Kearney State College and a doctorate from the University of Virginia. He has been associated with VMI since 1952, and has been chair of physical education since 1963. Tr. 292-94. 9. Major General Stanton R. Musser is Commandant of Cadets at Virginia Polytechnic Institute State University. He holds a bachelor’s degree from Gettysburg College, and a master’s degree from Central Michigan University. He served in the United States Air Force from 1958 to 1989, and accepted his current position upon retirement. Tr. 441-42. 10. Colonel Patrick Toffler is Director of the Office of Institutional Research (OIR) at the United States Military Academy (“West Point”). He graduated from West Point in 1968, and holds a master’s degree from the Naval postgraduate school. The function of the OIR “Is to assess the degree to which [West Point] is successful in realizing its purpose, accomplishing its mission, achieving its outcome goals, and to assist the major decisionmakers in the conduct of their duty.” The Office prepares reports on aspects of the West Point programs and Colonel Toffler comes into contact with all of the West Point constituencies. Tr. 478-481. 11. Colonel John Walter Ripley is the commanding officer of the Navy and Marine ROTC programs at VMI. He joined the Marine Corps directly after high school, and then received a fleet appointment to the Naval Academy, from which he graduated in 1962. He also holds a Master’s Degree from American University. He has been an active-duty marine for over thirty years, and his service includes teaching appointments at Oregon State University and the Naval Academy prior to his current duty at VMI. Tr. 814-16. II. Public Higher Education in Virginia 1. There are fifteen state-supported four-year colleges in the Commonwealth of Virginia: Christopher Newport College Clinch Valley College College of William and Mary George Mason University James Madison University Longwood College Mary Washington College Norfolk State University Old Dominion University Radford University University of Virginia Virginia Commonwealth University Virginia Military Institute Virginia Polytechnic Institute and State University Virginia State University Stipulation 126. 2. Historically, most of Virginia’s public colleges were single-sex. Four colleges were originally limited by statute to women only. Mary Washington College, legislatively founded in 1908, became coeducational in 1970. Radford University, founded in 1910, became coeducational in 1972. Long-wood College, founded as Farmville Female Seminary Association in 1839 and converted into a public institution in 1884, began a diversification program that led to the admission of men in 1949. James Madison University, founded in 1908, became coeducational in 1966. Stipulation 111; 1839 Va. Acts ch. 167; 1884 Va. Acts ch. 311. 3. On the men’s side, the University of Virginia first admitted women only after its single-sex policy was attacked in court. Kirstein v. Rector and Visitors of the University of Virginia, 309 F.Supp. 184 (E.D.Va.1970). Virginia Tech was also originally male only. 4. All public colleges in Virginia, except for the Virginia Military Institute, are now coeducational. Thus, Virginia has one all-male public institution and no all-female colleges. 5. In the Fall of 1989, enrollment at the 15 public institutions included 72,819 men and 85,441 women. Stipulation 113. Of that number, 1312 (all men) are enrolled at VMI. VMI is substantially smaller than all of the colleges in the system except for Clinch Valley College, which has a very different mission. 6. Virginia offers a diverse array of educational opportunities through the decisions of the respective autonomous governing boards of Virginia’s colleges and universities, public and private. The State Council of Higher Education’s current plan for higher education states that “Virginia has always recognized that there are many kinds of excellence and has supported a diversity of missions among its institutions of higher education.” Stipulation 108. 7. The Boards of Visitors of the various public colleges and universities in Virginia have traditionally enjoyed, and now enjoy, broad autonomy in the determination of such issues as the institution’s mission, curriculum, the composition of its faculty, and the composition of its student body. 8. The 1990 Report of the Commission on the University of the 21st Century to the Governor and the General Assembly of Virginia notes that the hallmarks of Virginia’s educational policy are “diversity and autonomy.” Stipulation 105. It further states The formal system of higher education in Virginia includes a great array of institutions: state-supported and independent, two-year and senior, research and highly specialized, traditionally black and single sex. Opportunities for fundamental change are open to all. But the sea change being felt in Virginia affects the entire system, and we think that Virginia should encourage creativity and discourage complacency by its method of governing higher education and by financial and other rewards. Stipulation 106. 9. All expert witnesses agree that Virginia’s system of higher education is diverse. Tr. 403 (Conrad); Riesman Dep. 89-91; Tr. 984 (Bunting). The diversity is a consequence of the relatively great autonomy given to the individual Boards of Visitors. ' 10. All Virginia statutes requiring individual institutions to admit only men or women have been repealed. Whether a university should be single-sex or coeducational is in every case decided by the Board of Visitors of the institution. A. VMI’s Contribution to System-Wide Diversity 1. VMI contributes to the diversity of Virginia’s higher education in two related ways: (1) by providing an opportunity for single-sex education, and (2) through the unique VMI method of character development and leadership training. 2. Institutions of higher education that admit only males contribute greatly to diversity in higher education, and should be preserved. Diversity between different kinds of colleges as well as diverse student bodies at individual colleges is a positive aspect of the American, and the Virginia, higher education system. Riesman Dep. 22, 38-39. 3. Diversity between colleges, and the very high number of colleges, is one of the more striking differences between the American and British higher education systems. Tr. 984 (Bunting). 4. Aside from the unique qualities of the éducation VMI provides, the Commonwealth of Virginia awards some scholarships, the VMI State Cadetships, exclusively to VMI cadets. During 1990-91, 35 cadets were awarded $147,104. Defendants’ response to plaintiff’s third set of interrogatories at 16. A substantial number of private scholarships are also available only to VMI cadets. Women have no opportunity to compete for these scholarships. 5. Dr. Conrad concluded that the diversity of Virginia’s higher education would not be diminished were VMI to admit women. He acknowledged, however, that single-sex education is a form of diversity. Tr. 371-74, 381-82. B. Role of Private Colleges 1. There are five all-female private colleges in Virginia, Randolph-Macon Women’s College, Mary Baldwin College, Sweet Briar College, Hollins College, and Southern Seminary College (which offers only a two year program). There is one private all-male college in Virginia, Hampden-Sidney College. VMI Exhibit 74A. 2. In the fall of 1989, 3850 women and 2256 men were enrolled in single-sex institutions of higher education in Virginia. All of the women, and 944 of the men, were enrolled in private institutions. Stip. 114. 3. Nationwide, 11,400 men attend single-sex • institutions. Of this number, 2,000-3,000 attend The Citadel, a public military college in Charleston, South Carolina; 1,300 attend VMI; and the remainder attend one of nine private institutions. Tr. 675, 724-25 (Richardson). There are about 56 single-sex schools for women, enrolling about 64,000 students. All but one of these are private, the exception being Douglass College in New Brunswick, New Jersey, which shares the campus of the much larger Rutgers University. The Mississippi College for Women remains primarily for women, but is required to admit men to its nursing program. Hogan; Tr. 676, 725 (Richardson). 4. From the above statistics, it would appear that the demand for public higher education in Virginia is slightly greater among women than among men. The demand for single sex education is substantially greater among women than among men, both in Virginia and nationwide. The presence of four all-female private schools in Virginia further indicates that the private sector is providing for that form of education to a much greater extent than it provides for all-male education. 5. No defense witness in this case offered to explain why Virginia provides the option of single-sex public education to men but not to women. This appears to be the consequence of individual decisions by each public college in Virginia to admit men. No evidence was submitted concerning the cost or practicality of creating a new, all-female public college, or of converting an existing college into an all-female institution. C. Public Influence on Private Colleges 1. The Virginia Constitution permits the General Assembly to provide loans and other aid to students attending nonpublic institutions of higher education. Va.Const.Art. VIII, § 8; Stipulation 88. Virginia provides this aid through the Tuition Assistance Grant program. Va.Code § 23-38.11 et seq. 2. The report of the General Assembly Commission on Higher Education to the General Assembly of Virginia (Senate Document 19, 1974) states: (a) “Virginia needs the diversity inherent in a dual system of higher education.” (b) “Higher education resources should be viewed as a whole— public and private.” (c) “Even without state economic aid to private colleges, it is academic and economic waste to permit unwarranted duplication.” VMI Ex. 4, at 16. 3. Virginia relies on its independent institutions to offer students choices and meet the educational needs of people in the Commonwealth. Tr. 710 (Richardson). There is substantial voluntary cooperation between the public and private institutions on a variety of programs. VMI Ex. 55. 4. The Boards of Visitors of all of the Virginia public colleges are nominated by the Governor and are subject to confirmation by the State Senate. See generally Va.Code § 23. Private colleges face no legal restrictions in how they choose their directors. 5. Aside from the choice of particular college, a significant practical difference for a Virginia resident between attending a public and a private college is that, even with the Tuition Assistance Grant, the private education will be much more expensive. III. The Unique VMI Educational Method 1. The VMI method conforms generally to an adversative, or doubting, model of education. Physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values are the salient attributes of the VMI educational experience. 2. Some of the defendants initially argued that the VMI experience is available to women in substantially the same form at Virginia Polytechnic Institute State University (VPI). In answer to an early interrogatory, the Commonwealth stated, “There is no unique or special benefit, educational or otherwise, available at VMI which cannot also be obtained elsewhere in Virginia’s higher education system.” Response of Commonwealth to Second Set of Interrogatories, No. 4. Evidence at trial disproves this contention, which was never asserted by VMI itself. VMI and the military barracks at Virginia Polytechnic Institute are dramatically different institutions that offer dramatically different experiences. 3. The system of education at VMI is not offered elsewhere in the United States. Therefore, women have no opportunity anywhere to gain the benefits of this education. Tr. 139 (Bissell); 373 (Conrad). 4. VMI is sought out by some applicants for admission because it is known to be the most challenging military school in the United States, and because its alumni are exceptionally close to the school. Tr. 206 (Sandy). A. The Adversative Model 1. The VMI experience is predicated on the importance of creating doubt about previous beliefs and experiences in order to create a mindset conducive to the values VMI attempts to impart. VMI Ex. 58 (Richardson Report) at 22-23. 2. The adversative model has been used by military service and in the English public schools. Tr. 686 (Richardson). 3. The adversative model is not in widespread use in American higher education. Dr. Riesman’s writings have criticized the permissiveness of American society and the lack of experiencing stress. Dr. Riesman believes that young people rarely experience difficult physical or intellectual demands. New young people undergo a truly demanding academic program, and even fewer involve themselves in demanding extramural (i.e., outside of the curriculum) programs. While most colleges and universities make it possible for a student to get a good education, many such institutions make it easy for students merely to get by. Riesman Dep. 25-30. 4. Colonel N. Michael Bissell, the Commandant of Cadets at VMI, summarized the educational process at VMI as follows: I like to think VMI literally dissects the young student that comes in there, kind of pulls him apart, and through the stress, everything that goes on in that environment, would teach him to know everything about himself. He truly knows how far he can go with his anger, he knows how much he can take under stress, he knows how much he can take when he is totally tired, he knows just exactly what he can do when he is physically exhausted, he fully understands himself and his limits and capabilities. Something I think is the mainstay of leadership. I think every VMI man that leaves there knows a great deal about his human capacity to do things under all kinds of duress and stress. Tr. 803-04; see also Tr. 820-22 (Ripley). 5. All experts agreed that the individual systems comprising the VMI method for leadership and character development must be understood holistically. The individual systems are integrated into a unified experience through the barracks life. Altering any system will affect the educational experience as a whole. Tr. 690, 707, 758 (Richardson), 993 (Bunting), 780-81 (Bissell), 409 (Conrad). B. Rat line 1. Entering students at VMI are called “rats” because the rat is “probably the lowest animal on earth.” In general, the rats are treated miserably for the first seven months of college. Tr. 102 (Bissell). 2. Behavior that contributes to VMI objectives is rewarded; behavior that detracts is swiftly punished. Both punishment and reward are collective as well as individual. Being punished or rewarded for the sins or accomplishments of brother rats, as well as for one’s own, builds a sense of class solidarity in addition to individual responsibility. The rat line is sufficiently rigorous and stressful that those who complete it feel both a sense of accomplishment and a bonding to their fellow sufferers and former tormentors. VMI Ex. 58 (Richardson Report) at 4; Tr. 347-48 (Conrad). 3. The rat line is an extreme form of the adversative model. It challenges all values and all forms of behavior in order to instill the values and behaviors for which VMI exists. Tr. 684-85 (Richardson). 4. Features of the rat line include indoctrination, egalitarian treatment, rituals (such as walking the rat line), minute regulation of individual behavior, frequent punishments, and use of privileges to support desired behaviors. Tr. 685 (Richardson). 5. The rat line is more dramatic and more stressful than Army boot camp or Army basic training. Tr. 785-86 (Bissell). It is comparable to Marine Corps boot camp in terms of both the physical rigor and mental stress of the experience. Tr. 818 (Ripley), 684 (Richardson). 6. At VMI almost every conceivable kind of behavior is anticipated and prescribed. There are thousands of regulations in place that govern cadet life. Tr. 395 (Conrad). 7. “Motivational activities” including stoop runs, fifteen-minute running and calisthenic events, rifle runs, training marches, and the like, are critical aspects of the rat line. Tr. 348-49 (Conrad). 8. The rat line is a very intense experience. Part of that experience is a tough physical training program that begins during the first 8-10 days that cadets spend on the VMI campus. The rigorous physical training is an important component of the rat system. Tr. 933 (Conrad). 9. Cadets who participate in NCAA sports during the regular school year are excused from the physical parts of rat training during the hours that they are practicing their sport. Tr. 112 (Bissell). Aside from that exception, all rats participate in all aspects of rat training. 10. All VMI cadets experience the rat line. The only time cadets can join the corps at VMI is in August, at the beginning of the school year. If cadets leave after joining, they are not replaced. Tr. 92-93 (Knapp). C. Class System 1. The class system at VMI is a system of privileges and responsibilities aimed at developing the character and leadership of cadets. Each class has specific responsibilities. The first class, or seniors, are responsible for providing overall leadership, writing the standard operating procedures for the rat line for the following year, supervising the rat breakout, and for being a dyke to a rat. The third class, to cite another example, serves as disciplinarians to the rats. The class system is a very highly-developed system for cultivating leadership. Tr. 346-48 (Conrad). 2. After the rat line strips away cadets’ old values and behaviors, the class system teaches and reinforces through peer pressure the values and behaviors that VMI exists to promote. This occurs within the barracks setting. The class system supplies the constant supervision of cadets, tutoring, and dispensation of privileges to reward desired values and behaviors. Tr. 687 (Richardson). 3. The degree and harshness of the regulations imposed through the class system is possible only through a peer system. Professionals working in the same environment could not duplicate the level of stresses without adverse consequences. Tr. 687-88 (Richardson). D. Dyke System 1. The dyke system is closely linked to the class system, and is the arrangement by which each rat is assigned a first class-man as a mentor, called a “dyke.” The dyke system provides some relief from the extreme stress of the rat line. Tr. 685 (Richardson). 2. The VMI system of education creates a sense of loyalty to one’s brother rats. The dyke system contributes to this sense of loyalty. The dyke system also creates a cross-class bonding and provides a model for leadership and support. Riesman Dep. 43; Tr. 141-42 (Bissell). E. Honor Code 1. The VMI honor code holds that a cadet “does not lie, cheat, steal nor tolerate those who do.” The sole penalty for violations of the VMI honor code is expulsion. The VMI honor code dominates all facets of institutional life. It is stringently enforced by an honor court comprised of cadets elected from the upper two classes. VMI Ex. 58 (Richardson Report) at 6. F. Barracks 1. Unlike most colleges, where the library is central and the dormitories are peripheral, the most important aspects of the VMI educational experience occur in the barracks. The barracks, therefore, are crucial to the VMI experience. Tr. 683-84 (Richardson). All cadets are required to live in the barracks for all four years at VMI. Tr. 761 (Richardson); VMI Ex. 11 at 11. 2. The barracks are the situs of the inspections, the rat-dyke relationship, administration of the class system, administration of the honor system, and much of the new cadet training, or rat line. 3. The barracks are designed to reduce all cadets to the lowest common denominator, from which the new cadet training system, class system, honor code, military system and academic system year-by-year builds the values, attitudes and behaviors expected from VMI graduates. In the process, upperclassmen exhibit unusual concern and serve as mentors for lower class-men. Producing a VMI graduate without the barracks experience would be equivalent to dressing someone up in the uniform of a Marine without first sending them to boot camp. VMI Ex. 58 (Richardson Report) at 3. 4. The report of the Reaffirmation Committee of the Commission on Colleges for the Southern Association of Colleges and Schools on March 16-19, 1986, observed that “[t]he barracks, VMI’s student housing, is the center of campus life and reflects many of the educational objectives of the institution. There is no professional staff living in the barracks but cadets themselves provide support for life there.” VMI Ex. 35, at 49. 5. The barracks’ configuration is a training aid, and the barracks is a total training environment in which the class system functions. Each class is assigned a floor in the barracks, which has four floors. There is a total lack of privacy. Everyone knows what everyone else is doing. The closest a cadet can come to privacy at VMI is a study table in the library because there is literally no place in the barracks that physically affords privacy. The open windows on the doors in the barracks are significant because they enable the officer in charge to walk around and check in each room at night and see every cadet without anything being hidden. This spartan living and humbleness is an aspect of the egalitarian ethic at VMI. Tr. 794-98 (Bissell). 6. The average occupancy rate of cadet rooms at VMI, according to VMI’s 1985 Self-Study, was 3.7 cadets per room. It is uncommon, if not unique, for a college or university to have a dormitory occupancy rate exceeding three persons per room. Tr. 435-36 (Brewer). 7. The barracks are stark and unattractive. The windows and the doors ensure that cadets are never free from scrutiny. There is constant intermingling of cadets as a result of the close and intimate quarters and the number of cadets assigned to a room. Ventilation is poor. Furniture is unappealing. A principal object of these conditions is to induce stress. Tr. 683 (Richardson), 350 (Conrad). 8. There are no locks on the doors of cadet rooms in barracks, no windows in the barracks doors, no window shades or curtains. Barracks rooms open onto stoops. The stoops are open corridors at each level and provide access to the gang bathrooms. On the fourth floor a cadet cannot go to the bathroom or go to take a shower without being observed by everyone in that quadrangle on all levels. This places cadets under constant scrutiny and permits minute regulation of behavior, especially for the fourth classmen who reside on the top floor. VMI Ex. 58 (Richardson Report) at 3; Tr. 683-84 (Richardson). 9. The egalitarian treatment associated with barracks life is as important as the elements of stress and lack of privacy. In barracks, a cadet is totally removed from his social background. Tr. 992-93 (Bunting). 10. No other institution, including the service academies, places such emphasis on barracks or dormitory life. The lifestyle system at VMI is unique. Tr. 394 (Conrad). G. Military System 1. The military regulations, et