Full opinion text
MEMORANDUM OPINION KISER, Chief Judge. This phase of this case (“Remedy”) is on remand from the Fourth Circuit. Although the Fourth Circuit agreed that single-sex education was a legitimate pedagogical goal, it criticized the Commonwealth’s avowed policy of supporting diversity in higher education through VMI in two respects: First, that there had been no authoritative articulation that the Commonwealth sought to diversify its higher education system by offering single-sex education; and, second, that the program — as it now stands — is one-sided, i.e. that VMI offers a single-sex opportunity to young men while there is no comparable opportunity for young women. For these reasons, this case was remanded to this Court to permit the Commonwealth to “... formulate, adopt and implement a plan that conforms to the principles of equal protection____” United States v. Commonwealth of Virginia, 976 F.2d 890, 892 (4th Cir.1992) ("VMI"). There is substantial disagreement between the parties as to what is required by the remanding instructions of the Fourth Circuit and the Equal Protection Clause. It is the position of the United States that the mandate from the Fourth Circuit and the Equal Protection Clause require that if the Commonwealth opts to establish a separate program for young women, it must be in all respects equivalent to, i.e. a mirror image of, the VMI program. The Commonwealth argues that the United States’ position misconstrues both the meaning of the Fourth Circuit’s mandate and the requirements of the Equal Protection Clause. The Commonwealth’s position is that the mandate of the Fourth Circuit requires Virginia to provide a state-supported all-female college program that will attain an outcome for women that is comparable to that received by young men upon graduation from VMI. The Commonwealth argues that to attain the desired outcome for women, the Fourth Circuit’s mandate does not require that an all-female program adopt the same or similar methodology as is used at VMI. The Commonwealth further argues that its view comports with the judicial gloss given, in this context, to the Equal Protection Clause — i.e. that the Commonwealth’s system of higher education now satisfies intermediate scrutiny equal protection analysis applicable to sex-based discrimination. If the United States’ position is the correct one, then the Commonwealth’s proposed Plan must fail because the Plan differs substantially from the VMI program. If the Commonwealth’s position is the correct one, however, then an analysis of its proposed plan is necessary to determine whether it meets both the requirements of the Fourth Circuit’s mandate and the requirements of the Equal Protection Clause. I am persuaded that the Commonwealth’s position is the correct one and that its proposed plan meets the requirements of the Fourth Circuit’s mandate and the requirements of the Equal Protection Clause. Here is why. Procedural Background At the outset of this phase of the litigation, this Court ruled that factual findings, which were made by this Court in the liability phase and approved by the Fourth Circuit, would not be open for reexamination. A full recitation of those facts is found in this Court’s opinion at 766 F.Supp. 1407. A brief recitation of the operative findings made there will be sufficient for the present purposes. District Court Opinion After reviewing the legal principles that apply to intermediate scrutiny under the Equal Protection Clause, I reviewed the expert testimony pertaining to the benefits of a single-sex education and concluded that “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.” Id. at 1412. After making that finding, I then reviewed the effect that the admission of women to VMI would have on its program and concluded “the single-sex status would be lost and some aspects of the distinctive method would be altered if it were to admit women.” Id. at 1413. Finally, I observed that there was an absence of a comparable opportunity for women, but concluded that this did not impair the legitimacy of the VMI program, and I did not seek to impose corrective action upon the Commonwealth because “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.” Id. at 1414. Fourth Circuit Opinion At the outset of its opinion, the Fourth Circuit stated, [W]e accept the district court’s factual determination that VMI’s unique methodology justifies a single-sex policy and material aspects of its essentially holistic system would be substantially changed by coeducation. ... The Commonwealth of Virginia has not, however, advanced any state policy by which it can justify its determination, under an announced policy of diversity, to afford VMI’s unique type of program to men and not to women, p. 892. The court stated that it was remanding the case “to the district court to require the Commonwealth of Virginia to formulate, adopt, and implement a plan that conforms to the principles of equal protection discussed herein.” Id. at 892. The court then proceeded with its analysis. After reviewing this Court’s finding with regard to the benefits of single-sex education in general — and VMI methodology in particular — and after reviewing the pertinent jurisprudence with regard to the proper application of equal protection under the intermediate scrutiny test, the court, concluded, “In summary, the record supports the conclusion that single-sex education is pedagogically justifiable, and VMI’s system, which the district court found to include a holistic formula of training, even more so.” Id. at 898. The appeals court proceeded to criticize the Commonwealth for failing to articulate, authoritatively and comprehensively, a policy with regard to single-sex education which would include both males and females. In summation, the Court stated: We are thus left with three conclusions: (1) single-sex education, and VMI’s program in particular, is justified by a legitimate and relevant institutional mission which favors neither sex; (2) the introduction of women at VMI will materially alter the very program in which women seek to partake; and (3) the Commonwealth of Virginia, despite its announced policy of diversity, has failed to articulate an important policy that substantially supports offering the unique benefits of a VMI-type of education to men and not to women. Id. at 899. Because of these deficiencies, the Fourth Circuit remanded the case to this Court to give the Commonwealth an opportunity to fashion a remedy that would address the constitutional violation identified by the Court. In so doing, the Court instructed: [W]e do not mean to suggest the specific remedial course that the Commonwealth should or must follow hereafter. Rather, we remand the ease to the district court to give the Commonwealth the responsibility to select a course it chooses, so long as the guarantees of the Fourteenth Amendment are satisfied. Consistent therewith, the Commonwealth might properly decide to admit women to VMI and to adjust the program to implement that choice, or it might establish parallel institutions or parallel programs, or it might abandon state support of VMI leaving VMI the option to pursue its own policies as a private institution. While it is not ours to determine, there might be other more creative options or combinations.” Id. at 900. Interpreting the Fourth Circuit’s Opinion The overarching question in this phase of the litigation is: what does the Fourth Circuit’s opinion require of a proposed plan in order to pass constitutional muster? As stated above, the litigants disagree strongly on this issue. Both sides are able to support their arguments by fragmented readings of the Fourth Circuit’s opinion. For example, the United States finds support in the statement “whether the unique benefit offered by VMI’s type of education can be denied to women by the state under a policy of diversity . . .” VMI, 976 F.2d at 898. This statement would imply that a program for women must provide a VMI-type education. The United States urges that to comply with the instructions of the Fourth Circuit, the Commonwealth is required to produce a plan that will create a separate institution which closely resembles, if not clones, the physical plant, the curriculum, the methodology, the prestige, and many of the other attributes of VMI. In other words, the United States reads the Fourth Circuit opinion to require a “separate but equal” institution. The sophistry of the “separate but equal” concept was roundly rejected in Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950). Sweatt involved an equal protection challenge to the admissions policy at the University of Texas law school which categorically denied admission to blacks. Texas offered a newly established all-negro law school which it claimed remedied any constitutional violation which may have existed by virtue of UT’s law school admissions policy. Although Sweatt was a racial discrimination case that applied strict scrutiny equal protection analysis, the rationale of the case applies to this case. The Sweatt Court, after reviewing the tangible qualities which made the University of Texas superior to the proposed new law school for negroes, stated: What is more important, the University of Texas law school possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. Id. at 634, 70 S.Ct. at 850. Thus, if “separate but equal” is the standard by which the Commonwealth’s plan must be measured, then it surely must fail because, as the United States pointed out time and time again during the trial, even if all else were equal between VMI and the Virginia Women’s Institute for Leadership (“VWIL”), the VWIL program cannot supply those intangible qualities of history, reputation, tradition, and prestige that VMI has amassed over the years. One must assume that the Fourth Circuit did not assign the Commonwealth an impossible task when it suggested that the Commonwealth was free to establish “parallel programs” or to devise “creative options or combinations” that would comply with the court’s decision. It would be unrealistic to think that the Fourth Circuit was requiring an exercise in futility. Moreover, the Fourth Circuit’s opinion must be read in light of the portions of the district court findings, which the appeals court approved. The district court found VMI’s male-only admission policy was justified without regard to VMI’s unique methods of teaching and training. The Fourth Circuit’s opinion approved specifically the district court findings in this respect when it stated, “the record supports the conclusion that single-sex education is pedagogieally justifiable, and VMI’s system, which the district court found to include a holistic formula of training, even more so.” Id. at 898. Thus, both the district court and the appeals court held that the legal justification for VMI’s all-male admission policy was contained in the benefits that flow from a single-sex education. The finding that VMI employed unique methods to teach young men was simply an added dimension to the already pedagogically justifiable policy. The Fourth Circuit’s subsequent decision in Faulkner v. Jones, 10 F.3d 226 (4th Cir. 1993), further bears out this interpretation of its mandate in this case. In amplifying its decision in the VMI case, the Faulkner court stated, We remanded the case to the district court with instructions to elicit a plan from the state complying with the Fourteenth Amendment. We allowed for the possibility that a plan could still permit VMI to remain a state-supported, single-sex institution, if that were the will of Virginia, so long as women were offered a parallel program, (citations omitted). The order in VMI did not, however, direct that any parallel program which the state might choose to provide be identical for both men and women. * * * * * * [A]ny analysis of [a parallel program] in response to a justified purpose must take into account the nature of the difference on which the separation is based, the relevant benefits to the needs of each gender, the demand (both in terms of quality and quantity), and any other relevant factor. In the end, distinctions in any separate facilities provided for males and females may be based on real differences between the sexes, both in quality and quantity, so long as the distinctions are not based on stereotyped or generalized perceptions of differences. Id. at 232. I now examine the Commonwealth’s Proposed Remedial Plan to determine whether it comports with the controlling legal principles framed by the Fourth Circuit’s remand. Virginia Women’s Institute for Leadership The Virginia Women’s Institute for Leadership (“VWIL”) plan envisions a parallel program, which takes into account the differences and the needs of college-age men and women. The VWIL plan offers a holistic, residential four-year college experience in an established all-female environment, Mary Baldwin College (MBC). VWIL’s stated mission is to produce the “citizen soldier,” i.e., women who are trained for leadership in both civilian and military life. Defs.’ Ex. 11 at 6. The methods by which this goal could be achieved were the subject of intensive study and planning by professionals who are leaders in the field of designing and implementing educational programs for women. The Dean of Mary Baldwin College (“MBC”), Dr. James D. Lott, chairs a Task Force which was charged with developing a leadership program suitable for an all-female four-year college. Dr. Lott is an expert in the field of educating women at the college level, as were most of the members of the Task Force who were drawn from the staff and faculty at MBC. Besides drawing on their own experience and expertise, the Task Force made an in-depth study of the published literature on the developmental psychology of women and the cognitive development of women. The Task Force also consulted outside experts, the most notable of which was Dr. Richard C. Richardson, Jr. After a detailed study of the appropriate methods by which the leadership program should be structured, the Task Force determined that a military model and, especially VMI’s adversative method, would be wholly inappropriate for educating and training most women for leadership roles. Consequently, the Task Force developed an analogy to the holistic VMI program, bringing together the co-curricular and the curricular to promote the student’s development in all phases of her life. See Defs.’ Exs. 11, 39. In lieu of the adversative methods employed by VMI, the VWIL concept proposes a cooperative method which reinforces self-esteem rather than the leveling process used by VMI. VWIL will be a highly structured program but without the extreme adversative VMI components, such as the rat line and breakout. In the opinion of one of the leading experts on the educating of women, Dr. Elizabeth Fox-Genovese, an adversative method of teaching in an all-female school would be not only inappropriate for most women, but counter-productive. Dr. FoxGenovese’s opinion is based on her extensive research which shows that most women reaching college generally have less confidence than men. It is the opinion of the Task Force that the methods adopted for the VWIL will produce the same or similar outcome for women that VMI produces for men. Dr. Fox-Genovese concurs in this assessment. Tr. 247-48 (Fox-Genovese). In addition to its argument that the VWIL program is not sufficiently similar to the VMI methods to pass constitutional muster, the United States argues that the VWIL program will not attain its stated goals and that the financial planning is fatally flawed. I will address these objections in turn. A. Differences between VWIL and VMI. 1. Academic offerings and requirements of VWIL. The general education requirements and the academic majors, as well as the admission standards, for VWIL students will be the same as those for regular MBC students. Plan at 8. VWIL students must complete a calculus course, either a statistics course or “an appropriate discipline-based quantitative methods course, two science courses with labs, in addition to Biology of Women, and a microcomputer applications course “or the equivalent or by passing a competency test.” Defs.’ Ex. 39 at 6. VWIL students will take a leadership externship. According to the plan, this externship, “which should ideally be related to [the student’s] major,” will be distinguished from other externships by providing an opportunity to experience and reflect on leadership in practice. VWIL students will participate in the VWIL seminar, and in Saturday seminars three times a semester. Defs.’ Ex. 39 at 8, 15. VWIL students will organize a Leadership Speaker Series for one semester of the junior year and one semester of the senior year. Defs.’ Ex. 39 at 15. VWIL students will not attend any classes with male students. Tr. 101, 155 (Lott). At trial, the government spotlighted the fact that VWIL students will have the opportunity to earn an engineering degree only if they participate in a 3-2 program with Washington University. According to the government this arrangement is constitutionally unacceptable given that VMI offers an engineering degree as well as several advanced math and physics courses that VWIL will not offer. Defendants explained however, that demand at present would not justify an engineering program at MBC. The Fourth Circuit, while amplifying its VMI decision in Faulkner stated explicitly that one of the factors to be considered by this Court in evaluating any proposed remedy is the demand for aspects of a particular program. Faulkner, 10 F.3d at 232. The compelling evidence is that there would be a very slight demand for an engineering program at the all female VWIL. Again, simply because a small handful of women may desire a mirror image VMI, or even an engineering program in an all female environment, does not mean that the Commonwealth is constitutionally obliged to provide such. The Commonwealth has finite resources and it must identify demand for the various alternatives in higher education in the Commonwealth and allocate its resources accordingly. The very concept of diversity precludes the Commonwealth from offering an identical curriculum at each of its colleges. Thus, in many instances, a prospective student must make a choice between the lifestyle of a college and a preferred course of study. For example, a prospective student may prefer the lifestyle at William and Mary in the eastern part of the state, but wants to study veterinary medicine which is offered only at VPI in the western part of the state. Here, a prospective VWIL student is faced with a similar choice — to go to VPI, a co-ed college which offers an engineering course and has an ROTC component, or to attend VWIL, which is all female, has an ROTC component but no on-campus engineering program. Each of Virginia’s colleges cannot be all things to all people. Financial resources do not permit it nor does equal protection require it. 2. VWIL/MBC Residence Life The residential life for VWIL students will vary significantly from the residential life of VMI students. The Task Force developed a model which will allow VWIL students to move in productive ways between the “walls” of VWIL and the MBC community. Defs.’ Ex. 39 at 11-12. Upperclass VWIL students will be required to live for at least one year in the VWIL House. Defs.’ Ex. 39 at 14-15. The VWIL House will not be operated on a military format. Defs.’ Ex. 11 at 11; Tr. 374 (Tyson). The Task Force rejected VMI’s extreme adversative model for the co-curriculum component because that model would not produce the same outcomes for the VWIL population as it does for the VMI population. Notwithstanding these differences, the VWIL program will use the highly disciplined schedule of the VMI model. Defs.’ Ex. 39 at 12-14. 3. The Military Component VWIL requires participation in an ROTC program. The United States argues that the VWIL ROTC component is a pale image of the military lifestyle at VMI, but in making the argumént the United States confuses VMI’s co-curricular military model of training with its ROTC program. The only expert to testify on the effectiveness of ROTC programs was Major General Robert E. Wagner. He is a person who has devoted a substantial portion of his career to establishing, evaluating and standardizing ROTC programs in colleges throughout the United States. He compared outcomes of ROTC programs of co-ed colleges which had no military co-curricular lifestyle with the cadets from VMI who participated in ROTC and found no significant difference in the performance of VMI cadets and participants from co-ed colleges. For example, he found that the ROTC participants from the University of Virginia fared as well, and in some cases better, than VMI cadets. 4. VWIL’s BeneñtslOutcomes VWIL is a good design for producing female citizen-soldiers and will be unique in the country. Tr. 249-50 (Fox-Genovese). The VWIL experience will not be the entirely militaristic experience of VMI. Instead, VWIL, because it is planned for women who do not necessarily expect to pursue military careers, incorporates the element of public service. Id. Although the United States showed unequivocally that the VWIL program differed from VMI in many ways, no expert for the United States testified that VWIL would not be educationally beneficial for women. Defendants’ witnesses, Dr. Richardson and Mr. Bunting, and United States witnesses, Drs. Conrad and Astin, agree that any given set of outcomes can be obtained by more than a single methodology. Tr. 608 (Richardson); Tr. 1550 (Bunting); Tr. 1076 (Conrad); Tr. 1302 (Astin). VWIL is a pioneering project. As such it cannot, by definition, boast of a VMI type record of producing “citizen soldiers.” However, the evidence produced at trial indicates that MBC is committed to providing to the VWIL women benefits that are equal to or better than the benefits provided to men at VMI. As noted supra, MBC, with its experience in women’s education and record of unique programs, believes that VWIL will accomplish its mission. Tr. 1529-30 (Tyson). The government stressed the fact that the Commonwealth has not yet developed a firm methodology for evaluating the VWIL program and argues, therefore, the credibility of the plan is fatally undermined. The expert testimony at trial differed significantly in assessing the expected outcomes of the VWIL program. Perhaps the only conclusion that may fairly be drawn from the testimony in this regard is that attempting to evaluate the VWIL program before it is implemented is of questionable value. According to Dr. Askegaard, evaluating a program is a retrospective exercise and terms like “citizen-soldier” must be operationalized before a program can be evaluated. Because the term “citizen-soldier” has not been operationalized, an assessment plan has not been developed. Dr. Clifton Conrad, one of the government’s experts on curricular and co-currieular education programs, testified that (1) many different means can be used to achieve the VMI outcomes, Tr. 1103-04 (Conrad), (2) his opinions regarding VWIL are informed guesses, and (3) he cannot evaluate the program until it has been implemented. Tr. 1260 (Astin). The government also offered testimony of Dr. Alexander Astin. Dr. Astin testified that the success of the VWIL program will depend upon who is attracted to the program and who forms the peer group and how the implementation of the program deals with the dilemma of what will be different and unique from the traditional MBC program. Because of these considerations, Dr. Astin concludes it will be difficult to realize VWIL’s objectives. Tr. 1260 (Astin). Dr. Astin testified that the only way to know if VWIL can accomplish its outcomes is to implement VWIL and assess its outcomes. Tr. 1273 (Astin). Dr. Astin conceded that, even if the Commonwealth of Virginia were to create the mirror image of VMI for women, it could not duplicate the alumni network, history, tradition and prestige of VMI. Tr. 1277 (Astin). Finally, Dr. Astin testified, as did Dr. Conrad, that it is possible to achieve a similar educational outcome through different educational methodologies. Tr. 1302 (As-tin). Dr. Astin further testified that his conclusions regarding VWIL’s future outcome are speculative, Tr. 1287 (Astin), and that educators could reasonably disagree with his conclusion that the VWIL program will not be able to achieve its stated goals. Tr. 1305 (Astin). Dr. Astin’s personal ethical opposition to VMI’s current all-male admissions policy impairs his objectivity in evaluating the VWIL program. Indeed, Dr. Astin has admitted that he has “a problem with any institution that excludes applicants on the basis of race or sex,” that his “sense of equity and desire for the elimination of sexism and racism conflicts with [his] interest in supporting the most effective forms of education,” and that “some compromise in the quality of education is the price we must pay if we are to achieve fairness and equity.” Defs.’ Ex. 95. Dr. Astin’s opposition to VMI’s admission policy seems to be somewhat at odds with his flagship publication, Four Critical Years, wherein he extolled the virtues of single-sex education at the college level. The conflict arises from his present personal viewpoint on excluding females from publicly-supported colleges. Indeed, Dr. Astin has stated that because of this strong personal opinion, he would be willing to sacrifice beneficial pedagogical methods which infringe on his view. Defs.’ Ex. 95. If I comprehend Dr. Astin’s distinction correctly, he believes that single-sex education is beneficial for both men and women, but because of his ethical views it should not be practiced in publicly-supported colleges. In his view, as Four Critical Years bears out, single-sex education should be restricted to private colleges. By adhering to the public-private distinction, Dr. Astin creates a different ethical quagmire. As Dr. Fox-Genovese pointed out, private colleges are prohibitively expensive for students who come from families that are in the middle and lower income strata of society. Moreover, the public-private shibboleth is more apparent than real. It cannot be gainsaid that private colleges receive substantial infusions of both federal and state money. Thus, the distinction Dr. Astin draws is illusory. The United States also offered the testimony of Dr. Carol Nagy Jacklin who testified that the plan homogenizes women by assuming that there is an appropriate way to educate women. Tr. 873 (Jacklin). The essence of Dr. Jacklin’s testimony can be summarized thusly: Gender is not a useful predictor of learning patterns. Tr. 870-75 (Jacklin). Dr. Jacklin based her statement on her research which, according to her, shows a greater disparity in learning patterns within a gender group than exists between the two gender groups. She proceeded to illustrate her thesis with bell curve graphs as to each of the sexes groups. For both men and women the bell curve was a typical one — small numbers of persons at the beginning and ending with large numbers of persons in the middle. Of interest, however, was a narrow band where there was no overlap between the curve for males and the curve for females. When one thinks about Dr. Jacklin’s conclusions, she is stating what educators — indeed, the public in general — have known for a long time; that people are born with varying degrees of ability and drive. It is certainly no revelation that within a given population of males, there will be slow learners, average learners, and fast learners. The same holds true with any given population of females. Thus, the bell curves are not surprising. Moreover, the education experts who find a need for single-sex colleges do not base their opinion on the difference in cognitive abilities of male and females, but rather on developmental and emotional differences between the sexes. See, e.g., 766 F.Supp. at 1434-35 (Liability App. at VLB) Dr. Jaeklin’s testimony was contradicted by most of the evidence in the record. In addition, Dr. Jacklin conceded at least two justifications for single-sex education: (1) men and women are treated differently in the classroom as evidenced by her observation of students at MBC who were passive, while the students she observed at VMI were interactive; and (2) women have more chances for leadership at single-sex institutions. Tr. 887 (Jacklin). 5. Pedagogical Justification for VWIL Program. Several experts in women’s education testified that VWIL was a pedagogically sound and justified program. Drs. Richardson, Riesman, and Fox-Genovese furnished testimony supporting the appropriateness of the VWIL program and each expressed the opinion that the VWIL approach towards educating and preparing women leaders was preferable to the VMI approach. Dr. Fox-Genovese testified that VWIL does not need to use the same methodology as VMI with respect to the rat line and the adversative system and that based upon her study of literature and people, there would be little demand for a female VMI but there would be much more significant demand for VWIL. Tr. 138 (Fox-Genovese). Her personal experience and the “overwhelmingly scholarly evidence” — a portion of which is summarized in Defendants’ Exhibit 130A— suggest that young women, by the time they reach college, have less confidence in themselves than young men. Young women, according to Dr. Fox-Genovese, do not need to have uppityness and aggression beaten out of them. Dr. Fox-Genovese further explained that adolescence is a period of emotional stress and statistically, the emotional stress takes the form of delinquency in men and depression in women. According to Dr. Fox-Genovese, anorexia is rampant among young college women, in part because they doubt themselves and so they want to exercise control. The control they feel they can exercise is over their own bodies. This, testified Dr. Fox-Genovese, is a turning of energy inward instead of projecting it outward. She explained that anorexia is self-discipline turned pathological. What young women need to understand is the fit between a predictable order of the outside world and their own tendencies towards self-discipline. Tr. 252 (Fox-Genovese). Thus, she concluded, the adversative model is not appropriate to accomplish this result. Tr. at 250-52 (FoxGenovese). Finally, Dr. Fox-Genovese testified that it is important for states to maintain tax-supported single-sex educational opportunities because of the expense of private single-sex programs. Public single-sex opportunities will provide the most benefit to poorer women and men who, according to Dr. Fox-Genovese, would probably benefit the most from single-sex education. Tr. 291 (Fox-Genovese). Dr. Richardson testified that “[T]here is not in the VMI paradigm a place for the woman leader who excels and does those things that women are expected to do now and in the 21st century.” Tr. 611-12 (Richardson). Dr. Richardson further testified that he does not believe that the VMI model is achievable from the public policy perspective because it is deficient from the standpoint of attracting a sufficient clientele and from the standpoint of achieving a reasonable degree of acceptance from the Commonwealth. Dr. Riesman testified that VWIL is a “wholly appropriate way to proceed” to prepare women as citizen-soldiers. Tr. at 539-40 (Riesman). Dr. Riesman opined that the fact that this litigation may end with this new program and VMI still extant is a tremendous achievement, not only for Virginia but for the country. Tr. 474 (Riesman). Dr. Riesman stated, “Given the women now coming to higher education, what is offered in VWIL is a model for the country, with potentially enormous consequences to reverse the unhappy, often unequal, output of coeducation.” After evaluating the Commonwealth’s plan, Dr. Riesman concluded that VWIL will produce the kind of self-assurance in the face of accomplishment of difficulties that VMI offers and requires of its cadets. Tr. 496 (Riesman). Given the testimony of Drs. Fox-Genovese, Richardson and Riesman — and the absence of any testimony from the United States’ experts indicating that VWIL’s methodology is inappropriate or ineffective for women — I find that the differences between VWIL and VMI are justified pedagogically and are not based on stereotyping. This is not to say that some women cannot succeed within a VMI type methodology. The evidence at trial indicated that the VMI methodology could be used to educate women and, in fact, some women — such as the allegorical Jackie Jones — may prefer the VMI methodology to the VWIL methodology. As discussed above, however, the controlling legal principles in this case do not require the Commonwealth to provide a mirror image VMI for women. Rather, it is sufficient that the Commonwealth provide an all-female program that will achieve substantially similar outcomes in an all-female environment and that there is a legitimate pedagogical basis for the different means employed to achieve the substantially similar ends. VWIL satisfies the Fourth Circuit’s requirement that the Commonwealth adopt a parallel program for women which takes into account the differences and needs of each sex. B. Planning Assumptions The United States’ second line of attack on the Commonwealth’s plan is that the plan employs faulty financial assumptions. 1. General Assumptions/Enrollment Projections At trial, the government challenged the planning assumptions underlying the VWIL. According to the government, the assumptions are faulty. Primarily, the government argues the Task Force’s working assumption of 25 students in VWIL in the first year for planning purposes is merely a guesstimate without a sound factual basis. I disagree. The Commonwealth acknowledges that the Task Force did not undertake a market study for VWIL, but offers two sound reasons for this. First, MBC’s experience in attracting students to the traditional program informed its judgment that an intensified state-supported program would have sufficient appeal to make the program workable. Second, the 25 student estimate is based upon MBC’s experience with the PEG program and is also a number beyond which incremental costs per student will not exceed incremental revenues. Tr. 219-20 (Lott). Furthermore, there is no cap on the number of students MBC will accept into VWIL. MBC has additional residential capacity for 100-150, and MBC agrees it will accept VWIL students in lieu of traditional students if it becomes necessary. Tr. 131 (Lott). MBC has a good record of success in developing and implementing innovative educational programs. The success of MBC’s PEG program validates MBC’s ability to provide distinct programs and suggests that MBC has the ability to successfully implement the VWIL program. 2. VWIL Financing The United States also disputes sufficiency of VWIL’s financing as presented by Dr. Lott. Dr. Lott, who has experience in planning for new educational programs and in funding new educational programs, testified that the VWIL program is adequately financed. The United States argues that there is no reason to expect the increased tuition revenues to meet the increased costs of additional students. At trial, however, Dr. Finley stated that the tuition and fees received from new students combined with revenues received from the state contract could accommodate increased admissions. Both Dr. Lott and Dr. Finley are well-experienced in funding new educational programs. They approached the task in the same manner that most businesses use in predicting necessary funds for a new venture, i.e., a pro forma statement based on assumptions of what is likely to occur in the future. The assumptions of Drs. Lott and Finley are reasonable, and that is all that is required at the planning stage. The United States also argues that the out-of-pocket costs for VWIL students will be greater than those of VMI cadets. This conflicts directly with Dr. Sgro’s testimony that the VWIL tuition will cost the same as VMI tuition. Dr. Sgro testified that the Commonwealth of Virginia will provide the same amount of financial support to MBC for in-state cadets in the VWIL program that it provides to VMI on a per full time equivalent student basis. Defs.’ Ex. 12; Tr. 667-68 (Sgro). The Commonwealth’s Support of the Remedial Plan The Commonwealth of Virginia has an avowed policy of offering a diversity of choices in higher education. The Fourth Circuit expressed misgivings as to whether VMI’s all-male admissions policy was in fact an official state policy. The record in this case shows the Commonwealth’s unambiguous and unequivocal support of single-sex education for men and women. Contrary to the perceptions of many, the Commonwealth’s position in this Court has always been supportive of VMI’s all-male admissions policy because it adds to the diversity of choices in Virginia’s higher education system. This support is evidenced by the affidavits of all of the Commonwealth’s top officials entered into the record in this case. Governor George F. Allen has filed an affidavit in which he states that: “[VWIL] will enhance diversity in Virginia higher education and provide for the women of the Commonwealth a unique and innovative educational alternative.” Defs.’ Ex. 1 at 1-2 Former Governor L. Douglas Wilder filed an affidavit approving the remedial plan, Defs.’ Ex. 5, and has commented that “I and my staff have worked closely with Mary Baldwin College and VMI in crafting a program to remedy the discrimination---- [and VWIL] extends to women across our Commonwealth the benefit of a single-sex education which Virginia presently makes available to men at VMI.” Defs.’ Ex. 11-R at 2. Lieutenant Governor Donald S. Beyer,' Jr. has also filed an affidavit supporting the remedial plan stating that VWIL “will enhance and contribute to the diversity of educational opportunities which are available to college-age women in Virginia and will make Virginia a leader in providing such opportunities to women. Diversity of educational opportunity is a hallmark of the Virginia system of higher education.” Defs.’ Ex. 2 at 1. Attorney General James S. Gilmore, III. has also filed an affidavit supporting the remedial plan as have J. Paul Councill, Jr., the Chairman of the House of Delegates Education Committee, and Elliot S. Schewel, Chairman of the Senate Education Committee. Virginia’s Secretary of Education, Dr. Beverly H. Sgro supports the Proposed Remedial Plan because it provides diversity of education in Virginia, which is one of the primary goals of Virginia as stated in the Report of the Commission on the University in the 21st Century. Defs.’ Ex. 213. The State Council on Higher Education has also indicated its support of the Proposed Remedial Plan stating that it would be “pleased to work with the administration of [MBC] to develop the strongest possible program should the proposal submitted to the court be judged acceptable.” Defs.’ Ex. 8. Finally, that the Commonwealth’s 1994-96 budget bill, which funds the remedial plan and passed both houses of the legislature, indicates clearly the Commonwealth’s support of single-sex education for women and men. In short, every person in Virginia officialdom who has or has had the authority to affect Virginia’s policies on higher education has spoken in favor of diversity by offering single-sex education to men and women of the Commonwealth and have strongly supported VWIL. Conclusion VWIL is a new venture and no one can predict with certainty its outcome. The evidence, however, supplies a reasonable basis for predicting success in attaining its stated goals. No doubt the program will need further adjustment as experience dictates; however, according to Dr. Lott, the program is fully developed coneeptionally and ready to be implemented for the Fall of 1995. During the implementation of VWIL, it will remain under the supervision of this Court. The Commission on the University in the 21st Century has recommended that “private colleges and universities should be encouraged to expand enrollment (in response to projected increases of college-bound students), supported by the Tuition Assistance Grant Program and the contract for services program.” Defs.’ Ex. 213. In exercising its sovereign prerogative to structure its system of higher education, the Commonwealth has determined to follow the recommendations in the Report of the Commission on the University of the 21st Century by providing diversity in education and utilizing the talents of private colleges within its borders. Defs.’ Ex. 11 at 4. In so doing, it has chosen to maintain VMI as an all-male institution and, through VWIL, to maintain an all-female institution. See generally, Defs.’ Ex. 11. If VMI marches to the beat of a drum, then Mary Baldwin marches to the melody of a fife and when the march is over, both will have arrived at the same destination. The defendants’ Proposed Remedial Plan will be approved. An appropriate order will enter. ORDER For the reasons stated in the Memorandum Opinion filed contemporaneously with this Order, it is hereby ADJUDGED and ORDERED that: 1. Defendants’ Motion to approve their Proposed Remedial Plan is GRANTED; 2. Defendants’ are directed to proceed with all deliberate speed in implementing the Plan and to have the Plan operational for the academic year commencing in the Fall of 1995; 3. the Court will retain jurisdiction in order to supervise implementation of the Defendants’ Plan; 4. Defendants’ will be required to submit status reports apprising the Court of the progress of the Plan implementation every six (6) months; 5. this ruling is dispositive of all pre-trial motions. APPENDIX: FINDINGS OF FACT I. Witnesses................................................................486 A. Expert Witnesses ..................................................486 B. Fact Witnesses.....................................................490 II. The Proposed Remedial Plan ..............................................491 A. Development of VWIL Program at Mary Baldwin College.............491 B. Contract for Services....................... 492 C. Cooperation with VPI...............................................493 D. MBC’ Commitment to VWIL........................................493 E. Further Development of VWIL......................................493 III. Status Report/VWIL Program Specifications.................................493 A. Mission of VWIL...................................................493 B. Academic Offerings and Requirements of VWIL......................494 C. Military Leadership and Training....................................494 D. Physical Education and Training.....................................495 E. Co-Curriculum.....................................................496 F. VWIL/MBC Residence Life.........................................497 G. VWIL’s ROTC Component..........................................497 H. Endowment........................................................499 I. VWIL Access to VMI Alumni Network..............................499 IV. Mary Baldwin College (MBC)..............................................499 A. History/Background.................................................499 B. MBC Facilities.....................................................501 V. VMI.....................................................................502 VI. Differences Between VWIL and VMI.......................................502 A. Faculty............................................................502 B. Endowment........................................................502 C. Physical Training Facilities..........................................503 D. Academic Programs ......•..........................................503 The findings of fact set forth in this Appendix fall into three categories: (1) the curriculum vitae of each of the expert witnesses and a description of the fact witnesses for each side; (2) a description of the VWIL plan; and (3) a profile of Mary Baldwin College and how it compares with VMI. Because a great majority of these findings are historical facts and are essentially uncontroverted, I found it convenient to use the format and much of the substance of the Defendants’ Proposed Findings of Fact. Virtually all of these findings provide references to the record for their support. Unless otherwise indicated, all references to exhibits and trial transcripts refer to the remedial phase of this litigation. Transcript citations refer to the unofficial transcript. I.WITNESSES A. Expert Witnesses (i) Defendants’ Expert Witnesses 1. Lewis D. Askegaard testified as a defense expert in educational assessment. He earned a B.A. in English, a Master of Education Degree in Curriculum, and a Ph.D. in Educational Evaluation from the University of Virginia. He has participated in a number of federally funded assessment projects, has trained educators and social workers in assessment methodology, has assisted the State of Virginia in designing assessment strategies, has served on numerous evaluation committees for the Southern Association of Colleges and Schools, has served on the Steering Committee of the Virginia Assessment Group, and is recommended by the Southern Association of Colleges and Schools as an expert in assessment. Currently, Dr. Askegaard serves as Associate Dean of Mary Baldwin College, Registrar, and Director of Institutional Research. Tr. 1361-65 (Askegaard); Defs.’ Ex. 110. 2. Josiah Bunting, III, testified as a defense expert in higher education with concentration on single-sex education, and as an expert in leadership. He graduated from VMI in 1963, 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 Department of Strategy, 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 college. Since 1987, he has served as Head Master of The Lawrenceville School, a private preparatory school in Lawrenceville, New Jersey, where he presided over the school’s change in status from single-sex to coeducational. Mr. Bunting served as a defense expert in the liability phase of this case. Tr. 1536-39 (Bunting); Defs.’ Ex. 111. 3. Paul 0. Davis testified as a defense expert on human physiology. Dr. Davis served as a defense expert in the liability phase of this case. He earned a Bachelor’s Degree from Columbia Union College, a Master’s Degree in physical education from American University, 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 has taught applied physiology at the University of Maryland. Liability Tr. 879-84 (Davis). He is a Fellow of the American College of Sports Medicine. Tr. 1399-1400 (Davis). He has consulted extensively for the United States Armed Forces on developing physical training programs for men and women. Liability Tr. 882-84 (Davis). Dr. Davis has published prolifically in his field. Defs.’ Ex. 113. 4. Donald J. Finley testified as a defense expert in higher education finance in Virginia. Dr. Finley has a Doctor of Education Degree in Higher Education Administration from the College of William and Mary, and Bachelor’s and Master’s Degrees in Business Administration from the University of Richmond. He has served as Assistant Director of the State Council of Higher Education for Virginia, as Staff Director and Senior Fiscal Analyst for the House Appropriations Committee of the Virginia General Assembly, as Deputy Secretary of Finance for the Commonwealth of Virginia, and as Secretary of Education for the Commonwealth of Virginia under Governor Robb and Governor Baliles. Dr. Finley presently serves as Associate Director of the State Council of Higher Education for Virginia, with responsibility for finance and facilities. Tr. 1450-58 (Finley); Defs.’ Ex. 114. 5. Elizabeth Anne Fox-Genovese testified as a defense expert in women’s issues, feminist theory, gender, higher education with particular reference to women’s education, single-sex education and curriculum development, and the history of American women. She is currently professor of history and Eleonore Raoul Professor of the Humanities at Emory University in Atlanta, Georgia. She is also an associate member of the English Department, a core member of the Women’s Studies Department, and a member of the Comparative Literature faculty. Dr. Fox-Genovese began her work in women’s studies as an assistant professor at the University of Rochester, where she taught one of the first courses nationally in Women’s History and developed an interdisciplinary minor in Women’s Studies. In 1980 she moved to the State University of New York at Binghamton to help design the first graduate program in Women’s History in the country. In 1986, she was selected in a national search to become Founding Director of Emory University’s Women’s Studies program, which encompasses an undergraduate minor, an undergraduate major, graduate degrees, and certifications in Women’s Studies. She has published a number of books, including Feminism Without Illusions: A Critique of Individualism (University of North Carolina Press, 1991) and Within the Plantation Household: Black and White Women of the Old South (University of North Carolina Press, 1988), 45 articles, and numerous lectures. She has been selected by the United States to direct a national project on women in history, serves as a member of the Steering Committee of the Holmes Group to study the state of contemporary education, served as a member of the Steering Committee for the National Assessment Project, serves as a member of the Steering Committee of the National History Standards Project, and serves as a board member of the American Academy for Liberal Education, which is developing new accreditation standards for small liberal arts colleges. Tr. 225-35 (FoxGenovese); Defs.’ Ex. 115. 6. James D. Lott testified as a defense expert in higher education, single-sex education, leadership education for women, curriculum and program development. Dr. Lott serves as Dean of the College at Mary Baldwin College. He received his B.A. from the University of Tennessee, M.A. from Vanderbilt University and a Ph.D. at the University of Wisconsin. He has taught for 30 years at MBC. In his 30 years of experience at a women’s college, he has developed expertise in curriculum development, single-sex education, women’s cognitive, moral, and leadership development, and the development of new programs, including financial planning. Tr. 52-67 (Lott); Defs.’ 116. 7. Richard C. Richardson, Jr., testified as a defense expert in higher education, with particular expertise and hands-on experience in developing academic co-curricular programs and in public policy and higher education. Tr. 603-06 (Richardson). Dr. Richardson is also an expert in women’s education. Tr. 640 (Richardson). He is Professor of Educational Leadership and Policy Studies at Arizona State University. He holds a B.S. degree in education from Castle-ton State College, an M.A. from Michigan State University, and a Ph.D. from the University of Texas. He served in the Marine Corps for three years. He taught at an all-female college, Vermont College, from 1958 to 1961, and has both professorial and administrative experience at several colleges and community colleges, including institutions with large minority populations. His publications include Creating Effective Learning Environments: State Policy and College Learning (Denver, Co., Education Commission of the States, March 1993); Improving State and Campus Environments for Quality and Diversity: A Self-Assessment (with Matthews and Finney, Denver, Co., Education Commission of the States, 1992); Promoting Fair College Outcomes: Learning from the Experiences of the Past Decade (Denver, Co., Education Commission of the States, 1991); Achieving Quality and Diversity: Universities in a Multicultural Society (with E.F. Skinner, New York, ACE/MeMillan, 1991); and Fostering Minority Access and Achievement in Higher Education: The Role of Urban Community Colleges and Universities (with L.W. Bender, San Francisco, Jossey-Bass, 1987). He testified as a defense expert in the liability phase of this case. Liability Tr. 661-66 (Richardson). He has also been retained by the United States to testify on its behalf in race discrimination lawsuits involving higher education. He has served as chair of 25 evaluation teams on behalf of regional higher education accreditation boards, including the team that most recently evaluated West Point. Defs.’ Ex. 118. His research in the past 10 years has focused on “the impact of students on colleges and the impact of colleges on students.” Liability Tr. 664-65 (Richardson). 8.David Riesman, Henry Ford II Professor of Social Sciences, Emeritus, at Harvard University, testified as a defense expert in sociology, with a particular emphasis on culture, personality and character, higher education in the United States and single-sex education for women. Tr. 506-07 (Riesman). He holds a bachelor’s degree from Harvard College, a law degree from Harvard Law School and honorary degrees from more than twenty institutions. After completing a year of postgraduate study, he served as the last law clerk to Justice Louis D. Brandéis of the United States Supreme Court. He taught at Buffalo School of Law, and served as a research fellow at Columbia Law School in sociology and anthropology. He joined the faculty at the University of Chicago in 1946, and returned to Harvard in 1958. He is regarded as “one of the first and still is one of the most influential among social scientists who have systematically applied the concepts of culture and personality to contemporary society. His book, The Lonely Crowd, is highly acclaimed in the field, and his concepts of ‘inner-directed’ and ‘other-directed’ [personalities] have been incorporated into the general vocabulary.” Liability Tr. Defs.’ Ex. 8 at 29. He has focused his research in recent years on the development and present state of American higher education. Clark Kerr, head of The Carnegie Foundation on Higher Education, described Dr. Riesman as “the best informed, most insightful, most interesting commentator on higher education in the United States. And he has no peer in any other nation.” Defs.’ Ex. 124. His many 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). His latest book is Choosing a College President: Opportunities and Constraints (1990). Dr. Riesman served as a defense expert in the liability phase of this case. Defs.’ Ex. 119. 9. Cynthia Haldenby Tyson testified as a defense expert in single-sex education for women, women’s educational development and women’s leadership development. Dr. Tyson is President of Mary Baldwin College. She previously served as Vice President for Academic Affairs, Dean of the College, Chairman of the Division of Humanities, and English Professor at Queens College, Charlotte, North Carolina (then a women’s college), as well as Associate Professor of English at Seton Hall University (then a men’s college). She received her B.A., M.A. and Ph.D. degrees from the University of Leeds in England. Dr. Tyson has spent 25 years focusing on the education of women at two women’s colleges as a teacher and an administrator. She has written and lectured widely on women’s education. She has also received certificates in advanced studies for college administrators at Harvard University. Dr. Tyson has served as president of the Southern Association of Colleges for Women and as a commissioner of the Southern Association of Colleges and Schools. Tr. 358-67 (Tyson); Defs.’ Ex. 121. 10. Major General Robert Edwin Wagner, U.S. Army (Retired), testified as a defense expert on leadership in the military. Tr. 565 (Wagner). General Wagner currently serves as Executive Assistant to the President of Norfolk State University, a predominantly Black institution. Before his recent retirement from the military, General Wagner served as Commanding General of the United States Army ROTC Cadet Command where he supervised all of the Army’s precommissioning training. A liberal arts graduate of VMI, Major General Wagner served 33 years as an armor officer, in positions ranging from platoon leader to assistant division command. He spent three years in Vietnam. Tr. 550-66 (Wagner); Defs.’ Ex. 122. 11. Heather Anne Wilson testified as a defense expert in the psychological, social, emotional and intellectual development of college women. Dr. Wilson is Dean of Students at Mary Baldwin College, responsible for residence life, student activities, international students, housing and counseling. She holds a B.A. in English from Bucknell University, a Master’s degree in Counseling from Boston University, a Master’s in Institutional Research and Planning from Columbia University, and a Doctorate in Higher Education from Columbia University. The primary focus of her 20 years’ experience in higher education has been the education and development of women. She has worked at coeducational and single-sex colleges — the University of Arkansas, Oklahoma State University, Marymount College in New York City and Clarkson University. Her experience includes work both as a counselor to women students and as a supervisor and developer of counseling services for women students. She has also been involved in developing leadership programs for women. Tr. 326-33 (Wilson); Defs.’ Ex. 123. (ii) Government’s Expert Witnesses 1.Alexander William Astin testified as a Government expert in higher education, assessment and the comparability of higher education programs. He received his Bachelor’s Degree from Gettysburg College and his M.A. and Ph.D. Degrees from the University of Maryland. Dr. Astin is currently Professor of Higher Education at the University of California at Los Angeles and Director of the Higher Education Research Institute there. Dr. Astin’s books include What Matters in College? Four Critical Years Revisited (1993); Assessment for Excellence: The Philosophy and Practice of Assessment and Evaluation in Higher Education (1991); Four Critical Years (1977); and The College Environment (1968). Higher Education (1991); Four Critical Years (1977); and The College Environment (1968). Tr. 1216 (Astin). 2. Mr. James Francis Brewer, III, testified as the United States’ expert in planning, designing and operating higher educational facilities. Tr. 818 (Brewer). He has been Director of Physical Plant at the University of Maryland at C