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\deflang1033\pard\plain\f3\fs17 No. 94-1941
\par 
\par In The Supreme Court of The United States
\par 
\par OCTOBER TERM, 1995
\par 
\par UNITED STATES OF AMERICA, PETITIONER
\par 
\par v.
\par 
\par COMMONWEALTH OF VIRGINIA, ET AL.
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI 
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE FOURTH CIRCUIT
\par 
\par REPLY BRIEF FOR THE PETITIONER
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202)514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097
\par (1995) . . . . 5, 6
\par Bradwell v. The State, 83 U.S.(16Wall.) 130(1873) . . . . 5
\par J.E.B. v. Alabama, 114 S. Ct. 1419(1994) . . . . 5, 9
\par McCabe v. Atchison'. & S.F. Ry., 235 U.S. 151(1914). . . .2
\par Metro Broadcasting v. FCC, 497 U.S. 547(1990) . . . . 6
\par Michael M. v. Superior Court of Sonoma County, 450
\par U.S. 464 (1981) . . . . 6
\par Mississippi Univ. for Women v. Hogan, 458 U.S.
\par 718 (1982) . . . . 6, 7
\par Missouri ex Gaines v.Canada,305U.S.337( 1938) . . . .2
\par Rostker v. Goldberg, 453 U. S. 57(1981) . . . .6
\par Schlesinger  v. Ballard, 419 U. S. 498(1975) . . . .6
\par Strauder v. West Virginia, 1OO U.S.3O3(188O) . . . .5
\par Sweatt v. Painter, 339 U. S. 629(1950) . . . . 9
\par Vorchheimer v. School Dist.,532 F.2d 880(3d Cir. 1976),
\par cert. granted, 429 U.S. 893 (1976), aff 'd by unequally
\par divided court, 430 U. S. 703 (1977) . . . . 10
\par 
\par Constitution
\par 
\par U.S. Const.:
\par Amend. I . . . . 6
\par Amend. XIV (Equal Protection Clause) . . . . 2, 5
\par 
\par (I)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States 
\par      
\par  OCTOBER TERM, 1995
\par 
\par      No. 941941
\par 
\par UNITED STATES OF AMERICA, PETITIONER
\par       
\par  v.
\par 
\par COMMONWEALTH OF VIRGINIA, ET AL.
\par 
\par   ON PETITION FOR A WRIT OF CERTIORARI
\par   TO THE UNITED STATES COURT OF APPEALS
\par      FOR THE FOURTH CIRCUIT
\par 
\par   REPLY BRIEF FOR THE PETITIONER
\par 
\par Nothing in respondents' brief in opposition calls into
\par question the need for this Court to review and reverse
\par the decision below.
\par    1. Respondents contend (Br. in Opp. 29-30) that this
\par case raises no issue of substantial importance, but the
\par central issue it addresses is a recurring one in anti-
\par discrimination law.  All individuals belong to racial,
\par gender, and ethnic groups. The "average" or "typical"
\par aspirations or abilities of the members of those groups
\par often differ substantially from group to group.  Those
\par differences raise the question whether an individual may
\par be denied an opportunity because he or she has aspira-
\par tions or abilities that differ significantly from those of the
\par           (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par           
\par 2
\par 
\par average member of the group to which the individual
\par belongs.
\par      The Court's answer to that question has always been
\par that equal protection rights are individual rights, not
\par group rights. Individuals have a fundamental right to be
\par treated on the basis of their own abilities and capacities.
\par They may not be denied opportunity because most
\par members of their race have different characteristics
\par from their own. Thus, at a time when racial segregation
\par was constitutionally permissible, the Court nevertheless
\par held that a black person could not be denied admission to
\par a white  law school on the ground that not enough blacks
\par were interested. in studying law to justify the
\par establishment of a black law school as well. Missouri" ex
\par rel. Gaines v. Canada, 305 U.S. 337 (1938]. The equal
\par protection right of the black law school applicant was "a
\par personal one," and he was entitled to be furnished an
\par educational program equal to that provided to whites
\par "whether or not other negroes sought. the same
\par opportunist y." Id. at 351. And as early as 1914 the Court
\par held that the failure to offer black travelers luxury
\par railroad accommodations that whites enjoy could not be
\par justified on the ground that too few black travelers could
\par afford such accommodations. The rights of black travel-
\par ers who could afford the accommodations were equal to
\par those of whites who could afford them.  McCabe Y.
\par Atchison T. & S.F. Ry., 235 US. 151. See also Pet. 19-26.
\par This case raises the question whether the protection
\par against sex discrimination that the Equal Protection
\par Clause affords provides the same level of individual
\par protection as was provided by Gaines and McCabe.
\par     Respondents argue that sex-segregated education is
\par justified, and that separate educational programs may
\par then be tailored to what "most" women or the "average"
\par 
\par ___________________(footnotes)
\par 
\par 3
\par 
\par woman would want or enjoy. As a result, respondents
\par say that women can be excluded from a unique program
\par that they wish to attend and for which they qualify, and
\par be relegated instead to a substantially different program
\par that they do not want and that does not meet their needs,
\par solely because most women would not be inconvenienced
\par by that result. At a time well before the adoption of
\par strict scrutiny for racial classifications, when separate
\par but equal racial treatment was constitutionally permissi-
\par ble, the Court repeatedly rejected that contention when
\par it would have excluded individual black people from
\par securing treatment or opportunity equal to whites. The
\par question now before the Court is whether the same
\par analysis applies in the law of sex discrimination.
\par      2. Respondents assert that this case does not warrant
\par further review because the United States "simply
\par disagrees with the factual findings" made by the district
\par court that the substantial differences between VMI and
\par VWIL are justified by "non-stereotypical differences"
\par between most men and most women. Br. in Opp. 19; see
\par also id. at 21-25. They contend that VMI's sex-based ex-
\par clusionary policy is justified by factual findings showing
\par "psychological and sociological differences" between men
\par and women that are "real differences, not stereotypes."
\par Id. at 22. Those findings, they assert, are "fatal" to the
\par petition, dissolving any conflict between the judgment
\par below and the decisions of this Court. Id. at 24.
\par       The district court's factual findings in no way affect
\par the need for this Court's review. The court of appeals'
\par decision approving the remedy in this case is squarely in
\par conflict with this Court's equal protection cases even
\par assuming the complete correctness of the district court's
\par factual findings. As we have noted, Pet. 23, the district
\par court did not find that the sex-based differences it
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par identified were generally true of all women and all men.
\par See Pet. 23-26. Rather, the district court found, for
\par example, that "most women" of college age are less con-
\par fident than men, App. 64a, that a cooperative as opposed
\par to an adversative method would be more appropriate for
\par "most" women, id. at 63a, and that women "tend t o"
\par thrive in certain educational settings, while men "tend
\par to" have certain educational needs, id. at 224a.
\par      At the same time, the district court expressly found
\par that some women are fully suited for a VMI education.
\par It found, for example, that some women "would want to
\par attend [VMI] if they had the opportunist y," App. 174a,
\par that "the VMI methodology could be used to educate
\par women" and that some women "may prefer the VMI
\par methodology to the VWIL methodology," id. at 76a. 1
\par The court also found that "some women are capable of all
\par of the individual `activities required of VMI cadets." Id.
\par at 170a. The district court found that "15% of females in
\par the applicant pool could successfully meet the require-
\par ments of the current VMI physical fitness test," id. at
\par 234a, and respondents' own expert testified that "success-
\par ful recruitment of women would likely yield VMI a cadet
\par corps of approximately 10% women," id. at 231a. The
\par 10% figure "was accepted by VMI's Mission Study
\par Committee," id. at 232a. In other words, the only "real"
\par differences the district court even purported to find
\par were differences & between  most women and most men,
\par not differences that could possibly be described as accu-
\par rate as applied to all or even almost all women and men.
\par 
\par ___________________(footnotes)
\par 
\par 1 See also App. 223a (quoting resplendence' expert's testimony that
\par "I'm not saying that some women don't do well under an adversative
\par model, undoubtedly there are some who do.").
\par 
\par ---------------------------------------- Page Break ----------------------------------------+
\par 
\par 5
\par 
\par The court of appeals' reliance in VMI II on generaliza-
\par tions about gender that are admittedly not universally
\par valid is a factor that weighs in favor of this Court's re-
\par view. This Court's cases uniformly hold that sex cannot
\par be used as an inexact proxy for more relevant bases of
\par classification. See Pet. 24-26 & nn.20 & 21 (citing cases).2
\par Respondents do not-and cannot-identify a single case
\par since Justice Bradley's discredited concurrence in
\par Bradwell  v. The State, 83 U.S. (16 Wall.) 130, 141 (1872),
\par that upholds a sex-based classification based on
\par psychological or sociological comparisons between most
\par women and most men; the Court has upheld sex as a
\par proxy only when different treatment was based on
\par differences that were universally applicable because of
\par biological or legal requirements. 3 .The conflict between
\par 
\par ___________________(footnotes)
\par 
\par      2 This Court recently reaffirmed "the basic principle" that the
\par Fourteenth Amendment "protect[s] persons, not groups." Adarand
\par Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2112 (1995); see also id. at
\par 2113 (emphasizing that the right to equal protection is a "personal
\par right"). Additional considerations may of course be brought to bear in
\par devising remedies for discrimination. See id. at 2117 "The unhappy
\par persistence of both the practice and the lingering effects of racial dis-
\par crimination against minority groups in this country is an unfortunate
\par reality, and government is not disqualified from acting in response to
\par it. "
\par 
\par      3 This Court in J.E.B. v. Alabama, 114 S. Ct. 1419 (1994),
\par invalidated sex-based peremptory challenges precisely because they
\par amount to reliance on such sex-based generalizations. "Striking
\par individual jurors on the assumption that they hold particular views
\par simply because of their gender is `practically a brand upon them,
\par affixed by law, an assertion of their inferiority.'" Id. at 1428 (quoting
\par Strauder v. West Virginia, 100 U.S. 303, 308 (1879)). In approving a
\par statutory rape law that applied differently to men and women, this
\par Court expressly disavowed relying, as the district court did here, on
\par males' greater aggressiveness, and instead relied on the anatomical
\par fact that "females can become pregnant as the result of sexual
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 6
\par 
\par the Fourth Circuit's decision and this Court's precedents
\par could hardly be more direct: Under the court of appeals'
\par analysis, had the district court in Mississippi Univ. for
\par Women  v. Hogan, 458 U.S. 718 (1952], simply found as a
\par fact, as it certainly could have, that more women than
\par men preferred to be nurses, or that women "tend to" be
\par better suited for. nursing because "most" women had
\par more nurturing and tolerant personalities than "most"
\par men, the sex-based exclusion from an educational pro-
\par gram would have been upheld. Hogan does not rest on
\par such a slender reed.
\par 3. Respondents similarly assert (Br. in Opp. 27-29)
\par that women cannot be admitted to VMI because their
\par presence would "destroy" VMI, and they contend that
\par question is a factual one not worthy of review. Their
\par assertion is contrary to the holding of the court of
\par 
\par ___________________(footnotes)             
\par 
\par intercourse; males cannot." Michael M. v. Superior Court of Sonoma
\par County, 450 U.S. 484, 475, 478 (1981) ("the statute does not rest on the
\par assumption that males are generally the aggressors").
\par Respondents rely on Schlesinger  v. Ballard, 419 US. 498 (1975) (Br.
\par in Opp. 26 n.23). The Court there upheld a federal statute that afforded
\par women Naval officers longer than men to gain promotion or face
\par mandatory discharge, not because of any notion that women's
\par personalities or sociological role make them achieve promotions more
\par slowly, but because legal restrictions on all women in combat and sea
\par duty-which were "not challenged-made women and men "not
\par similarly situated with respect to opportunities for professional
\par service." 419 U.S. at 508. The Court emphasized that, in those Navy
\par corps in which promotion opportunities would be unaffected by the
\par combat and sea-duty restrictions, men and women officers were treated
\par the same. Id. at 509. See also Rostker v. Goldberg, 453 U.S. 57, 78
\par (1981) (upholding draft registration for men and not for women because
\par unchallenged combat. restrictions on all women made the sexes "simpIy
\par not similarly situated for purposes of a draft or registration for a
\par draft").
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7
\par 
\par appeals, which expressly approved the admission of
\par women to VMI as a viable remedial alternative.
\par      In any event, the district court's determination that
\par the presence of women would "destroy" VMI is a legal,
\par as opposed to factual, conclusion. It addresses the mate-
\par riality of changes in VMI's program likely to occur as a
\par result of coeducation.  The district court viewed any
\par change, no matter how slight, as tantamount to the
\par wholesale obliteration of VMI; it then concluded that pre-
\par servation of VMI exactly in its existing form, and for the
\par exclusive benefit of men, is more important than making
\par a VMI education equally available to women. Both those
\par legal conclusions are incorrect: The minor changes the
\par district court predicted as a result of coeducation would
\par not materially alter the essential attributes of a VMI
\par education, and the effect, if any, that such changes would
\par have on men's experience at VMI cannot outweigh the
\par equal protection rights of individual and admittedly
\par qualified women to be considered for admission to VMI
\par without regard to their sex. It is, of course, well estab-
\par lished that a benefit cannot be denied to one sex merely
\par to preserve it for the other. Hogan, 458 U.S. at 731 n.17.
\par       The district court's factual findings themselves show
\par that VMI can admit women without materially changing
\par its program. For example, the district court found that
\par at least some women could perform all the rat line tasks,
\par the current physical training and military drills, and
\par could pass the VMI physical fitness test. App. 233a-234a. 4
\par 
\par  ___________________(footnotes)
\par 
\par    4 See defendants' witnesses' testimony compiled in VMI I, 91-1690
\par C.A. App. 357-358 (regarding the physical training and military drill,
\par "we probably could have women come in here and many of them
\par probably could do some of these things, or maybe all of them"); id. at
\par 362 (women could "whack through mechanically a rat line and they
\par could go through the motions of a rat line," but it would affect the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 8
\par 
\par Admission of women would "have little or no effect" on
\par the ROTC program, and would not materially affect the
\par academic program.  App. 241a-242a; 91-1690 (VMI I)
\par C.A. App. 989. There was no evidence that the admission
\par of women would affect the class system, the dyke system,
\par or the honor  code.
\par      It is irrelevant that not all women would qualify for
\par admission to VMI, since the vast majority of men are also
\par unsuited to attend the school, and many of the men who
\par do attend fall short of the overall standards in some re-
\par spects. For example, almost 50% of new cadets fail the
\par physical fitness test and are offered remedial train-
\par ing. 91-1690 (VMI I) C. A.. App. 564-565. Toleration of
\par women's performance at VMI at a range of levels would
\par no more undermine the VMI ethic of "egalitarianism"
\par than do those allowances already made for men.  5
\par 
\par ___________________(footnotes)
\par 
\par "brother rat" spirit,); id. at 984 ("there isn't anything that happens in the
\par rat line that I know about, that a woman could not do"). Although the
\par district court found that "a majority" of women could not perform rat
\par training "at the same levels as males," App. 234a, the relevant question
\par is not, as we have said, what a majority of women can do.  See pages
\par 4-6, supra.
\par     5 Allowing women and men privacy from the opposite sex when
\par dressing or using the bathroom need not, of course, affect the cadets'
\par lack of privacy from members of their own sex, and respondents have
\par identified no reason why close scrutiny of individual by the en-
\par tire group in all other respects could not be maintained.
\par     The special steps taken to address the needs of black students (first
\par admitted to VMI in 1968) additionally suggest that minor efforts to
\par facilitate the introduction of women at VMI would not destroy the
\par institution. For example, VMI's 1990-1991 budget proposed that it
\par expend $22,000 for "Retention of Black Cadets," a special program for
\par blacks identified in the budget. App. 229a-230a. In the Fall of 1363,
\par "[a] program for the retention and effective performance of black
\par freshmen was initiated at VMI." 91-1690 (VMI I) C.A. App. 1435. That
\par program addressed, among other things, the "[s]social-cultural support
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 9
\par 
\par    4. Contrary to respondents' contention (Br. in Opp.
\par 22), the "special intermediate scrutiny" test the court of
\par appeals devised for dual single-sex schools is plainly
\par wrong, conflicts with J.E.B. v. Alabama, supra, Hogan,
\par and  Sweatt v. Painter, 339 U.S. 629 (1950), and requires
\par correction by this Court. The court of appeals' approval
\par of VWIL was possible only because the court invented a
\par new, weakened, and incorrect constitutional test.
\par     a. Whereas Hogan requires that the State have at
\par least an important policy to support any sex-based classi-
\par fication, the court of appeals' test defers to the State's
\par articulated rationale so long as it is "not pernicious."
\par App. 18a. Under that test, the court of appeals accepted
\par providing "single-gender education" as Virginia's non-
\par pernicious objective. Ibid. The correct constitutional
\par analysis, however, inquires whether the State's use of a
\par sex-based classification (including single-sex college ad-
\par missions policies) serves important interests; a State's
\par desire to provide education on a single-sex basis is not,
\par without more, automatically an important interest under
\par Hogan. That desire is particularly inadequate to support
\par the maintenance of the very single-sex admissions policy
\par that the court of appeals had already correctly held
\par violated the Equal Protection Clause.
\par     b. Respondents erroneously assert that Sweatt v.
\par Painter, supra, is inapplicable (Br. in Opp. 20-21), and
\par that even the court of appeals' toothless "substantive
\par comparability" requirement imposes an "unduly high
\par burden on respondents" (id. at 22 n.17). Although
\par Sweatt addressed the appropriate remedy for racial dis-
\par crimination and this case seeks a remedy for discrimina-
\par 
\par __________________(footnotes)
\par  
\par and black student morale within a dominantly white institution." Id. at
\par 1438.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 10
\par 
\par tion based on sex, equality of treatment is required in
\par both areas absent a justification that is compelling (in the
\par case of race) or exceedingly persuasive (in the case of
\par sex). The court of appeals' failure to require such equality
\par of treatment, and its application instead of a wholly novel
\par test of ''substantive comparability" that tolerates relegat-
\par ing women to VWIL notwithstanding that it "differs sub-
\par stantially from the VMI program," App. 55a, squarely
\par conflicts not only with Sweatt, but also with this Court's
\par cases requiring heightened constitutional scrutiny of sex-
\par based classifications.  This Court acknowledged the
\par importance of that conflict when it granted the writ of
\par certiorari in Vorchheimer v. School Dist., 532 F.2d 880
\par (3d Cir. 1976), cert. granted, 429 U.S. 893 (1976), aff'd  by
\par an equally divided court, 430 U.S. 703 (1977). The Court
\par granted review of the question whether dual, single-sex
\par schools are constitutional where they "reserve to males
\par and deny to females access to the school distinguished by
\par its national reputation, superior resources and Scientific
\par facilities." Pet. at 2, Vorchheimer v. School Dist., No.
\par 76-37.  Because the Court was equally divided in
\par Vorchheimer, it did not resolve the issue. It should do so
\par now.   
\par 
\par \tab \tab    *     *     *     *     *
\par 
\par        For the reasons stated above and in the petition for a
\par writ of certiorari, the petition for a writ of certiorari
\par should be granted.
\par Respectfully submitted.
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par AUGUST 1995
\par 
\par 
\par }