In The United States District Court For The Western District Of Virginia Roanoke Division

By: Jackson L. Kiser Senior United States District Judge
C.A. NO.: 7:90CV0126

ORDER

The United States and the Commonwealth parties(the "Commonwealth") have moved the approval of the following agreement and its adoption by this Court to govern the quarterly reports to the Court, and the course of this case to its conclusion, to-wit:

AGREEMENT I. Background and Introduction

On June 26, 1996, the Supreme Court issued its decision in United States v. Virginia, 116 S. Ct. 2264 (1996), holding that the Equal Protection Clause of the Fourteenth Amendment precludes Virginia from providing exclusively to men the "unique educational opportunities VMI affords." Id. at 2269. The Court also held that Virginia's then proposed remedy of offering a separate leadership program for women at Mary Baldwin College does not cure the constitutional violation. Thereafter, on September 19, 1996, the United States Court of Appeals for the Fourth Circuit remanded this case, see 96 F.3d 114 (the "Remand Order"), "to require Virginia to formulate, adopt, and implement a plan that conforms with the Equal Protection Clause of the Fourteenth Amendment as applied to this case by the Supreme Court."

On September 21, 1996, the Board of Visitors of the Virginia Military Institute adopted a resolution providing for the admission of women to VMI beginning in August 1997. Subsequently, to prepare for the admission of the first class of women to VMI, the Commonwealth took substantial and constructive steps to prepare the various facets of VMI's program for the inclusion of women. The Commonwealth's actions included, but were not limited to, the active recruitment of women for admission to VMI, providing scholarships for women, the modification of physical facilities to include women's bathroom and shower facilities, the adoption of a policy on uniforms and the appearance of women, the creation of women's sports teams, the modification of gender references in VMI documents to reflect the admission of women, the installation of security lighting and emergency telephones, the provision for privacy in the barracks when cadets are changing clothes, the adoption of policies on sexual harassment, and the addition of new staff. These and other activities are described in the following reports: "Consolidated Statement of Activities To Date By The Virginia Military Institute In Preparation For The Admission Of Women In August 1997," filed in November 1996, the First through Eighth Quarterly Reports filed with this Court in December 1996, February 1997, May 1997, September 1997, December 1997, February 1998, May 1998, and September 1998, respectively; and "Report of the Commonwealth Parties," filed in December 1999 (which is hereby deemed supplemented by commentary in footnotes 1-11 of Attachment 1 hereto).

The United States recognizes that, from the decision of the VMI Board of Visitors on September 26, 1996, to this date, the Commonwealth has consistently made substantial and constructive efforts in good faith to "formulate, adopt, and implement a plan that conforms with the Equal Protection Clause of the Fourteenth Amendment as applied to this case by the Supreme Court," as required by the Remand Order.

On June 4, 1999, this Court entered an Order and Memorandum Opinion (1) finding that Virginia Military Institute has "responsibly undertaken its mission to integrate women into the institution without destroying the VMI experience-the specific mandate of the Supreme Court," but "it is too early to terminate the Court's oversight of VMI;" and that "[t]he job of integration is not complete, but VMI has made substantial progress. Mem. Op. at 4, 5, and (2) while agreeing that further reporting is necessary, rejecting the United States' request for more detailed reporting requirements. Id. at 5. On August 3, 1999, the United States filed a Notice of Appeal of the Court's June 4, 1999, Order. United States v. Commonwealth of Virginia No. 99-2079 (4th Cir.).

Subsequent to the United States' filing of the Notice of Appeal, the parties engaged in discussions addressing the scope of the Commonwealth's reporting obligations and other matters. As a result of these discussions, the parties reached an agreement, subject to the approval of this Court: (1) on the scope of the Commonwealth s reporting to the Court; and (2) on the framework and timetable for the presumptive dismissal of this case. Upon approval of this agreement by this Court, the United States shall move the Court of Appeals to dismiss the above-noted appeal in this case.

II. Reporting Under the June 4, 1999 Order

This Court' s June 4, 1999, Order and Memorandum Opinion requires that the Commonwealth continue to provide quarterly reports to the Court which "should include, inter alia, statistics relating to the number of applications received from women each year, the number of applicants offered admission, and the number of applicants who choose to matriculate." Mem. Op. at 5. The Court further provided that "[t]he reports should identify the number of students, male and female, who left or were dismissed from the institution each semester." Id. Finally, the Court added that "[r]eporting of any unusual circumstances involving female cadets should not await the quarterly report but must be reported promptly to the Court." Id. at 5-6. Consistent with the June 4, 1999, Order, and its implication that the Commonwealth may be required to report on matters in addition to those expressly noted by the Court, the parties agree to the following reporting requirements:

A. Time for Filing.

The first report filed by the Commonwealth pursuant to this agreement will be filed by March 3, 2000 (or within seven days following the District Court's approval of this agreement, if subsequent to said date), for the 1999-2000 school year to the ending date of this report. Reports shall thereafter be filed by June 1, 2000; September 1, 2000; December 22, 2000; March 2, 2001; and May 31, 2001. This schedule supercedes the schedule for reporting set forth in any previous Order of the Court. As set forth more fully in Part III below, the parties anticipate that the May 2001, report will be the final report filed by the Commonwealth prior to the Commonwealth's motion to have the case dismissed and the Court's oversight terminated.

B. Contents of the Reports.

Each report shall provide the information indicated by the format attached to this Order as Exhibit A (which includes the above noted information particularly described in the June 4, 1999, Memorandum Opinion) covering the period from the last report filed by the Commonwealth until the date of the report, unless unforeseen circumstances or subsequently discovered information requires the correction of, or addition to, matters set forth in an earlier report. While the attached format is an acceptable means of reporting the information it indicates, the Commonwealth may adopt any other format that it believes is better suited to reporting in terms of accuracy, understanding, or convenience. The Commonwealth may refer to and attach other documents containing this information, and reports may incorporate by reference matters set forth in earlier reports.

C. Resolution of Issues Raised in the Reports.

The parties agree to work together in good faith in an effort to resolve any concerns or differences that the parties may have with respect to (1) the interpretation of the reporting requirements; (2) the Commonwealth's assimilation efforts with respect to matters set forth in the reports; and (3) any other relevant issues that might arise subsequent to the date of this agreement. Neither the agreement of the Commonwealth to report the foregoing information, or any other provision of this agreement, shall be deemed or construed to prejudice the position of the Commonwealth with respect to any dispute concerning what course of action may be necessary to comply with the aforesaid decision of the Supreme Court and Remand Order.

The parties recognize that, as set forth in Part III below, the expectation of both parties is that this case be dismissed with prejudice in the summer of 2001 based on the Court's and the United States' satisfaction that, as reflected in the reports, the Commonwealth has satisfied its remedial obligations as set forth in the Remand Order. To this end, the United States agrees to promptly notify the Commonwealth of any specific concerns it may have concerning matters raised in a report, and in this event the parties agree to work amicably and in good faith in an effort to address these concerns to the parties' mutual satisfaction. The United States agrees that unless it promptly raises a specific concern to the Commonwealth concerning a matter set forth in a report, the United States shall not thereafter challenge the contents of the report and the actions, conduct, or events reflected in the report. As used in the last preceding sentence, the term "promptly" means not later than the date on which the next report is due, except that for any non-scheduled report addressing "any unusual circumstance involving female cadets" (Mem. Op. at 5), the term "promptly" means 60 days after such report has been filed with the Court. With respect to all reports filed through the date of this Order (including the reports listed on page 2 hereof), the United States hereby agrees that it will not challenge the adequacy of their contents, or the actions, conduct, or events reflected therein. The preceding sentence shall be read in conjunction with the right of the United States, as set forth in this agreement, to promptly object as provided herein to any matters raised in future reports filed under this agreement.

III. Dismissal

The VMI class which matriculated the first women in August 1997 will graduate in May 2001. As noted in Part II above, the parties anticipate that the final report due under this agreement shall be filed by May 31, 2001, and shall include, among other things, the final information and statistics concerning the Class of 2001 and its female graduates.

The United States agrees to notify the Commonwealth of any concerns it may have concerning matters set forth in the May 2001, report within 30 days of the filing of the report. If the United States raises any concerns with regard to this report, or if there are any unresolved concerns regarding matters previously (and timely) raised in an earlier report, the parties agree to amicably and in good faith work in an effort to satisfy these concerns. It is the parties' mutual desire that all concerns raised by the United States regarding the Commonwealth's reports be expeditiously resolved in a manner consistent with the terms of the Remand Order and the federal court decisions in this case.

The parties anticipate that forty-five days or more after the filing of the May, 2001, report, the Commonwealth will move the Court to dismiss this case with prejudice. The basis for this motion will be that the Commonwealth has met the obligation of the Remand Order to "formulate, adopt, and implement a plan that conforms with the Equal Protection Clause of the Fourteenth amendment as applied to this case by the Supreme Court," as demonstrated by the Commonwealth's reports.

If all concerns raised by the United States relating to matters presented in the reports required pursuant to this agreement have been resolved to the satisfaction of all parties, the United States agrees that it will not object to the granting of the Commonwealth's said motion. If at the time the Commonwealth files its motion to dismiss, all concerns timely raised by the United States relating to matters presented in said reports have not been resolved to the satisfaction of the parties, the United States may oppose said motion based on said unsettled matters (including "any unusual circumstances involving female cadets," Mem Op. at 5, about which the United States has expressed concern) and nothing contained herein shall be construed to prejudice the position of either party with respect to the proper resolution of said matters.

Approval by Court

Having considered all of the circumstances of this case, the Court concludes that the parties' agreement, as stated above, is consistent with the Court's views and earlier orders, and will assist the Court in assessing the Commonwealth's satisfaction of its obligations under the Remand Order, as well as provide for, and promote the orderly conclusion of this litigation. On motion of these parties, by counsel, and in in absence of objection by any other party, the Court approves the agreement stated above and hereby adopts it as binding upon these parties in accordance with its terms.

AND IT IS SO ORDERED.
ENTERED this ____ day of _____, 2000

SENIOR UNITED STATES DISTRICT JUDGE

We ask for this Order:

For the United States of America:
Bill Lann Lee
Acting Assistant Attorney General

By:
Attorney, United States Department of Justice

Robert P. Crouch, Jr.
United States Attorney for the Western District of Virginia

By:
Assistant United States Attorney
Counsel for the United States of America.

For the Commonwealth of Virginia,
and those instrumentalities, officers and
employees of the Commonwealth which
are parties defendant herein:

Solicitor General

Senior Assistant Attorney General
Office of the Attorney General of Virginia

Seen:
Counsel for the VMI Foundation, Inc.,
And the VMI Alumni Association, Inc..

Attachment 1 IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

C.A. NO.: 7:90-0126-R

REPORT
Recruitment and Admissions

Class of 2003:

Females
Inquiries: 1
Applications received:
     Less:
     Incomplete application
     Academic disqualification
    Applications of felons,
    and those having histories of
    school related disciplinary actions
Applicants provisionally accepted
    Less:
    Failure to complete reservation process
    Medical disqualification2
    Academic disqualification (final grades)
    Subsequent felony conviction, etc.
Female Matriculants

Males
Inquiries:
Applications received:
    Less:
    Incomplete application
    Academic disqualification
    Applications of felons,
    and those having histories of
    school related disciplinary actions
Applicants provisionally accepted:
    Less:
    Failure to complete reservation
    process
    Medical disqualification
    Academic disqualification
    (final grades)
    Subsequent felony conviction, etc.
Male Matriculants

Class of 2004:

Females
Inquiries:
Applications received:
      Less:
      Incomplete application
      Academic disqualification
     Applications of felons,
     and those having histories of
     school related disciplinary actions
Applicants provisionally accepted:
     Less:
     Failure to complete reservation
     process
     Medical disqualification
     Academic disqualification      (final grades)
     Subsequent felony conviction, etc.
Female Matriculants

Males
Inquiries:
Applications received:
     Less:
     Incomplete application
     Academic disqualification
     Applications of felons,
     and those having histories of
     school related disciplinary actions
Applicants Provisionally accepted:
     Less:
     Failure to complete reserve
     process
     Medical disqualification
     Academic disqualification      (final grades)
     Subsequent felony conviction, etc.
Male Matriculants

Retention

Cadet departures, August _,____ through _____, 200_:

First Class
Females: Suspensions:            Resignations:
               Academic3                 Personal; no stated reason
               Disciplinary4                Health

     Dismissals:
          Honor5
          Other disciplinary6
          Academic
          (upon 2nd suspension)

Males: Suspensions:            Resignations:
               Academic                 Personal; no stated reason
               Disciplinary                Health