Case Comment: Can Single-Sex Education as an Aspect of Diversity Qualify as an Important Governmental Interest Under the Intermediate Scrutiny Standard
- Conna Bond
- Apr 27
- 18 min read
Updated: Apr 28
Florida Law Review
Volume 48 | Issue 2 Article 4 '
March 1996
Constitutional Law: Can Single-Sex Education as an Aspect of Diversity Qualify as an Important Governmental Interest Under the Intermediate Scrutiny Standard?
Conna Bond
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Recommended Citation:
Conna Bond, Constitutional Law: Can Single-Sex Education as an Aspect of Diversity Qualify as an Important Governmental Interest Under the Intermediate Scrutiny Standard?, 48 Fla. L. Rev. 337 (1996). Available at: https://scholarship.law.ufl.edu/flr/vol48/iss2/4 This Case Comment is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact rachel@law.ufl.edu.
CASE COMMENTS
CONSTITUTIONAL LAW: CAN SINGLE-SEX EDUCATION AS AN ASPECT OF DIVERSITY QUALIFY AS AN IMPORTANT GOVERNMENTAL INTEREST UNDER THE INTERMEDIATE SCRUTINY STANDARD?
United States v. Virginia, 116 S. Ct. 2264 (1996)
by Conna Bond"
The United States sued Virginia Military Institute (VMI) and the State of Virginia (collectively Virginia) in the United States District Court for the Western District of Virginia, claiming that Virginia violated the Equal Protection Clause of the Fourteenth Amendment1 by excluding female students from VMI.2 Applying the intermediate
* This effort is dedicated to those who most inspire me: Mark, Emily Beth and Chelsea Bond, Dewane and Emily Brueske, and Vicki A. Ballou, Esq.
1. U.S. CONST.. amend. XIV, § 1. The Fourteenth Amendment reads in relevant part, "No State shall.., deny to any person within its jurisdiction the equal protection of the laws." Id.
2. United States v. Virginia, 766 F. Supp. 1407, 1408 (W.D. Va. 1991), rev'd, 976 F.2d 890 (4th Cir. 1992), cert. denied, 508 U.S. 946 (1993). The suit originated from a complaint filed by the United States Department of Justice on behalf of a female student who wanted to attend the institute. Id.
The issues in this suit were not new to Virginia. More than 25 years earlier, four female plaintiffs sued to compel their admission to the University of Virginia at Charlottesville. Kirstein v. Rector, 309 F. Supp. 184, 185 (E.D. Va. 1970). At the time the suit was filed, the university was the largest and most prestigious school of higher learning in Virginia. Id. at 186. No similar opportunities were available to the plaintiffs in that state. Id. The Kirstein court held that the university violated the Equal Protection Clause by denying the plaintiffs "their constitutional right to an education equal with that offered men at Charlottesville." Id. at 187. The court declined to hold that Virginia could not operate any single-sex school, but expressly reserved its holding for the facts of that case. Id
When Kirstein was decided, courts applied the rational basis standard of review to gender-based classifications because the intermediate scrutiny standard of review was not formulated until Craig v. Boren, 429 U.S. 190 (1976), six years later. See infra note 3. However, the Kirstein court reached its decision without employing the traditional analysis because the Kirstein defendants did not assert a purpose in defense of the classification. See Kirstein, 309 F. Supp. at 187 (observing that the plaintiffs did not object to the merits or speed of the defendant's plan to admit women to the university, but rather objected that there was no assurance that the plan would be permanently effectuated). The Kirstein defendants were, in fact, open to the relatively new idea of eradicating gender discrimination from the realm of educational opportunity. Id. at 186.
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scrutiny standard of review,3 the district court found that Virginia's asserted objective of diversity in education served an important governmental interest.4 The United States Court of Appeals for the Fourth Circuit disagreed.' On remand, Virginia proposed to establish a parallel program for women at an existing all-female college.6 Upon
3. United States v. Virginia, 766 F Supp. at 1410 (citing Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 730 (1982)). The intermediate scrutiny standard first emerged in Craig v. Boren, 429 U.S. 190 (1976), in the context of an equal protection challenge to a state liquor statute. See id at 191-92, 197. The Craig majority stated that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Id at 197.
Although the Craig majority opinion did not expressly recognize a new, "intermediate' standard of review, Justice Stevens and then Justice Rehnquist acknowledged the creation of a new standard in their separate opinions. Justice Stevens concurred with the majority but contended that only one standard of review was necessary. Id at 211-12 (Stevens, J., concurring). In fact, he argued that the existing two-tiered method of analyzing equal protection claims was really a single standard with outcomes dictated by reasons not properly described in "all encompassing terms." Id at 212 (Stevens, J., concurring).
The clearest recognition and strongest criticism of the newly formed standard of review appeared in Justice Rehnquist's dissenting opinion. Id. at 217-28 (Rehnquist, J., dissenting). Justice Rehnquist pointed out that the majority enunciated the standard without citing to any prior authority, and that such language was absent both from prior case law and the Equal Protection Clause. Id. at 220 (Rehnquist, J., dissenting). He opined that the Court already had enough difficulty with the existing standards so that a new, middle standard seemed ill-advised. Id. (Rehnquist, J., dissenting). He expressed concern over the ability of the Court to make unprejudiced judgments about whether objectives are important enough and relationships are substantial enough. Id at 220-21 (Rehnquist, J., dissenting). He also considered the rational basis standard sufficient for appraising equal protection inquiries such as the one in Craig. Id at 222 (Rehnquist, J., dissenting). The real question in such inquiries, Justice Rehnquist intimated, was whether the incidence of a designated trait was greater among one class than another so as to justify differential treatment. Id. at 226 (Rehnquist, J., dissenting). He asserted that, absent an important personal interest protected by the Constitution or a history of discrimination against the burdened class, no elevated level of scrutiny was warranted. Id. at 219 (Rehnquist, J., dissenting).
4. United States v. Virginia, 766 R Supp. at 1413. For a discussion of the intermediate scrutiny standard of review, see supra note 3.
5. United States v. Virginia, 976 F.2d 890, 892 (4th Cir. 1992) (vacating the judgment of the district court and remanding the case for the formulation and implementation of a plan conforming to the equal protection principles discussed in the opinion because Virginia failed to articulate an important objective to support the maintenance of VMI's single-sex status), cert. denied, 508 U.S. 946 (1993). The instant Court subsequently affirmed this decision of the Fourth Circuit. See United States v. Virginia, 116 S. Ct. 2264, 2276-82 (1996).
6. United States v. Virginia, 852 F Supp. 471, 476 (W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir. 1995), reh'g denied, 52 F3d 90 (4th Cir. 1995), rev'd, 116 S. Ct. 2264 (1996). The proposed plan, called Virginia Women's Institute for Leadership (VWIL), was especially tailored to the needs of college-age women and was set in the all-female environment of Mary Baldwin College. Id.
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approval of the plan by both the district court7 and the Fourth Circuit,'8 the United States petitioned for and was granted certiorari.9
The United States Supreme Court began its analysis with an inquiry into the actual purpose underlying Virginia's exclusion of female students from the institute.10 Virginia asserted that its objective was to promote diversity in education by maintaining a single-sex educational opportunity11 within a primarily coeducational system.12 The Court rejected this contention and concluded that Virginia's asserted objective was not its genuine objective.13 The Court affirmed the Fourth Circuit's initial judgment, reversed its final judgment, and HELD, that Virginia violated the Equal Protection Clause by excluding female students from the institute and that the remedial plan failed to cure the violation.14
More than two decades before deciding the instant case, the Court declared its prerogative to inquire whether the asserted purpose is the actual purpose of a challenged statutory scheme in an equal protection case.15 The Court performs an actual purpose inquiry when it has cause to question whether a statutory objective has been contrived solely to satisfy the applicable standard of review.16 Intermediate scrutiny is the standard of review applied when a gender-based classification is
7. Id. at 484 ("If VMI marches to the beat of a drum, then [the parallel program for women] 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.").
8. United States v. Virginia, 44 E3d 1229, 1232 (4th Cir. 1995) (affirming the district court's approval of the proposal after applying a "heightened intermediate scrutiny test" tailored to the particular circumstances of the case and imposing specific criteria on the implementation of the proposal), reh'g denied, 52 F3d 90 (4th Cir. 1995), rev'a 116 S. CL 2264 (1996).
9. United States v. Virginia, 116 S. Ct. 281 (1995).
10. United States v. Virginia, 116 S. Ct. at 2276-79.
11. Id. at 2276.
12. Id. at 2289 (Rehnquist, J., dissenting).
13: Id. at 2277, 2279 (finding no close resemblance between Virginia's alleged objective and the actual underlying purpose and no persuasive evidence that the institute's all-male admission policy furthered a state policy of diversity).
14. Id. at 2276.
15. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1974) (stating that "the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme"). The Weinberger Court also recognized that a court need not accept an asserted legislative objective where examination of the legislative scheme and its history reveals the objective to be otherwise. See id. at 648 n.16 (citing Jimenez v. Weinberger, 417 U.S. 628, 634 (1973), United States Dep't of Agric. v. Moreno, 413 U.S. 528, 536-37 (1973), Eisenstadt v. Baird, 405 U.S. 428 (1972)).
16. See United States v. Virginia, 116 S. Ct. at 2277 ("In cases of this genre, our precedent instructs that 'benign' justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded."); see also supra note 15.
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challenged.17 In order to satisfy the intermediate scrutiny standard, "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." 18 If the Court chooses to perform an actual purpose inquiry in a gender classification case, that inquiry relates to the first prong of the intermediate scrutiny standard, which requires the Court to determine whether the challenged classification serves a legitimate and important governmental objective.19
The inception of the actual purpose inquiry pre-dated the intermediate scrutiny standard. Two years before the formulation of that standard, the Court inquired into the actual purpose underlying a provision of the Social Security Act in Weinberger v. Wiesenfeld.20 Under the challenged provision, Social Security benefits based on the earnings of deceased male workers were payable to their wives, children, and surviving dependent parents.21 However, benefits based on the earnings of female workers were only payable to their children in limited circumstances and were not payable to their husbands or widowers.22
The Weinberger appellant claimed that the purpose of the discriminatory classification was to compensate women in the work force for the economic disadvantages that confronted them.23 The Court rejected the purpose advanced by the appellant and instead relied on legislative history to determine the actual objective.24 The Court found evidence of legislative intent to enable widows with dependent children to choose to give full-time care to their children rather than work outside the home.25 The Court determined that the purpose of the classification was
17. See Craig, 429 U.S. at 197; see also supra note 3.
18. Craig, 429 U.S. at 197.
19. See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982) (indicating that the first step under the standard involves inquiry into both the legitimacy and the importance of the asserted statutory objective). One year prior to Hogan, the Court noted that "the search for the 'actual' or 'primary' purpose of a statute is likely to be elusive." Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 469-70 (1981) (citing Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977) and McGinnis v. Royster, 410 U.S. 263, 276-77 (1973)). The second prong of the intermediate scrutiny standard involves determining whether the challenged classification is substantially related to the achievement of the objective. Hogan, 458 U.S. at 725; see also supra note 3.
20. 420 U.S. 636, 637-38 (1975) (considering whether a provision of the Social Security Act, 42 U.S.C. § 402(g), violated the Due Process Clause of the Fifth Amendment). The intermediate scrutiny standard first appeared in 1976. See Craig, 429 U.S. at 217-18 (Rehnquist, J., dissenting); see also supra note 3.
21. Weinberger, 420 U.S. at 643.
22. Id. at 643-44.
23. Id. at 648.
24. Id. at 648-51.
25. See id. at 649 (citing ADVISORY COUNCIL ON SOCIAL SECURITY, FINAL REPORT 31 (1938).
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not premised on particular disadvantages confronting women because no similar provision was made for either young widows without children or widows with grown children.26 Rather, the real purpose was to provide children who were deprived of one parent with the opportunity for personal attention from the remaining parent.27 In light of that purpose, the Court considered it irrational to categorically deny widowers the choice to give full-time care to their dependent children while allowing widows to make that choice.28 Concluding that the challenged classification essentially discriminated among surviving children based solely on the gender of the surviving parent,29 the Court held it invalid.30
Weinberger was eventually categorized as one of a series of rejected attempts to characterize gender-based classifications as compensatory, where statutory language and legislative history revealed otherwise.31 The actual purpose inquiry was often part of the Court's response to this emerging pattern of questionable compensatory justifications.32 However, the Court's inquiry into the actual purpose of a challenged gender classification did not always reveal an impermissible purpose.
For instance, in Califano v. Webster,33 the Court considered a challenge to another provision of the Social Security Act.34 The challenged provision contained a formula for computing old-age insurance benefits that favored retired female wage earners over retired male wage earners.35 Examination of the legislative history revealed an express intent to compensate for past employment discrimination against women.36 Furthermore, the Court found that, since the benefits were
26. See id. at 648, 650.
27. Id. at 648-49.
28. Id. at 651.
29. Id.
30. Id. at 653.
31. See, e.g., Hogan, 458 U.S. at 728-29 (finding that the challenged classification tended to perpetuate a stereotype rather than compensate for discriminatory barriers faced by women); Califano v. Goldfarb, 430 U.S. 199, 213 (1977) (finding that dependency, not need, was the facial criterion for awarding statutory benefits). But see Califano v. Webster, 430 U.S. 313, 318 (1977) (per curiam) (finding that the challenged statute directly compensated women for past economic discrimination).
32. See, e.g., Hogan, 458 U.S. at 728-29; Goldfarb, 430 U.S. at 213.
33. 430 U.S. 313 (1977) (per curiam).
34. Id. at 314, 316 (scrutinizing § 215 of the Social Security Act, as added, 64 Stat. 506, and amended, 42 U.S.C. § 415 (1970 & Supp. V) under the equal protection component of the Due Process Clause of the Fifth Amendment).
35. See id. at 314-16.
36. Id. at 318.
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computed on the basis of past earnings, the statute genuinely compensated women for past economic discrimination.37 The Webster Court upheld the classification because its only appreciable purpose "was the permissible one of redressing our society's longstanding disparate treatment of women."38
Five years after Webster, the Court undertook a similar actual purpose inquiry in the context of public education.39 In Mississippi University for Women v. Hogan,40 a male student instigated an equal protection challenge to an admissions policy that excluded males from enrolling for credit in a state-supported nursing school.41 The State asserted the familiar objective of compensation for past discrimination42 against women.42
Finding that women predominated in nursing and did not lack educational or leadership opportunities in that field,43 the Hogan Court determined that the exclusion of males from the nursing school did not compensate for discrimination against females but actually perpetuated a gender stereotype.44 The Court noted that the State failed to establish legislative intent regarding the policy's compensatory purpose.45 Furthermore, a substantial relationship between the classification and the objective was not credible since men were allowed to attend classes as auditors, and there was no evidence that their presence obstructed the achievement of the school's educational goals.46 The Hogan Court concluded that the alleged compensatory purpose was not genuine,47 and it ultimately held that the university's exclusion of males violated the Equal Protection Clause.48
In contrast with Weinberger, Webster, and Hogan, the instant case did not involve a dispute over an alleged compensatory purpose.49
37. See id.
38. Id. at 317 (quoting Goldfarb, 430 U.S. at 209 n.8).
39. See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 727-30 (1982).
40. 458 U.S. 718 (1982).
41. Id. at 719-21.
42. See id. at 727.
43. Id. at 729.
44. Id. at 729-30.
45. Id. at 730 n.16 (comparing Webster, 430 U.S. at 318, in which legislative history revealed a purposeful enactment of more favorable treatment of retired female wage earners and a clear compensatory objective).
46. Id. at 730.
47. Id.
48. Id. at 733.
49. See United States v. Virginia, 116 S. Ct. at 2276 (observing that Virginia asserted educational benefits, including diversity in education and avoiding the negative effect of admitting women on VMI's unique educational method, as its purpose for maintaining VMI as a single-sex educational institution).
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Rather, Virginia asserted as its objective the preservation of state-wide diversity in education.50 Citing the Hogan court's actual purpose analysis with approval,51 the instant Court began its analysis with an inquiry into the actual purpose behind Virginia's exclusion of female students from VMI.52 The Court initially focused on the historical deficiencies in Virginia's "alleged pursuit of diversity through single-sex educational options."53 The Court pointed out that the admission of women to the University of Virginia more than two decades earlier was the culmination of an extended, bitter struggle.54 Furthermore, at the time that VMI was established, some thought that higher education was dangerous for women55 and that the admission of women to all-male schools would result in lowered educational standards and encroachment on the rights of men.56
In further analysis, the instant Court called into question the current lack of public single-sex higher educational opportunities for women in Virginia.57 The Court additionally noted that there was only one legislative statement of record in which Virginia expressed itself in regard to gender distinctions in education.58 Finally, the Court did not consider Virginia's earlier reexamination and reaffirmance of VMI's allmale admissions policy in response to Hogan to be sufficient evidence of a state policy to evenhandedly advance diversity in education.59 The instant Court ultimately found that Virginia's alleged objective of diversity was not genuine.60
Although the instant Court's actual purpose inquiry ostensibly falls neatly into the series of actual purpose inquiries undertaken in Weinberger, Webster, and Hogan, the inquiry in the instant case actually is somewhat atypical. The instant Court's inquiry is distinctive because
50. Id.
51. Id. (citing Hogan, 102 S. CL at 3337-39).
52. Id. at 2276-79.
53. Id. at 2277.
54. Id. (citing 2 T. WOODY, A HISTORY OF WOMEN'S EDUCATION IN THE UNITED STATES 254 (1929)).
55. See id. at 2277 n.9.
56. Id. at 2278 (citing 2 T. WOODY, A HISTORY OF WOMEN'S EDUCATION IN THE UNITED STATES 255 (1929)).
57. Id.
58. Id. (citing United States v. Virginia, 976 F.2d at 898-99 (citing VIRGINIA COMM'N ON THE UNIV. OF THE 21T CENTURY, REPORT TO THE GOVERNOR AND GENERAL ASSEMBLY OF VIRGINIA (1990))).
59. Id. at 2278-79.
60. Id. at 2277 (concluding that there was no close resemblance between the alleged objective and the actual purpose of the classification).
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it focuses on an asserted purpose of diversity in education61 rather than the compensatory purpose asserted in the cases the Court purported to follow.62 In that sense, Hogan was not as closely on point as the instant Court's opinion seems to indicate.63 Despite the instant Court's focus on the genuineness of Virginia's asserted purpose of diversity, the instant Court did not directly address whether public, single-sex education as an aspect of diversity might qualify as an important governmental interest in satisfaction of the first prong of the intermediate scrutiny standard.64 The Court's apparent evasion of that issue is significant because the instant case presented the Court with a conspicuous opportunity to make a finding on that issue, regardless of whether the challenged VMI classification ultimately would have passed constitutional muster.65
The instant Court started its actual purpose inquiry by recognizing the pedagogical benefits that single-sex education affords to some students.66 The Court specifically stated that it did not dispute the value of diversity in public education.67 However, in keeping its observations as to the positive aspects of single-sex education separate from its commentary on the value of educational diversity, the Court avoided any insinuation that single-sex education as an aspect of educational diversity may qualify as an important governmental interest under the intermediate scrutiny standard.68 Not surprisingly, the instant Court directly attacked Virginia's alleged objective without indicating what result might have occurred had the Court found that Virginia's asserted objective was genuine.69 However, based on the Court's subsequent analysis, it can be inferred that such a
61. See id. at 2276, 2289.
62. See supra notes 20-30, 33-38 & 40-48 and accompanying text.
63. But see United States v. Virginia, 116 S. Ct. at 2277 (stating that "Mississippi Univ. for Women is immediately on point").
64. See id. at 2276-82. The Court did make it clear that States are free to "evenhandedly" support diverse educational opportunities. Id. at 2276 n.7. However, the instant case does little to illuminate the Court's definition of evenhanded support of diverse educational opportunities, other than to show that the reservation of a unique and advantageous educational opportunity only for males does not fall within that definition. See id. at 2279.
65. See id. at 2276 (noting that Virginia contended that single-sex education provides important educational benefits and contributes to educational diversity).
66. Id. at 2276-77.
67. Id. at 2277.
68. See id. The Court's recognition that Virginia allegedly pursued diversity through single-sex educational options was not the same as recognition that such a pursuit, if genuine, would serve an important governmental interest.
69. See id. at 2277 ("Neither recent nor distant history bears out Virginia's alleged pursuit of diversity through single-sex educational options.").
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finding would not have changed the instant Court's final holding. The Court reasoned that a purpose of genuine educational diversity was not served by a plan that afforded a unique educational opportunity only to males.70 " The Court also found that VMI's mission of producing "citizen-soldiers" was not substantially advanced by categorically excluding women.71 Finally, the Court found that Virginia's proposed parallel plan for women did not qualify as the institute's equal in a number of significant respects.72
These findings sufficiently support the Court's final holding without regard to the outcome of the Court's actual purpose inquiry. The Court essentially found that the exclusive reservation of VMI's unique educational benefits for males was not substantially related to the asserted purpose of educational diversity.73 As such, the Court might reasonably have concluded that Virginia failed to satisfy the second, substantial relationship prong of the intermediate scrutiny standard. That the outcome of the instant Court's actual purpose inquiry was incidental to its final holding is some evidence that the Court acted deliberately to sidestep the issue concerning single-sex education as an aspect of diversity.
Although inconclusive, there is further evidence that the Court acted deliberately to avoid that issue. In his dissenting opinion, Justice Scalia disclosed a number of sources noted in the record indicating that Virginia historically adhered to a policy of promoting diversity in education.74 Nevertheless, the Court relied on the Fourth Circuit's
70. Id. at 2279 (citing United States v. Virginia, 976 F.2d at 899). The Court's focus on the uniqueness of the institute's program may distinguish the instant case from cases in which the challenging parties have access to similar educational opportunities elsewhere. That focus also contributed to the Court's ability to avoid deciding generally whether single-sex education may qualify as an important governmental interest in satisfaction of the intermediate scrutiny standard. See supra notes 64-68 and accompanying text.
71. United States v. Virginia, 116 S. Ct. at 2281-82.
72. Id. at 2284-85 (finding that the parallel program differed in its level of military training; that it differed in the composition of its student body,; faculty, course offerings and facilities; and that its graduates could not anticipate the same benefits, advantage of prestige, and access to the influential alumni network that characterized the institute).
73. Id. at 2279 ("A purpose genuinely to advance an array of education options.. . is not served by... a plan to 'affor[d] a unique educational benefit only to males.' ") (quoting United States v. Virginia, 976 F.2d at 899).
74. Id. at 2299 (Scalia, J., dissenting) (noting that the parties stipulated that the 1990 Report of the Virginia Commission on the University of the 21st Century to the Governor and General Assembly of Virginia indicated that the "hallmarks of Virginia's educational policy are 'diversity and autonomy' "). Justice Scalia also pointed out that there were references to Virginia's heritage of diversity in higher education in the 1969 Report of the Virginia Commission on Constitutional Revision, the 1989 Virginia Plan for Higher Education, the 1974 Report of the General Assembly Commission on Higher Education to the General Assembly of Virginia, and the Budget Initiatives for 1990-1992 of the State Council of Higher Education for Virginia. Id. at 2299 n.2.
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observation that there was only one statement of record in which Virginia expressed itself regarding both gender distinctions and diversity in higher education.75 The instant Court's selective reliance on the Fourth Circuit's opinion is another indication that the Court made a deliberate choice between two options. The Court could have found either that Virginia's alleged objective was its actual objective, which would have required the Court to squarely face the issue of the validity of single-sex education as an aspect of diversity,76 or, in the tradition of Hogan,77 it could have found that Virginia's alleged objective was not its actual objective and avoid setting a precedent as to that issue. The Court apparently chose the latter course.78
It is evident from the instant case that the actual purpose inquiry is a powerful tool the Court may employ when it wishes to avoid setting certain precedents. It appears that the instant Court's actual purpose inquiry, in conjunction with the Court's focus on the uniqueness of the VMI program,79 permitted the Court to reach a decision having less precedential value than it might have had otherwise. Taken at face value, this case leaves undecided the question of whether single-sex education as an aspect of public educational diversity may qualify as an important governmental interest.80 If one believes Justice Scalia, however, the instant case is the final nail in the coffin of public singlesex education.81 Although the accuracy of Justice Scalia's position on this issue is debatable, it is reasonable to predict that the instant case will be used as authority to argue that single-sex education as an aspect of educational diversity cannot satisfy the governmental interest prong of the intermediate scrutiny standard.
75. Id. at 2278; see also id at 2299 (Scalia, J., dissenting); supra note 58 and accompanying text.
76. See United States v. Virginia, 116 S. Ct. at 2276-79. Since Virginia alleged its objective specifically, it is hard to conceive of any other way the Court might have avoided this issue.
77. See supra notes 40-48 and accompanying text.
78. See United States v. Virginia, 116 S. Ct. at 2277.
79. See id at 2276 n.7 ("We address specifically and only an educational opportunity recognized by the District Court and the Court of Appeals as 'unique.' ")
80. But see id. (stating that the Court did not question the State's prerogative to evenhandedly support diverse educational opportunities); id. at 2279 (implying that evenhanded administration of diverse educational options in regard to gender would qualify them as legitimate state interests).
81. Id. at 2293 (Scalia, J., dissenting) ('Today... change is forced upon Virginia, and reversion to single-sex education is prohibited nationwide, not by democratic processes but by order of this Court.").
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