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Boys and Girls

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Last week, with William Rehnquist's provisional consent, Shannon Faulkner became the first woman in 150 years to attend classes at The Citadel, a public military college in South Carolina. "This is just another case in a long series of cases over the last twenty years or so which have expanded opportunities for women and said they're entitled to an equal opportunity," Helen Neuborne of the now Legal Defense Fund told cnn. In fact, the Citadel case exposes the intellectual fault lines in the Supreme Court's approach to gender discrimination; and it could lead to two different but equally distressing outcomes. Carried to its logical conclusion, the effort to integrate The Citadel might mean the end of all single-sex education--for women as well as men, in private as well as public schools. Or else it could commit women to an affirmative action vision of gender equity that makes nonsense of Ruth Bader Ginsburg's equal treatment feminism.

The Citadel and the Virginia Military Institute are the only two public men's colleges left in the country (there are two public women's colleges as well). Though the Citadel case has gotten more attention recently, the effort to integrate vmi is actually further along in the courts. In October 1992 a federal appeals court ruled that "single-sex education is pedagogically justifiable" but that Virginia can't maintain a single-sex military academy for men but not for women. That prompted Mary Baldwin College, a private women's college thirty miles from vmi, to suggest an ingenious alternative. If the state will pay it $6.9 million a year--the same amount vmi receives-- Mary Baldwin will set up a "separate but equal" program, training women as " citizen soldiers" and preparing them for leadership in the private sector and the military. On February 9 a Virginia district judge will hear testimony on the constitutionality of Mary Baldwin's "separate but equal" proposal.

The central constitutional question is whether the exclusion of women from vmi and The Citadel promotes harmful and archaic stereotypes about the essential nature of men and women. In one affidavit, Carol Gilligan of Harvard declares: "Institutions that glorify and encourage personally disconnected, aggressive, stoical behavior promote the capacity to receive and inflict pain." The Citadel's dedication to "masculinity," Gilligan maintains, does not produce "socially desirable personal characteristics." vmi and The Citadel, by contrast, are emphasizing the benefits of single- sex education for men. Far from exalting traditional gender roles, they say, single-sex schools often liberate their students to defy them. "In that stressful setting, men are freer to express the gentler side of themselves," says David Riesman, the Harvard sociologist and an expert witness for vmi. " There's a journal called Sounding Brass that vmi students put out, and I was struck by the fact that they felt comfortable writing very contemplative poetry, of high aesthetic sensibility, because in the rest of the setting they were exhibiting their maleness, their ruggedness."

Unfortunately, vmi's supporters are not immune to the temptations of Gilliganesque generalizations. Invoking Gilligan's work, the administrators of Mary Baldwin concluded that women are unlikely to benefit from the more " adversative" features of a vmi education, such as the ominously named "rat line" and "dyke system." Rather than generalizing about how men thrive in adversity and women thrive in cooperation, vmi and The Citadel would do far better to rely on extensive evidence that the value of separate education is, simply, its separateness.

The Justice Department, however, dismisses this evidence cavalierly. It argues that a separate program for women could not possibly be equal, because vmi and The Citadel are bastions of male privilege. But in fact, the most striking feature of both academies is their success at educating poor black students. The Citadel has the highest retention rate for minority students of any public college in South Carolina: 52 percent of black students graduate within four years. Moreover, most of the white students come from modest backgrounds (and only 18 percent go on to military careers), which makes it all the harder to claim that vmi and The Citadel are powerful agents of the patriarchy.

Even more distressingly, the Justice Department and the aclu suggest that single-sex education might be constitutional for women but not for men. They emphasize that the Supreme Court has "upheld state-sanctioned, sex-specific practices only when they achieve a compensatory purpose for women"; and they cite the 1980 Hogan case, the Court's last major pronouncement on gender discrimination, in which Sandra Day O'Connor held that a public women's nursing school in Mississippi had to admit men because women have not been traditionally discriminated against in the field of nursing.

The affirmative action argument is treacherous on several levels. As a purely historical matter, it is hard to claim that women's colleges were created to compensate women for discriminatory treatment. As Elizabeth Fox Genovese of Emory University notes, the Seven Sisters were founded in the nineteenth century as elite institutions, where women could get a more rarefied education than at the coed land-grant colleges. The affirmative action argument holds even less water today: in 1989 there were 13,000 more women than men in Virginia's public university system.

Women's colleges counter that, regardless of their historical origins, their programs today are necessary to help women overcome intangible barriers in male-dominated professions. And the argument has some force, given the evidence that graduates of women's colleges are more likely than their coed counterparts to become college professors, scientists and politicians. But the educational benefits of men's colleges are equally clear; and to allow women alone to benefit from single-sex education seems to perpetuate the stereotype that they are in constant need of special treatment and protection.

These are precisely the stereotypes Ruth Bader Ginsburg fought against as an advocate in the 1970s. But the aclu, ironically, attempts to resurrect the handful of cases where the Court rejected Ginsburg's equal treatment vision. Ginsburg has also argued that affirmative action for women, unlike for blacks, is unnecessary in law schools, since women do better than men on the lsat. (To be sure, Ginsburg has not been entirely consistent on this difficult subject: in 1971 she flirted with the possibility that women's colleges, but not men's colleges, might be constitutional because "if America were a matriarchy, we might see women's colleges as a menace and men's colleges as possibly justified by defense.") Certainly, there is nothing in the text or history of the Fourteenth or Nineteenth Amendments to support unequal treatment of women and men. The Court will have an opportunity, in the vmi and Citadel cases, to reject the special treatment strains of Hogan and to uphold single-sex education for men and women, whether public or private.

The Court may, however, take an equally symmetrical but less appealing position, forbidding all public support for institutions that discriminate on the basis of gender. A holding along these lines would surely mean the end of private as well as public single-sex colleges. In a worried amicus brief filed on vmi's behalf, a group of small women's colleges emphasizes that the distinction between private and public institutions is increasingly meaningless in an age when few private colleges can survive without federal financial aid and tax exemptions. And in the 1983 Bob Jones case, the Supreme Court held that all tax-exempt institutions must "serve a public purpose and not be contrary to established public policy." If the Court were to hold that separation by sex, like race, is inherently unequal, the federal government might well be forced to eliminate tax exemptions and scholarship support for all private single-sex schools. Wellesley College, in short, may stand or fall with The Citadel.

"At what point does the insistence that one individual not be deprived of choice spill over into depriving countless individuals of choice?" asks Fox Genovese. After almost half a decade of widespread coeducation, it is increasingly obvious that temporary separation, for some men and some women, can lead to more permanent equality. And to forbid all diversity among schools because of a bland notion of diversity within schools would be, educationally and constitutionally, perverse.

Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.

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