POLITICS FEBRUARY 19, 1996
As the Supreme Court ponders whether the Virginia Military Institute and the Citadel can continue to exclude women, the legal battles have become a time-lapse photograph of the generational war among feminists. In the current issue of Dissent, Catharine Stimpson argues that "Shannon Faulkner ... is chronologically a Third Waver using Second Wave legal theory to achieve a First Wave goal." A debate rages between those who want equal access to public institutions; those who want to set up separate but equal schools; and those who prefer separate but different schools, on the premise that women learn better in harmony and men in adversity. And now the plot has become even more complex. The Clinton administration has asked the Supreme Court to endorse the most controversial premise of the equal treatment feminists: that gender distinctions are just as invidious as racial distinctions and should be treated as presumptively unconstitutional. If the Court accepts the invitation, and enacts the Equal Rights Amendment by judicial fiat, it would transform the legal status of women. But what about the institutions at the center of the controversy, VMI and the newly created Virginia Women's Institute for Leadership? Are they in fact bastions of gender stereotypes, or can they plausibly be defended as separate but equal? To find out, I set out for Virginia.
In his Preface to Panopticon, Jeremy Bentham imagined the marvelous educational benefits of a utopian "inspection-house," in which prisoners, students, orphans or paupers could be subject to constant surveillance. Bentham imagined the Panopticon as a ring-shaped building surrounding a central courtyard. In the center of the courtyard would be an inspection tower with windows facing the inner side of the ring; each cell would be pierced by two windows, allowing light to pass from the outer wall to the inner courtyard. Supervisors in the central tower could observe every movement of the inhabitants of the cells, but Venetian blinds would ensure that the supervisors could not be seen by the inhabitants. Bentham staked his career on the virtues of the Panopticon, and Foucault described its central goal: "to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power."
It was hard not to think of the Panopticon during a first encounter with the VMI barracks. One passes through the Jackson Arch, inscribed with former professor Stonewall Jackson's maxim, "You may be whatever you resolve to be," and faces a four-sided arsenal surrounding a courtyard. In the center of the courtyard is a sentinel box manned by a twenty-four-hour guard team of student cadets that is sworn to report any infraction of the Institute's rules. The guard team gazes out on four tiers of cell-like rooms that open onto four interior balconies, or "stoops," facing the courtyard. All furniture has to be placed against the wall so there is an unobstructed view from the balcony door to the back window. Thus each cadet, like Bentham's inmates, knows that he is being constantly surveyed.
The unbending behavioral regulations in the barracks also have a whiff of Panopticism. On the fourth level of the barracks live the "rats," or freshmen, who are required to march at rigid attention along an imaginary straight line, even when they are alone, and to march doubletime on the exterior stairs. As I watch from the courtyard, a rat trouping stiffly toward the communal showers is playfully harassed by upperclassmen shouting conflicting orders. ("To the showers, rat! To your room, rat.") Every few minutes, without warning, a frightening loudspeaker, like the one in the London Underground, commands various cadets to report to ominous-sounding duties. Finally, the cannon sounds and the entire cadet corps, in gray uniforms, black guns and scarlet capes, marches through the Jackson Arch, crisply salutes the Jackson statue and, after calling roll ("Delta company! One man absent! India Company! Three men absent!), parades down to Crozet Hall for more harassment over dinner.
Although the barracks and dining hall of VMI appear at first to be a Foucauldian fantasy of power enforced through hierarchy, I came to see the Institute as a far more egalitarian and tender and even nurturing place after going to classes and talking to cadets. VMI is, indeed, a Victorian institution, but it is closer to Thomas Arnold's Rugby than Bentham's Panopticon. Its animating purpose is not to create rigid hierarchies, but to treat all cadets precisely the same. In the classrooms, unlike the barracks, cadets are free to be intellectually playful, to challenge their male and female teachers, even to explore their gentler sides. A white cadet, a timid soul, told me he left VMI for the University of Virginia because the barracks life was too brutal and then returned because he found the engineering professors at VMI to be more accessible and nurturing than their UVA counterparts. A black cadet, a battalion commander, explained that race relations at VMI were far less fraught than at his coed military high school because there was less opportunity for identity politics to flourish when all cadets were treated exactly the same.
Early one morning, I was summoned to meet VMI's new superintendant, General Josiah Bunting III. Tall and razor thin in his impressive uniform, he looks like General William Westmoreland but speaks like the kindhearted and devoted headmaster from Tom Brown's School Days. Bunting graduated from VMI in 1963, where he was First Captain of the Corps of Cadets. After a Rhodes scholarship, he commanded the 505th Infantry in Vietnam and then wrote a best-selling novel about his experience called The Lionheads. He taught history at West Point and went on to become president of the all-male Hampden-Sydney College in Virginia; his last stint was as headmaster of the Lawrenceville School in Princeton, which went co-ed under his watch. "Have you read D.C. Somervell's English Thought in the Nineteenth Century?" he asked after receiving me in the oak-paneled VMI boardroom. "It's one of the lovely works of intellectual history, and Somervell describes Lord Eldon, a Tory Chancellor in the Pitt administration, with these words: `It is impossible to imagine that such a man as Lord Eldon ever existed.' Our opponents aren't even trying to see this institution as it really is; they're not interested in what Coleridge called `imaginative sympathy.'"
I asked General Bunting how he felt to be presiding over what may well be the end of a 156-year-old tradition of all-male education at VMI, and he gazed out the picture window. "Wistful, plaintive; adjectives like that. It's like the Adagio section of Mahler's Fifth Symphony, Death in Venice, and there is a wistful quality that comes from the fact that those who go here really love it and adore it. They realize that once it's gone it can never be recovered. Nescit vox missa reverit--the voice which sent can never be recalled. This is a singular place; it's quiet; it has nothing to do with the screaming excesses of right-wing caricatures." Bunting swings gently around in his chair. "I feel almost like Tocqueville looking out over America. This is everything that is good in our culture, and it's going to change irretrievably if they bring in women."
At the stroke of 9 a.m., twelve juniors and seniors in uniform filed quietly into the boardroom for Bunting's seminar on "War, Politics, Leadership." The premise of the course, according to the syllabus, is that "You cannot `teach' duty; you can only show the example." By studying the lives of Pericles, Lincoln, Churchill, Truman, LBJ and General Marshall (VMI's favorite son), along with "occasional readings in imaginative literature and poetry," the cadets are expected to learn character by osmosis. Today's class was a close reading of a passage from a Periclean funeral oration from The History of the Peloponnesian War: "What I would prefer is that you should fix your eyes every day on the greatness of Athens as she really is and should fall in love with her." The students were respectful (Yes, sir; no, sir) but relaxed and engaged, and at Bunting's invitation they volunteered their opinions about the similarities between Periclean Athens and Clinton's America. The only time the class came up short is when Bunting quoted Pericles on the role of women: "The greatest glory of a woman is to be least talked about by men." "Any comment on that?" The room filled with silence. "All right," said Bunting, "Let's talk about the plague."
Almost everyone concedes that if women are admitted to VMI, they will be unable to achieve the precise benefits they seek; for the Institute in its current form will no longer exist. If VMI's central mission were to train men for success in the modern military, the school would arguably be improved by co-education; but in fact, only 18 percent of VMI graduates go on to military careers. VMI doesn't want to become like a twentieth-century West Point, it wants to remain like a nineteenth-century Rugby; and it can't do that if women are admitted. Of course, there is a circular quality to the argument, as the lower courts discovered when they held that VMI's purpose is to provide the unique benefits of a single-sex military education to a select group of young men. Put this way, VMI's distinctive qualities justify themselves. But after chasing their tails for several years, the lower courts decided that if single-sex military education is a valuable public benefit (as it clearly is), then the state of Virginia, at the very least, has to create a separate but equal program for women. And this is a challenge, alas, that the state has bungled so dramatically that its chances before the Supreme Court are almost certainly doomed.
Setting out on the thirty-five-mile drive from Lexington to Staunton, where Mary Baldwin College is located, I was full of trepidation. It's obvious from the trial record that the newly created Virginia Women's Institute for Leadership at Mary Baldwin was constitutionally flawed from the start. Rather than setting out to construct a separate but equal program for women, as the lower court demanded, the state made the mistake of granting the Mary Baldwin faculty carte blanche to design whatever program it pleased. Perhaps understandably, the faculty decided to advance its own institutional interests rather than VMI's litigation interests; and the program that resulted was an explicit rejection of everything that makes VMI unique. Mischaracterizing VMI's educational philosophy, the Dean of Students at Mary Baldwin, Heather Wilson, testified that "the VMI model is based on the premise that young men come [to college] with inflated sense of self-efficacy [sic] that must be knocked down and rebuilt in a more meaningful way. We believe that women had that leveling experience already in their lives, and they do not need more of that in college." Accordingly, the faculty decided that a military model "would be wholly inappropriate for educating and training most women for leadership roles." Drawing on the work of difference feminists such as Blythe McVicker Clinchy and Carol Gilligan, Dean James Lott testified that "women learn best, develop their potential best under an environment which provides discipline and order in the context of nurturing." The program that resulted, on paper at least, was a hodgepodge of theories drawn from second-wave feminism and Total Quality Management.
Whatever can be said for this as an educational philosophy suited to most women, it's obviously inappropriate for the small subset of women who want to experience the egalitarian rigors of the VMI model. The Virginia Women's Institute for Leadership is based on a category error: it assumes that single-sex education, rather than single-sex military education, is what makes VMI unique. As a result, the VWIL program is not even plausibly equal to VMI. Students in the program live in the ordinary dorms of Mary Baldwin College; attend most of their classes with Mary Baldwin students; are not required to wear uniforms, except during ROTC; and are generally supported rather than harassed. And Mary Baldwin suffers in comparison to VMI in other, more intractable ways: 100 points lower average SAT scores, lower faculty salaries, no engineering program for the B.S. degree, and so forth. All in all, the argument goes, Mary Baldwin is to VMI as Pine Manor (rather than Wellesley) is to Harvard.
With all these statistics in mind after reading the briefs, I arrived at the Mary Baldwin campus prepared to find a down-at-the-heels citadel of difference feminism, a Gilligan's Island of the second wave. In fact, the college is located on the lush grounds of the former Staunton Military Academy, and physically, at least, it is a fair match for the beauty of VMI. And although the VWIL program, in its fifth month of operation, is hardly boot camp, it was a relief to discover how little of the different voice theorizing of the faculty planners has actually been embraced by the forty fledgling cadets. Naturally drawn to the hierarchy that their professors rejected, the cadets have voted to wear uniforms all day on Monday and are debating whether or not to adopt a permanent rank system along the VMI model. "What we assumed would not be attractive, like wearing a uniform, is attractive to the students," confessed Professor Virginia Francisco, one of the faculty planners. "They want more discipline and more order."
Still, this program, on this campus, is unlikely to become a plausibly equal alternative to VMI. Even if we set aside, for the sake of argument, the extreme physical harassment of the rat line, a truly separate but equal program for women would have to include, at the minimum, a twenty-four-hour military environment with military uniforms, military etiquette and some kind of structured barracks life. It would emphasize physical rigor, mental stress, absolute equality of treatment and absence of privacy. Whether the prestige of VMI could be immediately replicated at a separate institution isn't entirely clear, but Mary Baldwin is not the place to try.
I had the chance to watch the VWIL students learn to march and troupe the color for the Virginia Corps of Cadets. On a brilliantly sunny day in January, all forty cadets arrived in their black sweaters and black pants, and assembled on a glowing green field in front of the gym. As Colonel Michael Bissell, the VMI liaison to VWIL, looked on benignly, the women practiced their marching drills, and it was hard not to be struck by how encouraging and supportive the leaders were when somebody marched out of step. "That was my fault, I should have turned right!" said one cadet commander brightly after almost leading her platoon into a wall. "That's great. It got a little mixed up at the end, but it looked real good. How did everybody feel about that?" By the end of the half hour, the cadets were more or less in step; but the easy-going cries of "Nice job!" and "Looking good!" were hard to reconcile with the Panopticism of VMI or even with the coed exercises at West Point, where trouping the color is a far less jolly affair.
My last visit at Mary Baldwin was to the flagship of the VWIL program, Director Brenda Bryant's course on "Leadership and Followership." It is the only course developed specifically for VWIL students; and its purpose is "to introduce students to the formal study of leadership and to foster reflection and self-evaluation." Bryant is an appealingly straightforward woman with short gray hair, sensible shoes and degrees in public administration--before coming to Mary Baldwin, she was the executive vice president of Creative Associates International in Washington; but the whole discipline of "leadership theory" has a distinct whiff of Babbitry. Unlike the elegant VMI boardroom, the VWIL leadership class is taught on the top floor of the Mary Baldwin gym, in a room that looks like a high-school biology lab from the 1950s: an overhead projector and a skeleton lurk menacingly by the blackboard. The VWIL cadets seem about as engaged as their VMI counterparts, although they are more likely to preface their opinions with an apology or to phrase them as questions. "Leadership today is more transformative than transactional," Bryant explained to me after class. "Organizations are flattening; you have more employee ownership and less hierarchy. Much of what we get in the political arena and personal realm is negotiation. As luck would have it, these are the skills that women bring to the table."
For all of its good intentions and dedicated teachers, after only five months in operation, there is a curiously dated quality to the Virginia Women's Institute for Leadership. Although Cynthia Tyson, Mary Baldwin's energetic and resolute British president, has promised to continue the program even if Virginia withdraws funding in the wake of the Supreme Court's decision, the notion of a nurturing military academy for women seems as Victorian, in its way, as VMI's very different program for men. VWIL feels, in the end, like the cloistered women's college from Gilbert and Sullivan's Princess Ida, in which the determined "girl graduates" put on armor to defend their walls from an invasion by Hungarian soldiers, and all the textbooks are bowdlerized.
The Supreme Court will almost certainly hold that VWIL is not an equal alternative to VMI. But what happens next is an open question. Will the Court hold that separate but equal military academies for men and women are inherently unequal because they promote archaic stereotypes? Or will the justices hold that separate but equal schools are, in theory, permissible for men and women, but not for blacks and whites, and give VMI one last chance to come up with a more plausibly equal alternative? In fact, U.S. v. Virginia is nothing like Brown v. Board of Education, and the differences between the two cases suggest the dangers of treating gender discrimination like racial discrimination.
In Brown v. Board, of course, Chief Justice Warren didn't actually hold that all racial segregation was inherently unequal; and he coyly refused to overturn the "separate but equal doctrine" of Plessy v. Ferguson in all circumstances. Instead, he held that racially segregated schools were inherently unequal because they conveyed a social meaning that blacks were an inferior caste, generating "a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Although the social meaning of racially segregated schools may have been contested in 1896, it was no longer contested in 1954, and therefore, Warren concluded, racial segregation in public schools deprived black students of equal educational opportunities, even assuming that physical facilities were equal, which they obviously weren't.
Forty years later, the focus of anti-discrimination law is on smoking out "stereotypes" rather than avoiding the harms of caste. In 1982, for example, Sandra Day O'Connor held that the Mississippi University for Women couldn't exclude men from its nursing school, because the admissions policy tended "to perpetuate the stereotyped view of nursing as an exclusively women's job." Brandishing the Mississippi case, the Clinton administration is arguing that the exclusion of women from VMI perpetuates a similarly archaic stereotype: that only boys should grow up to be soldiers. In his brief for the United States, Solicitor General Drew Days argues that "VMI's admissions policy has communicated a message that, in the eyes of the Commonwealth, women do not possess the qualities of self-discipline, ability to withstand stress and respect for hierarchy that are widely associated with VMI."
But surely Days has misrepresented VMI's "message." As Josiah Bunting argues elegiacally, the exclusion of women from VMI is not based on stereotypes about the military as man's work; and unlike the Mary Baldwin faculty, the VMI faculty has no interest in generalizing about whether or not most women could flourish under adversity. Instead, VMI wants to exclude women to preserve its unique, and successful, educational method for men. Of course, some women may misunderstand VMI's mission, just as Drew Days did; and they may feel inherently stigmatized by the erroneous impression that VMI cadets think women aren't physically or intellectually capable of measuring up. But as the debacle of Plessy v. Ferguson demonstrates, judges should hesitate to interject themselves into delicate questions of social policy on the basis of uncertain notions of what segregation really means. When the social meaning of segregation is contested, rather than settled, surely humility counsels that judges should defer to the political branches.
But does the Constitution permit judicial restraint? The Clinton administration has dramatically raised the stakes by insisting that gender discrimination is just as invidious as racial discrimination and that separate but equal single-sex schools are inherently unequal. Brandishing the equal treatment vision on which Ruth Bader Ginsburg staked her career as a litigator, the Justice Department is urging the Court to treat all sex-based classifications, like all race-based classifications, as presumptively unconstitutional.
Unlike Shannon Faulkner, therefore, the administration is using a first-wave legal theory to achieve a first-wave goal: opening all public institutions to women. But 1996 is not 1970; and it's startling to realize how much of the current legal regime, including many gender distinctions supported by second- and third-wave feminists, would be disrupted if the Court finally adopted Ginsburg's "strict scrutiny" standard. Affirmative action for women in universities, public contracting and hiring would be far harder to justify. A bill pending in Congress that would authorize schools to experiment with single-sex programs in elementary and secondary public schools would be constitutionally vulnerable.
And then there is the Wellesley question. Just as private schools that discriminate on the basis of race have lost their tax-exempt status and ability to receive federal grants, so private women's (and men's) colleges could be imperiled if gender discrimination really were considered as invidious as racial discrimination. There are ways out of the dilemma: the federal government and the Internal Revenue Service might decide that private single-sex schools don't, in fact, violate public policy, so students are free to take their tuition grants to any coed or single-sex schools that they please. (Unrestricted federal grants paid directly to the colleges might be more problematic.) But a ruling along these lines would be a tacit concession that gender classifications really aren't as stigmatizing as racial classifications, which would be hard to reconcile with the Supreme Court's suggestion that they are.
For purely strategic and cynical reasons, libertarian conservatives and revisionist neo-feminists might consider joining forces with the Clinton administration and urging the Court to treat gender discrimination and racial discrimination precisely the same. Perhaps Newt Gingrich and Katie Roiphe, for example, would be willing to sacrifice VMI and the Citadel in the interests of eliminating special treatment for women in other spheres. But the Supreme Court, of course, is moved by arguments of principle rather than of politics. Are there convincing legal arguments for subjecting gender classifications, like racial classifications, to the strictest judicial scrutiny?
Now that the historic moment of decision has arrived at last, it's remarkable how tinny and formulaic the familiar arguments appear. In a brief for the ACLU and the National Women's Law Center, Ginsburg's former colleagues Susan Deller Ross and Wendy W. Williams dutifully recite the arguments, refined and repeated in hundreds of briefs during the 1970s: sex, like race, is an "immutable characteristic unrelated to ability"; Women, like blacks, have suffered from a "long history" of discrimination in the United States; and women, like blacks, are "underrepresented in the political process." (They constitute only 11 percent of U.S. representatives and 21 percent of state legislators.)
Although these arguments were powerful and important in the 1970s, they seem increasingly strained in the 1990s. As Linda Chavez, Christina Hoff Sommers and Abigail Thernstrom argue in their brief for the Independent Women's Forum, women are hardly politically powerless today: unlike blacks, they constitute a majority of the population; and in practice, women have had meaningful access to the ballot for much longer than blacks have. Nor are women excluded from the workplace--they constitute over 45.9 percent of the civilian labor force--or systematically denied professional opportunities. Finally, to compare the discrimination suffered by women to the discrimination suffered by blacks is historically simplistic: after the turn of the century, for example, Progressive women's suffrage advocates made a Faustian alliance with white Southern racists and built male support for the Nineteenth Amendment by pledging to support the disenfranchisement of blacks with literacy tests and poll taxes.
In light of all these messy distinctions, the Court will probably decline the administration's invitation to treat race and gender discrimination as equally suspicious. But there is, in fact, a quirkier argument on behalf of Ginsburg's equal treatment vision, and it is based on the original understanding of the Fourteenth Amendment. Unlike the Warren Court in Brown, the Rehnquist Court has not called for special briefs and arguments on the original understanding of single-sex education during the debates over the Civil War Amendments. But in fact, the gender question was discussed extensively between 1868 and 1875. For example, in debates over the Civil Rights Act of 1870, which would have guaranteed to "all citizens" "equal and impartial enjoyment" of all "common schools and other public institutions of learning," several senators expressed concern that the bill might prohibit gender segregation as well as racial segregation in public schools. The usual response was that gender segregation, unlike racial segregation, was educationally valuable, and there was no suggestion that women were an inferior caste. Nevertheless, some senators pressed the point. If the Fourteenth Amendment required all citizens to receive the same civil rights, rather than equal civil rights, then schools segregated by sex, like schools segregated by race, might indeed be unconstitutional. And the argument is even more plausible today. Perhaps the right to attend public universities wasn't widely considered a civil right in 1896, but it is in 1996, and therefore it should be extended to men and women on equal terms. But since only Justices Thomas and Scalia are moved by esoteric appeals to original understanding (and Thomas has recused himself from the case because his son, Jamal, attends VMI), this argument is unlikely to carry the day.
At this anxious moment in the gender wars, the premises of all three generations of feminists are uncertain and contested. Some first-wave feminists are no longer willing to accept the stark consequences of the equal treatment vision and are now suggesting that women's colleges, but not men's colleges, might be justified as a form of affirmative action. Some second-wave feminists are unsure whether to embrace the Mary Baldwin model of separation and difference, or whether to reject the patriarchal model military entirely. Finally, there is the third wave, the generation of Shannon Faulkner and the VWIL students, who seem more concerned, by and large, with getting marketable credentials and steady jobs than with completing the battles of their grandmothers. Now, more than ever, tranquil, separate spaces for men and women to reflect about their differences and similarities seem especially useful to build and preserve. That's all the more reason to hope that the Court will hesitate to dismantle such fragile traditions as VMI and the Citadel, and will challenge the states to try to construct genuinely equal alternatives for women.