United States v. Virginia



A state must have an exceedingly persuasive justification for applying a classification based on gender. The justification must not consist of overgeneralizations about the inherent differences between genders.


The Virginia Military Institute had a policy that limited enrollment to men. The state argued that this restriction was appropriate because women would not be able to withstand the rigors of its training programs. However, it seemed to acknowledge that there might be a potential problem with its policy, since it created an alternative program for women at Mary Baldwin College. This program, known as the Virginia Women’s Institute for Leadership, was woven into the structure of that women’s-only liberal arts institution, which created a very different experience from VMI.OPINIONS


  • Ruth Bader Ginsburg (Author)
  • John Paul Stevens
  • Sandra Day O’Connor
  • Anthony M. Kennedy
  • David H. Souter
  • Stephen G. Breyer

Ginsburg was not convinced that the VWIL was equivalent to VMI in terms of either education and training or post-graduation advantages. She thus considered not only the program itself but also the benefits that it would provide to its graduates in the long term. The standard of review in the majority opinion arguably seems higher than the usual intermediate scrutiny for gender-based classifications, since Ginsburg stated that an exceedingly persuasive justification was required from the state.


  • William Hubbs Rehnquist (Author)

While Rehnquist agreed that this specific situation was unconstitutional, he felt that Virginia’s separate-but-equal system could be acceptable if it had been implemented more diligently so that the quality of education between institutions was roughly comparable. This contrasted with Ginsburg’s apparent view that the all-male policy was unconstitutional on its face, regardless of the alternatives offered by the state.


  • Antonin Scalia (Author)

Pointing out that the majority seemed to apply a standard higher than intermediate scrutiny, Scalia argued that it created doctrinal uncertainty by failing to use either intermediate or strict scrutiny. He also used this dissent as an opportunity to reiterate his opinion that the appropriate standard of review for gender-based classifications should be rational basis rather than any heightened standard.CASE COMMENTARY

The standard of review in this case seemed higher than the usual intermediate scrutiny for gender discrimination, perhaps because women were completely excluded rather than merely treated differently. This decision relied in part on an examination of the historical record, which showed a systemic pattern in Virginia of hindering women from pursuing higher education. The Court thus found this policy especially suspicious in the context. VMI, which was the last all-male public university in the nation, nearly decided to go private rather than open its doors to women, but an 8-7 vote by its Board decided that admitting women was (barely) preferable to giving up its public status.