Faulkner v. Jones:

The Constitutionality of The Citadel's Single-Gender Admissions Policy

I.  Introduction

With the exception of the all-male Citadel and the Virginia Military Institute, women have for twenty years been able to attend either a United States military academy or a state military college.⁽¹⁾ They have successfully integrated into the United States Military Academy, the Naval Academy, the Coast Guard Academy, the Merchant Marine Academy, and the Air Force Academy, as well as state college military programs, such as North Georgia College and Norwich University.⁽²⁾ In 1985, the United States Court of Appeals for the First Circuit held that the Massachusetts Maritime Academy,⁽³⁾ by refusing to admit women, had violated Title IV of the Civil Rights Act of 1964⁽⁴⁾ and the Equal Protection Clause of the Fourteenth Amendment.⁽⁵⁾ In 1990, the United States Justice Department sued the Virginia Military Institute, claiming that its unwillingness to accept women to its all-male program violated the Equal Protection Clause.⁽⁶⁾ The Fourth Circuit Court of Appeals agreed.⁽⁷⁾ Subsequently, in 1993 a lawsuit was filed against the last all-male, publicly funded state military college, The Citadel, by a woman whose admission was revoked because of her gender.⁽⁸⁾

When The Citadel was founded by the South Carolina Legislature in 1842 as a state-supported military college,⁽⁹⁾ women had no legal right to equal protection of the laws.⁽¹⁰⁾ Hence, their exclusion from The Citadel simply reflected the subordinate legal and social status of women in American society at that time.⁽¹¹⁾ Rather than revisiting its policies in light of women's current legal and social status, The Citadel had chosen to retain the outmoded gender-role premises of its origins.⁽¹²⁾

In contrast to The Citadel's policy, both the Congress and the United States military had eliminated most gender-exclusionary policies, creating hundreds of new opportunities for women in the armed forces and military academies.⁽¹³⁾ Moreover, significant changes in law and policy eradicated barriers that had impeded a woman's ability to advance in rank during military service. For example, in November 1993, Congress repealed a law prohibiting Navy and Marine Corps women from serving on combatant vessels.⁽¹⁴⁾ Similarly, the congressional repeal of limiting statutes in 1991 enabled women aviators to fly aircraft engaged in combat missions.⁽¹⁵⁾

The fact that a single-gender school, such as The Citadel, wished to remain all male is not a legally cognizable reason for excluding women under any level of equal protection scrutiny.⁽¹⁶⁾ In 1996, the United States Supreme Court held that the state-supported Virginia Military Institute had violated the Equal Protection Clause of the Fourteenth Amendment by its "categorical exclusion of women from an extraordinary educational opportunity afforded men."⁽¹⁷⁾ Similarly, The Citadel resisted change because its alumni guardians were unwilling to share The Citadel's opportunities with women.⁽¹⁸⁾ As Judge Hall stated in his concurring opinion for the Fourth Circuit Court of Appeals in Faulkner v. Jones,⁽¹⁹⁾ The Citadel and its advocates have "ceaselessly insisted that education is at the heart" of the debate over denying women admission to the all-male Citadel, but this case, according to Judge Hall, had very little to do with education.⁽²⁰⁾ It instead had "very much to do with wealth, power, and the ability of those who have it now to determine who will have it later."⁽²¹⁾

This Comment examines the legal standard applied in the Faulkner court's analysis of liability and concludes that the United States Court of Appeals for the Fourth Circuit properly found that The Citadel violated the Equal Protection Clause. In parallel litigation involving the Virginia Military Institute, the United States Supreme Court agreed.⁽²²⁾ But this Comment argues against the constitutionality of the appellate court's proposed remedies and concludes that full integration of The Citadel is the appropriate remedy.⁽²³⁾ The United States Supreme Court's analysis and holding was consistent with this argument when it struck down a similar remedy set forth by the Fourth Circuit in the Virginia Military Institute litigation.⁽²⁴⁾ Part II of this Comment explores the background of coeducational military schools and presents a brief overview of the body of law upon which the Faulkner court relied.⁽²⁵⁾ Part III.A-B discusses Faulkner's factual background⁽²⁶⁾ and procedural history.⁽²⁷⁾ Part III.C presents the holding,⁽²⁸⁾ analytical approach,⁽²⁹⁾ and reasoning employed by the court in its majority,⁽³⁰⁾ concurring,⁽³¹⁾ and dissenting opinions.⁽³²⁾ Part IV analyzes the newly created third prong of the "special" intermediate scrutiny test and focuses on the constitutionality of the court's remedy.⁽³³⁾ Finally, Part V offers the author's conclusion and final perspective.⁽³⁴⁾

II.  Background

The Veterans Administration estimates that more than half a million women are United States veterans.⁽³⁵⁾ Although official uniformed participation by women began with the formation of the Army Nurse Corps in 1901, women have contributed to the national defense since the country was founded.⁽³⁶⁾

World War II marked the turning point in the history of women in the military. A total of 360,000 women served in the armed forces during that conflict.⁽³⁷⁾ The many military women stationed overseas endured the same arduous living conditions as men.⁽³⁸⁾ Additionally, sixty-eight women were held as prisoners of war by the Japanese for more than three years.⁽³⁹⁾ In 1947-48, women assumed active duty-status in the Army, Navy, Marine Corps, and Air Force.⁽⁴⁰⁾ Women also continued to play active roles in Korea and Vietnam.⁽⁴¹⁾ In 1975, the service academies first opened their doors to women; in 1980, the first women cadets and midshipmen graduated.⁽⁴²⁾

The United States Supreme Court directly addressed the issue of gender discrimination in the admission policies of state-supported educational institutions in 1982 when it decided Mississippi University for Women v. Hogan.⁽⁴³⁾ Hogan is one of the most recent cases in which the United States Supreme Court has analyzed gender-based discrimination under the Equal Protection Clause.⁽⁴⁴⁾ In doing so, the Court relied on the classic body of law that composes equal-protection jurisprudence.⁽⁴⁵⁾ Justice Sandra Day O'Connor, writing for the majority of the Court, articulated the standard of review--intermediate scrutiny--appropriate for a gender-based equal-protection claim.⁽⁴⁶⁾ Justice O'Connor stressed that the standard "must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions."⁽⁴⁷⁾

The Court's test of intermediate scrutiny, applied to a male seeking admission to Mississippi's all-female School of Nursing, was whether the university could meets its burden to show an "`exceedingly persuasive justification'" for classifying individuals based on their gender.<sup>(48)</sup> This burden could be met only by demonstrating that "the classification serves `important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.'"⁽⁴⁹⁾ In other words, if the State can show that its objective is both legitimate and important, the Court can then determine whether "the requisite direct, substantial relationship between objective and means is present."⁽⁵⁰⁾ This close relationship, necessary for validating a gender-based classification, invites the Court to use reasoned analysis, rather than the "mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women."⁽⁵¹⁾

In 1995, the United States Court of Appeals for the Fourth Circuit created a "special" three-prong intermediate-scrutiny test to determine whether Virginia's maintenance of a males-only admissions policy at the 150-year-old Virginia Military Institute (VMI) was a legitimate and important state objective.⁽⁵²⁾ Specifically, the appellate court held (1) that single-gender education is justified by "a legitimate and important governmental objective" (that is, an institutional mission favoring neither sex),⁽⁵³⁾ (2) that the "gender classification adopted is directly and substantially related to that purpose,"⁽⁵⁴⁾ but (3) that the "resulting mutual exclusion of women and men from each other's institutions" does not leave open "opportunities for those excluded to obtain substantively comparable benefits at their institution."⁽⁵⁵⁾ Therefore, the appellate court held that Virginia violated the Equal Protection Clause because it could not sufficiently justify offering a VMI-type education to men only.⁽⁵⁶⁾ The court ordered Virginia to provide a comparable opportunity for women to obtain a VMI-type education⁽⁵⁷⁾ by either admitting women to VMI, abandoning state funding, or developing a substantially comparable parallel program for women only.⁽⁵⁸⁾

The United States Court of Appeals for the Fourth Circuit, in VMI I (the liability portion of the case) and II (the remedial portion of the case), examined and applied the two-prong Hogan intermediate-scrutiny test to the gender-based classification of VMI's males-only admissions policy.⁽⁵⁹⁾ It then added a third prong requiring an analysis of whether a substantially comparable military training school could be provided to women.⁽⁶⁰⁾ The court held that single-gender education was an appropriate pedagogical technique and part of a legitimate and important governmental objective under the Equal Protection Clause.⁽⁶¹⁾ In 1996, the United States Supreme Court reversed the Fourth Circuit's decision, holding that excluding women from VMI violated the Equal Protection Clause.⁽⁶²⁾

The Faulkner district⁽⁶³⁾ and appellate courts relied heavily upon the VMI precedents because VMI was decided in Faulkner's circuit and because parallel issues were being litigated regarding the constitutionality of the single-gender admission policies at both VMI and The Citadel.⁽⁶⁴⁾ Because the Faulkner courts relied upon the VMI decisions, it is necessary to examine the body of law upon which VMI was decided.⁽⁶⁵⁾

III. Statement of Faulkner

A. Factual Background

Shannon Richey Faulkner, a female honor student at Wren High School in Anderson County, South Carolina, applied for admission in January 1993 to the college of her first choice, The Citadel.⁽⁶⁶⁾ A four-year, state-supported, military-style school, the 150-year-old Citadel is located on a large campus in Charleston, South Carolina.⁽⁶⁷⁾ The Citadel's application form does not request the applicant's gender, and like all other applicants, Faulkner did not volunteer this information.⁽⁶⁸⁾ The prestigious college provisionally admitted her to its Corps of Cadets contingent on her completing all high school courses and submitting her final transcript and on her providing medical and drug testing information.⁽⁶⁹⁾ A month later, The Citadel revoked its acceptance of Faulkner's application and informed Faulkner that because of her gender, she would not be admitted into the Corps of Cadets.⁽⁷⁰⁾ The Citadel admitted that, but for her gender, Faulkner was qualified to participate in its Corps of Cadets.⁽⁷¹⁾

The Citadel, whose admission policy predates the Civil War, accepts only men to its Corps of Cadets.⁽⁷²⁾ During the Civil War, 209 alumni served in the Confederate Army, including General D. F. Jamison, "who later presided over the convention at which the Ordinance of Secession was signed."⁽⁷³⁾ The Citadel's mission is to "`educate male undergraduates as members of the South Carolina Corps of Cadets . . . and to prepare them for post-graduate positions of leadership through academic programs of recognized excellence supported by the best features of a disciplined military environment.'"⁽⁷⁴⁾ The purpose of The Citadel's military environment is "to provide the best qualities of a military and disciplined environment to support the growth and development of character, physical fitness, and moral and spiritual principles, thereby preparing its students to meet the requirements of citizens and especially of leaders."⁽⁷⁵⁾ The Corps of Cadets has approximately 2000 male students.⁽⁷⁶⁾

On March 2, 1993, Faulkner filed suit against The Citadel and its board members, contending that their policy of excluding women violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.⁽⁷⁷⁾ Faulkner sought a permanent injunction prohibiting the defendants from discriminating against her on the basis of her gender and requested that she be immediately admitted to the Corps of Cadets.⁽⁷⁸⁾

B. Procedural History

On June 7, 1993, the United States District Court for the District of South Carolina, Charleston division, allowed the United States to intervene as a plaintiff and allowed the State of South Carolina, The Citadel, and its full Board of Visitors to join as defendants.⁽⁷⁹⁾ The United States claimed that all qualified women should be allowed to be members of the Corps of Cadets and requested that the court enjoin the practice of admitting only male students.⁽⁸⁰⁾

Faulkner sought to remedy The Citadel's exclusion of women with both a permanent and a preliminary injunction so that she could attend classes at The Citadel while litigation was pending.⁽⁸¹⁾ On August 12, 1993, the district court granted a preliminary injunction against The Citadel.⁽⁸²⁾ The United States Court of Appeals for the Fourth Circuit affirmed, concluding that Faulkner's constitutional rights⁽⁸³⁾ "`far outweigh[] any irreparable harm The Citadel will sustain if she is admitted to the Day Program.'"⁽⁸⁴⁾ The Citadel was granted an interlocutory appeal to the United States Supreme Court.⁽⁸⁵⁾ Although the Court initially ordered a stay of the preliminary injunction, it later vacated the stay, and Faulkner was allowed to enroll at The Citadel.⁽⁸⁶⁾

The Faulkner bench trial on the issue of equal protection violations began on May 16, 1994, and lasted two weeks.⁽⁸⁷⁾ The district court held that the defendants had violated the Equal Protection Clause and ordered The Citadel to admit Faulkner to its Corps of Cadets if it was unable to implement an alternative remedy by August 1995.⁽⁸⁸⁾ Further, the court ordered The Citadel to form a remedial plan for other women seeking a military education.⁽⁸⁹⁾

The defendants appealed the district court's decision to the United States Court of Appeals for the Fourth Circuit.⁽⁹⁰⁾ On April 13, 1995, the court of appeals affirmed the district court's decision with several modifications and remanded the case for further action consistent with the appellate court's decision.⁽⁹¹⁾ Both the plaintiffs and the defendants appealed to the United States Supreme Court.⁽⁹²⁾

On August 12, 1995, The Citadel admitted Faulkner to its Corps of Cadets in compliance with the appellate court's order.⁽⁹³⁾ She was accompanied by her father and four United States Marshals.⁽⁹⁴⁾ Most cadets would not speak with her, "with the notable exception of an African American, Cadet Von Mickle" who publicly observed the similarity between the exclusion of women to the prior exclusion of African Americans to The Citadel.⁽⁹⁵⁾ Six days later, Faulkner quit the military college because of physical stress due to two and a half years of litigation.⁽⁹⁶⁾

In October United States District Judge Weston Houck denied class-action status to the case and dismissed Faulkner from the action because she no longer had standing: "Her appeal to remain part of the lawsuit was moot because she already had been admitted and dropped out voluntarily."⁽⁹⁷⁾ The next day, Judge Houck ruled that a new plaintiff, 17-year-old Nancy Mellette,⁽⁹⁸⁾ would be allowed to continue Faulkner's lawsuit.⁽⁹⁹⁾ Subsequently, Mellette filed a motion with the United States Supreme Court to be added as a party or to intervene as a plaintiff in Faulkner's petition for certiorari; the Court denied both requests on October 10, 1995.⁽¹⁰⁰⁾ Thereafter, the plaintiffs' and the defendants' petitions for certiorari were denied.⁽¹⁰¹⁾

The district court in Charleston, South Carolina, scheduled a trial in December 1995 on the merits of whether a newly developed military program at Converse College, the South Carolina Institute of Leadership (SCIL),⁽¹⁰²⁾ was a constitutional alternative to military training provided at The Citadel.⁽¹⁰³⁾ But several days before trial, the district court granted The Citadel's motion requesting a delay until the United States Supreme Court decided a similar case involving the single-gender admission policy at the Virginia Military Institute, United States v. Virginia.⁽¹⁰⁴⁾ Judge Houck stated that the "cases are so similar and the issues so identical that the opinion in the VMI case almost undoubtedly would impact on this case in a very significant way."⁽¹⁰⁵⁾ He was right. During the summer of 1996, the United States Supreme Court held that Virginia Military Institute, by excluding women from its program, had violated the Equal Protection Clause.⁽¹⁰⁶⁾ Justice Ginsburg, acknowledging that education is not a "`one size fits all' business" stated that VMI cannot "deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords" a chance to participate in its program.<sup>(107)</sup> On June 28, 1996, two days after the United States Supreme Court's decision, The Citadel's governing board voted unanimously to remove a person's gender as a requirement for admission.<sup>(108)</sup> The board's chairman, James E. Jones, Jr., declared that "`[e]ffective immediately, The Citadel will enthusiastically accept qualified female applicants into the Corps of Cadets.'"⁽¹⁰⁹⁾

C. Opinion of the United States Court of Appeals for the Fourth Circuit

1. An Overview
a. The Holding
i.  Liability

The United States Court of Appeals for the Fourth Circuit affirmed the district court's ruling that South Carolina and The Citadel had failed to articulate "an important policy that substantially support[ed] offering the unique benefits of a Citadel-type education to men and not to women."⁽¹¹⁰⁾ The court concluded that "The Citadel's refusal to admit Faulkner to its Corps of Cadets because . . . her sex violate[d] her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution."⁽¹¹¹⁾

Specifically, the appellate court affirmed that state-supported, single-gender education constitutes a "legitimate and important state objective."⁽¹¹²⁾ Because the classification is "not directed per se at men or women, but at homogeneity of gender," equal-protection scrutiny is bypassed because the "classification by gender is by definition necessary" for accomplishing the state objective.⁽¹¹³⁾ Therefore, the court held that "to measure the legitimacy of a classification based on homogeneity of gender against the Equal Protection Clause, we conclude that we must take the additional step of carefully weighing the alternatives available to members of each gender denied benefits by the classification."⁽¹¹⁴⁾ The court called this third step "an inquiry into the substantive comparability of the mutually exclusive programs provided to men and women."⁽¹¹⁵⁾ The defendants argued that military educational opportunities in South Carolina were available exclusively to men because demand by women to enroll in state-operated military colleges was insufficient.⁽¹¹⁶⁾ The court rebuffed this argument because the defendants failed to present evidence demonstrating a lack of demand; thus, the defendants failed to justify their offering a military education to men without offering a substantially comparable opportunity for women.⁽¹¹⁷⁾

ii.  Remedy

The appellate court, led by Judge Niemeyer, affirmed the lower court's remedy, with a modification.⁽¹¹⁸⁾ Specifically, the appellate court ordered the district court (1) to "establish a new, practicable but prompt timetable in requiring defendants to formulate, adopt, and implement a remedial plan" consistent with the Equal Protection Clause and (2) to "require The Citadel to admit Faulkner to the Corps of Cadets by the date in August 1995 when the Cadets are required to report, if such plan is not approved by the court and implemented before that date."⁽¹¹⁹⁾

b. The Court's Analytical Approach

To Faulkner's equal-protection claim⁽¹²⁰⁾ the Faulkner appellate court applied the "special" intermediate-scrutiny test that it had developed in United States v. Virginia.⁽¹²¹⁾ The new three-prong test required (1) that the State not have a "pernicious" purpose in offering single-gender education, (2) that the gender-based classification be substantially related to the nonpernicious purpose, and (3) that the State offer men and women "substantively comparable" benefits.⁽¹²²⁾ The court pointed out that it was not espousing a separate-but-equal test, because the test would allow "separate and substantively comparable facilities where a state justifies its offering of single gender education as a legitimate governmental objective."⁽¹²³⁾ In applying this analytical approach to Faulkner, the district court required that the defendants "articulate an important policy that substantially supports offering the unique benefits of a Citadel-type education to men and not to women."⁽¹²⁴⁾ If the defendants fulfilled this condition, they would satisfy the requirements of the Equal Protection Clause.⁽¹²⁵⁾ If they did not, they would be held to have violated the Equal Protection Clause.⁽¹²⁶⁾

2. The Court's Reasoning

a. Liability

The United States Court of Appeals for the Fourth Circuit applied the same reasoning that it had used in the VMI litigation: (1) that single-gender education is justified by a "legitimate and relevant institutional mission which favors neither sex," (2) that admitting women to VMI would "alter the very program" in which they sought to participate, but (3) that the Commonwealth of Virginia had failed "to articulate an important policy that substantially supports offering the unique benefits of a VMI-type of education to men and not to women."⁽¹²⁷⁾ The Citadel agreed that the VMI holdings applied to Faulkner's case, but claimed that South Carolina, unlike Virginia, could justify its all-male admission policy only by "articulating an important policy that substantially supports offering the unique benefits of a Citadel-type education to men and not to women."⁽¹²⁸⁾ The defendants claimed that a Citadel-type education was not available to women because there was an "insufficient demand."⁽¹²⁹⁾ As a result, the issues in Faulkner were limited to justifying The Citadel's males-only policy (the only issue that separated this case from VMI) and determining the proper remedy if the court found no justification for the single-gender policy.⁽¹³⁰⁾ Faulkner contended that the only way The Citadel could remedy the violation of her constitutional rights was to admit her to the Corps of Cadets without delay.⁽¹³¹⁾

The court also analogized the unique methodology offered by VMI to that offered by The Citadel in pursuing its mission to produce "citizen-soldiers." Both schools focus on character development and leadership training through an intense "adversative" process⁽¹³²⁾ that emphasizes "physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination of values."⁽¹³³⁾ Additionally, "the model employs a hostile, spartan environment" uses a "harsh orientation process" designed to include frequent punishments, military drills, and rigorous physical education.⁽¹³⁴⁾

In affirming single-gender education, the appellate court agreed that "at least three aspects of VMI's program--physical training, the absence of privacy, and the adversative approach--would be materially affected by coeducation, leading to a substantial change in the egalitarian ethos that is a critical aspect of VMI's training."⁽¹³⁵⁾ The court acknowledged that "it is not the maleness, as distinguished from femaleness," that justified the program, but rather the "homogeneity of gender in the process, regardless of which sex is considered, that has been shown to be related to the essence of the education and training at VMI."⁽¹³⁶⁾ The court concluded that the evidence illustrated that "single-genderedness in education can be pedagogically justifiable" and that VMI's males-only policy was justified by its institutional mission.⁽¹³⁷⁾

b. Remedy

The Faulkner appellate court turned its attention to the defendants' argument that the district court imposed a remedy upon them when it ordered that The Citadel admit Faulkner "forthwith" to its Corps of Cadets, thus violating principles of federalism and comity.⁽¹³⁸⁾ The appellate court, in affirming the district court, relied upon Swann v. Charlotte-Mecklenburg Board of Education,⁽¹³⁹⁾ which held that a State's "unreasonable delay in complying with a longstanding remedial duty justifies the court's selection and imposition of a remedy."⁽¹⁴⁰⁾ The appellate court pointed out that The Citadel was put on notice to fashion a remedy addressing its situation when the VMI I and II litigation commenced in March 1990, with an initial court opinion rendered in June 1991.⁽¹⁴¹⁾ In fact, many attorneys who represented VMI also represented The Citadel.⁽¹⁴²⁾ Further, the South Carolina General Assembly responded to the VMI I decision and the Faulkner complaint in May 1993 by affirming the State's "policy of diversity" and "policy of choice" in offering single-gender education.⁽¹⁴³⁾ In November 1993, the appellate court, in its interim decision, stated that it could not conceive of any reason why its holding in VMI I would not apply to Faulkner.⁽¹⁴⁴⁾ By the beginning of the Faulkner trial in May 1994, South Carolina still had not acknowledged what remedy it would pursue to guarantee Faulkner her constitutional rights under the Equal Protection Clause.⁽¹⁴⁵⁾

The appellate court also relied upon analogous remedial issues presented to the United States Supreme Court in Sipuel v. Board of Regents of the University of Oklahoma⁽¹⁴⁶⁾ and Missouri ex rel. Gaines v. Canada.⁽¹⁴⁷⁾ The Faulkner court explained that in Sipuel, Oklahoma had argued that it had an "insufficient opportunity to develop a separate law school for the plaintiff and that a court order admitting the plaintiff to the existing state law school would improperly foreclose the defendant's prerogative to choose which remedial option to pursue," thus violating the principles of comity and federalism.⁽¹⁴⁸⁾ In Gaines, Missouri had argued that since a separate law school was being developed for the plaintiff, the discrimination against the plaintiff was only temporary and therefore did not rise to the level of an equal-protection violation.⁽¹⁴⁹⁾ The United States Supreme Court repudiated the arguments of both states, holding that "the only constitutional remedy for the equal protection violations in the circumstances presented was for the court to order the immediate admission of each plaintiff to the respective state law school."⁽¹⁵⁰⁾ The Court concluded that a judicially imposed remedy was necessary when the defendants failed to choose a constitutionally sufficient remedy.⁽¹⁵¹⁾ Based on this rationale, the Faulkner appellate court affirmed the district court's bifurcated remedy (not necessarily integration) of requiring The Citadel to admit Faulkner to the Corps of Cadets in August 1995 and allowing South Carolina to choose a remedy for providing higher education to its citizens generally and to future female cadets specifically.⁽¹⁵²⁾

The district court discussed two alternative remedies that would have been available to the defendants were time not a factor in Faulkner's situation:⁽¹⁵³⁾ that the State develop a parallel military program for women and that The Citadel become a private institution.⁽¹⁵⁴⁾ The district court admitted that The Citadel could not go private and that "all of the actions witnessed by this court clearly and unequivocally indicate that the defendants would exert all of their considerable influence to insure that Faulkner would never have the opportunity to enroll in such a parallel institution or program."⁽¹⁵⁵⁾ The court concluded that the only adequate remedy available to Faulkner to correct the violation of her equal protection rights was her immediate admission to the Corps of Cadets.⁽¹⁵⁶⁾ Ultimately, the district court ordered the defendants "without delay" to formulate, adopt, and implement by the beginning of the 1995-96 school year a remedial plan that conformed with the Equal Protection Clause of the Fourteenth Amendment.⁽¹⁵⁷⁾ Without such a plan, the court would "have no alternative but to require the defendant to admit qualified women who apply in the future to the Corps of Cadets."⁽¹⁵⁸⁾

3. The Concurring Opinion

Circuit Judge Hall's concurring opinion acknowledged how heavily the VMI precedents bore on the Faulkner result and remedy, and out of respect for the precedents, he joined fully in the Fourth Circuit's opinion.⁽¹⁵⁹⁾ But in his concurring opinion, Judge Hall explained that the court had failed and that it was constrained to ask legal questions irrelevant to what he perceived to be the "bottom line" in VMI and Faulkner: "I am convinced that we have embarked on a path that will inevitably fall short of providing women their deserved equal access to important avenues of power and responsibility."⁽¹⁶⁰⁾ Judge Hall observed that the women of South Carolina

have every right to insist that their tax dollars no longer be spent to support what amount to fraternal organizations whose initiates emerge as full-fledged members of an all-male aristocracy. Though our nation has, throughout its history, discounted the contributions and wasted the abilities of the female half of its population, it cannot continue to do so. As we prepare, together, to face the twenty-first century, we simply cannot afford to preserve a relic of the nineteenth.⁽¹⁶¹⁾

Acknowledging that this "unfortunate journey" began with VMI I, when the court "avoided ascertaining, let alone analyzing, the true purpose behind the state's decision to keep women out of VMI,"⁽¹⁶²⁾ Judge Hall stated that although the court correctly concluded that "maintaining the status quo offended the Constitution, we failed to mandate VMI's integration--and thus we failed."⁽¹⁶³⁾

Judge Hall blamed the court's failure on its being legally unable to "ask the only question that matters: `Why has the state decided to create or maintain this institution for the benefit of only one gender?'"<sup>(164)</sup> Instead, the court was constrained to ask a wholly irrelevant question: "`Does the state offer a "substantively comparable" educational option to the other gender?'"⁽¹⁶⁵⁾ Judge Hall then applied Chief Justice Earl Warren's observation from Brown v. Board of Education that "`[t]he opportunity of an education[,] . . . where the state has undertaken to provide it, is a right which must be made available to all on equal terms. . . . Separate educational facilities are inherently unequal.'"⁽¹⁶⁶⁾

Judge Hall observed that VMI and The Citadel had "ceaselessly insisted that education is at the heart of this debate," but that he suspected "that these cases have very little to do with education."⁽¹⁶⁷⁾ Instead, they had "very much to do with wealth, power, and the ability of those who have it now to determine who will have it later."⁽¹⁶⁸⁾

4. The Dissenting Opinion

Circuit Judge Hamilton dissented from the majority opinion because of his concern over the appellate court's disregard of "Equal Protection analysis, comity, and federalism."⁽¹⁶⁹⁾ He asserted that the Tenth Amendment, and not a judge, should dictate South Carolina's educational policies and its related financial interests.⁽¹⁷⁰⁾ Judge Hamilton also stated that The Citadel had demonstrated that a lack of demand by women for a Citadel-type education was a substantial justification for not integrating The Citadel and for not providing a parallel program for women.⁽¹⁷¹⁾ He announced that the majority of the appellate court had "eviscerat[ed] the sovereign power of the State of South Carolina, as well as ignor[ed] well-settled principles concerning the Equal Protection Clause."⁽¹⁷²⁾

Judge Hamilton wrote that South Carolina supported single-gender education and provided financial aid to women at postsecondary schools, but that these two objectives could only be accomplished if they were both based on demand and were consistent with the educational goals of each institution.⁽¹⁷³⁾ He disagreed with the district court's conclusion that "South Carolina's educational policies were constitutionally irrelevant"⁽¹⁷⁴⁾ because he believed that South Carolina had articulated a substantial justification (lack of demand) for not providing a Citadel-type education to women.⁽¹⁷⁵⁾ As a result, according to Judge Hamilton, Faulkner's equal-protection challenge should have failed.⁽¹⁷⁶⁾

Judge Hamilton based his opinion on the testimony of Robert Gallagher, Chair of the State Commission for Higher Education, who testified that neither a school nor an individual had approached the Commission seeking to establish either a single-gender program or a single-gender school similar to The Citadel.⁽¹⁷⁷⁾ Similarly, former South Carolina Governor Edwards testified that there was no demand for a Citadel-type education for women.⁽¹⁷⁸⁾ Moreover, Judge Hamilton wrote, to "compel a state, laboring under limited financial resources, to institute such a program is not only economically repugnant, but also turns the federal judiciary into a super-commission on higher education, apparently charged with superior knowledge and powers of deciding public educational policies, as well as state fiscal policies."⁽¹⁷⁹⁾

This unwarranted and improper intrusion into state affairs,⁽¹⁸⁰⁾ said Judge Hamilton, "resurrects the infamous ghoul of Lochner v. New York,"⁽¹⁸¹⁾ which was repudiated as an example of the United States Supreme Court's usurpation of the power of local legislatures.⁽¹⁸²⁾ Judge Hamilton further accused the appellate court of "engaging in substantive equal protection analysis," thereby reading substance into the Fourteenth Amendment--substance which has been "consistently repudiated."⁽¹⁸³⁾

In his dissent, Judge Hamilton asserted that Faulkner's "sole purpose" in the litigation was to "gatecrash her way into the Corps of Cadets."⁽¹⁸⁴⁾ His response was that Faulkner "cannot escape the conclusion that lack of demand is a gender-neutral, noninvidious, substantial justification for The Citadel, in order to preserve its unique educational experience, to remain all-male."⁽¹⁸⁵⁾

Finally, Judge Hamilton suggested that "Faulkner is far more interested in the publicity, notoriety, and purchasable opportunities of being the first female admitted to the Corps of Cadets, as opposed to a sincere desire to seek and obtain the type of discipline and leadership training afforded by The Citadel."⁽¹⁸⁶⁾ Judge Hamilton concluded that "[p]ublicity, not equal protection of the law, seems to be the hallmark of Faulkner's creed."⁽¹⁸⁷⁾

IV.  Analysis

A. The Remedial Decision Suggested by the Court Is Unconstitutional Because it Does Not Serve a Legitimate State Interest

The United States Court of Appeals for the Fourth Circuit affirmed the district court's holding that the State of South Carolina and The Citadel "failed to articulate an important policy that substantially supports offering the unique benefits of a Citadel-type education to men and not to women."⁽¹⁸⁸⁾ Nevertheless, the court of appeals subsequently held that "the state should have the opportunity to reassess its higher education policies and determine the nature of the benefits that it wishes to offer its citizens," thus allowing as a remedy the continued exclusion of women from The Citadel.⁽¹⁸⁹⁾ The court of appeals also applied its holding in VMI I and II to The Citadel, stating that providing single-gender education "is not a pernicious state objective."⁽¹⁹⁰⁾

At least two fundamental flaws mar the court of appeal's analysis. First, South Carolina's ostensible interest in single-gender education is a fiction.⁽¹⁹¹⁾ The court of appeals embraced South Carolina's position, articulated in part by a resolution passed during the 1993 South Carolina General Assembly, that "`South Carolina has historically supported and continues to support single-gender educational institutions as a matter of public policy based on legitimate state interests.'"⁽¹⁹²⁾ The court of appeals observed that The Citadel's exclusionary policy does not relate to a "male-only characteristic" but rather relates to a single-gender policy for schools.⁽¹⁹³⁾ The appellate court also applied its holdings from parallel litigation within the same circuit involving VMI.⁽¹⁹⁴⁾ The holding in VMI I and II, as applied to The Citadel, was that "single-gender education is a legitimate and important state objective"⁽¹⁹⁵⁾ that is pedagogically justifiable.⁽¹⁹⁶⁾

The Citadel was not founded as a "single-gender" institution in 1842, but as a military college.⁽¹⁹⁷⁾ The Citadel admitted only men, not because of any "pedagogical" belief in "single-gender" education, but because women were excluded from the military.⁽¹⁹⁸⁾ As a result, the State Legislature "`deemed it appropriate'" to exclude women.<sup>(199)</sup> It does not appear that a conscious governmental choice between alternatives dictated the original males-only policy; "`it simply reflected the unquestioned general understanding of the time about the distinctively different roles in society of men and women.'"⁽²⁰⁰⁾

In its amicus brief to the United States Supreme Court in support of the petitioner in parallel litigation involving VMI I and II, Mellette observed that before the litigation against The Citadel, "there was no document or written policy of South Carolina discussing the supposed benefits of `single-gender education.'"<sup>(201)</sup> Furthermore, "[t]he claim now made by South Carolina that it has a `policy' of supporting `single-gender' education is entirely a contrived post-litigation rationalization."<sup>(202)</sup> In fact, The Citadel and South Carolina have conceded that "prior to the commencement of litigation, no study of the alleged value of `single-gender education' had ever been done."⁽²⁰³⁾ Thus, the district and appellate courts erred in their remedial analysis by accepting The Citadel's classification based on "homogeneity of gender"; this error was compounded by both courts' shifting the spotlight to the State's failure to provide women a military-style "single-gender education," rather than requiring that The Citadel completely integrate.⁽²⁰⁴⁾

In accepting these diversions, the appellate court failed to recognize that the case revolved around "the historical exclusion of women from a unique and prestigious state military college."⁽²⁰⁵⁾ The courts' decisions reinvoked the "wholesale exclusion of an entire class of persons from unique and prestigious public institutions of higher education that has not been countenanced since Plessy v. Ferguson,⁽²⁰⁶⁾ when separate educational facilities for African-Americans were lawful."⁽²⁰⁷⁾ Women have successfully integrated into the military and into all of the United States military academies; therefore, the argument that women would "destroy" the unique program at The Citadel is based "neither on fact nor reasoning, but on prejudicial beliefs about the proper role and interests of women" that are clearly "`relic[s] of the nineteenth [century].'"⁽²⁰⁸⁾

The district and appellate courts reinforced these prejudicial notions by allowing the defendants to remedy the violation of Faulkner, Mellette, and other qualified women's constitutional rights under the Equal Protection Clause by developing a parallel program at Converse College.⁽²⁰⁹⁾ This program, based on Mary Baldwin's program for women (which was approved by the Fourth Circuit in the VMI litigation), is segregated from and inferior to The Citadel's program, just as Mary Baldwin's program is segregated from and inferior to Virginia Military Institute's program.⁽²¹⁰⁾ The Fourth Circuit, in sanctioning these programs, "relied upon stereotypical and overly broad generalizations about `differences' in the `educational needs' of `most' women and men reminiscent of those used to justify racial segregation."⁽²¹¹⁾

Consistent with this analysis, the United States Supreme Court, in a 7-1 decision in United States v. Virginia,⁽²¹²⁾ held that VMI's remedy of developing a separate, but "substantially comparable,"⁽²¹³⁾ military program for women in lieu of admitting women to VMI "affords no cure at all" for "women who want a VMI education and can make the grade."⁽²¹⁴⁾

Justice Ginsburg compared the stark difference between VMI and VWIL, noting that in "myriad respects other than military training, VWIL does not qualify as VMI's equal."⁽²¹⁵⁾ In fact, "VWIL's student body, faculty, course offerings, and facilities hardly match VMI's."⁽²¹⁶⁾ Ultimately, a VWIL graduate will not reap the benefits "associated with VMI's 157-year history, the school's prestige, and its influential alumni network."⁽²¹⁷⁾ It is extremely unlikely that Justice Ginsburg would tolerate Converse College as The Citadel's constitutional equal in remedying its Equal Protection violation.

Justice Ginsburg, writing the majority opinion, also noted that most women may not want the kind of education that VMI and The Citadel provide, but that as long as some women seek this education, then they should not be denied the opportunity to attend.⁽²¹⁸⁾ She noted that VMI "never asserted" that its "method of education suits most men."⁽²¹⁹⁾ Justice Ginsburg, enumerating the "dispositive realities" of the capabilities and talents of some women, declared that "[i]t is on behalf of these women" that VMI was sued, "and it is for them that a remedy must be crafted, a remedy that will end their exclusion from a state-supplied educational opportunity for which they are fit, a decree that will `bar like discrimination in the future.'"⁽²²⁰⁾

In Adarand Constructors, Inc. v. Pena,⁽²²¹⁾ the United States Supreme Court reaffirmed the "`basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups.'"⁽²²²⁾ Similarly, The Citadel refused to accept qualified women such as Mellette into its military college "solely because of their membership in a group which, like African-Americans, historically has been denied access to important avenues of power and opportunity."⁽²²³⁾

The only adequate remedy in this case was for The Citadel to stop excluding women from its student body on the basis of gender.⁽²²⁴⁾ The Citadel's admission policy was unconstitutional because it excluded all women, regardless of their individual abilities and characteristics.⁽²²⁵⁾ The remedy necessary to end that harm was an admissions policy based on individual qualifications, not on gender. When the females-only policy at the Mississippi University for Women was held to violate the Equal Protection Clause, qualified men were required to be admitted.⁽²²⁶⁾ When the males-only admissions policy at the University of Virginia was held to violate the Equal Protection Clause, qualified women were required to be admitted.⁽²²⁷⁾ When the exclusion of girls from Philadelphia's Central High School was found to violate the Equal Protection Clause, qualified girls were required to be admitted.⁽²²⁸⁾ When the exclusion of women from VMI was found to violate the Equal Protection Clause, qualified women were required to be admitted.⁽²²⁹⁾ Based on these precedents, women who, but for their gender, meet The Citadel's admission standards must likewise be admitted to The Citadel.⁽²³⁰⁾

Remedial principles require a close fit between the constitutional violation and the remedy.⁽²³¹⁾ The remedy "must be designed as nearly as possible `to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.'"⁽²³²⁾ In terms of eradicating discrimination, the Court "has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future."⁽²³³⁾

When persons have been unconstitutionally excluded from an institution in violation of the Equal Protection Clause, the presumptive remedy should be to remove the exclusionary bar because the tangible and intangible benefits offered at separate institutions are likely to differ, thus perpetuating unequal treatment.⁽²³⁴⁾ Moreover, when the State's purposes are "as well served by a gender-neutral classification," such as a gender-neutral admissions policy, "the State cannot be permitted to classify on the basis of sex."⁽²³⁵⁾ As the United States Supreme Court emphasized in Orr v. Orr,⁽²³⁶⁾ "this is doubly so where the choice made by the State appears to redound . . . to the benefit of those without need for special solicitude."⁽²³⁷⁾ Maintaining The Citadel's males-only admissions policy benefitted only men, continued to foster negative stereotypes, and denied women the complete remedy that admission to The Citadel would provide.

But the United States Supreme Court has stated that "in limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened."⁽²³⁸⁾ Conversely, a "gender-based classification which . . . generates additional benefits only for those it has reason to prefer cannot survive equal protection scrutiny."⁽²³⁹⁾ In contrast to the narrow exceptions in which a gender-based statutory scheme has been upheld,⁽²⁴⁰⁾ the United States Supreme Court in the last twenty-five years has struck down gender-based classifications in virtually all of the other cases in which it has addressed such classifications.⁽²⁴¹⁾ These decisions collectively illustrate the extreme difficulty that a governmental body faces in establishing "an exceptionally persuasive justification for its gender-based" classification.⁽²⁴²⁾ The Citadel's case falls far short of the narrow exception to the United States Supreme Court's largely prohibitive rule governing the validity of gender-discriminatory classifications because it presents no circumstances demonstrating that The Citadel's exclusion of women fulfills any legitimate governmental goal. The United States Court of Appeals for the Fourth Circuit explicitly affirmed Faulkner's admission to The Citadel as special, conditional relief in response to The Citadel's violation of her equal-protection rights, but the appellate court was unwilling to allow the admission of other female students.⁽²⁴³⁾ Additionally, the defendants admitted that but for her gender, "Faulkner is qualified to be a member of the Corps of Cadets."⁽²⁴⁴⁾ In this case, therefore, the exclusion of women and the purposes that The Citadel advanced were unrelated because "the sex characteristic . . . bears no relation to ability to perform or contribute to society."⁽²⁴⁵⁾ Simply put, The Citadel is no more excused in educating only members of one gender than it is in conferring educational benefits only to members of one race or national origin.⁽²⁴⁶⁾ Ironically, The Citadel's mission statement clearly asserts that it "supports equality of opportunity and freedom of choice within South Carolina's diverse system of higher education, through which each student can reach his or her educational objectives."⁽²⁴⁷⁾

The second fundamental flaw in the appellate court's analysis is that the court of appeals' decision confirms that The Citadel's refusal to open its doors to women does not serve a legitimate state interest because it operates only to further "the State's purpose of fostering `old notions' of role typing and preparing boys for their expected performance in the economic and political worlds."⁽²⁴⁸⁾ Instead of fulfilling any legitimate governmental interest, The Citadel's exclusion of women constitutes "the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment."⁽²⁴⁹⁾ The Court observed that "the classification . . . is in some ways more pernicious."⁽²⁵⁰⁾ In 1995, the State of South Carolina provided over $13.5 million in funding to The Citadel⁽²⁵¹⁾ and, in 1996, over $13 million in funding.⁽²⁵²⁾ Thus, each female South Carolinian who paid taxes had been "deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others."⁽²⁵³⁾

In denying women the right to receive what they believe to be the best military training available, The Citadel's exclusionary policy has had the twin effect of exacerbating "disadvantageous conditions suffered by women in economic and military life"⁽²⁵⁴⁾ and perpetuating "the role-typing society has long imposed."⁽²⁵⁵⁾ Indeed, by relegating women to Converse College, which admits that its program is quite different from The Citadel's program and that it does not employ the adversative method, The Citadel's "admissions policy actually penalizes the very class the State purports to benefit."⁽²⁵⁶⁾

Stating twenty years ago that "coeducation is a fact, not a rarity," the United States Supreme Court in Stanton v. Stanton⁽²⁵⁷⁾ struck down a Utah statute that interfered with the right of women to receive the same "education and training" as men.⁽²⁵⁸⁾ As was the statute in that case, The Citadel's exclusion of women is a relic of the past that inflicts great societal harm while serving no useful purpose.

B. The Remedy Proposed by The Citadel Violated the Equal Protection Clause

Assertions about differences between the sexes have historically been advanced to rationalize social arrangements that have disadvantaged women. For example, the "craniology" movement of the nineteenth century sought to "prove" that intelligence was a function of brain size; it did so to establish male intellectual preeminence over women and to justify the denial of educational and employment opportunities for women.⁽²⁵⁹⁾ In Muller v. Oregon,⁽²⁶⁰⁾ the United States Supreme Court deferred to the "abundant testimony of the medical fraternity," finding that women's biological vulnerability justified limiting their work hours.⁽²⁶¹⁾

The overriding purpose of the Equal Protection Clause is to guarantee inclusion of historically disenfranchised segments of the population within the political, social, and economic fabric of American life. In Faulkner, the district and appellate courts held that the failure of South Carolina to offer women benefits comparable to those offered to men at The Citadel violated the Equal Protection Clause.⁽²⁶²⁾ But the appellate court did not order that The Citadel become coeducational.⁽²⁶³⁾ Rather, it remanded the case to the district court, directing that the defendants formulate, adopt, and implement a remedial plan consistent with the Equal Protection Clause.⁽²⁶⁴⁾ In response, South Carolina created a separate, single-gender, state-supported leadership training institute at Converse College, the South Carolina Institute of Leadership for Women (SCILW).⁽²⁶⁵⁾ This program was designed for women seeking to "build self-esteem, value and worth so they can become tremendous role models for women who succeed them."⁽²⁶⁶⁾ SCILW Director Colonel Diana Obenauer admitted that SCILW's program was not structured like The Citadel's, because "an adversarial approach would not be effective" for women.⁽²⁶⁷⁾ By shunning the adversative method of education, SCILW relied on educational and social methodologies wholly different from those The Citadel employed.

This remedial plan failed to rectify the constitutional infirmity of South Carolina's single-gender admissions policy at The Citadel. The United States Supreme Court has never ruled on the constitutionality of separate-but-equal educational facilities for men and women, but has soundly rejected the propriety of such separate education in the context of race.⁽²⁶⁸⁾ When separate educational facilities for the races were tolerated, they were permitted if and only if they were substantially equal on all relevant tangible and intangible criteria by which educational institutions are evaluated.⁽²⁶⁹⁾

Based on the description of the SCILW in Faulkner, requiring women to attend SCILW while permitting men to attend The Citadel did not substantially treat men and women equally.⁽²⁷⁰⁾ SCILW's program fell far short of The Citadel's program in its breadth of curricular offerings, endowment, reputation, facilities, strength of alumni networks, and prestige.⁽²⁷¹⁾ In similar litigation involving VMI, the United States Supreme Court agreed.⁽²⁷²⁾

The United States Supreme Court observed as late as 1994 that whether "a measure of truth" underlies a stereotype is irrelevant; stereotypes are forbidden, "even when some statistical support can be conjured up for the generalization."⁽²⁷³⁾ In J.E.B., the United States Supreme Court rejected the "quasi-empirical claim that women and men may have different attitudes."⁽²⁷⁴⁾ While acknowledging that "the two sexes are not fungible," the Court nonetheless repudiated reliance on "gross generalizations."⁽²⁷⁵⁾ The United States Constitution protects the "rights of individuals, not groups. . . . `Government must treat citizens "as individuals, not `as simply components of a racial [or] sexual . . . class.'""⁽²⁷⁶⁾ Even assuming some real physical and biological differences between the sexes, it does not follow that such differences justify excluding women from valuable state-supported benefits. The United States Supreme Court has pointed out that if "the statutory objective is to exclude or `protect' members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate."⁽²⁷⁷⁾

In J.E.B., the Court considered the constitutionality of gender-based peremptory challenges in jury selection.⁽²⁷⁸⁾ The State asserted that a "special" interest in "establishing the paternity of a child born out of wedlock" justified the practice, because men and women might be expected to react differently to such claims.⁽²⁷⁹⁾ But the Court concluded that the "only legitimate interest [the State] could possibly have" was in "securing a fair and impartial jury."⁽²⁸⁰⁾ Even though "the peremptory . . . helps produce fair and impartial juries,"⁽²⁸¹⁾ the Constitution "guarantees a right only to an impartial jury, not to a jury composed of members of a particular race or gender."⁽²⁸²⁾ Like J.E.B., Faulkner involved explicit gender-based conduct.

The "only legitimate interest [South Carolina] could possibly have" here is in providing quality education for qualified students.⁽²⁸³⁾ The right to an impartial jury enjoys considerably more constitutional protection than any claim to state-supported higher education; if litigants have no right to insist on the composition of the jury, students have no right to a college "composed of members of a particular race or gender."⁽²⁸⁴⁾ If the State has no legitimate interest in discriminating on the basis of gender among potential jurors--even if some litigants may arguably benefit because the process may create a more impartial jury--the State may assert no cognizable interest in discriminating on the basis of gender among potential students--even if some students may arguably benefit.

Though the State's asserted interest in J.E.B. was plainly valid and designed to enhance a constitutionally protected right, it did not suffice to justify gender discrimination that would perpetuate stereotypes and "reflect and reinforce patterns of historical discrimination."⁽²⁸⁵⁾ The history of peremptory jury challenges belonged to a tradition of exclusion of women--from jury service, law, and civic life generally:

When state actors . . . [rely] on gender stereotypes, they ratify and reinforce prejudicial views of the relative abilities of men and women. . . . [T]hese stereotypes have wreaked injustice in . . . many other spheres of our country's public life . . . .⁽²⁸⁶⁾

 . . . .

 . . . [S]tereotypes about the group's competence or predispositions . . . have been used to prevent them from . . . pursuing their chosen professions, or otherwise contributing to civic life.⁽²⁸⁷⁾

The Citadel's policy, "driven unchanged since its origins by a stereotyped view of the proper role and capabilities of women in society," reflects women's historical exclusion from military academies and many aspects of military service, such as combat.⁽²⁸⁸⁾ The Citadel's policy thus "serve[d] to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women."⁽²⁸⁹⁾

Integration of The Citadel was the only remedial plan consistent with the Equal Protection Clause. Integration, as the United States recognized, will "cure" gender discrimination in admissions to a highly prestigious, well-endowed, state-supported institution that offers educational opportunities from which women have traditionally been excluded and from which they continue to be excluded by a remedial plan of separation. Such exclusion withholds the very benefits sought and, instead, offers access to an all-women's college modeled on conventional behavior norms for women that are concededly inappropriate for the very women who seek admission to The Citadel. The Citadel's unbroken tradition of discriminating against women, like the "long history" behind gender-based peremptory jury challenges, provides no defense; here, as there, the result is "doctrinally compelled."⁽²⁹⁰⁾

V.  Conclusion

In 1993, the United States eliminated its rule excluding women from combat duty, explaining that the rule was an "armour-plated ceiling" preventing the advancement of women in the military.⁽²⁹¹⁾ In October 1994, one of the first women fighter pilots assigned to a combat squadron, twenty-nine-year-old Lt. Kara Holtgreen, was killed during her practice run of the Navy's F-14 Tomcat from the Lincoln aircraft carrier, off the California coast.⁽²⁹²⁾ As Judge Motz articulated during the VMI litigation, "Anyone who is prepared to do combat for her country--indeed, to be killed in preparation for that combat--should be eligible to apply for what she perceives to be the best possible training."⁽²⁹³⁾ As long as South Carolina provides support for The Citadel, women should be given the opportunity to attend. Seven of the eight justices on the United States Supreme Court agree.⁽²⁹⁴⁾

In upholding The Citadel's longstanding historical exclusion of women, the United States Court of Appeals for the Fourth Circuit revived wholly discredited doctrine from a bygone era, relied upon antiquated gender stereotypes to reach an intolerable result, and opened issues that have long (and properly) been closed in our constitutional jurisprudence. The Citadel's refusal to admit women violated the Equal Protection Clause because no legitimate governmental interest justifies such discriminatory and plainly unacceptable conduct. After the 1996 decision, The Citadel was required either to admit women or to close its purse to the $13.5 million of state funding.⁽²⁹⁵⁾

Amber L. Pearce^*

1. In 1975, Congress passed a law substituting the word "children" for "sons" in its appointment procedures and eligibility requirements for the Academy's corps of cadets of the See Act of Oct. 7, 1975, Pub. L. No. 94-106, § 803(a-c), 89 Stat. 538 (codified as amended at 10 U.S.C. § 4342 (1994)) (granting admissions to military academies). In 1976, women were allowed to apply to the Coast Guard Academy. See Act of Oct. 21, 1976, Pub. L. No. 94-572, 90 Stat. 2708 (codified at 14 U.S.C. § 182 1994)) (granting admissions to the Coast Guard Academy). In 1978, the Secretary of Defense required all military colleges and universities to open their gates to qualified women. See Act of Oct. 20, 1978, Pub. L. No. 95-485, 92 Stat. 1623, repealed by Act of Oct. 19, 1984, Pub. L. No. 98-525, 98 Stat. 2621, and amended by Act of Oct. 19, 1984, Pub. L. No. 98-525, 98 Stat. 2619 (codified at 10 U.S.C. § 200 (1994)) (granting admissions and military training to maintain designation as a military academy and college). For an excellent overview of the statutory history of women's admission into military colleges and academies, see Lucille M. Ponte, Comment, Waldie Answered: Equal Protection and the Admissions of Women to Military Colleges and Academies, 25 New Eng. L. Rev. 1137 (1991).

2. See Ponte, supra note 1, at 1155 n.96; see also Williams v. Owens, 245 S.E.2d 638, 640 (1978) (noting that the acceptance of women into North Georgia College was required for North Georgia College to "retain its status as a recognized military college").

3. See United States v. Massachusetts Maritime Academy, 762 F.2d 142, 156-57 (1st Cir. 1985).

4. See 42 U.S.C. § 2000c (1994) (originally enacted as Civil Rights Act of July 2, 1964, Pub. L. No. 88-352, Title IV, § 401, 78 Stat. 246, amended by Act of June 23, 1972, Pub. L. No. 92-318, Title IX, § 906(a), 86 Stat. 375)); see also Massachusetts Maritime Academy, 762 F.2d at 147-49, 151.

5. See Massachusetts Maritime Academy, 762 F.2d at 156-58. The Fourteenth Amendment, ratified on July 9, 1868, states:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.U.S. Const. amend. XIV, § 1 (emphasis added).

6. See United States v. Virginia, 766 F. Supp. 1407, 1408 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), aff'd, 116 S. Ct. 2264 (1996).

7. See United States v. Virginia (VMI I), 976 F.2d 890, 892 (4th Cir. 1992), aff'd, 116 S. Ct. 2264 (1996).

8. See generally Faulkner v. Jones, 858 F. Supp. 552 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995).

9. The Citadel opened in 1842, 19 years before the Civil War. See The Citadel: The Military College of South Carolina, Catalogue Issue 1995-1997, at 7 [hereinafter 1995-1997 Catalogue]. In fact, its name, which means "fortress," was derived from the building in which the school was housed, a state arsenal erected in response to the Denmark Vesey slave uprising in 1822. See id.

Denmark Vesey was a slave in Charleston, South Carolina, in 1783. See Wil Haygood, A Citadel of Silence, Boston Globe, Oct. 13, 1996, at A30. Vesey bought his freedom, then "became a carpenter, a bigamist, and an outspoken critic of slavery." Id. In response to the treatment of African-Americans, he prepared in June 1821 to attack the city of Charleston. See id. His plan was discovered, and Vesey was arrested after Charleston officials obtained outside military support, even though Vesey had not hurt anyone. See id. Accused of "crimes of the blackest hue," Vesey and three dozen others were hanged. Id. The Charleston leaders "vowed to never be caught off guard again. Thus was born the Citadel." Id. In 1857 the United States Supreme Court, in a decision penned by Chief Justice Roger B. Taney, held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 405 (1857), that blacks could not be citizens and that Congress could not pass legislation to prevent the spread of slavery to the territories. See The Supreme Court Justices 104-05 (Clare Cushman ed., 1993).

South Carolina seceded from the Union on December 20, 1860. See id. at 144. The Civil War began in April 1861, when Fort Sumter, an outpost in Confederate territory, but used by Union soldiers near the Charleston Harbor in South Carolina, was fired upon by confederate forces. See id. These forces included members of The Citadel's Corps of Cadets. See 1995-1997 Catalogue supra, at 7-8.

10. The Fourteenth Amendment to the United States Constitution was ratified in 1868. See Robert G. McCloskey, The American Supreme Court 79 (2d ed. rev. 1994). It was taken in large part from the dissenting opinion of Justice John McLean in Dred Scott. See The Supreme Court Justices, supra note 9, at 105. The United States Supreme Court, in discussing the scope of the Equal Protection Clause of the Fourteenth Amendment, stated that it doubted "whether any action of a State not directed by way of discrimination against the [N]egros as a class, or on account of their race, will ever be held to come within the purview of this provision." Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1872).

Not until almost 100 years later, in Reed v. Reed, 404 U.S. 71 (1971), did the United States Supreme Court apply an equal protection analysis to gender-based classifications. See John E. Nowak et al., Constitutional Law § 14.20, at 661 (3d ed. 1986).

11. In the area of women's education, Justice Ginsburg, author of the majority opinion in United States v. Virginia, 116 S. Ct. 2264, 2277 (1996), observed that "[h]igher education was considered dangerous for women" in the early 1800s. Id. at 2277. She noted that the authority of this notion, Dr. Edward H. Clarke of Harvard Medical School (who published seventeen editions of his popular book, Sex in Education) believed that "the physiological effects" of rigorous academic study and competition between girls and boys would "interfere with the development of girls' reproductive organs." Id. at 2277 n.9; see also Edward H. Clarke, Sex in Education, 38-39, 62-63 (1873). Clarke's book explained that "`identical education of the two sexes is a crime before God and humanity, that physiology protests against, and that experience weeps over.'" Id. (quoting Clarke, supra, at 127).

Relegated to home and hearth, 19th century American women also could not vote, "hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children." Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (Brennan, J., for a plurality).

12. See Andy Martin, Citadel, A School That Works; There's No Need To "Fix" It, Nashville Banner, Jan. 8, 1996, at A11. The Fourth Circuit Court of Appeals suggested to defendants South Carolina and The Citadel three options to remedy the violation of Faulkner's equal protection rights. See Faulkner v. Jones, 51 F.3d 440, 448 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995). The Citadel could choose to become a private institution, develop a parallel program for women, or admit women into its school. See id. It chose to develop a parallel program at Converse College rather than integrate women into its publicly supported military college. Integration, warned State Senator Glenn McConnell, "`would spell the death of The Citadel as we know it.'" Amicus Brief of Nancy Mellette in Support of Petitioner United States of America at 8, United States v. Virginia, 116 S. Ct. 2264 (1996) (Nos. 94-2107, 94-1941) (quoting Glenn McConnell from the transcript of district court, July 19, 1995 hearing, at 115) [hereinafter Mellette Amicus Brief].

13. See supra notes 1-5 and accompanying text.

14. See Women Members: Duty, Qualifications, Restrictions, 10 U.S.C. § 6015 (1988) repealed by National Defense Authorization Act, Pub. L. No. 103-160, § 541(a), 107 Stat. 1569 (1993) (originally enacted as Act of Aug. 10, 1956, ch. 1041, 70A Stat. 375, amended by Act of Oct. 20, 1978, Pub. L. No. 95-485, § 808, 92 Stat. 1623; Act of Dec. 12, 1980, Pub. L. No. 96-513, § 503(44), 94 Stat. 2914; Act of Dec. 5, 1991, Pub. L. No. 102-190, § 531(b), 105 Stat. 1365).

15. See id. In 1993, Sheila Widnall became the first woman appointed to head a branch of the United States military. See Monica Fountain, Flying High as Air Force Secretary, She's Tops in Her Field and an Inspiration, Chi. Trib., Sept. 24, 1995, at 10.

16. See United States v. Virginia, 116 S. Ct. 2264, 2279, 2286-87 (1996).

17. Id. at 2282.

18. See generally Mellette Amicus Brief, supra note 12, at 2-3.

19. 51 F.3d 440, 451 (4th Cir.) (Hall, J., concurring), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995).

20. Id. (Hall, J., concurring).

21. Id. (Hall, J., concurring).

22. See Virginia, 116 S. Ct. at 2282.

23. See infra notes 188-290 and accompanying text.

24. See Virginia, 116 S. Ct. at 2286-87.

25. See infra notes 35-65 and accompanying text.

26. See infra notes 66-109 and accompanying text.

27. See infra notes 79-109 and accompanying text.

28. See infra notes 110-19 and accompanying text.

29. See infra notes 120-26 and accompanying text.

30. See infra notes 127-58 and accompanying text.

31. See infra notes 159-68 and accompanying text.

32. See infra notes 169-87 and accompanying text.

33. See infra notes 188-290 and accompanying text.

34. See infra notes 291-95 and accompanying text.

35. See Scott Shepard, Americans May Be Losing Touch With Veterans' Sacrifices, Hous. Chron., Nov. 11, 1995, at 3.

36. See James D. Milko, Beyond the Persian Gulf Crisis: Expanding the Role of Servicewomen in the United States Military, 41 Am. U. L. Rev. 1301, 1337 (1992).

37. See Jacquin Sanders, Veterans Day Salute to Women, St. Petersburg Times, Nov. 11, 1995, at A1. The Army Nurse Corps united with the Women's Army Auxiliary Corps (WAAC), serving in World War II at aircraft warning service posts, performing clerical and administrative duties, and holding positions ranging from airplane mechanics to weather observers. See Milko, supra note 36, at 1304; see also Helen Rogan, Mixed Company, at 131-34 (1981). Both Corps were deployed in the European theater, Southwest Pacific, North Africa, Southeast Asia, China-Burma theater, and Middle East. See Milko, supra note 36, at 1304; see also Rogan, supra, at 133. The largest single deployment of women (8000) occurred in Europe; the Army Air Force, employing over 40,000 women, was the largest user of WAAC services. See Milko, supra note 36, at 1304. General Douglass MacArthur, responding to the competence and dedication demonstrated by the corpswomen, "`moved my Wacs forward early after occupation of recaptured territory because they were needed, and they were soldiers in the same manner that my men were soldiers.'" Id. at 1305 n.16 (quoting Rogan, supra, at 137).

38. See supra note 37.

39. See Sanders, supra note 37, at A15.

40. See Milko, supra note 36, at 1305. The Women's Armed Services Integration Act of 1948 established WAAC as part of the regular Army and authorized women's appointment in the regular Air Force, Navy, and Marine Corps. See generally Women's Armed Services Integration Act of 1948, ch. 449, 62 Stat. 356 (codified in scattered sections of 10 U.S.C.).

41. See Milko, supra note 36, at 1312.

42. See id. Since 1973, when the male draft ended and the all-volunteer force began, the percentage of women among United States military personnel has increased dramatically, from 1.6% in 1973 to 8.5% in 1980 to 12% in 1994. See Positions and Occupations Open to Active Duty Women by Service, As of October 1, 1994, U.S. Dep't of Defense, Office of the Assistant Secretary of Defense, Public Affairs News Release No. 449-94, July 29, 1994. Currently, almost 200,000 women serve on active duty in the military services, with 32,338 serving as officers. See id.

43. 458 U.S. 718 (1982).

44. Hogan was decided in 1982. See id. Several subsequent decisions were based on statutory violations in which State Legislatures restricted the freedom of private groups to engage in gender discrimination in their public activities. See, e.g., Roberts v. United States Jaycees, 468 U.S. 609, 627-28 (1984) (holding that a state may prohibit an organization engaged in both commercial and expressive activity from discriminating in membership decisions on the basis of gender); Hishon v. King & Spalding, 467 U.S. 69, 77-78 (1984) (holding that congressional action prohibiting employment discrimination on the basis of gender may be validly applied to a law firm's decisions regarding employment or promotion); see also John E. Nowak et al., Constitutional Law § 14.24, at 677 & n.37 (3d ed. 1986).

Most recently, in J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994), the United States Supreme Court held that the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender. For a brief discussion of J.E.B. see infra notes 238-46 and accompanying text.

45. See Hogan, 458 U.S. at 726 n.12; see also J.E.B., 114 S. Ct. at 1430 (invalidating peremptory challenges on the basis of gender); Kirchberg v. Feenstra, 450 U.S. 455, 456 (1981) (striking down Louisiana statute that granted only husbands the right to manage and dispose of jointly owned property without the spouse's consent); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 147, 152 (1980) (finding unconstitutional a Missouri law requiring a widower, but not a widow, to show mental or physical incapacity to receive benefits with respect to a spouse's work-related death); Califano v. Westcott, 443 U.S. 76, 78, 89 (1979) (invalidating social security statute providing AFDC benefits when deprivation of parental support is due to unemployment of the father but denying those benefits when the mother is unemployed); Caban v. Mohammed, 441 U.S. 380, 381-82 (1979) (finding that New York law violated equal protection principles in requiring an unwed mother, but not an unwed father, to consent to a child's adoption); Orr v. Orr, 440 U.S. 268, 270-71 (1979) (holding as unconstitutional Alabama statutes imposing alimony obligations on husbands but not on wives); Califano v. Goldfarb, 430 U.S. 199, 201-02 (1977) (Brennan, J., for a plurality) (invalidating federal statute conditioning the right of a widower, but not a widow, to receive survivor benefits on a showing that he received financial support from his deceased spouse); Craig v. Boren, 429 U.S. 190, 192 (1976) (striking down an Oklahoma statute imposing a higher age limitation on males than on females with respect to the sale of beer); Stanton v. Stanton, 421 U.S. 7, 17 (1975) (striking down a Utah statute requiring support payments until the age of 21 for male children but only until the age of 18 for female children); Weinberger v. Wisenfeld, 420 U.S. 636, 637-39 (1975) (invalidating a social security statute providing benefits to a deceased's widow and minor children but not to a deceased's widower); Frontiero v. Richardson, 411 U.S. 677, 678-79 (1973) (Brennan, J., for a plurality) (holding that a federal statute conditioning medical benefits for the spouse of a servicewoman violated the Equal Protection Clause on a showing that her spouse depended on her for one-half of his support, but that no similar support was required for a serviceman's spouse); Stanley v. Illinois, 405 U.S. 645, 658 (1972) (holding that equal protection was violated by an Illinois statutory scheme denying an unwed father a hearing accorded to all other parents on his fitness as a parent upon the death of his children's mother); Reed v. Reed, 404 U.S. 71, 74 (1971) (invalidating an Idaho statute that preferred men to women as administrators of estates).

46. See Hogan, 718 U.S. at 723; see also Reed, 404 U.S. at 75 (holding that gender-based discrimination is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment).

47. Hogan, 718 U.S. at 724-25.

48. Id. at 724 (quoting Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 273 (1979)); see J.E.B. v. Alabama ex rel. T.B, 114 S. Ct. 1419, 1425 (1994).

49. Hogan, 718 U.S. at 724 (quoting Wengler, 446 U.S. at 150).

50. Id. at 725.

51. Id. at 726 (footnote omitted).

52. See United States v. Virginia (VMI II), 44 F.3d 1229, 1237-40 (4th Cir. 1995), rev'd, 116 S. Ct. 2246 (1996).

53. Id. at 1237.

54. Id.

55. Id.

56. See id. at 1233.

57. See id.

58. See VMI II, 44 F.3d at 1233.

59. See United States v. Virginia (VMI I), 976 F.2d 890, 895 (4th Cir. 1992), aff'd, 116 S. Ct. 2264 (1996); VMI II, 44 F.3d at 1235-37.

60. See VMI I, 976 F.2d at 895; VMI II, 44 F.3d at 1235-37.

61. See VMI II, 44 F.3d at 1239.

62. See United States v. Virginia, 116 S. Ct. 2264, 2282 (1996); see also Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 720 n.1 (1982). Justice O'Connor noted that "Mississippi maintains no other single-sex public university or college. Thus, we are not faced with the question of whether States can provide "`separate but equal'" undergraduate institutions for males and females." Hogan, 458 U.S. at 720 n.1.

63. Faulkner v. Jones, 858 F. Supp. 552, 554 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995).

64. See Faulkner v. Jones, 51 F.3d 440, 443-44, 450 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995); Faulkner v. Jones, 858 F. Supp. 552, 554 (D.S.C. 1994).

65. See supra notes 35-36 and accompanying text.

66. See Faulkner v. Jones, 10 F.3d 226, 229 (4th Cir. 1993), stay denied, 14 F.3d 3 (4th Cir.), aff'd 114 S. Ct. 872, 872 (1994). Faulkner was 19 years old and residing in Powdersville, South Carolina, when she applied to The Citadel. See Faulkner, 858 F. Supp. at 555.

67. See Faulkner, 10 F.3d at 229. The Citadel requires that all undergraduate day students be members of South Carolina's Corps of Cadets, subject to military discipline at all times. See Faulkner, 858 F. Supp. at 556. Completion of The Citadel's curriculum qualifies graduates for commissions in the active or reserved forces. See id.

68. See Faulkner, 10 F.3d at 229 n.1.

69. See id.

70. See id. The Citadel sent a letter on February 10, 1993, which said that the school had received information from Faulkner's high school that rendered her "not eligible for admission to the undergraduate day program. . . . The Citadel day program is a single-gender college program for males." Citadel: Reverses, Withdraws Acceptance of a Female, Daily Report Card (American Political Network, Inc.), Feb. 18, 1993, at 1. The school only offered evening and summer courses to women. See id. Citadel officials claimed that being male was "an obvious requirement for admission." Id.

71. See Faulkner, 858 F. Supp. at 555. All 12 of South Carolina's public colleges and universities were coeducational except The Citadel. See id. at 556. Only Winthrop University and Clemson University have been single-gender schools within the past 50 years. See id. Winthrop University, established in 1886, was first a training school for teachers, then became a state-supported college, and in 1920 became a college for women only. See id. It became coeducational in 1974. See id. Clemson University, founded in 1889, was originally an all-male agricultural and military school, but in 1955 dropped its military program and became coeducational. See id. The Board of Trustees decided to make the school coeducational so that it would adequately serve the needs of all of South Carolina's citizens, regardless of gender. See id.

South Carolina also has approximately 20 four-year private colleges; all are coeducational except for two. See id. at 557. Converse College in Spartanburg and Columbia College in Columbia admit only women. See id.

72. See 1995-1997 Catalogue, supra note 9, at 7-8. Except for VMI, The Citadel was the only state-supported college in the United States that excluded women. See Citadel: Reverses, Withdraws Acceptance of a Female, supra note 70, at 1.

73. 1995-1997 Catalogue, supra note 9, at 7. On January 9, 1861, before Fort Sumter was fired upon, "cadets of the Corps manned the guns which drove back from the entrance of Charleston Harbor the Star of the West, a steamer sent by the Federal Government to relieve the fort." Id. Additionally, the Corp of Cadets "played a significant role during the Federal siege of Charleston, 1863-1865." Id. at 8.

74. Faulkner, 858 F. Supp. at 554 (quoting The Citadel: The Military College of South Carolina, Catalogue Issue 1993-1994, at 12).

75. 1995-1997 Catalogue, supra note 9, at 11. The publicly funded Citadel does not require a military commitment after graduation as other military schools do, and the majority of Cadets do not serve in the military. See Nancy H. McLaughlin, "They Do Not Want Me There"; The Citadel Within Reach, Cadet Believes, News & Record (Greensboro, N.C.), Oct. 15, 1995, at A1.

76. See Faulkner v. Jones, 10 F.3d 226, 229 (4th Cir. 1993), stay denied, 14 F.3d 3 (4th Cir.), aff'd, 114 S. Ct. 872 (1994). The Citadel, the military college of South Carolina, was established by an Act of the General Assembly in 1842. See Faulkner, 858 F. Supp. at 556. It originally occupied the old state arsenal, named The Citadel, on Marion Square in Charleston, South Carolina. See id. It moved to its current site on the Ashley River in 1922. See id.

77. See Faulkner, 858 F. Supp. at 554.

78. See id.

79. See id. The lawsuit initially named The Citadel's Board of Visitors, comprising 11 alumni who were members of the Corps, and its Chairman, James E. Jones, as the defendants. See id. at 557. The Governor, Adjutant General, and State Superintendent of Education were ex-officio members of the Board of Visitors and therefore named in the suit, along with the Director of Admissions and Recruiting at The Citadel and its President, Claudius E. Watts. See id.

Despite an opinion issued in 1990 by South Carolina's Attorney General that allowed female graduates of The Citadel's night program to be eligible for membership on the Board of Visitors, currently no women serve on the Board, nor have women ever served on the Board. See id.; see also 18 S.C. Op. Att'y Gen. 1 (1990).

80. See Faulkner, 858 F. Supp. at 554. The Citadel neither recruits women for its Corps of Cadets nor records how many women express an interest in attending its program. See id. at 560. But The Citadel briefly kept records in 1993-1994, during its litigation. See id. During this period, 43 women asked about The Citadel's Corps of Cadets, "but the seriousness of their interest has not been determined." Id. The district court believed that based on the experiences of other coeducational military schools, The Citadel would draw 20-50 women annually to its Corps of Cadets if it became coeducational. See id.

81. See id. at 554.

82. See Faulkner v. Jones, 10 F.3d 226, 229 (4th Cir. 1993), stay denied, 14 F.3d 3 (4th Cir.), aff'd, 114 S. Ct. 872 (1994).

83. The dissenting opinion enumerated the three sources of irreparable harm that Faulkner identified: "(1) the denial of her constitutional rights; (2) the inability to begin the `bonding' process with her potential fellow cadets and professors: and (3) the denial of access to the network of Citadel alumni." Id. at 236.

84. Id. at 230 (quoting an unpublished district court order granting a preliminary injunction). In affirming the district court's decision to grant injunctive relief, the Fourth Circuit Court of Appeals was required to apply a balancing test. See id. at 233. The court balanced four factors: (1) the likelihood of irreparable harm to Faulkner if the preliminary injunction were denied, (2) the likelihood of harm to The Citadel if the requested relief were granted, (3) the likelihood that Faulkner would succeed on the merits, and (4) the public interest. See id.; see also Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 808 (4th Cir. 1991); Reum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991); Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 195 (4th Cir. 1977).

85. See Jones v. Faulkner, 114 S. Ct. 872 (1994).

86. See Faulkner, 114 S. Ct. at 872. On January 12, 1994, the Court stayed the district court's order for a preliminary injunction, "pending receipt of responses and further order of the undersigned or of the Court." Id. On January 18, after further consideration of the defendants' application for a stay and the responses, the Court ordered that the January 12 order be vacated and that the application for a stay be denied. See id. Chief Justice William Rehnquist ruled that Faulkner could attend The Citadel as a civilian, but could not live on the campus, wear a uniform, or participate in Cadet activities. See Henry Eichel, Citadel Trial Nears End; Appeal Likely, Wash. Post, May 27, 1994, at A1.

87. See Faulkner v. Jones, 858 F. Supp. 552, 554 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995).

88. See id. at 569.

89. See id.

90. See Faulkner v. Jones, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995).

91. See id. at 451. The appellate court's modifications included adjusting the time frame within which the defendants were required to formulate, adopt, and implement their remedial plan. See id. at 448. The district court mandated that the defendants implement the plan by the 1995-1996 school year, but the appellate court, noting the "lapse of time caused by the prosecution of this appeal and the complexity of the issues," decided that this schedule was impracticable and remanded the case to the district court to establish a new schedule, "allowing reasonable, but not dilatory, amounts of time for each step." Id.

92. See Faulkner v. Jones, 64 U.S.L.W. 3126 (U.S. filed July 10, 1995), cert. dismissed, 116 S. Ct. 331 (1995). In her petition for certiorari, Faulkner asked the Court whether the

Constitution permit[ted] [a] state to remedy [the] unconstitutional and invidious exclusion of women from [a] unique military-style state college by creating [a] separate and intentionally unequal program for women, which has the effect of reserving to males and denying to females access to [a] school distinguished by its superior resources, prestige, and extensive alumni network.Id.

In its petition for certiorari, The Citadel presented the following questions:

(1) Did [the] courts below exceed Article III's "case or controversy" limitations on federal judicial authority by adjudicating [the] constitutionality of South Carolina's failure to provide [an] all-female military program like "The Citadel," given that [the] plaintiffs not only did not seek [the] provision of such [an] all-female program, but consistently and unequivocally renounced it? (2) If [the] courts below did have jurisdiction over [the] issue, does [a] demonstrated and undisputed lack of any demand for [an] all-female military program like "The Citadel" provide constitutionally adequate justification for South Carolina's failure to establish such [a] program?Jones v. Faulkner, 64 U.S.L.W. 3257 (U.S. filed Aug. 11, 1995), cert. denied, 116 S. Ct. 352 (1995).

93. See Citadel Shifts Issue Focus To Win Public Support in Lawsuit, Information Access Co., Phillips Business Information, Inc., Aug. 14, 1995, available in LEXIS, News Library, Seast File; see also Faulkner, 51 F.3d at 450 (affirming Faulkner's admission to the Corps of Cadets if an alternative remedy was not implemented by August 1995).

94. See Debbi Wilgoren, Female Cadet Leaves Citadel, Wash. Post, Aug. 19, 1995, at A1.

95. Valorie K. Vojdik, At War: Narrative Tactics in the Citadel and VMI Litigation, 19 Harv. Women's L.J. 1, 14 (1996). Shannon Faulkner faced relentless media scrutiny; The Citadel school newspaper, The Brigadier, described her as "`The Divine Bovine,'" "`The Shrew Shannon,'" and "`Mrs. Doubtgender.'" Id. (quoting The Scarlet Pimpernel, The Brigadier, Jan. 28, 1993, at 7). Lead counsel, Valorie K. Vojdik, observed that this "harassment and media attention . . . reflect[ed] The Citadel's ceaseless attempts to keep women out." Id. at 15. Vojdik also noted that the reaction of residents of South Carolina, who bought anti-Shannon T-shirts and bumper stickers, "reduc[ed] the lawsuit to a personal campaign against a twenty-year-old woman." Id. at 17. Similarly, students on campus wore T-shirts that said, "`1,952 Bulldogs and 1 Bitch.'" Id. (quoting Susan Faludi, The Naked Citadel, New Yorker, Sept. 5, 1994, at 73).

96. See Crossfire Transcript No. 1432, at 1 (Cable News Network television broadcast, Aug. 18, 1995) (televising Faulkner's press conference about leaving The Citadel). Faulkner stated that her health problems were "not the ones that The Citadel were worried about," but rather were "due to stress, the stress of the past two and a half years of fighting, not the stress of the corps or anything like that." Id. She was taken to the infirmary on Monday, August 14, 1995, because she was "suffering from the exhaustion caused by drills in 100-degree heat." Bill Robinson, She Calls It Quits; Citadel's Sole Female Cites Risk to Health, Newsday, Queens ed., Aug. 19, 1995, at A11. The Citadel acknowledged that heat-related illnesses are not uncommon and that one cadet was taken by stretcher to the infirmary for treatment of heat stress after attempting to perform a physical fitness test. See id. Two other cadets were taken to the hospital that week for heat exhaustion. See id. Faulkner spent most of her first week under a doctor's care, then was taken to the hospital for tests on Thursday, August 17. See id. She was cleared to return to duty on August 18, but she missed morning cadet activities after the infirmary staff concluded that she was not ready. See id.

97. Mellette Added to Citadel Suit, UPI, Oct. 4, 1995, available in LEXIS, News Library, UPI file.

98. In 1995, Nancy Mellette was a senior at Oak Ridge Military Academy, a military boarding school in Greensboro, North Carolina, where she was ranked as a second lieutenant in Oak Ridge's Cadet Cadre; was fourth in her class; and had earned letters in track, cross-country, basketball, and softball. See id. Ironically, Oak Ridge, the only military school in North Carolina and founded in 1852, was the first military academy in the nation to open its doors to women. See Ricki Morell, New Citadel Hopeful "Very Determined," Sacramento Bee, Sept. 3, 1995, at A16. It did so in 1971. See id.

Mellette's father is an alumnus of The Citadel, graduating in 1963, while her brother, a Senior Officer at The Citadel in 1995, "command[ed] the gun battery that fires cannons during football games." Nancy H. McLaughlin, "They Do Not Want Me There"; The Citadel Within Reach, Cadet Believes, News & Record (Greensboro, N.C.), Oct. 15, 1995, at A1. In the words of her lead counsel, Valorie K. Vojdik, "Nancy does not wish to threaten tradition, but like her brother, seeks to continue The Citadel tradition in her family." Vojdik, supra note 95, at 13.

In sixth grade Mellette told her classmates that she would "one day march in the gray line of cadets at The Citadel." McLaughlin, supra, at A1. According to Col. Terry Leedom, a Citadel spokesperson, "Mellette is one of four women who have applied for the all-male military school next fall. Faulkner is not among them." Mellette Added to Citadel Suit, supra note 97.

99. See Mellette Added to Citadel Suit, supra note 97.

100. See Faulkner v. Jones, 116 S. Ct. 331, 331 (1995).

101. See id. The plaintiffs' petition was dismissed as moot on October 10, 1995. See id. The defendants were denied review on October 17, 1995. See Jones v. Faulkner, 116 S. Ct. 352, 352 (1995).

102. Faulkner, after visiting the Converse College campus, said that the "24-hour military lifestyle" was missing at Converse and that "participating in an ROTC program was not the same as living in the barracks." Linda L. Meggett, "I Will Not Come to Converse," The Post & Courier, July 4, 1995, at A1. She also stated that Converse had neither the alumni network nor the power of The Citadel. See id. Sandra Thomas, Converse College President, said that Converse did not plan to copy The Citadel's program. See id. The Converse program is modeled after a leadership program at Mary Baldwin College in Staunton, Virginia, designed to keep women out of the Virginia Military Institute. See id.

103. See Court Refuses Faulkner Challenge, UPI, Oct. 10, 1995, available in LEXIS, News Library, UPI File; see also Collette Baxley, U.S. Supreme Court Rejects Faulkner Appeal, The Post & Courier (Charleston, S.C.), Oct. 11, 1995, at A1.

104. 116 S. Ct. 2264 (1996) (holding that VMI's single-gender admission policy violated the Equal Protection Clause); see also Linda L. Meggett, Converse Trial Put Off Indefinitely, The Post & Courier (Charleston, S.C.), Dec. 1, 1995, at A1.

105. Meggett, supra note 102, at A1.

106. See Virginia, 116 S. Ct. at 2287.

107. Id. at 2280.

108. See Michael Janofsky, Citadel, Bowing To Court, Says It Will Admit Women, N.Y. Times, June 29, 1996, at A6. Nancy Mellette plans to attend the United States Military Academy's one-year prep school in New Jersey, before joining The Citadel's corps of cadets. See Wes Allison, Citadel To Admit Women, Richmond Times Dispatch, June 29, 1996, at A1; Catherine S. Manegold, For Citadel, Few Options Except Talk, N.Y. Times, June 27, 1996, at B9. Shannon Faulkner does not plan to attend The Citadel. See Allison, supra, at A1. Her mother acknowledged that her daughter's attendance "was not worth it the six times her life was threatened, it was not worth it when her car or our home was vandalized." Id. Instead, Faulkner will attend Furman University, in Greenville, South Carolina, majoring in English. See Elizabeth Gleick, Let the Hell Week Begin, Time, Aug. 26, 1996, at 36.

The Citadel has received "more than 350 inquiries from women interested in attending the college." Manegold, supra, at B9. Four women formally applied and were advised by The Citadel that they met all of the qualifications. See id. An attorney for Shannon Faulkner stated that opening the gates of The Citadel to women "`must be attendant with aggressive recruitment practices that have always been in place for males, and financial aid.'" Allison, supra, at A1 (quoting Robert Black, Charleston attorney who had represented Shannon Faulkner). During the first week of classes, Fall 1996, four women "change[d] the face of the institution forever." If the Citadel Can Do It, Why Can't VMI as Well?, News & Record (Greensboro, N.C.), Aug. 29, 1996, at A12.

109. Allison, supra note 108, at A1 (quoting James E. Jones, Jr., chairman of The Citadel's governing board). Lieutenant General Claudius E. Watts III, president of The Citadel and a retired Air Force General, announced that he planned to retire as president. See Manegold, supra note 108, at B9. Tellingly, "advertisements for the post, which were printed in military magazines and education journals" in the spring of 1996 "consistently used only the male pronoun when describing the qualities General Watt's successor should have." Id.

110. Faulkner v. Jones, 858 F. Supp. 552, 566 (D.S.C. 1994), aff'd, 51 F.3d 440, 442 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995).

111. Id.

112. Faulkner v. Jones, 51 F.3d 440, 444 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995).

113. United States v. Virginia (VMI II), 44 F.3d 1229, 1237 (W.D. Va. 1994), rev'd, 116 S. Ct. 2264 (1996). The Faulkner court admitted that the "principles stated in VMI I and VMI II appl[ied] to this case." Faulkner, 51 F.3d at 444. Because the parties "agreed that the benefits of single-gender education need not be retried," the court did not revisit the "homogeneity of gender" analysis, but rather went immediately to the third prong of the court's new test. Id.

114. VMI II, 44 F.3d at 1237; see also Faulkner, 51 F.3d at 443. Two months after Faulkner filed the lawsuit, the South Carolina General Assembly passed a joint resolution, affirming the state policy of favoring single-gender educational institutions to further its goal of diversity in education. See Faulkner v. Jones, 10 F.3d 226, 229 (4th Cir. 1993), stay denied, 14 F.3d 3 (4th Cir.), aff'd, 114 S. Ct. 872 (1994). Concurrent Resolution 4170, adopted by the South Carolina General Assembly on May 20, 1993, declared that "South Carolina has historically supported and continues to support single-gender educational institutions as a matter of public policy based on legitimate state interests where sufficient demand has existed for particular single-gender programs thereby justifying the expenditures of public funds to support such programs." Id. (quoting H. Con. Res. 4170, 110th Leg., 1st Sess. (S.C. 1993)). The Resolution created the committee "to assist the State of South Carolina in carrying out its responsibilities of providing single-gender educational opportunities for women, and the committee shall formulate recommendations for the South Carolina General Assembly to consider in exploring alternatives for the provision of single-gender educational opportunities for women." Faulkner, 858 F. Supp. at 560 (quoting H. Con. Res. 4170, 110th Leg., 1st Sess. (S.C. 1993)). The Fourth Circuit Court of Appeals commented that the Resolution offered "no explanation for the failure to offer women the same opportunity to participate in a single-gender institution and achieve similar goals as that afforded to men at The Citadel." Faulkner, 10 F.3d at 232; see also Faulkner, 858 F. Supp. at 559 n.9.

The ultimate authority for The Citadel lies with the South Carolina General Assembly, but the Legislature has delegated its authority to The Citadel's Board of Visitors, which decides the school's admission policy. See Faulkner, 858 F. Supp. at 557. The Legislature also established a 10-member committee to survey the need for single-gender educational opportunities for women in South Carolina and to submit recommendations to the Legislature at the beginning of its 1994 session. See id. at 560.

Rather than proposing a plan for single-gender educational opportunities for women, the committee in its January 1994 report suggested possible alternatives. See id. Some of the alternatives were the creation of a new public institution for women in South Carolina within a larger institution, a compact plan with Mary Baldwin College in Virginia or with Converse College or Columbia College in South Carolina, or an increase in tuition grants to provide women more money to attend single-gender private schools. See id. The committee made no effort to "determine the cost, the feasibility, or the constitutionality of any of the suggested alternatives." Id. The General Assembly, in its 1994 session, did not further consider the issue of equitable single-gender educational opportunities for women. See id. at 560-61.

115. United States v. Virginia, 44 F.3d 1229, 1237 (4th Cir. 1995), rev'd, 116 S. Ct. 2264 (1996).

116. See Faulkner, 51 F.3d at 444.

117. See id. at 444-45.

118. See id. at 442.

119. Id.

120. See id. at 443.

121. 44 F.3d 1229, 1237 (4th Cir. 1995), rev'd, 116 S. Ct. 2264 (1996).

122. Id.

123. Id. at 1237 n.*.

124. Faulkner v. Jones, 858 F. Supp. 552, 563 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995).

125. See id.

126. See id.

127. United States v. Virginia (VMI I), 976 F.2d 890, 899 (4th Cir. 1992), aff'd, 116 S. Ct. 2264 (1996).

128. Faulkner, 858 F. Supp. at 555.

129. Faulkner v. Jones, 51 F.3d 440, 444 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995); see also Faulkner, 858 F. Supp. at 555, 564-65.

130. See Faulkner, 51 F.3d at 444-45.

131. See Faulkner, 858 F. Supp. at 555.

132. VMI I, 976 F.2d at 893.

133. Id.

134. Id.

135. Id. at 896-97.

136. Id. at 897.

137. Id. at 897-98. The court also considered several empirical studies and surveys discussing the advantages of single-gender colleges. See id. at 897. The court commented that it did not intend to imply that "separate, single-sex institutions or programs are `equal' to coeducational ones for equal protection purposes." Id. at 898 n.7. But rather, "the data suggest that differences between a single-gender student population and a coeducational one justify a state's offering single-gender education." Id.

138. See Faulkner v. Jones, 51 F.3d 440, 446 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995); see also Faulkner v. Jones, 858 F. Supp. 552, 569 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir. 1995), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995). The district court also ordered the defendants to "pursue their proposed remedial plan without delay and formulate, adopt, and implement a plan that conforms with the Equal Protection Clause . . . by the beginning of the school year 1995-1996." Faulkner, 858 F. Supp. at 569.

139. 402 U.S. 1 (1970).

140. Faulkner, 51 F.3d at 446; see also Swann, 402 U.S. at 32. The defendants countered that The Citadel had not defaulted on its remedial obligation, but rather had sought to "expedite resolution of both the liability and remedy portions of this case." Faulkner, 51 F.3d at 446.

141. See id. at 447.

142. See id.

143. Id.

144. See id.

145. See id.

146. 332 U.S. 631 (1948).

147. 305 U.S. 337 (1938); see also Faulkner, 51 F.3d at 448.

148. Faulkner, 51 F.3d at 449; see Sipuel v. Board of Regents of Univ. of Okla., 180 P.2d 135, 142 (Okla. 1947), rev'd, 332 U.S. 631 (1948).

149. See Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 351-52 (1938); see also Faulkner, 51 F.3d at 449.

150. Faulkner, 51 F.3d at 449; see also Sipuel, 332 U.S. at 633; Gaines, 305 U.S. at 352.

151. See Faulkner, 51 F.3d at 449-50.

152. See id. at 450.

153. See Faulkner v. Jones, 858 F. Supp. 552, 567 (D.S.C. 1994), aff'd, 51 F.3d 440 (4th Cir.), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995).

154. See id. at 568. These remedies were first articulated by the Fourth Circuit Court of Appeals in United States v. Virginia, 976 F.2d 890, 900 (4th Cir. 1992), aff'd, 116 S. Ct. 2264 (1996).

155. Faulkner, 858 F. Supp. at 568.

156. See id.

157. Id. at 569.

158. Id.

159. See Faulkner v. Jones, 51 F.3d 440, 450 (4th Cir.) (Hall, J., concurring), cert. dismissed, 116 S. Ct. 331 (1995), and cert. denied, 116 S. Ct. 352 (1995).

160. Id. (Hall, J., concurring).

161. Id. at 451 (Hall, J., concurring).

162. Id. at 450-51 (Hall, J., concurring).

163. Id. at 451 (Hall, J., concurring).

164. Id. (Hall, J., concurring).

165. Faulkner, 51 F.3d at 451.

166. Id. (second alteration in original) (omissions in original) (quoting Brown v. Board of Educ. (Brown I), 347 U.S. 483, 493-95 (1954)).

167. Id. (Hall, J., concurring).

168. Id. (Hall, J., concurring).

169. Id. (Hamilton, J., dissenting).

170. See id. (Hamilton, J., dissenting). The Tenth Amendment states that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X.

171. See Faulkner, 51 F.3d at 451 (Hamilton, J., dissenting).

172. Id. (Hamilton, J., dissenting).

173. See id. at 453 (Hamilton, J., dissenting). Judge Hamilton enumerated the three reasons offered by The Citadel for maintaining an all-male admissions policy: (1) The Citadel had unrebutted evidence that there was no demand by women for a Citadel-type education, (2) South Carolina had a policy of aiding women with tuition grants and loans for education so that women could attend South Carolina's two private women's colleges, (3) the State demonstrated that it had "finite resources with respect to providing funds for college programs," such as providing the parallel program for women at Converse College. Id. (Hamilton, J., dissenting).

174. Id. (Hamilton, J., dissenting).

175. See id. (Hamilton, J., dissenting).

176. See id. (Hamilton, J., dissenting).

177. See Faulkner, 51 F.3d at 455 (Hamilton, J., dissenting).