Faulkner v. Jones

Related Cases

HAMILTON, Circuit Judge,

dissenting:

The majority annunciates the district court’s disregard of Equal Protection analysis, comity, and federalism. In disregarding the Tenth Amendment, the majority permits a single district judge to dictate the higher educational policies and related financial considerations of the State of South Carolina based on a flawed legal premise. I believe that the State of South Carolina, not the federal judiciary, is the proper authority to determine its own educational policies and to execute these policies based on its limited financial resources. Given that there is no demand for a Citadel for women in South Carolina seeking an educational experience comparable to that of The Citadel — thereby demonstrating a substantial justification — I conclude there is no equal protection violation. Because the majority eviscerates the sovereign power of the State of South Carolina, as well as ignores well-settled principles concerning the Equal Protection Clause, I dissent.

I.

A.

In May 1993, the General Assembly of South Carolina adopted a concurrent resolution to declare the public policy objectives of South Carolina’s interest in establishing single-gender institutions of higher learning. This resolution stated that South Carolina had long supported single-gender education based on legitimate state interests if sufficient demand existed for single-gender programs justifying the expenditure of public funds to support such programs. Subsequently, the General Assembly of South Carolina created a Legislative Study Committee (Committee) “to assist the State of South Carolina in carrying out its responsibilities of providing single-gender educational opportunities for women_” (J.A. 1074). On January 11, 1994, the Committee reported its findings to the General Assembly. The Committee concluded that South Carolina had a long history of supporting single-gender education for both men and women when justified by demand and if consistent with the educational goal of the institution. The Committee specifically examined female interest in a single-gender military institution and ultimately found that there was no inter*452est in, and no demand for, a single-gender military college in South Carolina for women. The Committee also reported that it was prepared to assist the General Assembly in examining further possibilities for single-gender educational opportunities for women in South Carolina. On January 14, 1994, the Committee’s findings were approved and accepted by the General Assembly.

B.

After this court issued United States v. Virginia, 976 F.2d 890 (4th Cir.1992) (VMI I), cert. denied, — U.S.-, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993), Faulkner sought admission into the Corps of Cadets, contending that even if single-gender education was pe-dagogieally justified and essential to The Citadel’s methodology, South Carolina could not justify offering the benefits of the Corps of Cadets to men only. Accordingly, Faulkner demanded immediate admission into the Corps of Cadets. The district court granted a preliminary injunction ordering that Faulkner be permitted to attend day classes at The Citadel. Oh appeal, this court sustained the preliminary injunction, but eschewed the contention that gender classification can never be justified or that facilities for the sexes must be identical. See Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir.1993) (majority opinion) (Faulkner !)■ Rather, the majority opinion explained that facilities used to accommodate the sexes may differ, and that in analyzing the separate facilities, a court “must take into account the nature of the difference on which the separation is based, the relevant benefits to and the needs of each gender, the demand (both in terms of quality and quantity), and any other relevant factor.” Id. (emphasis added).

Subsequently, on February 17, 1994, Faulkner moved for summary judgment, seeking immediate admission into the Corps of Cadets. With respect to liability, Faulkner argued that VMI I mandated liability. With respect to remedy, she asserted that coeducation of The Citadel was the only remedy; furthermore, she contested the value of single-gender education at The Citadel. The Citadel opposed Faulkner’s motion for summary judgment and moved unsuccessfully to bifurcate the trial with respect to liability and remedy.

On March 1, 1994, the district court ordered a trial on the issues of liability and remedy to commence concurrently on May 16, 1994. With respect to liability, the district court ordered that the liability portion of the trial be limited to those issues that The Citadel contended differentiated this suit from VMI .1 and precluded summary judgment in favor of Faulkner. With respect to remedy, the district court ordered that The Citadel file a remedial plan by April 1, 1994. The district court ordered the remedial plan by this date and tried the issue of remedy concurrently with liability because it concluded that since the General Assembly had enacted the concurrent resolution in May 1993 and adopted the Committee’s findings in January 1994, The Citadel was on notice and should have been preparing a remedy. The district court issued this order despite the fact that liability had not even been determined. Complying with the district court’s order, The Citadel filed a proposed remedial plan on April 1, 1994. In keeping with state policy, the plan did not propose coeducation of The Citadel as a remedy. Because there was no ruling on liability, the remedial plan provided both single-gender and coeducational remedial options and requested sixty days from any determination of liability to designate a specific remedy for further development and implementation. The result of the district court’s order was that The Citadel had to propose a remedy even though no trial had commenced and its single-gender educational program had not been found constitutionally impermissible. The Citadel, therefore, had to devise a remedy, without parameters, for an unknown, alleged wrong.

During pretrial proceedings, the district court stated that it was bound by VMI I, but it refused to rule on The Citadel’s motion in limine and its motion during trial for a declaration of issues as to the binding nature of VMI I. The Citadel sought a declaration with respect to these issues because Faulkner continued to repudiate VMI I. In this confused and confusing state of affairs, the case proceeded to trial. For purposes of liability, the district court reluctantly adopted *453the finding in VMI I with respect to the value of single-gender education and the inevitable fundamental changes coeducation would have on the adversative nature of The Citadel’s single-gender program. From this premise, the district court stated that The Citadel had to distinguish its case from VMI I by “justifying” the males-only policy at The Citadel. Recognizing that VMI I did not hold that single-gender education amounted to a per se constitutional violation, The Citadel essentially offered three reasons for maintaining the males-only policy. First, The Citadel put on unrebutted evidence that the reason that there was no female Citadel in South Carolina, or elsewhere, was because there was no demand for such an institution, not because South Carolina discriminated against women based on gender. Second, South Carolina had a policy of aiding the education of women by providing tuition grants and loans so that women could attend the state’s two private women’s colleges. Third, South Carolina demonstrated that it has finite resources with respect to providing funds for college programs. In a nutshell, South Carolina showed that it supported single-gender education, that it provided aid to women at institutions of higher learning, but that it could accomplish these objectives only if based on demand and consistent with the educational mission of the institution.

The district court issued a memorandum opinion reciting findings of fact and conclusions of law. With respect to liability, the district court found that South Carolina had a policy of providing a variety of educational programs in response to demand and available resources and that there was no interest in South Carolina for a Citadel-type educational experience for women. As the district court found, “[tjhere does not appear to be any substantial interest in South Carolina for the establishment of an all-female military institution like The Citadel.” Faulkner v. Jones, 858 F.Supp. 552, 560 (D.S.C.1994). Additionally, the district court recognized that there was no demand for a female-Citadel and that the policy of the State of South Carolina is “to provide educational opportunities based on reasonable de-mand_” Id. at 564. Despite these findings, the district court held that lack of demand and the expenditure of limited state resources could not justify The Citadel’s male-only program. Accordingly, the district court found that The Citadel’s male-only policy did not survive constitutional challenge. With respect to remedy, the district court ordered that Faulkner immediately be admitted into the Corps of Cadets. The district court further ordered The Citadel to devise a plan for coeducation of the Corps of Cadets, or it would order coeducation.

II.

The district court concluded that it was bound by VMI I, and thus it realized that single-gender education is valuable and eminently justified. Furthermore, the district court found that there was no demand for a “female Citadel” in South Carolina. See id. at 560, 564. Despite recognizing justification for single-gender educational programs and an absence of demand for a Citadel-type institution for women, the district court concluded that South Carolina’s educational policies were constitutionally irrelevant, a conclusion with which I cannot agree. A review of our precedents is necessary to reveal the flaws in the district court’s reasoning. Because South Carolina articulated a substantial justification for not providing a Citadel-type institution for women, Faulkner’s Equal Protection challenge fails.

A.

VMI I recognizes that, absent a substantial justification, a state violates the Equal Protection Clause if it provides a benefit to one gender but not the other. In VMI I, after explaining that the Equal Protection Clause does not erect a per se bar to a state’s power to create classifications and treat various classes differently, we concluded that single-gender education not only provided academic and practical salutary consequences, VMI I, 976 F.2d at 897, but also that single-gender education was pedagogically justifiable, id. at 898.1 Moreover, recognizing the *454unique, rich, and venerable history and educational philosophy propounded by the Virginia Military Institute (VMI), we concluded further that the “holistic formula of training” at VMI was particularly justified. Id. Balanced against the pedagogical benefits and justification provided by a single-gender institution exclusively for men, however, was the fact that the Commonwealth of Virginia could not deny these benefits to women absent a substantial justification, and the proffered reason of providing diversity in education failed to satisfy that burden. Id. at 900. Central to our analysis was the fact that there was no justification for the male-only policy at VMI; the issue of demand was neither raised nor addressed. Indeed, Virginia proffered no evidence of a lack of demand for a VMI-type program for women. Virginia, therefore, had defaulted on this issue. Because Virginia failed to provide an educational experience like that of VMI for women, we remanded the case to the district court to give Virginia the opportunity to remedy any constitutional violation. Id. In reaching our holding in VMI I, we acknowledged — most sagaciously — that the state, not the federal judiciary, must, in the first instance, be granted the opportunity to devise a plan that passes constitutional muster. Id. Satisfaction of constitutional concerns, we explained, did not mandate automatically the admission of women to VMI. The principle to be garnered from VMI I, therefore, is that while state-supported, single-gender educational institutions serve valuable purposes and provide unique educational benefits, a state cannot provide such a benefit to one sex and not the other, absent substantial justification, without violating the Equal Protection Clause, and upon the determination of such a violation, the state is afforded the first opportunity to remedy any constitutional infirmity. Conspicuously in VMI I, there was no substantial justification for Virginia’s not providing a VMI-type education for women. Thus, demand for such an institution or program was not an issue and was never before the court in VMI I.

B.

On remand in VMI I, Virginia remedied the constitutional deficiency by creating a parallel educational program substantially analogous to that of VMI at Mary Baldwin College. Thus was bom the Virginia Women’s Institute for Leadership (VWIL). See United States v. Commonwealth of Virginia, 852 F.Supp. 471, 476 (W.D.Va.1994). Appreciating the pedagogical values of single-gender education, id. at 475-76, the duty of Virginia to provide a VMI-style education for women, id. at 474, the substance and merit of the VWIL program, even though its methodology differed from VMI, id. at 476-81, as well as Virginia’s commitment to ensure the success of VWIL, id. at 483-84, the district court concluded that the VWIL program did not offend the Equal Protection Clause, id. at 484.

We affirmed the district court’s approval of VWIL and remanded the case to the district court so that it could oversee implementation of the remedy. See United States v. Virginia (VMI II), 44 F.3d 1229 (4th Cir.1995). In VMI II, our task was to determine generally whether the parallel program was constitutionally sound and to determine specifically whether the VWIL program was substantively comparable to VMI. Applying the intermediate level of scrutiny announced in Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982), we concluded that VWIL satisfied the *455Equal Protection Clause. First, we explained that single-gender education is beneficial, justifiable, and thus fulfills a legitimate and important state objective. VMI II, 44 F.3d at 1237-39. Second, we concluded that the requisite substantial relationship between the objective and the means was present because Virginia instituted a comparable program for women at Mary Baldwin College, thereby satisfying the state’s obligation of providing equal protection through the implementation of equal programs at different schools. Id. at 1239-41.

In concluding that the VWIL program was substantively comparable, we stated that the Equal Protection Clause did not demand identical programs, nor identical execution of programs for educating men and women; methodologies may differ. Id. at 1240-41. The task force charged with maintaining VWIL concluded that had the VWIL been identical to VMI, there would have been no “significant” interest in such a program and “doubt[ed] that enough women would be interested in a women’s VMI to make it work.” Id. at 1235. Because both VWIL and VMI focused not only on traditional academics, but also on discipline and leadership, we concluded that the Equal Protection Clause was not offended by VWIL, although it differed from VMI, because, while “[t]he mechanism for achieving these goals differ[ed], ... the difference [was] attributable to a professional judgment of how best to provide the same opportunity.” Id. at 1240-41. Although the focus of VMI II was one of remedy, implicit in VMI II is the fact that there must be demand for a particular educational program, and making this determination necessarily involves questions of expenditure of state resources.

III.

A.

Applying our precedents, The Citadel’s male-only policy does not fail to pass constitutional muster. The Citadel has maintained steadfastly, consistently, and correctly so, that there is no demand for a Citadej-type educational program for women. See Faulkner, 858 F.Supp. at 560, 564. The record more than adequately supports this position; indeed, Faulkner conceded this point, and the district court found it as a fact. There is simply and indisputably no demand in South Carolina for a Citadel-type educational program for women. For instance, Robert Gallagher, Chairman of the State Commission for Higher Education, testified that no institution or individual has come to the Commission seeking to establish either a single-gender program or institution for women similar to that of The Citadel. Buttressing this testimony, former Governor Edwards of South Carolina not only testified that there was no demand for a Citadel-type institution or program for women, but that South Carolina maintains a policy of aiding women with higher education by providing grants and tuition stipends. Thus, there is substantial justification for South Carolina’s excluding Faulkner from entering the Corps of Cadets. While the law does not require a futile act, see L.K. Comstock & Co. v. United Eng’rs & Constr., 880 F.2d 219, 232 (9th Cir.1989), that is precisely what the majority is compelling South Carolina to perform. The absence of demand is a sufficient justification for not providing women a Citadel-type institution. In VMI I, we anticipated the vitality of such a justification, expressly observing that a state can have a substantial justification for its classification; and in VMI II, we observed that the Equal Protection Clause was not violated if there was “significant” interest in VWIL and there was no interest in a women’s program identical to VMI. Unlike the Commonwealth of Virginia in VMI I, the State of South Carolina demonstrated a substantial justification for the male-only policy at The Citadel — lack of demand for a Citadel-type institution for women. 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. Apart from being an unwarranted, improper intrusion into state affairs, see Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 158 (4th Cir.1992), this resurrects the infamous ghoul of Lochner v. New *456York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (holding unconstitutional a New York statute providing that no employee will work in a bakery more than sixty hours in any week or more than ten hours in any day), which, although in the context of substantive due process analysis, has been discredited as an example of the Court’s usurpation of power of the local legislature, see, e.g., Olsen v. Nebraska, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305 (1941) (repudiating Lochner analysis). As the Court subsequently explained, “if our recent cases mean anything, they leave debatable issues as respect business, economic, and social affairs to legislative decisions. We could strike down this law only if we returned to the philosophy of the Lochner, Coppage [v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915)] and Adkins [v. Children’s Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923)] cases.” Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 425, 72 S.Ct. 405, 408, 96 L.Ed. 469 (1952). Although purporting to eschew the contention, VMI II, 44 F.3d at 1236, the majority is engaging in substantive equal protection analysis, and reading substance into the Fourteenth Amendment has been consistently repudiated, see, e.g., Bowers v. Hardwick, 478 U.S. 186, 194-95, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986).

Faulkner’s assertion that The Citadel did not attempt to determine the demand for a parallel program is without merit and belied by the record. The uncontradicted testimony established that South Carolina requires a demonstrated demand as a condition for funding existing and proposed institutions of higher learning, a valid and compelling state interest. Gallagher testified that no institution or individual has sought to establish a Citadel-type institution or program for women. Furthermore, former Governor Edwards testified that there was no demand for a Citadel-type institution or program for women. 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. In my opinion, South Carolina must maintain the autonomy in deciding how to allocate its finite resources, and this principle is particularly salient here because, as all parties and the district court agree, there is absolutely no demand for a “female Citadel,” see Faulkner, 858 F.Supp. at 560, 564, but, under the majority’s decision, South Carolina will be compelled to create one, a remedy that is doubly futile because Faulkner has repudiated both remedies, i.e., a parallel program similar to VWIL and a “female Citadel.” Because South Carolina has not defaulted on its burden of demonstrating a substantial justification for not providing a Citadel-type institution for women, the Equal Protection Clause is not offended.

B.

Throughout this litigation, Faulkner has represented vehemently that she does not want a Citadel for women or a parallel program such as VWIL. Rather, her sole purpose is to gatecrash her way into the Corps of Cadets, contending that any single-gender program is per se unconstitutional. In addition to being contrary to established law, see, e.g., VMI II, 44 F.3d at 1236-38; Faulkner I, 10 F.3d at 230-32; VMI I, 976 F.2d at 895-97, this assertion fails to perceive the substantive-comparability component of VMI II in which we recognized that different methods can be used to achieve similar goals. Here, Faulkner does not want a “female Citadel,” contending that the nature of The Citadel experience cannot be replicated. She wants to join the Corps of Cadets because it can provide her with a unique educational experience, but, as all parties agree, the unique experience provided by The Citadel is grounded in its single-gender status. By joining the Corps of Cadets, Faulkner, again as all agree, would be destroying the very uniqueness that makes the Corps of Cadets the heart of The Citadel. By getting her wish, Faulkner destroys that which she seeks to attain.

The history of this litigation raises serious questions as to whether Faulkner is content with destroying the unique nature of The Citadel. It could be suggested 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. *457For instance, Faulkner spearheaded a fundraiser in which she sold photographs of herself purportedly to defray her legal expenses. See Senator to Join Rally for Faulkner, The State, Mar. 17, 1995. Additionally, Faulkner — improperly—donned the jacket of a cadet while making a speech to raise money for her cause. See Leah Garchik, Dressing Well?, S.F. Chron., Nov. 21, 1991, at D16. Publicity, not equal protection of the law, seems to be the hallmark of Faulkner’s creed.

IV.

I cannot accept the majority’s invitation to be a party to the destruction of a venerable institution that, as the majority recognizes, provides a pedagogically justifiable, unique educational experience which is attributed to its single-gender status. The majority finds a violation of the Equal Protection Clause without addressing South Carolina’s substantial justification for not providing a Citadel-type institution or program for women. Disappointingly, the majority reaches this conclusion in the wake of an absolute absence of demand for such a program. I would reverse the district court’s holding that The Citadel’s male-only status violated the Equal Protection Clause and consequently its specific remedy of ordering Faulkner admitted to the Corps of Cadets and its general remedy of coeducation at The Citadel.

. This conclusion comports with current thought among many educated women. For instance, at *454Columbia College, a women’s school in Columbia, South Carolina, students state that a single-gender education provides an invaluable educational experience that could not be reproduced with the presence of men. After observing an increasing trend and desire for single-gender educational institutions, the article reports that graduates of single-gender educational institutions typically excel in a variety of careers. Lori Roberts, Single-gender Schools Gain Students, Popularity, The State, Feb. 12, 1995. Likewise, women at Texas Woman's University have vehemently attempted to prevent the coeducation of their college. Carrying placards that read "Better Dead Than Coed,” students explained the unique benefits of their single-gender education:

Female TWU students say the school provides a nurturing environment for women. Students at protests have said that not having to ... be distracted by men improves their chances of a good education.

Women Battle to Keep Men out of Their School, N.Y. Times, Apr. 5, 1991.