Constitutional Law Class Notes 3/15/04

Gender discrimination – United States v. Virginia

Which is older: VMI or the Equal Protection Clause? VMI actually predated the Equal Protection Clause. The Equal Protection Clause came after the Civil War. VMI came before the Civil War. So the folks in Congress wrote the Fourteenth Amendment and sent it to the states for ratification. Virginia originally refused to ratify the Fourteenth Amendment, but they were coerced into doing so by making it a precondition for getting back into the Union. So let’s say it’s 1875 or so and the same lawsuit is broad as in this case, challenging the legitimacy of VMI as a male-only institution. At that time, what would have happened? It would have most certainly been dismissed!

The Court has adopted intermediate scrutiny for gender discrimination in part because race discrimination, for which there is strict scrutiny, was more on the mind of the drafters of the Fourteenth Amendment. But if the drafters of the Fourteenth Amendment didn’t even think they were addressing gender discrimination, why should gender discrimination get elevated scrutiny at all? There have certainly been social changes between then and now.

How could the level of scrutiny change under the Fourteenth Amendment? The Fourteenth Amendment hasn’t been reratified or readopted since 1868. Can this be understood in terms of legality? There is a proposal to amendment the Constitution with the Equal Rights Amendment. We felt that the Constitution didn’t provide for gender equality. Many felt that the Nineteenth Amendment didn’t go far enough. But the ERA didn’t get ratified, and even had opposition from women. So how can the Court justify its result in finding that the Equal Protection Clause is different in 1976 than in 1868? The Constitution isn’t necessarily perfect, and there may be a lot that we don’t personally like about it. But legality says that we abide by it anyway. Just who should be allowed to say what the Constitution is?

Maybe we could say that the Court can say what the Equal Protection Clause means until the people choose to amend it. What did the Equal Protection Clause mean originally? Some historical evidence suggests that it was limited to certain basic rights like the right to make contracts or be a witness in a trial or to own property.

Arguably, the people who wrote the Fourteenth Amendment thought that discrimination on any basis with regard to those particular civil rights would violate the amendment. But did they understand the Fourteenth Amendment to affect the existence of VMI, or the University of Virginia (which was all-male at the time)? If the Equal Protection Clause meant one thing when it was adopted and means something different now, then when did its meaning change, and by what legal process did its meaning change?

Does Congress have the power to say that there may not be any single-sex colleges in America? If so, why should the Court be able to usurp that power? Isn’t Congress much more able to respond to social change? The Court is just supposed to enforce the law as it exists. Arguably, you can’t enforce rights that aren’t there.

Should there be a right to health care? Should there be a right to education? Should there be a right to literacy?

The Bush Administration has proposed that the states should be allowed to engage in single-sex education.

Has the meaning of the Constitution changed over time? How is that possible?

What is the significance of legislation being proposed in Congress but failing to be adopted? Are there some proposals that are so great that their failure is evidence of a flaw in the system? Or do we totally trust the system? If everyone in the United States agreed to what the laws should be, there would be no reason for debate at all. Maybe the country wasn’t ready for a national gender policy.

Is there a disconnect between Constitutional Law and social policy? Here are two questions: (1) How do we figure out the meaning of the Fourteenth Amendment and the Equal Protection Clause given that it was adopted in 1868 and it hasn’t been changed or amended since? Can its meaning transform over time (c.f. Brown v. Board of Education)? (2) How can we understand these changes and know when they have occurred? Is it wholly up to the Supreme Court to decide when these changes will occur? Or is the Supreme Court not the agent of change but rather a reflection of social change?

Even if we accept the idea that the meaning of the Fourteenth Amendment changes over time, we’ll have to figure out just what it means. Say the VMI case is correctly decided. If we take it as a given, we need to figure out whether single-sex classroom options in K-12 are allowed under the holding of VMI. We take certain things as given. For example, segregation on the basis of race is presumptively unconstitutional. Perhaps segregation on the basis of gender should be presumptively unconstitutional too.

But maybe there are acceptable forms of gender discrimination: we have separate men’s and women’s sports. We tolerate separate but equal in this area under Title IX. But we can’t have separate teams based on race.

The big fear at the time of the ERA was that it would supposedly eliminate single-sex bathrooms. We actually did formerly have single-race bathrooms in the South. So bathrooms were on people’s minds in the 1970s, according to Foley.

Then how do we understand the relationship of social transformation to legal transformation? We don’t know yet, but I guess we will tomorrow.

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