In his recent Provocation, Claremont Institute Fellow Scott Yenor savagely criticizes Justice Ruth Bader Ginsburg’s 1996 opinion in US v Virginia, writing that her opinion “banned single-sex education at Virginia Military Institute (VMI).” Yenor asserts that Ginsburg portrayed “single-sex institutions [as] artifacts of prejudice” and calls for a reversal of US v Virginia and the establishment of all-male military schools in the model of VMI pre-1996. The problem is that Yenor misrepresents what Justice Ginsburg actually said. Additionally, he does not even mention Chief Justice Rehnquist’s concurrence, which needed to be addressed for his argument to carry any weight.
Justice Ginsburg’s opinion begins by acknowledging that “Single-sex education affords pedagogical benefits to at least some students, Virginia emphasizes, and that reality is uncontested in this litigation.” Instead of admitting women to VMI, the Commonwealth offered women admission to the Virginia Women’s Institute for Leadership (VWIL), a women’s program based at Mary Baldwin College.
Justice Ginsburg understood that the key question facing the Court was whether the VWIL offered an experience comparable to VMI. She concluded that it did not. Because she devoted nearly half her opinion to making this point—which Yenor never mentions—it is appropriate to consider her argument at length. She wrote:
The VWIL House is not a military-style residence and VWIL students need not live together throughout the 4-year program, eat meals together, or wear uniforms during the schoolday. See 852 F. Supp., at 477, 495. VWIL students thus do not experience the “barracks” life “crucial to the VMI experience,” the spartan living arrangements designed to foster an “egalitarian ethic.” “[T]he most important aspects of the VMI educational experience occur in the barracks,” the District Court found, id., at 1423, yet Virginia deemed that core experience nonessential, indeed inappropriate, for training its female citizen-soldiers…Mary Baldwin does not offer a VWIL student the range of curricular choices available to a VMI cadet. VMI awards baccalaureate degrees in liberal arts, biology, chemistry, civil engineering, electrical and computer engineering, and mechanical engineering…VWIL students attend a school that “does not have a math and science focus,” 852 F. Supp., at 503; they cannot take at Mary Baldwin any courses in engineering or the advanced math and physics courses VMI offers, see id., at 477. For physical training, Mary Baldwin has “two multipurpose fields” and “[o]ne gymnasium.” Id., at 503. VMI has “an NCAA competition level indoor track and field facility; a number of multi-purpose fields; baseball, soccer and lacrosse fields; an obstacle course; large boxing, wrestling and martial arts facilities; an 11-laps-to-the-mile indoor running course; an indoor pool; indoor and outdoor rifle ranges; and a football stadium that also contains a practice field and outdoor track.”…Virginia, in sum, while maintaining VMI for men only, has failed to provide any “comparable single-gender women’s institution.” Id., at 1241. Instead, the Commonwealth has created a VWIL program fairly appraised as a “pale shadow” of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence.
In other words, Justice Ginsburg found that the VWIL program was not comparable to the program offered at VMI.
Chief Justice William Rehnquist wrote a concurrence, agreeing with Justice Ginsburg in judgment but providing more explanation as to what is meant by the word “comparable.” He recognized that “No legislative wand could instantly call into existence a similar institution for women.” But he continued: “I do not believe the Commonwealth was faced with the stark choice of either admitting women to VMI, on the one hand, or abandoning VMI and starting from scratch for both men and women, on the other.” Chief Justice Rehnquist emphasized that the primary problem was that the solution offered by the Commonwealth, namely the VWIL, was in no way comparable to VMI. He wrote, “Had the Commonwealth provided the kind of support for the private women’s schools that it provides for VMI, this may have been a very different case. For in so doing, the Commonwealth would have demonstrated that its interest in providing a single-sex education for men was to some measure matched by an interest in providing the same opportunity for women.”
In the concluding paragraphs, Chief Justice Rehnquist made his point clear:
Accordingly, the remedy should not necessarily require either the admission of women to VMI or the creation of a VMI clone for women. An adequate remedy in my opinion might be a demonstration by Virginia that its interest in educating men in a single-sex environment is matched by its interest in educating women in a single-sex institution. To demonstrate such, the Commonwealth does not need to create two institutions with the same number of faculty Ph.D.’s, similar SAT scores, or comparable athletic fields. See ante, at 551–552. Nor would it necessarily require that the women’s institution offer the same curriculum as the men’s; one could be strong in computer science, the other could be strong in liberal arts. It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber…. In the end, the women’s institution Virginia proposes, VWIL, fails as a remedy, because it is distinctly inferior to the existing men’s institution and will continue to be for the foreseeable future. VWIL simply is not, in any sense, the institution that VMI is. In particular, VWIL is a program appended to a private college, not a self-standing institution; and VWIL is substantially underfunded as compared to VMI. I therefore ultimately agree with the Court that Virginia has not provided an adequate remedy.
Chief Justice Rehnquist and Justice Ginsburg argued that the Commonwealth of Virginia was perfectly free to retain VMI as an all-male institution provided it devoted comparable resources—that is, comparable money—to the creation of a women’s college. As Chief Justice Rehnquist clarified, the women’s college would not have to have the same number of boxing rings or football fields as VMI had, but it would have to have the same funding. Virginia proposed to spend $35 million on the women’s program over 10 years, compared with $220 million for VMI. That’s not comparable.
In other words, don’t blame Justices Ginsburg and Rehnquist for the outcome in US v. Virginia. They were simply applying the law as they understood it, which requires equal opportunity—that is, equal funding for women and men—in our modern era.
Therefore, Yenor’s claim that Justice Ginsburg’s decision “banned single-sex education at Virginia Military Institute (VMI)” is simply false. And his call to “reverse” the Supreme Court’s 1996 decision is unwise and unrealistic. Do we really want to go back to an era in which the state allocates six times more money for men than it does for women? No. Would Justice Amy Coney Barrett or Justice Neil Gorsuch or Chief Justice John Roberts support such sex-based discrimination? I don’t think so.
A Problem of Culture
“Male-only private boarding schools, which seemed to be a dying breed, are popping up across the country,” Yenor writes. This statement implies that the number of all-boys boarding schools is increasing. He provides just one citation in support of his claim: an article he wrote at American Reformer, in which he describes two boys’ boarding schools, each of which has about 60 boarders total. The article provides no evidence of any increase in the number of such schools.
I recently led a workshop for the Kiski School in Saltsburg, Pennsylvania. Kiski was established as a boys’ boarding school in 1888 and has a long history as a leading boys’ school. The school transitioned to the coed format as of September 2024. School leaders explained to me that there is simply zero demand nationwide for the boys’ boarding school format. Despite the prestige and history of the Kiski School, which traditionally draws boys from across the United States, as well as from more than 20 foreign countries, it could no longer survive as a boys’ school. There is no demand, and Yenor presents no evidence to the contrary.
As for public schools, Yenor writes that “the number of single-sex public schools has more than doubled since US v. Virginia, reaching nearly 400 in 2022.” This is misleading. The blog post he cites includes this statement: “[A]t least 366 public schools throughout the nation are either entirely single-sex or have single-sex classrooms.” I can tell you that the great majority of those schools are coed schools that have only a few single-sex classrooms.
This is a topic I know something about: from 2003 through 2012, I led the National Association for Single Sex Public Education, whose mission was to launch boys’ and girls’ public schools. We also supported coed public schools with single-sex classrooms. Earlier this year, a scholarly review from the American Institute of Boys and Men found that there are 45 boys’ public schools in the United States, a number that represents a “modest decline” over recent years. The great majority of those boys’ public schools serve boys of color in low-income neighborhoods; parents choose those schools because they are fleeing from failing local public schools, and the parents see no other alternative.
Yenor would like to see Justice Ginsburg’s ruling reversed so that states could establish all-male colleges. But is that even plausible today? If you build it, will they come?
There are exactly four all-male colleges in the United States right now: Wabash College in Indiana, Hampden-Sydney in Virginia, Morehouse in Georgia, and Saint John’s, a Catholic college in Minnesota. Wabash has an enrollment of 866 men; Hampden-Sydney has 946, Saint John’s has 1,413, and Morehouse is the powerhouse, with a total enrollment of 2,847. However, some may argue that Morehouse is not really a traditional men’s college since it has a close relationship with its sister college, Spelman, and Morehouse men take many classes together with Spelman women.
At this time, there is no legal or constitutional bar to the establishment of single-sex public schools or even single-sex public colleges. As already noted, there are currently 45 boys’ public schools in the United States. Any state is free to establish a VMI-style men’s college tomorrow, provided that it establishes a women’s college with comparable funding. The primary bar to establishing more single-sex public schools and colleges is not to be found in the law, but in the lack of interest in single-sex education.
Having myself tried for many years to launch boys’ public schools in the United States, I can tell you that American boys have little or no interest.
When the leadership of Dallas public schools considered launching separate boys’ and girls’ public schools, they held an assembly for middle-school students. They asked the girls, “Raise your hand if you think you might like to attend a girls’ high school. Raise your hand if you would NOT like to attend a girls’ high school. Raise your hand if you have no preference.” The girls broke down by thirds: one-third were interested, one-third said definitely no, and one-third had no preference. Then they asked the boys the corresponding questions. Not a single boy raised his hand to indicate any interest in a boys’ high school.
I support boys’ schools. I have seen firsthand how the all-boys format, when implemented by experienced teachers who know how to take advantage of that format, can transform an unmotivated bum into an enthusiastic scholar. I have given much thought over the past 25 years to the reasons for the dearth of single-sex schools in the United States. But I don’t blame Justice Ginsburg or Chief Justice Rehnquist—I blame American popular culture.