Faulkner v. Jones

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 94-1978

SHANNON RICHEY FAULKNER; UNITED

STATES OF AMERICA,

Plaintiffs- Appellees,

JAMES E. JONES, JR., Chairman,

Board of Visitors of The Citadel,

the Military College of South

Carolina; CARROL A. CAMPBELL, JR.,

Member of the Board of Visitors of

The Citadel, the Military College of

South Carolina; T. EASTON

MARCHANT, Member of the Board of

Visitors of The Citadel, the Military

College of South Carolina;

BARBARA S. NIELSEN, Member of the

Board of Visitors of The Citadel,

the Military College of South

Carolina; WILLIAM F. PRIOLEAU, JR.,

Member of the Board of Visitors of

The Citadel, the Military College of

South Carolina; WILLIAM E.

JENKINSON, III, Member of the

Board of Visitors of The Citadel,

the Military College of South

Carolina; LEONARD C. FULGHUM, JR.,

Member of the Board of Visitors of

The Citadel, the Military College of

South Carolina;

JAMES M. LELAND, JR., Member of

the Board of Visitors of The

Citadel, the Military College of

South Carolina; JOHN A.

MCALLISTER, JR., Member of the

Board of Visitors of The Citadel,

the Military College of South Caro-

lina; DAVID S. BOYD, JR., Member

of the Board of Visitors of The

Citadel, the Military College of

South Carolina; JULIAN G.

FRASIER, III, Member of the Board

of Visitors of The Citadel, the

Military College of South Carolina;

JAMES W. BRADIN, Member of the

Board of Visitors of The Citadel,

the Military College of South

Carolina; LARRY J. FERGUSON,

Member of the Board of Visitors of

The Citadel, the Military College of

South Carolina; STEVE D. PEPER,

Member of the Board of Visitors of

The Citadel, the Military College of

South Carolina; WALLACE I.

WEST, JR., Director of Admissions

and Recruiting at The Citadel, the

Military College of South Carolina;

CLAUDIUS E. WATTS, III, President

of The Citadel, the Military College

of South Carolina, in their official

capacities; STATE OF SOUTH

CAROLINA; THE CITADEL, the Military

College of South Carolina; THE

BOARD OF VISITORS OF THE CITADEL,

the Military College of South

Carolina,

Defendants- Appellants.

NATIONAL WOMEN'S LAW CENTER;

AMERICAN ASSOCIATION OF

UNIVERSITY WOMEN; CALIFORNIA

WOMEN'S LAW CENTER; CENTER FOR

ADVANCEMENT OF PUBLIC POLICY;

CENTER FOR WOMEN POLICY STUDIES;

CLEARINGHOUSE ON WOMEN'S ISSUES;

COALITION OF LABOR UNION WOMEN;

CONNECTICUT WOMEN'S EDUCATION

AND LEGAL FUND; EQUAL RIGHTS

ADVOCATES; FEDERALLY EMPLOYED

WOMEN, INCORPORATED; FEMINIST

MAJORITY FOUNDATION; HUMAN

RIGHTS CAMPAIGN FUND; LAWYER'S

COMMITTEE FOR CIVIL RIGHTS UNDER

LAW; NATIONAL ASSOCIATION OF

GIRLS & WOMEN IN SPORT; NATIONAL

ASSOCIATION OF COMMISSIONS FOR

WOMEN; NATIONAL COUNCIL OF

JEWISH WOMEN; NATIONAL COUNCIL

OF NEGRO WOMEN, INCORPORATED;

NATIONAL EDUCATION ASSOCIATION;

NATIONAL HOOK- UP OF BLACK

WOMEN, INCORPORATED; NATIONAL

ORGANIZATION FOR WOMEN; NOW

LEGAL DEFENSE AND EDUCATION

FUND; NATIONAL WOMAN'S PARTY;

NATIONAL WOMEN'S CONFERENCE

COMMITTEE; NATIONAL WOMEN'S

POLITICAL CAUCUS; NORTHWEST

WOMEN'S LAW CENTER; TRIAL

LAWYERS FOR PUBLIC JUSTICE; WIDER

OPPORTUNITIES FOR WOMEN; WOMEN

EMPLOYED; WOMEN'S LAW PROJECT;

WOMEN'S LEGAL DEFENSE FUND;

CAROL GILLIGAN, Ph.D.; VALERIE E.

LEE, Ed.D; DIANE S. POLLARD, Ph.D;

BERNICE SANDLER, Ed.D; PROGRAM

ON GENDER, SCIENCE AND LAW AT

COLUMBIA UNIVERSITY SCHOOL OF

PUBLIC HEALTH.

Amici Curiae.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

C. Weston Houck, Chief District Judge.

(CA- 93- 488- 2)

Argued: January 30, 1995

Decided: April 13, 1995

Before HALL, NIEMEYER, and HAMILTON,

Circuit Judges.

_________________________________________________________________

Affirmed as modified and remanded by published opinion. Judge Nie-

meyer wrote the opinion in which Judge Hall concurred. Judge Hall

wrote a separate concurring opinion; Judge Hamilton wrote a dissent-

ing opinion.

_________________________________________________________________

COUNSEL

ARGUED: Morris Dawes Cooke, Jr., BARNWELL, WHALEY,

PATTERSON & HELMS, Charleston, South Carolina; Robert

Holmes Hood, HOOD LAW FIRM, Charleston, South Carolina, for

Appellants. Valorie Kay Vojdik, NEW YORK UNIVERSITY

SCHOOL OF LAW, New York, New York, for Appellee Faulkner;

Thomas Evans Chandler, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee United States. ON

BRIEF: William R. Hearn, Jr., Joseph C. Wilson, IV, HOOD LAW

FIRM, Charleston, South Carolina; Griffin B. Bell, William A. Cline-

burg, Jr., Dwight J. Davis, KING & SPALDING, Atlanta, Georgia;

Robert H. Patterson, Jr., Anne Marie Whittemore, William G. Broad-

dus, J. William Boland, MCGUIRE, WOODS, BATTLE &

BOOTHE, Richmond, Virginia, for Appellants. Sara L. Mandelbaum,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

WOMEN'S RIGHTS PROJECT, New York, New York; Henry Weis-

burg, Thomas F. Swift, Mary K. Warren, Vanessa Beever, SHEAR-

MAN & STERLING, New York, New York; Robert R. Black,

Charleston, South Carolina; Suzanne E. Coe, SILVER & COE,

Greenville, South Carolina, for Appellee Faulkner; Deval L. Patrick,

Assistant Attorney General, David K. Flynn, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee

United States. Marcia Greenberger, Deborah L. Brake, NATIONAL

WOMEN'S LAW CENTER, Washington, D.C.; Walter J. Rockler,

Peter G. Neiman, ARNOLD & PORTER, Washington, D.C., for

Amici Curiae National Women's Law Center, et al. Joan E. Bertin,

Program on Gender, Science and Law, COLUMBIA UNIVERSITY

SCHOOL OF PUBLIC HEALTH, New York, New York, for Amici

Curiae Gilligan, et al.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

We are presented with the questions of (1) whether South Carolina

and The Citadel, in refusing Shannon R. Faulkner admission to The

Citadel, denied her equal protection of the laws in violation of the

Fourteenth Amendment and (2) whether the remedy ordered by the

district court is an appropriate one. In a bifurcated remedial order, the

district court directed first that Faulkner be admitted to The Citadel's

Corps of Cadets "forthwith" and second that South Carolina and The

Citadel proceed "without delay" to formulate, adopt, and implement

a plan for women other than Faulkner by the beginning of the

1995- 96 school year which conforms with the Equal Protection

Clause.

We affirm the district court's ruling that South Carolina and The

Citadel are denying Faulkner equal protection of the laws in violation

of the Fourteenth Amendment. As for the remedy, we affirm with

modification, remanding the case to the district court (1) to establish

a new, practicable but prompt timetable in requiring defendants to

formulate, adopt, and implement a remedial plan that conforms 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.

When Shannon Faulkner, a female high school senior, was refused

admission to The Citadel, South Carolina's state- supported military

college, pursuant to its male- only admission policy, she filed suit

under 42 U.S.C. § 1983, alleging that South Carolina and The Citadel

denied her equal protection of the laws in violation of the Fourteenth

Amendment. Pending the litigation, the district court, by preliminary

injunction, required The Citadel to allow Faulkner to attend day

classes, but did not order The Citadel to admit her to the Corps of

Cadets, and we affirmed that preliminary injunction. Faulkner v.

Jones, 10 F.3d 226 (4th Cir. 1993). Following a two- week bench trial

on the merits, the district court found that the defendants were in vio-

lation of the Equal Protection Clause and ordered, on July 22, 1994,

that The Citadel "forthwith admit Shannon Richey Faulkner to the

South Carolina Corps of Cadets under such terms and conditions as

this court hereafter orders." Faulkner v. Jones, 858 F. Supp. 552, 569

(D.S.C. 1994). The court also directed that for women other than

Faulkner the defendants "without delay . . . formulate, adopt, and

implement a plan that conforms with the Equal Protection Clause." Id.

Pursuant to a subsequent hearing to determine the conditions under

which Faulkner would be admitted to the Corps of Cadets, the court

entered an order on August 5, 1994, accepting those conditions on

which the parties agreed and resolving their remaining disagreements.1

This appeal followed.

In United States v. Commonwealth of Virginia (VMI I), 976 F.2d

890 (4th Cir. 1992), cert. denied, 113 S.Ct. 2431 (1993), we held that

Virginia's maintenance of a male- only admissions policy at Virginia

Military Institute (VMI) without the provision of a comparable oppor-

tunity for women was not justified by a state policy of providing

diversity in education, and we therefore concluded that Virginia was

violating the Equal Protection Clause. We remanded the case to the

district court to give Virginia the responsibility of selecting a remedial

course, and we noted that, among available permissible courses of

action, Virginia could (1) change its policy at VMI and admit women,

adjusting the program to implement that choice; (2) establish parallel

institutions or programs for men and women; or (3) abandon state

support of VMI, allowing that institution to pursue its own policies

as a private institution. On remand, Virginia elected to provide single-

gender education to both genders by continuing to provide male- only

_________________________________________________________________

1 In particular, the district court denied Faulkner's request (1) to have

a special sexual harassment committee appointed, (2) to be provided a

special escort on campus at night, and (3) to prohibit The Citadel from

giving her the same type of haircut that it gives male Fourth Class mem-

bers of the Corps of Cadets. The court also directed that Faulkner be pro-

vided living quarters with "at least the same level of security" at night

as male cadets have in their barracks. The parties did not appeal the con-

ditions imposed by the August 5 order.

education at VMI and by establishing a women's institute with

distinctive leadership training at Mary Baldwin College. The district

court approved the plan and, in United States v. Commonwealth of

Virginia (VMI II), 44 F.3d 1229 (4th Cir. 1995), we affirmed.

In VMI II, applying a special intermediate scrutiny test designed to

analyze a state's provision of single- gender education, we held that

Virginia's plan of providing single- gender education is not a perni-

cious state objective. On the contrary, because the state presented suf-

ficient data to support the proposition that a sexually- neutral

environment yields concrete educational benefits, we concluded that

Virginia could opt for single- gender education as a legitimate and

important part of its overall objective of providing higher education

to its citizens. We noted, however, that when providing single- gender

education to one gender, Virginia could not, without adequate justifi-

cation, deny a substantively comparable benefit to the other gender.

For purposes of determining whether a parallel educational offering

is substantively comparable, we held that programs aimed at achiev-

ing similar results should not be rejected simply because they differ

in approach. We therefore concluded that single- gender offerings to

men and women need not be identical in form and detail, but rather

that differences in the programs could reflect established differences

in the educational needs of the two genders so long as the value of

the benefits provided to one gender did not, by comparison to the ben-

efits provided to the other, tend to lessen the dignity, respect, or soci-

etal regard of the other gender.

The principles stated in VMI I and VMI II apply to this case.

III

South Carolina challenges the district court's ruling that South Car-

olina and The Citadel are denying Faulkner equal protection of the

laws by refusing her admission to The Citadel and its Corps of

Cadets. Without challenging any factual findings by the district court,

the state argues that its overall higher education policy is administered

neutrally and that there is no evidence of an invidious intent to dis-

criminate on the basis of gender behind the admissions policies of its

colleges and universities. South Carolina asserts that its present con-

figuration of higher educational programs is the product of historical,

gender- neutral factors, including student demand and institutional

autonomy. It argues that if we consider all aspects of its system of

higher education, including its offering of tuition grants to qualified

women who attend private single- gender institutions, we would find

that "the overall educational benefits and opportunities of South Caro-

lina's system of higher education flow evenly to men and women."

In the absence of evidence of intentional or invidious discrimination,

the state argues, the district court erred in refusing to apply the hold-

ing of Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979) (female

plaintiff challenging a gender- neutral statute on equal protection

grounds must show that the "state legislature selected or reaffirmed

a particular course of action at least in part `because of,' not merely

`in spite of,' its adverse effects upon [women]").

What South Carolina fails to appreciate, however, is that even if its

current offering of single- gender education solely to males is the

product of historical factors which were not themselves invidiously

discriminatory against women, the male- only admissions policy of

The Citadel is nevertheless an explicit gender- based classification.

Although facially neutral statutes which have a discriminatory impact

do not violate the Equal Protection Clause unless discriminatory

intent can be demonstrated, see Sylvia Development Corp. v. Calvert

County, Md., ___ F.3d ___, No. 94- 1181, slip op. at 10- 11 (4th Cir.

March 3, 1995), discriminatory intent need not be established inde-

pendently when the classification is explicit, as in this case. See

Feeney, 442 U.S. at 272- 73; see also Mississippi Univ. for Women v.

Hogan, 458 U.S. 718 (1982).

Even though invidious discriminatory intent behind a state policy

need not be shown when the policy explicitly utilizes a gender classi-

fication, we must nevertheless determine, in conducting an equal pro-

tection analysis, whether South Carolina's means for achieving its

objective of single- gender education withstand intermediate scrutiny.

See VMI II, 44 F.3d at 1237. See also Hogan, 458 U.S. at 724- 25.

In ruling that South Carolina and The Citadel are denying Faulkner

equal protection of the laws in this case, the district court applied our

holding in VMI I to conclude that the provision of single- gender edu-

cation is a legitimate and important state objective, but that the state

must "articulate an important policy" that justifies offering single-

gender education to men and not to women. 858 F. Supp. at 563.

Comparing the circumstances of this case with those in VMI I, the

court noted that the only difference is that in this case "we have a real,

live plaintiff who, but for her sex, would probably be a member of the

Corps of Cadets," whereas in VMI I, the United States government

was the only plaintiff. 858 F. Supp. at 554 n.2. Because the parties

agreed that the benefits of single- gender education need not be

retried, they only litigated the issue of whether South Carolina could

sufficiently justify offering single- gender education to males and not

to females.

On the issue of justification, the district court summarized South

Carolina's trial position as follows:

Simply put, the position of the defendants is that single- sex

educational opportunities are not available to women in

South Carolina's public system of higher education because

there is insufficient demand for them.

858 F. Supp. at 564. On the issue of demand, the court stated that

South Carolina failed to present evidence from which the court could

conclude that there was an absence of demand among women for

public single- gender education.2 Nevertheless, it concluded as a mat-

_________________________________________________________________

2 The court observed that "no survey has been conducted to determine

. . . how many women would be interested in pursuing a public single-

sex education" and that "[t]he interest of South Carolina women in

attending a Mary Baldwin- type program [see VMI II] is unknown." 858

F. Supp. at 560. The court also found with respect to demand among

women for coeducation at The Citadel:

The Citadel does not recruit women for the Corps of Cadets

and has not through the years kept records for how many women

have expressed an interest in attending the institution. In addi-

tion, no survey has been conducted to determine how many

women are interested in joining the Corps of Cadets . . . . In the

past year, however, forty- three women have inquired about The

Citadel's Corps of Cadets, but the seriousness of their interest

has not been determined.

Id. The court concluded, based on the experience at the U.S. military

academies, that if The Citadel were to become coeducational, between 20

and 50 women would be attracted to the school annually. Id.

ter of law that an absence of demand among women could not justify

the provision of public single- gender education to men and not to

women. The district court stated, "To suggest that a lack of demand

for a certain type of equal protection can somehow justify the denial

of another person's constitutional right thereto undermines the

express intent of the Fourteenth Amendment." 858 F. Supp. at 564.

The court accordingly concluded that South Carolina and The Citadel

are denying Faulkner her rights under the Equal Protection Clause.

Even though the district court found no evidence to support a find-

ing of inadequate demand, it relied for its ultimate finding of liability

on its conclusion of law that demand is not relevant to an equal pro-

tection analysis because a person's right not to be subject to discrimi-

nation is a personal, individual right. The court held that an absence

of demand among other members of plaintiff's gender cannot justify

a deprivation of that right with respect to an individual plaintiff.

While that principle may indeed hold true for civil rights guaranteed

by the Constitution, cf. J.E.B. v. Alabama ex rel. T.B., 114 S.Ct. 1419,

1433- 34 (1994) (Kennedy, J., concurring), the answer is not so clear

when we consider whether and to whom the state may confer an

economic benefit, at least in the context of single- gender education.

For example, if a state chooses to offer single- gender education to

each gender and if no person of one gender applies, is the state there-

fore precluded from offering single- gender education to the other gen-

der? The question becomes yet more complex when we consider a

single- gender educational program which requires a substantial outlay

of capital. May the state require as a condition of providing the pro-

gram that a minimum number of each gender, necessary to render the

program viable, apply? And what are the constitutional rights, if any,

of the few who do apply to such a program when their numbers are

insufficient to form a student base?

In this case, however, we need not resolve the difficult legal issue

of whether an absence of demand among members of one gender may

justify a state's failure to offer single- gender education to that gender,

because we concur in the district court's finding that the defendants

failed to present evidence supporting an absence of demand. While

South Carolina contends that the "current absence of a Citadel for

women results . . . from an absence of adequate demand by young

women to support such an institution or program" (emphasis added),

it has not offered evidence sufficient to establish that absence of

demand. It points to 20- year old evidence of declining student popula-

tion at the all- women's state- supported Winthrop College when that

school became coeducational. Yet the state also acknowledges that,

even at its lowest point, demand was substantial enough at Winthrop

to sustain a female student population of 2,500, a number that exceeds

the present male population in The Citadel's Corps of Cadets. More-

over, the state agrees that virtually no evidence was presented on the

issue of demand from the time Winthrop became coeducational to the

present date. South Carolina's evidence of current demand among

women for single- gender education consists solely of the testimony

of Robert C. Gallagher, Chairman of the South Carolina Commission

on Higher Education, which is the body charged with evaluating the

goals of state educational institutions and with approving new educa-

tional programs. South Carolina states that "[a]ccording to Mr. Gal-

lagher, in the 20 years since Winthrop became coeducational, not one

request for a single- gender program for women, military or otherwise,

has been submitted to the Commission." But the state fails to explain

how this evidence is probative of the current interest of South Caro-

lina women in pursuing single- gender education. As the attorney rep-

resenting South Carolina was required to concede at oral argument,

there really is no data before this court to support a finding of an

absence of demand among women at the present time for single-

gender education of any type.

Thus, even though it is South Carolina's currently announced pol-

icy to provide single- gender education to both men and women and

to allow gender- neutral factors, including demand and institutional

autonomy, to determine whether public single- gender education will

in fact be provided to each gender, this policy cannot justify the

state's failure to offer single- gender education to women when an

absence of demand among women for such education has not been

demonstrated. We agree with the district court that South Carolina has

not carried its burden of justifying its failure to afford women single-

gender education. The district court's ruling that South Carolina and

The Citadel are in violation of the Equal Protection Clause is there-

fore affirmed.

South Carolina also argues that the remedy selected by the district

court in this case is inappropriate. While South Carolina does not

challenge the portion of the district court's order that allows the state

to elect a course of action with respect to women other than Faulkner,

it does object to the portion that directs The Citadel to admit Faulkner

into the Corps of Cadets forthwith. Relying on general principles of

comity and federalism, South Carolina asserts that it should have been

given an opportunity to correct its constitutional violation before the

district court imposed a remedy, citing our decision in VMI I (remand-

ing case to permit Virginia to select a remedial course consistent with

the Fourteenth Amendment). Recognizing that a state's unreasonable

delay in complying with a longstanding remedial duty justifies the

court's selection and imposition of a remedy, see Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1 (1970), South Carolina seeks

to distinguish the facts in this case to argue that it has not defaulted

on its remedial obligation. It states that "far from seeking delay, South

Carolina sought to expedite resolution of both the liability and remedy

portions of this case."

The district court, however, found facts that contradict South Caro-

lina's self- assessment. It concluded:

At trial it became clear that nothing of substance had been

done by the defendants towards fashioning a remedy.

* * *

Not once has a defendant done anything to indicate that it

is sincerely concerned to any extent whatsoever about

Faulkner's constitutional rights.

* * *

Time is not on the side of Faulkner. She is now[in July

1994] a rising sophomore and cannot become a member of

the Corps of Cadets after the beginning of her junior year.

. . . Admittedly, The Citadel cannot go private, and that

leaves only two options remaining. One of those is a parallel

institution or program, and the other is admission to the

Corps of Cadets.

* * *

[I]t is clear that [defendants] can easily delay [the process

of developing and implementing a parallel institution or pro-

gram] beyond the point in time that Faulkner would ever

benefit from such a program. Throughout the pendency of

this action the defendants have done nothing to indicate that

they would be inclined to hasten that process. To the con-

trary, 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 insti-

tution or program.

858 F. Supp. at 567- 68. The court found accordingly that "the only

adequate remedy available . . . is [Faulkner's] immediate admission

to the Corps of Cadets at The Citadel." Id . at 568.

Although South Carolina does not challenge the court's factual

findings, some background is helpful in determining whether South

Carolina's inaction should be taken into account in fashioning an

appropriate remedy.

In VMI I, which was decided in October 1992, we concluded that

the state- supported all- male military program at VMI, similar to that

at The Citadel, violated the Equal Protection Clause and that Virginia

was required to select the means of remedying this violation on remand.3

We noted that Virginia could

properly decide to admit women to VMI and adjust the pro-

gram to implement that choice, or it might establish parallel

institutions or parallel programs, or it might abandon state

support of VMI, leaving VMI the option to pursue its own

policies as a private institution. While it is not ours to deter-

mine, there might be other more creative options or combi-

nations.

_________________________________________________________________

3 VMI I was commenced in March 1990, see 976 F.2d at 894, and the

district court rendered its initial opinion in June 1991, see United States

v. Commonwealth of Virginia, 766 F. Supp. 1407 (W.D.Va. 1991).

976 F.2d at 900. The VMI decision, which fairly must be construed

to apply also to The Citadel, placed South Carolina on notice that it

needed to pursue a remedy to address its similar situation. There can

be little question that South Carolina was fully aware of the implica-

tions of VMI I, since many of the same lawyers who represented VMI

also represent The Citadel in this case.

Several months later, in May 1993, the South Carolina General

Assembly responded directly to the VMI I decision (and to Faulkner's

March 1993 complaint), adopting Concurrent Resolution H.4170 in

which South Carolina affirmed a "policy of diversity" and a "policy

of choice," policies which included offering citizens of South Caro-

lina single- gender higher education. The legislature recognized the

state's responsibility for providing single- gender education for

women and acknowledged that the current array of state- supported

educational institutions did not include such an option. Because "the

members of the General Assembly . . . [believed] that it is appropriate

for this State to begin the process of providing single- gender educa-

tional opportunities for women," the legislature established a 10-

member committee "to assist the State of South Carolina in carrying

out its responsibilities." The committee was directed to "formulate

recommendations for the General Assembly to consider in exploring

alternatives for the provision of single- gender educational opportuni-

ties for women," and to submit a report to the General Assembly at

the beginning of its next legislative session in January 1994. The

committee met four times, prepared a report, and timely submitted it

to the legislature, outlining several alternatives for consideration. By

operation of the law, the committee was then dissolved. The legisla-

ture, however, gave no consideration to the matter during its 1994

session and took no action on the recommendations. In an affidavit

submitted later by the Speaker of the South Carolina House of Repre-

sentatives, the Speaker explained:

At this time we have little guidance as to what type of plan,

if any, may be constitutionally required or allowed. We are

anticipating a ruling soon from the district court in the VMI

litigation which may be instructive in this regard.

The Speaker thus apparently believed that it was necessary to know

whether Virginia's parallel program at Mary Baldwin College would

be court approved before South Carolina would decide whether and

how to fulfill its remedial obligation.

In the meantime, in November 1993, we handed down an interim

decision in this case in which we stated:

On the state of the record as it now exists, we can perceive

no reason why our holding in [VMI I] would not apply in

this case. The Citadel is a state- supported military college

not unlike the Virginia Military Institute, which was the sub-

ject of our holding in [VMI I].

Faulkner v. Jones, 10 F.3d at 232.

By the time of trial in May 1994, South Carolina still had made no

decision on the course it would pursue. In pretrial proceedings before

the district court, South Carolina filed a motion to bifurcate the trial

and have the court consider the issue of liability first, before trying

the issue of remedy. The court denied the motion and ordered defen-

dants to submit a remedial plan prior to trial. Despite the order, South

Carolina declined to indicate its choice of remedy either before or

during trial. Rather, it requested that it be given 60 days from any lia-

bility determination to designate a specific remedy for further devel-

opment.

Following trial the district court made a factual finding that South

Carolina had taken no steps to determine the feasibility of any spe-

cific remedy. 858 F. Supp. at 567. It found that the privatization of

The Citadel was unavailable as prohibitively expensive and that the

defendants had not given any consideration to coeducation at The Cit-

adel. Id. at 561. Accordingly, the court concluded that if the state still

wished to maintain The Citadel as an all- male institution, the only

available remedy was the establishment of a parallel institution for

women. Id. at 568. But the court also found that creating a new

women's institution in South Carolina could take up to ten years. Id.

at 561. It was thus that the court concluded,

[T]here is nothing before the court at this time that permits

it to determine what the defendants will do or can do to

guarantee to the plaintiff her constitutional rights under the

Equal Protection Clause.

Id. at 567. Because Faulkner could not become a member of the

Corps of Cadets after the beginning of her junior year (in August

1995), the district court ordered that she be admitted to the Corps of

Cadets forthwith as the only available remedy. Id. at 569.

It is difficult to understand why in 1992, or even in the year or two

that followed, South Carolina did not consider VMI I to apply to it

and, as Virginia did, begin the process of selecting a course to correct

the problem. Even though unwillingness to face a difficult decision

involving the continuation of a historically revered institution is not

an adequate justification for delay, we nevertheless believe that it

remains in the interest of comity that the state, and not a federal court,

select its future course for educating its citizens. As we noted in VMI

I, the state should have the opportunity to reassess its higher educa-

tion policies and determine the nature of the benefits that it wishes to

offer its citizens. If it elects to maintain single- gender education at

The Citadel, then it must provide parallel programs for men and

women that are substantively comparable. See VMI II. Alternatively,

the state may adopt a coeducational policy for The Citadel, or it may

withdraw state support from The Citadel and permit that institution to

continue as a private institution. In any event, for the purpose of

determining the course South Carolina will take hereafter, we remand

the case to the district court to establish a timely but practicable

schedule under which the state must formulate, adopt, and implement

a plan that conforms with the Equal Protection Clause of the Four-

teenth Amendment and to oversee implementation of the state's plan.

The district court included this course of action as part of its reme-

dial order, but it directed that the remedial plan be accomplished by

the beginning of the 1995- 96 academic year. In view of the lapse of

time caused by the prosecution of this appeal and the complexity of

the issues, we conclude that the time frame mandated by the district

court is now impracticable. Therefore on remand, the district court

should establish a new schedule, taking into account the steps reason-

ably necessary to formulate, adopt, and implement a remedial plan

and allowing reasonable, but not dilatory, amounts of time for each

step.

As the district court pointed out, however, the key aspect of this

case that differs from VMI I is the presence here of an individual

plaintiff whose equal protection rights have been violated. While

institutional changes potentially involving substantial outlays of capi-

tal can take time, Faulkner's rights are directly affected right now. If

she is not admitted to the Corps of Cadets by the beginning of her

junior year in August 1995, that option becomes foreclosed to her

because of The Citadel's graduation requirements. See 858 F. Supp.

at 557 & n.6. Foreclosure of that option in these circumstances might

therefore deny Faulkner any meaningful remedy, whether through

The Citadel or a parallel program for women. Moreover, the pressing

nature of the time constraints on Faulkner's personal educational cir-

cumstances has been exacerbated by the lack of any state decision, as

discussed above.

Analogous, but not totally similar, to Faulkner's circumstances

were the remedial issues presented to the Supreme Court in Sipuel v.

Board of Regents of the Univ. of Okla., 332 U.S. 631 (1948), and

Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). In those

cases, during the era prior to Brown v. Board of Education, 347 U.S.

483 (1954), when the Supreme Court constitutionally sanctioned sep-

arate educational institutions for whites and blacks, qualified black

students were denied admission to the state law schools of Oklahoma

and Missouri while those states failed to provide comparable law

schools for blacks. It was observed in those cases that Oklahoma and

Missouri could have preempted judicial findings of liability under the

Equal Protection Clause by pursuing one of at least three different

options: (1) admitting black students to the state law school; (2)

undertaking the creation of a separate law school for blacks; or (3)

forgoing state support for the state law school. See, e.g., Gaines, 305

U.S. at 343- 46. At the time those cases were tried, however, the

defendant states had made little or no progress toward establishing

separate law schools for blacks, and the existing public law schools

had not opted to forgo state funding.

Although neither Missouri nor Oklahoma had seriously pursued

any efforts to preempt a judicial finding of liability, those states

argued, as does South Carolina here, that it would be improper for the

court to order plaintiffs admitted to the state law schools. In Sipuel,

it was argued that the state 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 fore-

close the defendant's prerogative to choose which remedial option to

pursue, in violation of the principles of federalism and comity. See

Sipuel v. Board of Regents of Univ. of Okla., 180 P.2d 135, 142 (Okla.

1947), rev'd, 332 U.S. 361 (1948). The Supreme Court of Oklahoma

was persuaded by this argument and refused to order the plaintiff

admitted to the state law school, holding that to do so would wrong-

fully deny the defendant state "the right or option or opportunity to

provide separate education in law for [plaintiff]." Id.

In Gaines, it was argued that since the discrimination against the

plaintiff would be only temporary - - while a law school for blacks

was being developed - - the resultant temporary discrimination did

not rise to the level of an equal protection violation. See 305 U.S. at

351- 52.

The Supreme Court rejected the states' arguments in both cases,

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. See Gaines, 305 U.S. at 352; Sipuel, 332 U.S. at 633. Thus,

although the defendants in those cases may have initially had three

options to avoid liability under the Equal Protection Clause - - admit

plaintiff to the state law school for white students, create separate

schools for plaintiffs, or withdraw state funding from the law school

- - defendants were found effectively to have forfeited the prerogative

of selecting which option to pursue when, at the time of trial, they had

failed to proffer from among such options a constitutionally sufficient

remedy. Accordingly, the Court concluded that a judicially imposed

remedy was necessary.

While the context of the Sipuel and Gaines decisions is not com-

pletely analogous - - since the "separate but equal" standard is inap-

posite to the context of state- supported single- gender education, see

VMI II, 44 F.3d at 1237 n.* - - the basic remedial principle still

applies that a state may not continue to ignore a clear judicial mandate

finding a constitutional violation and still retain the opportunity to

select its course of remedy. This principle applies with even greater

force in a case such as this, which was filed over two years ago by

an individual plaintiff who is presently in the midst of her college

career and for whom time is of the essence. Thus, South Carolina may

have forfeited its right to include Faulkner in its general remedial

plans. We therefore provide special, conditional relief for Faulkner,

requiring that she be admitted to the Corps of Cadets unless, before

the beginning of Faulkner's junior year, the state provides a parallel

program that meets the criteria of VMI II and is approved by the court,

or unless the state selects some other acceptable option, as discussed

in VMI I, 976 F.2d at 900. This conditional, special relief follows

from Faulkner's circumstances and the defendants' response to them,

and it does not alter our determination that South Carolina may still

elect to offer single- gender education to men and women, as dis-

cussed above. Thus, we adopt a bifurcated remedy which (1) affords

the state an opportunity to select its course for providing higher edu-

cation to its citizens in general, but (2) requires The Citadel to admit

Faulkner to its Corps of Cadets if the state is unable to accomplish an

acceptable alternative plan by August 1995.

In sum, for the reasons given, we affirm the district court's conclu-

sion that South Carolina and The Citadel are in violation of the Equal

Protection Clause in offering, without sufficient justification, single-

gender education only to males. We also affirm the substance of the

district court's remedial order, but with the modification that it estab-

lish a timely but practicable schedule for South Carolina to formulate,

adopt, and implement a plan that conforms with the Equal Protection

Clause, and if the plan is not court approved and implemented by the

date in August 1995 when the Cadets are required to report, The Cita-

del must admit Shannon Faulkner to the Corps of Cadets as ordered

by the district court.

AFFIRMED AS MODIFIED AND REMANDED

HALL, Circuit Judge, concurring:

This court's VMI precedents* bear heavily upon both the result and

the remedy in this case. Judge Niemeyer quite correctly concludes,

ante at 12, that South Carolina's proffered justification for denying its

daughters an educational opportunity that it provides for its sons is of

no more substance than Virginia's policy of exclusion under the per-

verse guise of "diversity." VMI I at 898- 99.

Although South Carolina has put off for almost three years

squarely addressing the constitutional deficiency that has been obvi-

ous to all who would see, ante at 17, allowing the state a reasonable

time to correct the deficiency is consistent with our approach in VMI

I. However, as Judge Niemeyer recognizes, time is Shannon Faulk-

ner's most precious possession, and it is running out. Because Judge

Niemeyer's disposition of this case provides - - in the absence of

South Carolina's timely implementation of a remedy that comports

with VMI II - - for the soonest practicable admission of Ms. Faulkner

into The Citadel's Corps of Cadets, and because I am bound to

respect the precedents of this circuit, I join fully in his opinion.

I choose to write separately because 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. We began this unfortunate journey in VMI I, when we

promoted a means to an end - - single gender education - - to the sta-

tus of an end in itself and avoided ascertaining, let alone analyzing,

the true purpose behind the state's decision to keep women out of

VMI. Though we correctly concluded that maintaining the status quo

offended the Constitution, we failed to mandate VMI's integration - -

and thus we failed.

Our failure became apparent in VMI II, long after the time had

passed 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?" Instead, we were constrained to ask a wholly irrelevant

_________________________________________________________________

*United States v. Commonwealth of Virginia, 976 F.2d 890 (4th Cir.

1992), cert. denied, 113 S. Ct. 2431 (1993) (VMI I); United States v.

Commonwealth of Virginia, 44 F.3d 1229 (4th Cir. 1995) (VMI II).

one: "Does the state offer a `substantively comparable' educational

option to the other gender?" As Chief Justice Warren once observed,

separate educational facilities are inherently incomparable, substan-

tively or otherwise. "[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." Brown v. Board of Education of Topeka, 347

U.S. 483, 493- 95 (1954) (Brown I).

In fact, though VMI, The Citadel, and their advocates have cease-

lessly insisted that education is at the heart of this debate, I suspect

that these cases have very little to do with education. They instead

have very much to do with wealth, power, and the ability of those

who have it now to determine who will have it later. The daughters

of Virginia and South Carolina have every right to insist that their tax

dollars no longer be spent to support what amount to fraternal organi-

zations 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.

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.

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 sup-

ported 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 car-

rying 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 Com-

mittee 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

interest 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 possi-

bilities 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.

After this court issued United States v. Virginia, 976 F.2d 890 (4th

Cir. 1992) (VMI I), cert. denied, 113 S. Ct. 2431 (1993), Faulkner

sought admission into the Corps of Cadets, contending that even if

single- gender education was pedagogically 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, Faulk-

ner 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. On appeal, this

court sustained the preliminary injunction, but eschewed the conten-

tion 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 I). 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 sep-

aration is based, the relevant benefits to and the needs of each gender,

the demand (both in terms of quality and quantity), and any other rel-

evant 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 liabil-

ity. With respect to remedy, she asserted that coeducation of The Cit-

adel was the only remedy; furthermore, she contested the value of

single- gender education at The Citadel. The Citadel opposed Faulk-

ner'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 con-

tended differentiated this suit from VMI I 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 keep-

ing with state policy, the plan did not propose coeducation of The Cit-

adel as a remedy. Because there was no ruling on liability, the

remedial plan provided both single- gender and coeducational reme-

dial options and requested sixty days from any determination of liabil-

ity 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 consti-

tutionally impermissible. The Citadel, therefore, had to devise a rem-

edy, 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 the

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 distin-

guish its case from VMI I by "justifying" the males- only policy at The

Citadel. Recognizing that VMI I did not hold that single- gender edu-

cation amounted to a per se constitutional violation, The Citadel

essentially offered three reasons for maintaining the males- only pol-

icy. 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. Sec-

ond, 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 demon-

strated that it has finite resources with respect to providing funds for

college programs. In a nutshell, South Carolina showed that it sup-

ported single- gender education, that it provided aid to women at insti-

tutions of higher learning, but that it could accomplish these

objectives only if based on demand and consistent with the educa-

tional 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, "[t]here 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

demand . . . ." 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 sur-

vive 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 coedu-

cation.

II.

The district court concluded that it was bound by VMI I, and thus

it realized that single- gender education is valuable and eminently jus-

tified. 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.

VMI I recognizes that, absent a substantial justification, a state vio-

lates 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 classifi-

cations 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.* Moreover, recog-

nizing the unique, rich, and venerable history and educational philos-

ophy 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 justifica-

tion, 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

_________________________________________________________________

*This conclusion comports with current thought among many educated

women. For instance, at Columbia College, a women's school in Colum-

bia, South Carolina, students state that a single- gender education pro-

vides 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 gradu-

ates 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 coeduca-

tion of their college. Carrying placards that read"Better Dead Than

Coed," students explained the unique benefits of their single- gender edu-

cation:

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.

muster. Id. Satisfaction of constitutional concerns, we explained, did

not mandate automatically the admission of women to VMI. The prin-

ciple to be garnered from VMI I, therefore, is that while state-

supported, single- gender educational institutions serve valuable pur-

poses and provide unique educational benefits, a state cannot provide

such a benefit to one sex and not the other, absent substantial justifi-

cation, without violating the Equal Protection Clause, and upon the

determination of such a violation, the state is afforded the first oppor-

tunity 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.

On remand in VMI I, Virginia remedied the constitutional defi-

ciency by creating a parallel educational program substantially analo-

gous to that of VMI at Mary Baldwin College. Thus was born 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 educa-

tion, id. at 475- 76, the duty of Virginia to provide a VMI- style educa-

tion 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 pro-

gram 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 deter-

mine specifically whether the VWIL program was substantively com-

parable to VMI. Applying the intermediate level of scrutiny

announced in Mississippi University for Women v. Hogan, 458 U.S.

718 (1982), we concluded that VWIL satisfied the Equal 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 pro-

grams at different schools. Id. at 1239- 41.

In concluding that the VWIL program was substantively compara-

ble, we stated that the Equal Protection Clause did not demand identi-

cal 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 inter-

ested 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 expendi-

ture of state resources.

III.

Applying our precedents, the Citadel's male- only policy does not

fail to pass constitutional muster. The Citadel has maintained stead-

fastly, consistently, and correctly so, that there is no demand for a

Citadel- 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 Gallager, 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 pro-

gram or institution for women similar to that of The Citadel. Buttress-

ing 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 sub-

stantial justification for its classification; and in VMI II, we observed

that the Equal Protection Clause was not violated if there was "signifi-

cant" interest in VWIL and there was no interest in a women's pro-

gram 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 supe-

rior 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 infa-

mous ghoul of Lochner v. New York, 198 U.S. 45 (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 (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, and Adkins

cases." Day- Brite Lighting, Inc. v. Missouri , 342 U.S. 421, 425

(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 (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. Gallager 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 pre-

serve 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 abso-

lutely 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 Protec-

tion Clause is not offended.

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 dif-

ferent 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 experi-

ence, 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. For 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. Public-

ity, 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.

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