MISS. UNIV. FOR WOMEN v. HOGAN
Joe Hogan, a registered nurse and qualified applicant, was denied admission to the Mississippi University for Women School of Nursing's baccalaureate program on the basis of sex. Created by a state statute in 1884, MUW was the oldest state-supported all-female college in the United States.
Did the state statute which prevented men from enrolling in MUW violate the Equal Protection Clause of the Fourteenth Amendment?
Legal provision: Equal Protection
Yes. The Court held that the state did not provide an "exceedingly persuasive justification" for the gender-based distinction. The state's primary argument, that the policy constituted educational affirmative action for women, was "unpersuasive" to the Court since women traditionally have not lacked opportunities to enter nursing. If anything, argued Justice O'Connor, the statute "tends to perpetuate the stereotyped view of nursing as an exclusively women's job."
ORAL ARGUMENT OF HUNTER M. GHOLSON, ESQ., ON BEHALF OF THE PETITIONERS
Chief Justice Burger: We will hear arguments next in Mississippi University for Women against Hogan.
Mr. Gholson, I think you may proceed whenever you are ready.
Mr. Gholson: Mr. Chief Justice, and may it please the Court, this argument is presented on behalf of the Constitutional Board of Trustees which administers and sets policy for all higher learning in the state of Mississippi.
The case reviews a holding that any single-sex campus for females is unconstitutional, absent the maintenance of a single-sex campus for males.
It is not limited to any narrow holding with respect to nursing programs, but it applies campus-wide.
The defendant Board of Trustees operates eight university campuses in Mississippi in different locations.
Seven of them are co-educational, and one is female.
The Board of Trustees sets the policies and decides which universities may award which degrees.
I would like to say at the outset that we are not here to perpetuate a nineteenth century finishing school to teach young women needlecraft and kindergarten keeping.
Mississippi University for Women is a contemporary university which tries to prepare women to meet the challenges of today.
Our opponents have said that MUW offers such programs as fashion modeling and that sort of thing.
It also offers, in accordance with the bulletin which has been introduced, Air Force ROTC, computer sciences, accounting, pre-dentistry, pre-medical education, pre-law, and other such courses.
I think it is interesting to look for a moment at the history of this institution.
It was the first state-supported institution for the higher education of women in the country.
It was founded in 1884 after the University of Mississippi had become co-educational, so it cannot be said that it was founded for the purpose of relegating women to some inferior school.
On the contrary, as the bulletin indicates, it was the result of the efforts of a woman named Salley Renault and a number of other very progressive women of that era seeking higher education for women.
The holding of the--
Unidentified Justice: Do we know what their reason was, if the University of Mississippi was then co-educational?
Mr. Gholson: --I think, Mr. Justice Rehnquist, that the reason was that women perceived a special need for some of them for education especially tailored to the needs of women, and I would certainly say that not all women perceived this need.
Neither did they then, nor do they today, but our argument is that under the theory of federalism, if it is not in violation of the Fourteenth Amendment, that Mississippi should be permitted to allow women who want single-sex education to get it.
Now, Mississippi used to have a single-sex higher educational institution for men, but that no longer exists, and I think the answer is, it no longer exists because the demand no longer exists, but the demand continues for single-sex education for women, and we believe that this option is Constitutionally permissible.
Unidentified Justice: Mr. Gholson, do you know whether there are many single-sex tax-supported institutions in the country other than this one?
Mr. Gholson: Yes, Mr. Justice Blackmun, to the extent that federal funds are granted under Title IX to all single-sex institutions who fit within the exception of Title IX, there are approximately 180 such institutions in the country, and one of our concerns in this case is, what will the fallout be should this Court adjudicate that no single-sex institution that receives state or federal funds passes Constitutional muster.
Where will the Department of Education be left in the administration of funds under Title IX as to which Congress has made a specific single-sex undergraduate exception?
Unidentified Justice: Mr. Gholson, is it true that men are allowed to audit classes?
Mr. Gholson: Yes, Mr. Justice Marshal--
Unidentified Justice: And it is done, considerably?
Mr. Gholson: --Not considerably, Your Honor.
It is done--
Unidentified Justice: But it is done.
Well, why can't they get a degree?
Mr. Gholson: --Because, Your Honor--
Unidentified Justice: Is that the only difference?
Mr. Gholson: --No, sir.
The testimony which was presented by President Strobel and by Vice President Kraft clearly indicates that auditing courses takes place largely, almost exclusively, at night, and that they relate to items of community service rather than the true academic field.
Unidentified Justice: Well, I mean, how can you have an all-female school with male students?
Mr. Gholson: Well, the--
Unidentified Justice: That is the problem I have.
Mr. Gholson: --I understand, sir.
I understand, Your Honor.
Unidentified Justice: It must be horrible to have men there, but they are there.
Mr. Gholson: But they are not there--
Unidentified Justice: But they are there.
Mr. Gholson: --They are not there during the regular day.
Unidentified Justice: Well, they are sort of second-class citizens.
Mr. Gholson: They are there for special courses such as real estate, salesmanship, and other things that the university perceives to be of community interest, and the very fact that they don't receive credit, according to Dr. Kraft, is self-limiting, and there will be very few of them, but when you give credit to men, then that makes it in all respects a co-educational institution.
Unidentified Justice: Mr. Gholson, is a finding that the Board of Regents had a belief that single-sex education benefits women sufficient in and of itself for us to uphold the provisions for that institution?
And what level of scrutiny do we have to apply?
Mr. Gholson: I think, Your Honor, that Craig versus Boren certainly sets out that there must be a necessary state purpose, and this must serve as an essential element of fulfilling that purpose.
Unidentified Justice: Something more then than a mere rational basis test?
Mr. Gholson: I think that's correct, but I think that Rostka versus Goldberg indicates that the majority of the Court certainly stopped short of saying that all gender classifications are suspect in the highest sense of the word, and I would submit--
Unidentified Justice: Some mid-level scrutiny you would believe is in place and in order for the review?
Mr. Gholson: --Yes, Your Honor.
I think that's correct, and--
Unidentified Justice: Mr. Gholson, am I correct as to my factual assumption that Mr. Hogan could have entered a state-supported school of nursing at Pascagoula or at Jackson?
Mr. Gholson: --At Hattiesburg or Jackson or now at Tupelo.
Unidentified Justice: But there were other university--
Mr. Gholson: Yes.
Unidentified Justice: --schools of nursing open to him.
He just wanted to go to one in Columbus, in his back yard.
Mr. Gholson: Because it was convenient in the same way that it would have been convenient for the plaintiffs in Williams versus McNair to have gone to Winthrop College.
His complaint is not that Mississippi and the defendant Board of Trustees will not give him a nursing education, and it is not that he can't get the best nursing education that is offered by the state.
As Your Honor points out, his complaint is that it is not as convenient for him as he would like it to be to receive such an education.
Unidentified Justice: Mr. Gholson, does the record below indicate whether Mississippi University for Women ever obtained funds under the Nurse Training Act of 1971?
Mr. Gholson: It has not, and did not apply for such funds.
That is in the testimony of Dr. Strobel, Your Honor.
We would certainly submit with respect to the burden of proof, which is an issue which has been brought up in the briefs, that Mr. Hogan filed his suit and he proved that he was denied admission because he didn't meet the qualification of being a woman, but he did no more than that.
He took discovery, his counsel did, and in this discovery, both the depositions of Dr. Strobel, the president, Dr. Harvey Kraft, the vice president for academic affairs, and other representatives of the university were taken, and live testimony was taken at the preliminary injunction hearing.
The district judge decided in his discretion that he was not entitled to a preliminary injunction, and then he specifically... the district judge specifically invited the plaintiff to offer any evidence of any disputed fact, saying that absent any evidence of a disputed fact, that summary judgment would be entered.
Mr. Hogan did not see fit to put on any testimony to contradict the educational theories that were advanced in the testimony of Dr. Strobel and Dr. Kraft.
Now, I don't think it's necessary for this Court to adopt those educational theories or to decide that the Mississippi legislature is correct in affording credence to the theories that women in the 1980's can benefit from single-sex education.
I think that under Parrum versus Hughes, it is only necessary that this Court find that such theories are not totally without reason, and therefore the legislature is within its reasonable prerogative in accepting those theories of education along with the co-educational theories which, of course, are afforded full play.
I think that it is very interesting in these depositions to see some of the things that Dr. Kraft and Dr. Strobel said about the role and the mission of MUW.
Dr. Kraft said,
"In the absence of males, women are assured leadership roles in all regards."
"The entire society is led by women officers."
"The faculty is predominantly female, showing women leadership roles."
"We know that in our society at this time there are several groups that are not readily admitted to the mainstream of life in business and the professions and government, and that certain measures have to be taken to assure these people proper access to roles in government, business, and the professions."
"At this time, we still need some stepping stones for women into the larger world, and I think this institution can provide that stepping stone."
Unidentified Justice: Mr. Gholson, the Respondents claim that the senior faculty at the school is primarily male.
Is that true or untrue?
Mr. Gholson: Our response to that, Your Honor, is that the bulletin shows that of the four vice presidents, two are female and two are male.
A majority of the deans are female.
And according to Dr. Kraft's unrebutted testimony, a majority of the faculty is female.
Unidentified Justice: What is the situation as to the nursing school itself?
Mr. Gholson: The nursing school, Your Honor, which did not--
Unidentified Justice: Your other answer had to do with the entire university.
Mr. Gholson: --Yes, sir.
The nursing school was not founded until 1971.
The nursing school, to my knowledge, is entirely female.
Unidentified Justice: Is there anything in the record to that effect?
Mr. Gholson: Well, the testimony of the director or dean of the nursing school is in the record, as well as her deposition.
Unidentified Justice: We are talking about the nursing school, are we not?
Mr. Gholson: No, I don't think we are, Your Honor.
I think we are talking about the entire university, because the Fifth Circuit's opinion strikes down the right of Mississippi to operate MUW per se, and not the nursing school.
I think that is one of the inaccuracies of some of the briefs that have been filed.
I would like also to allude to Dr. Strobel's testimony, when he said that in his experience, both as an administrator and a faculty member, he had never encountered a positive reinforcement system which seems as prevalent as that on the campus of MUW, that he firmly believes that the special needs of women are uniquely served by this institution.
Unidentified Justice: Did you have any women that testified to that?
Mr. Gholson: Your Honor, the dean of the--
Unidentified Justice: It is a very simple question.
Yes or no?
Mr. Gholson: --Yes.
Unidentified Justice: You did?
And what did they testify, that this was--
Mr. Gholson: The dean of the nursing school testified that she felt that the maintenance of the all-female atmosphere was important to fulfill the mission of MUW.
Unidentified Justice: --And what other women said that?
Mr. Gholson: That's the only woman who testified.
Unidentified Justice: That's the only woman, but all the men said the--
Mr. Gholson: Well, there were only two men, Your Honor.
Unidentified Justice: --But they were the top men.
Mr. Gholson: One was the top--
Unidentified Justice: You say they are trained in leadership, and a man is the leader.
Mr. Gholson: --Your Honor, the president and two of the four vice presidents are men.
Two of the four vice presidents are women.
Unidentified Justice: Mr. Gholson, are there any findings that graduates of MUW are better able to compete than graduates of co-educational schools?
Mr. Gholson: May I respond to that by saying that Dr. Strobel testified that the results were extremely good with respect to the admission of MUW graduates to law schools, medical schools, and dental schools, as compared to women applicants from co-educational institutions in the area.
He also cited the work of Dr. Tidbull and Alexander Astin, which we have mentioned in our brief, and those educators have advanced those theories, that women graduates of women's colleges have unusual records of achievement.
Unidentified Justice: That is undisputed in this record, isn't it?
Mr. Gholson: Yes, sir.
It certainly is.
There was no evidence put on at all to contradict the educational theories that the MUW people advanced.
I think that the Title IX argument that this Court need consider is an interesting one, and I don't want to overstate it.
I clearly am not going to argue that the Congress can abridge Fourteenth Amendment rights and narrow anybody's Constitutional rights.
Unidentified Justice: Before you get into Title IX, may I ask you another... following up on Justice O'Connor's question, I understand you agree the standard of review must be higher than merely rational.
That is what I understood you to say.
Mr. Gholson: I believe that the majority of this Court, as I read the cases, would come out on a sort of mid-level--
Unidentified Justice: And as I read the district court, he found specifically that it was rational, but it was only rational.
Therefore, under the district court's findings, don't you necessarily lose if your legal position is the one you have just described?
Mr. Gholson: --I don't think so, Mr. Justice Stevens.
I think he found that the state had proved that it was a rational way to exercise an important state function, and I don't read his--
Unidentified Justice: Well, at Page A-3 of the cert petition,
"The court finds that the maintenance of MUW as an institution of higher learning for females only bears a rational relationship."
and so forth.
Mr. Gholson: --Well--
Unidentified Justice: And then he goes on and says that is enough.
Mr. Gholson: --I think he clearly finds that it bears a rational relationship.
I think if you will read into it--
Unidentified Justice: But you think we should--
Mr. Gholson: --that it doesn't bear any more, an iota more than a rational relationship, it is certainly dicta at the very best, because he did find it rational.
I think at that time he was dealing and the arguments were dealing with standards of review, and he certainly came out on the side that rational is enough, but my argument today is that we have met Craig versus Boren every way I believe you can look at it with the testimony that has been presented and that is uncontradicted.
Unidentified Justice: --And it is your view, I take it, that the advantages of single-sex education that justify this... the refusal to allow males into this school would not apply... would not justify a male-only school.
Mr. Gholson: I don't think that's before the Court.
I think the reason that Mississippi doesn't have a male-only school is that the legislature came to the conclusion that there was no longer a demand for it.
Unidentified Justice: Well, it is before the Court in the sense that it was the theory of the court of appeals.
They said that if you justify single-sex education, you must provide single-sex education to the members of both sexes.
That was the rationale of the court of appeals.
Mr. Gholson: And our argument with respect to that, Your Honor, is that Mississippi affords both sexes access to all educational programs, and--
Unidentified Justice: Yes, but they don't afford males access to the advantages of having a single-sex educational institution they can attend.
Mr. Gholson: --Well, the reason we think that there are not enough males who believe that they need single-sex education to justify it within the prerogative of the legislature.
One might, of course, analogize to Mr. Justice Marshal's opinion in Fullilove, in which, if you change the words MUW, because the disadvantaged male here is a member of a class which this Court has never traditionally found to be in need of some special help.
Unidentified Justice: Well, they did in Craig against Boren.
They found the males needed some help.
Mr. Gholson: Yes, sir, but I again think we can meet the Craig versus Boren test.
Mr. Hogan's disadvantage is the same as the disadvantage of a resident, say, of Hattiesburg who wants to be a veterinarian.
Mississippi doesn't offer him veterinary schooling in Hattiesburg, where they have a university.
They offer it only in Starkville.
Unidentified Justice: But, Mr. Gholson, you keep forgetting your original point, which is that the respondent here is not asking for a separate school for men.
Mr. Gholson: I agree with that, Your Honor.
Unidentified Justice: He is asking to go to this school.
Mr. Gholson: I agree with that, Your Honor.
Unidentified Justice: And that is all that is before us.
Mr. Gholson: But I think the conclusion is that going to this school is only a disadvantage to him, I mean, not being able to go this school is just a disadvantage, as if he were someone seeking a curriculum that was only taught at another institution.
Unidentified Justice: Mr. Gholson, you have referred to the demand for a single-sex institution as being its justification.
Would you make the same argument if there were a demand for an all-white publicly funded education?
Mr. Gholson: No, I would not, because that case has been clearly decided, that people who go to school with only members of their own race are denied the educational opportunities, Brown versus Board of Education.
Clearly, that could not be done.
The Title IX argument which I mentioned a moment ago is not that Congress can change the Constitution, but that in a number of cases, most recently, I think, Rostka versus Goldberg, this Court has indicated an interest in deferring in certain areas to the expressed and rationed conclusions of Congress.
In making the Title IX exception, it is very clear that Congress intended to continue to appropriate money for state supported and other single-sex institutions that traditionally were so.
Congress certainly couldn't intend to appropriate money for an unconstitutional purpose.
So, the view of Congress at least has been clearly expressed in this regard, and I wonder what the Title IX fallout could be if the Fifth Circuit's opinion is permitted to stand.
Will we next be facing challenges of whether we have co-educational versus single-sex dormitories, or where those dormitories may be located with respect to convenience to the students, whether or not we could have co-educational versus single-sex athletic programs, and if a student has a right to participate in such a program that is only available to one of another sex?
So, I think that this case bears considerable interest and effect Constitutionally, not just for this single institution but in the administration of the Title IX program at large, and if I may, I will reserve the remainder of my time.
Chief Justice Burger: Very well.
ORAL ARGUMENT OF WILBUR O. COLOM, ESQ., ON BEHALF OF THE RESPONDENT
Mr. Colom: Mr. Chief Justice, and may it please the Court, the question presented for resolution to this Court today is whether one nurse, Joe Hogan, will be barred from receiving academic credit toward a BS degree in nursing simply because he is a male.
The question is not whether Joe Hogan may attend nursing classes at the university.
Indeed, he can attend and participate fully in classes, and theoretically he could audit a complete course load.
Indeed, the president of the university said at Page 62 of this transcript that he could theoretically audit a complete course load.
Joe Hogan testified on Page 26 of the transcript that he was told that he could audit as many classes as he wanted.
The question is not whether single-sex schools are per se violative of the equal protection clause of the Fourteenth Amendment.
The court of appeals did not make such a holding, and Mr. Hogan has never requested such a ruling from any court.
The question that the defendants have recently presented is whether this is affirmative action for women, and in their brief they use specifically affirmative action for women, and I would point out to this Court that throughout this litigation, and at the district court level, the defendants invited the district court to use the low scrutiny, the low scrutiny of Williams versus McNair.
They invited the court of appeals to use that same level of scrutiny.
It is only when they get to the Supreme Court that they now admit that Craig v. Boren gives the proper standard.
We never heard anything regarding affirmative action for women as a purpose for the W, as they call it, at the trial level.
We never heard it at the Fifth Circuit.
It wasn't even brought up on the petition for rehearing before the Fifth Circuit, and it didn't even appear on the petition for certiorari submitted to this Court.
Unidentified Justice: Nevertheless, it is a response to your claim of a denial of equal protection.
Mr. Colom: Yes, Mr. Justice--
Unidentified Justice: And it is not a new Constitutional theory being injected, is it?
Mr. Colom: --To extent that waiver means anything in the law, I think they have waived that, and what this is is an after the fact justification.
They didn't... that was not the purpose for the W.
It has never been the purpose.
They stated in Interrogatory 3... I go back to the very beginning of this case, when we first filed it.
We submitted the interrogatories saying, tell us all the reasons you want the W, and they put it... gave us a sheet of paper that said that we have always had the W, we like the W, we want to keep it like it is.
Never said anything else throughout this litigation.
Unidentified Justice: Then aren't all the reasons why underlay that called to your notice?
I don't quite understand your surprise or waiver suggestion.
Mr. Colom: Well, it was never suggested that affirmative action or correcting past discrimination against women was a purpose for the university throughout the litigation.
Indeed, when we presented our case at preliminary hearing, they called no witnesses.
Not a single witness.
They invited the district judge to use this low level scrutiny, and now they complain about it.
Unidentified Justice: I understand his position is that you were offered proof and you did not accept it.
Mr. Colom: Well, Your Honor--
Unidentified Justice: Is that right?
Mr. Colom: --Yes, sir.
Your Honor, when we presented our case--
Unidentified Justice: Well, don't you think that should be explained?
Mr. Colom: --Your Honor, we presented our case.
We felt that we met our burden.
The district judge gave us an opinion using what we considered to be an improper standard.
We had submitted our briefs stating what we felt was the proper standard.
He apparently accepted the argument of the state that this low level scrutiny was appropriate.
At that point, we felt that there was no further need for us to prove, for Craig v. Boren tells us clearly that the burden is on the state to justify the gender classification.
Unidentified Justice: And if you were wrong, you lose.
Mr. Colom: If the burden is upon us to prove that the gender classification--
Unidentified Justice: All I am saying is, as a matter of fact, you could have put in evidence and it wouldn't have hurt you.
But if we find that you should have put it in and you didn't put it in, you are really hurt.
Mr. Colom: --Yes, sir, but we are convinced that there was no necessity for us to go forward at that time, because the burden was on them, was upon the state.
Unidentified Justice: Under your own theory, though, didn't you support the Craig against Boren reasoning in the district court?
Mr. Colom: Yes, sir, we argued the Craig v. Boren standard in the district court, but the district court did not accept that standard.
It adopted a low level scrutiny, the rational relation standard.
Unidentified Justice: But that is a conclusion of law, really, which you are free to appeal.
Mr. Colom: Yes, sir, and we did appeal that, based upon... the record in the Fifth Circuit specifically held that the district court applied the incorrect standard, and then they proceeded to apply the correct standard.
Unidentified Justice: Well, isn't that just what we should do now?
Regardless of what standard the district court applied, we should simply apply the correct standard.
Mr. Colom: Yes, sir, and I believe that is the standard applied by the Fifth Circuit, which would require, we believe, an affirmance.
Unidentified Justice: Does the Fifth Circuit opinion in your view go beyond the relief which you are claiming?
Mr. Colom: We did not file this as a class action, so we have not sought relief for males as a group, and that was an intentional decision by counsel.
We have not sought... We have not sought to have all single-sex schools declared unconstitutional.
We seek to get our client in the School of Nursing.
Unidentified Justice: Well, do you think the court of appeals decision and opinion goes beyond that which you are seeking?
Mr. Colom: I do not believe it goes beyond the law, but I believe it goes beyond the specific relief my client seeks.
Your Honor, another important--
Unidentified Justice: Did you suggest to the court of appeals, or was it part of your theory from the outset that the result might be different if Mississippi had all-male schools as well as all-female schools?
Or was that the product of the Fifth Circuit?
Mr. Colom: --We did point out, Mr. Justice, that in Vorsheimer and in Williams versus McNair, and the whole line of cases where single-sex schools were upheld, that they were considered essentially equal.
Now, I read the oral argument in Vorsheimer, and that was a major point of discussion before this Court, were the two schools in Philadelphia essentially equal.
We did make that argument before the court of appeals.
Unidentified Justice: So the decision below wouldn't necessarily apply if Mississippi did have schools for men as well as for women.
Mr. Colom: The court used both standards in the Fifth Circuit.
Unidentified Justice: Well, I know, but it wouldn't control that case, would it, the decision below?
If Mississippi now started an all-male school, and had a female school too, the decision below wouldn't necessarily outlaw that system.
Mr. Colom: It possibly could, Your Honor, because you would still have to have the Craig v. Boren standard applied, because you would still have a gender classification.
Unidentified Justice: But you could say that there was no discrimination.
And you don't have to have a justification until you've got a discrimination, do you?
Mr. Colom: I understand you have to have a justification when you have a gender classification, and that would have to be justified.
Unidentified Justice: Well, you have to have an unequal gender classification.
Mr. Colom: There are some suggestions of that in the lower court decisions.
Unidentified Justice: Well, you must have thought so or you wouldn't have made the argument based on Vorsheimer.
Mr. Colom: Yes, sir.
We made several arguments in the alternative.
The other argument that the defendants now present, and it suffers from the same ailment as the affirmative action argument, is that somehow Title IX provides some exemption for Mississippi University for Women.
Again, that was not presented to the court until the petition for rehearing.
The purposes were stated from the beginning of this case.
We asked the president, we asked the university at the very beginning of the case in Interrogatory Number 3 that appears in the file, give us all your reasons.
They gave them to us, and they were essentially, we like it this way.
I wanted to correct one thing that was mentioned by Mr. Gholson.
The two women who did testify with the nursing school, both deans of the school of nursing, the graduate school and the undergraduate school, stated that the presence of men would not affect their students or their teaching techniques.
We questioned them at length about what they would change in their teaching programs.
They could identify nothing.
Unidentified Justice: Well, I am a little puzzled why that bears on it, on the issue here.
Mr. Colom: Because our client seeks to get in the nursing program.
He is a nursing... he is a nurse already who is employed as a nurse, and he seeks admission to a nursing program which is predominantly women, exclusively women, a profession that is predominantly women.
There is no need for affirmative action for women in the area of nursing.
If there is any need, it is for affirmative action for men.
Another point, Your Honor, I think is important here is that the state of Mississippi has decided to set aside over 3,000 seats in its school system, its collegiate school system just for women, that men cannot compete for.
Yet these same women can compete for every other seat in the system.
Unidentified Justice: Well, supposing a statement of your opposing counsel is correct that Mississippi at one time had an all-male university, and there is simply... the demand for it so slackened that it was no longer economically feasible to keep the place open.
Now, would you say that was a discrimination if it happened under those circumstances?
Mr. Colom: There is no support for that in the record.
Unidentified Justice: Well, assume that that was the case.
Treat it as a hypothetical question.
Mr. Colom: Still, this universe would be subject to the same standard of scrutiny, because the enrollment at the W has gone down from 3,000 to about 1,800 now, and they are suffering a dramatic reduction in enrollment.
So the state has chose to maintain the single-sex school but not maintain the male school because of enrollment.
Unidentified Justice: Well, is there anything in the record to indicate that they have applied different criteria to the women's school as opposed to the men's school in determining whether to keep it on when enrollment is declining?
Mr. Colom: Your Honor, there is nothing in the record regarding the all-male school, and if it did exist, it existed many, many decades ago, in an entirely different context of education, and I am really unable to answer that.
We have highlighted in our brief the absence of any evidence to support the W's affirmative action argument, but I think we have clearly shown that the experts that they cite would be shocked that the W uses them.
They point out the leadership roles as one of the most important characteristics in a single-sex school for women.
Yet of the ten presidents of this college, this university, all have been male.
The vice president for academic affairs, the dean of many schools, the director of admissions personnel, extended services, the library, the great, great weight of leadership has been by men, and indeed, how can they provide the role models that Mrs. Tidbolt points out?
The studies that they have referred to have no relationship to this particular school.
They are general studies about other schools, primarily schools in the northeast, who had entirely different purposes in their creation.
And I am very uncomfortable, to be frank with you, to have Constitutional rights depend upon what some sociologist or psychologist says, and I feel uncomfortable even citing them in behalf of my client, Mr. Hogan, but it has become a central issue here.
Mrs. Tidbolt did not testify, and we value cross examination, because we would question her analysis substantially.
Looking at the problem from another vantage point, the inquiry as to a compensatory purpose is not even appropriate until there is a showing of past discrimination and continuing effects of that discrimination as to women.
We have... There has been no showing by the state of Mississippi, and the burden is upon them to make the showing, that their system has discriminated against females, and that they must take this extraordinary step in order to correct that discrimination.
Further, they would have to show that in the area of nursing, there had been discrimination against women, and that the W exists to correct that past discrimination, and that it is necessary to bar men from that program to further that purpose.
Again, I must constantly return to the record, for it was our conclusion from the beginning of this litigation that the burden was upon the state to support their gender classification, and every holding by this Court since 1973 has said that, and clearly the state has not met their burden.
If there are unique opportunities to be offered to women in an educational atmosphere, there was no showing by the state that it could not be done in a co-educational environment.
All we have in the record are declarations by administrators that single-sex education has some important educational value.
I would point out to the Court that the president of the university, prior to coming to the W, had never taught females in a single-sex atmosphere before.
And I would not consider his statements to be authoritative in that area.
He was not in administration, but a scientist.
Unidentified Justice: May I go back for a moment to the... you mentioned, I think, that your client was offered the opportunity to audit as many classes as he wanted to.
Mr. Colom: Yes, sir.
Unidentified Justice: Would he have had to pay tuition to do that?
Mr. Colom: Yes, sir.
Unidentified Justice: He would have paid the same tuition as if he was enrolled?
Mr. Colom: Yes, sir.
Unidentified Justice: So he could have done everything, attended the class and all, but he just couldn't have taken the exams and gotten a degree.
That is the only thing that he couldn't do?
Mr. Colom: Both my client testified to that and the president of the university testified that theoretically he could audit the entire course load.
He said that is not practical, that the university would limit audits because they are paid by the state, based upon head count, and a student who is auditing is not counted for purposes of funding from the state, so they would limit them for that reason.
Unidentified Justice: I see.
Mr. Colom: Another argument that I think this Court should treat as having little merit is that Title IX somehow provides an exception to the Fourteenth Amendment.
I think the defendant, the state, has backed off of that argument themselves at this point.
But they also suggest that Congress somehow intended Title IX to constitute affirmative action for women, that the exemption for women's schools buttresses their argument that this is affirmative action and that Congress approved of it, but the problem with that--
Unidentified Justice: Do you think any inference can be drawn at all from the exclusion from Title IX of single-sex schools?
Mr. Colom: --I don't think any--
Unidentified Justice: Do you suppose if Congress had thought that they were unconstitutional, would they have excepted that from Title IX?
Mr. Colom: --You can draw the inference that Congress may or may not be wrong--
Unidentified Justice: Yes.
Mr. Colom: --in making that exemption.
I think one clear inference can be drawn that they did not intend this to constitute affirmative action for women's schools, because they limited the existence of it.
Only those schools then existing could continue.
So they didn't want to encourage single-sex schools.
That was an action to stop them, and to allow at least those that were existing at that time to continue to receive federal funds, and since this Court has held in Cannon versus University of Chicago that Title IX is a spending powers action by Congress, then it certainly would have no application to the Fourteenth Amendment, and Mr. Justice Rehnquist, writing for this Court, specifically stated in the Penhurst School case that Congress has to specifically invoke Section 5 of the Fourteenth Amendment to use its powers under that amendment.
Your Honors, for the reasons we have stated, we submit that the decision of the court of appeals for the Fifth Circuit should be affirmed.
Thank you very much.
Chief Justice Burger: Very well.
Do you have anything further, counsel?
ORAL ARGUMENT OF HUNTER M GHOLSON, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL
Mr. Gholson: Yes, Mr. Chief Justice.
Mr. Colom would have us be required to prove that women have been discriminated against in the United States, perhaps in the state of Mississippi in particular.
In response to that, I would refer to the language of Mr. Justice Brennan in Frontiero versus Richardson, beginning with the statement,
"There can be no doubt that our nation has had a long and unfortunate history of sex discrimination."
"It can hardly be doubted that in part because of the high visibility of the sexual characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market, and in the political arena."
Unidentified Justice: But, counsel, your opponent suggests that that reasoning doesn't necessarily apply to the field of nursing.
Mr. Gholson: I understand that, Mr. Justice Stevens, is his argument, but I understand that the Fifth Circuit did not decide that question, but decided that a single-sex institution for women across the board must be stricken unless there is a male institution.
Unidentified Justice: Would you comment just a little further... I have tried to think about it a little bit during the argument... on when there are advantages of single-sex education for women, how can those advantages be preserved by allowing male students to audit courses but simply saying, you can't take the exams and get the degrees?
Mr. Gholson: I think the Court would be bound to accept the unrefuted testimony of Dr. Kraft and Dr. Strobel that the auditing that exists is a very limited program which primarily takes place at night--
Unidentified Justice: Well, but I suppose it is also true that the male applicants for the nursing school are limited in number.
Mr. Gholson: --Well, as a matter of fact, the record shows that two more have applied since Mr. Hogan's application.
Unidentified Justice: But is your limitation on auditing such that the three could not have audited?
Mr. Gholson: My understanding is that the professor, and the record shows this, a professor must give his or her permission for a student to audit a class, and auditing, while there are no specific guidelines that say you cannot audit a class during the regular course of the day, the situation that exists is that that just doesn't take place, and there is a list of every male who has ever audited a course at MUW, and it is quite short, and Dr. Kraft says it is short because the fact that they don't get credit is self-limiting, and that that distinguishes it and doesn't cause it to invade the all-female atmosphere of the student body.
Unidentified Justice: Or primarily female atmosphere is what you are trying to maintain, I guess.
Mr. Gholson: Yes, sir.
Mr. Colom indicated that we had never talked in terms of affirmative action to help women by the operation of MUW.
I don't think that you can read Dr. Strobel's testimony or Dr. Kraft's testimony and conclude that they are describing anything less than a program of very positive affirmative action to help women fulfill their full potential in today's society.
It is certainly true that, as has been mentioned in the other argument, that the plaintiff stopped short when he filed his suit and said, I have been excluded.
He listened to Dr. Strobel, he listened to Dr. Kraft, he saw the references to the educators who endorsed their theories, and he did nothing to refute that.
It is interesting that counsel says that these experts would be shocked if they could see the W.
I know I am not here to testify, but Ms. Tidbolt has been to the W numbers of times, and is coming again next month, and I hope she won't be any more shocked than she has been.
Unidentified Justice: Mr. Gholson, does the state still rely basically on the statement of purposes and goals contained in the charter of MUW?
Mr. Gholson: I certainly don't, Your Honor.
That was an 1884 statement of purposes--
Unidentified Justice: And it has not been changed, as I understand it.
Mr. Gholson: --It has not been changed as such, but legislative appropriations have been made annually, and the programs and curricula of the institution have been constantly revised.
The language of the 1884 enabling Act sounds a good bit like the kind of language this Court might have used in Muller versus Oregon, which was a little later, in 1908, and it spoke of the need of women to achieve a greater parity with her brother, who was the superior animal, and things that were very Victorian in phraseology, and not the kind of thing we would say or believe today.
But I think the important point is that MUW has evolved with the times, and the question is, what are they doing today to help women in education, and is Dr. Strobel right?
I don't think you have to believe he is right.
I think you just have to believe that there is a rational basis for the legislature to believe that it is right that an institution devoted exclusively to women can help them fulfill their potential in a unique way.
Unidentified Justice: By that you are not arguing a rational basis test implied though?
Mr. Gholson: No, no.
No, I think we fit Craig versus Boren, Your Honor.
Unidentified Justice: But if it is so great for women, it does help men.
Mr. Gholson: Single-sex education?
Unidentified Justice: Yes.
Mr. Gholson: There are those who certainly believe that, and who operate--
Unidentified Justice: See, that is where I have trouble.
It is all for women, it is great for women, but it also helps men.
Mr. Gholson: --It can be argued that, yes, sir.
Thank you very much.
Chief Justice Burger: Thank you, gentlemen.
The case is submitted.