Mississippi University for Women v. Hogan

1 The charter of MUW, basically unchanged since its founding, now provides: “The purpose and aim of the Mississippi State College for Women is the moral and intellectual advancement of the girls of the state by the maintenance of a first-class institution for their education in the arts and sciences, for their training in normal school methods and kindergarten, for their instruction in bookkeeping, photography, stenography, telegraphy, and typewriting, and in designing, drawing, engraving, and painting, and their industrial application, and for their instruction in fancy, general and practical needlework, and in such other industrial branches as experience, from time to time, shall suggest as necessary or proper to fit them for the practical affairs of life.” Miss. Code Ann. § 37-117-3 (1972). Mississippi maintains no other single-sex public university or college. Thus, we are not faced with the question of whether States can provide “separate but equal” undergraduate institutions for males and females. Cf. Vorchheimer v. School District of Philadelphia, 532 F. 2d 880 (CA3 1975), aff’d by an equally divided Court, 430 U. S. 703 (1977).

2 Record, Exhibit 1, 1980-1981 Bulletin of Mississippi University for Women 31-34, 212-229.

3 With a baccalaureate degree, Hogan would be able to earn a higher salary and would be eligible to obtain specialized training as an anesthetist. Tr. 18.

4 Dr. James Strobel, President of MUW, verified that men could audit the equivalent of a full classload in either night or daytime classes. Id., at 39-40.

5 Section 901(a) of Title IX, Education Amendments of 1972, Pub. L. 92-318, 86 Stat. 373 , 20 U. S. C. § 1681 (a), provides in part: “(a) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except that: “(1)... in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education; “(5)... in regard to admissions this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex. ...”

6 Section 5 of the Fourteenth Amendment provides: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

7 Although some statements in the Court of Appeals’ decision refer to all schools within MUW, see 646 F. 2d, at 1119 , the factual underpinning of Hogan’s claim for relief involved only his exclusion from the nursing program, Complaint ¶ 8-10, and the Court of Appeals’ holding applies only to Hogan’s individual claim for relief. 646 F. 2d, at 1119-1120 . Additionally, during oral argument, counsel verified that Hogan sought only admission to the School of Nursing. Tr. of Oral Arg. 24. Because Hogan’s claim is thus limited, and because we review judgments, not statements in opinions, Black v. Cutter Laboratories, 351 U. S. 292 (1956), we decline to address the question of whether MUW’s admissions policy, as applied to males seeking admission to schools other than the School of Nursing, violates the Fourteenth Amendment.

8 Without question, MUW’s admissions policy worked to Hogan’s disadvantage. Although Hogan could have attended classes and received credit in one of Mississippi’s state-supported coeducational nursing programs, none of which was located in Columbus, he could attend only by driving a considerable distance from his home. Tr. 19-20, 63-65. A similarly situ *724 ated female would not have been required to choose between forgoing credit and bearing that inconvenience. Moreover, since many students enrolled in the School of Nursing hold full-time jobs, Deposition of Dean Annette K. Barrar 29-30, Hogan’s female colleagues had available an opportunity, not open to Hogan, to obtain credit for additional training. The policy of denying males the right to obtain credit toward a baccalaureate degree thus imposed upon Hogan “a burden he would not bear were he female.” Orr v. Orr, 440 U. S. 268 , 273 (1979).

9 In his dissenting opinion, Justice Powell argues that a less rigorous test should apply because Hogan does not advance a “serious equal protection claim.” Post, at 742. Justice Blackmun, without proposing an alternative test, labels the test applicable to gender-based discrimination as “rigid” and productive of “needless conformity.” Post, at 734, 735. Our past decisions establish, however, that when a classification expressly discriminates on the basis of gender, the analysis and level of scrutiny applied to determine the validity of the classification do not vary simply because the objective appears acceptable to individual Members of the Court. While the validity and importance of the objective may affect the outcome of the analysis, the analysis itself does not change. Thus, we apply the test previously relied upon by the Court to measure the constitutionality of gender-based discrimination. Because we conclude that the challenged statutory classification is not substantially related to an important objective, we need not decide whether classifications based upon gender are inherently suspect. See Stanton v. Stanton, 421 U. S. 7 , 13 (1975).

10 History provides numerous examples of legislative attempts to exclude women from particular areas simply because legislators believed women were less able than men to perform a particular function. In 1873, this Court remained unmoved by Myra Bradwell’s argument that the Fourteenth Amendment prohibited a State from classifying her as unfit to practice law simply because she was female. Bradwell v. Illinois, 16 Wall. 130 (1873). In his opinion concurring in the judgment, Justice Bradley described the reasons underlying the State’s decision to determine which positions only men could fill: “It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.” Id., at 142 . In a similar vein, the Court in Goesaert v. Cleary, 335 U. S. 464 , 466 (1948), upheld a legislature’s right to preclude women from bartending, except under limited circumstances, on the ground that the legislature could devise preventive measures against “moral and social problems” that result when women, but apparently not men, tend bar. Similarly, the many protective labor laws enacted in the late 19th and early 20th centuries often had as their objective the protection of weaker workers, which the laws assumed meant females. See generally B. Brown, A. Freedman, H. Katz, & A. Price, Women’s Rights and the Law 209-210 (1977).

11 For instance, in Stanton v. Stanton, supra, this Court invalidated a state statute that specified a greater age of majority for males than for females and thereby affected the period during which a divorced parent was responsible for supporting his children. We did not question the importance or validity of the State’s interest in defining parents’ obligation to support children during their minority. On analysis, however, we determined that the purported relationship between that objective and the gender-based classification was based upon traditional assumptions that “the female [is] destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. ... If a specified age of minority is required for the boy in order to assure him parental support while he attains his education and training, so, too, is it for the girl.” 421 U. S., at 14-15 . Once those traditional notions were abandoned, no basis for finding a substantial relationship between classification and objective remained.

12 See, e. g., Kirchberg v. Feenstra, 450 U. S. 455 (1981) (statute granted only husbands the right to manage and dispose of jointly owned property without the spouse’s consent); Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142 (1980) (statute required a widower, but not a widow, to show he was incapacitated from earning to recover benefits for a spouse’s death under workers’ compensation laws); Orr v. Orr, supra (only men could be ordered to pay alimony following divorce); Craig v. Boren, 429 U. S. 190 (1976) (women could purchase “nonintoxieating” beer at a younger age than could men); Stanton v. Stanton, supra (women reached majority at an earlier age than did men); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975) (widows, but not widowers, could collect survivors’ benefits under the Social Security Act); Frontiero v. Richardson, 411 U. S. 677 (1973) (determination of spouse’s dependency based upon gender of member of Armed Forces claiming dependency benefits); Reed v. Reed, 404 U. S. 71 (1971) (statute preferred men to women as administrators of estates).

13 In the reply brief, the State understandably retreated from its contention that MUW was founded to provide opportunities for women which were not available to men. Reply Brief for Petitioners 4. Apparently, the impetus for founding MUW came not from a desire to provide women with advantages superior to those offered men, but rather from a desire to provide white women in Mississippi access to state-supported higher learning. In 1856, Sally Reneau began agitating for a college for white women. Those initial efforts were unsuccessful, and, by 1870, Mississippi provided higher education only for white men and black men and women. E. Mayes, History of Education in Mississippi 178, 228, 245, 259, 266, 270 (1899) (hereinafter Mayes). See also S. Neilson, The History of Mississippi State College for Women 4r-5 (unpublished manuscript, 1952) (hereinafter Neil-son). In 1882, two years before MUW was chartered, the University of Mississippi opened its doors to women. However, the institution was in those early years not “extensively patronized by females; most of those who come being such as desire to qualify themselves to teach.” Mayes, at 178. By 1890, the largest number of women in any class at the University had been 23, while nearly 350 women enrolled in the first session of MUW. Id., at 178, 253 . Because the University did not solicit the attendance of women until after 1920, and did not accept women at all for a time between 1907 and 1920, most Mississippi women who attended college attended MUW. Neilson, at 86. Thus, in Mississippi, as elsewhere in the country, women’s colleges were founded to provide some form of higher education for the academically disenfranchised. See generally 2 T. Woody, A History of Women’s Education in the United States 137-223 (1929); L. Baker, I’m Radcliffe! Fly Me! The Seven Sisters and the Failure of Women’s Education 22, 136-141 (1976).

14 Relatively little change has taken place during the past 10 years. In 1980, women received more than 94 percent of the baccalaureate degrees conferred nationwide, National Center for Education Statistics, 1981 Digest of Education Statistics 121 (1981), and constituted 96.5 percent of the registered nurses in the labor force. United States Bureau of Census, 1981 Statistical Abstract of the United States 402 (1981).

15 Officials of the American Nurses Association have suggested that excluding men from the field has depressed nurses’ wages. Hearings before *730 the United States Equal Employment Opportunity Commission on Job Segregation and Wage Discrimination 510-511, 517-518, 523 (Apr. 1980). To the extent the exclusion of men has that effect, MUW’s admissions policy actually penalizes the very class the State purports to benefit. Cf. Weinberger v. Wiesenfeld, 420 U. S. 636 (1975).

16 Even were we to assume that discrimination against women affects their opportunity to obtain an education or to obtain leadership roles in nursing, the challenged policy nonetheless would be invalid, for the State has failed to establish that the legislature intended the single-sex policy to compensate for any perceived discrimination. Cf. Califano v. Webster, 430 U. S. 313 , 318 (1977) (legislative history of the compensatory statute revealed that Congress “directly addressed the justification for differing treatment of men and women” and “purposely enacted the more favorable treatment for female wage earners . . .”). The State has provided no evidence whatever that the Mississippi Legislature has ever attempted to justify its differing treatment of men and women seeking nurses’ training. Indeed, the only statement of legislative purpose is that in § 37-117-3 of the Mississippi Code, see n. 1, supra, a statement that relies upon the very sort of archaic and overbroad generalizations about women that we have found insufficient to justify a gender-based classification. E. g., Orr v. Orr, 440 U. S. 268 (1979); Stanton v. Stanton, 421 U. S. 7 (1975).

17 Justice Powell’s dissent suggests that a second objective is served by the gender-based classification in that Mississippi has elected to provide women a choice of educational environments. Post, at 742-744. Since any gender-based classification provides one class a benefit or choice not available to the other class, however, that argument begs the question. The issue is not whether the benefited class profits from the classification, but whether the State’s decision to confer a benefit only upon one class by means of a discriminatory classification is substantially related to achieving a legitimate and substantial goal.

1 “[T]wo other Mississippi universities offered coeducational programs leading to a Bachelor of Science in Nursing — the University of Southern Mississippi in Hattiesburg, 178 miles from Columbus; and the University of *736 Mississippi in Jackson, 147 miles from Columbus . . . .” Brief for Respondent 3. See also Tr. of Oral Arg. 8.

2 The history, briefly summarized above, of single-sex higher education in the Northeast is duplicated in other States. I mention only my State of Virginia, where even today Hollins College, Mary Baldwin College, Randolph Macon Woman’s College, and Sweet Briar College remain all women’s colleges. Each has a proud and respected reputation of quality education.

3 It is true that historically many institutions of higher education— particularly in the East and South — were single-sex. To these extents, choices were by no means universally available to all men and women. But choices always were substantial, and the purpose of relating the experience of our country with single-sex colleges and universities is to document what should be obvious: generations of Americans, including scholars, have thought — wholly without regard to any discriminatory animus — that there were distinct advantages in this type of higher education.

4 In announcing Wellesley’s decision in 1973 to remain a women’s college, President Barbara Newell said that “[t]he research we have clearly demonstrates that women’s colleges produce a disproportionate number of women leaders and women in responsible positions in society; it does demonstrate that the higher proportion of women on the faculty the higher the motivation for women students.” Carnegie Report, in Babcock, at 1014. Similarly rejecting coeducation in 1971, the Mount Holyoke Trustees Committee on Coeducation reported that “the conditions that historically justified the founding of women’s colleges” continued to justify their remaining in that tradition. Ibid.

5 In this Court the benefits of single-sex education have been asserted by the students and alumnae of MUW. One would expect the Court to regard their views as directly relevant to this case: “[I]n the aspect of life known as courtship or mate-pairing, the American female remains in the role of the pursued sex, expected to adorn and groom herself to attract the male. Without comment on the common sense or equities of this social arrangement, it remains a sociological fact. “An institution of collegiate higher learning maintained exclusively for women is uniquely able to provide the education atmosphere in which some, but not all, women can best attain maximum learning potential. It can serve to overcome the historic repression of the past and can orient a woman to function and achieve in the still male dominated economy. It can free its students of the burden of playing the mating game while attending classes, thus giving academic rather than sexual emphasis. Consequently, many such institutions flourish and their graduates make significant contributions to the arts, professions and business.” Brief for Mississippi University for Women Alumnae Association as Amicus Curiae 2-3.

6 “[T]he Constitution does not require that a classification keep abreast of the latest in educational opinion, especially when there remains a respectable opinion to the contrary .... Any other rule would mean that courts and not legislatures would determine all matters of public policy.” Williams v. McNair, 316 F. Supp. 134 , 137 (SC 1970) (footnote omitted), summarily aff’d, 401 U. S. 951 (1971).

7 See Kirchberg v. Feenstra, 450 U. S. 455 , 456 (1981) (invalidating statute “that gave husband, as ‘head and master’ of property jointly owned with his wife, the unilateral right to dispose of such property without his spouse’s consent”); Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142 , 147 (1980) (invalidating law under which the benefits “that the working woman can expect to be paid to her spouse in the case of her work-related death are less than those payable to the spouse of the deceased male wage earner”); Stanton v. Stanton, 421 U. S. 7 (1975) (invalidating statute that provided a shorter period of parental support obligation for female children than for male children); Weinberger v. Wiesenfeld, 420 U. S. 636 , 645 (1975) (invalidating statute that failed to grant a woman worker “the same protection which a similarly situated male worker would have received”); Frontiero v. Richardson, 411 U. S. 677 , 683 (1973) (invalidating statute containing a “mandatory preference for male applicants”); Reed v. Reed, 404 U. S. 71 , 74 (1971) (invalidating an “arbitrary preference established in favor of males” in the administration of decedent’s estates).

8 See also Caban v. Mohammed, 441 U. S. 380 (1979) (invalidating law that both denied men the opportunity — given to women — of blocking the adoption of his illegitimate child by means of withholding his consent, and did not permit men to counter the statute’s generalization that the maternal role is more important to women than the paternal role is to men).

9 Even the Court does not argue that the appropriate standard here is “strict scrutiny” — a standard that none of our “sex discrimination” cases ever has adopted. Sexual segregation in education differs from the tradition, typified by the decision in Plessy v. Ferguson, 163 U. S. 537 (1896), of “separate but equal” racial segregation. It was characteristic of racial segregation that segregated facilities were offered, not as alternatives to increase the choices available to blacks, but as the sole alternative. MUW stands in sharp contrast. Of Mississippi’s 8 public universities and 16 public junior colleges, only MUW considers sex as a criterion for admission. Women consequently are free to select a coeducational education environment for themselves if they so desire; their attendance at MUW is not a matter of coercion.

10 The Court says that “any gender-based classification provides one class a benefit or choice not available to the other class . . . .” Ante, at 731, n. 17. It then states that the issue “is not whether the benefited class profits from the classification, but whether the State’s decision to confer a benefit only upon one class by means of a discriminatory classification is substantially related to achieving a legitimate and substantial goal.” Ibid. (emphasis added). This is not the issue in this case. Hogan is not complaining about any benefit conferred upon women. Nor is he claiming discrimination because Mississippi offers no all-male college. As his brief states: “Joe Hogan does not ask to attend an all-male college which offers a Bachelor of Science in Nursing; he asks only to attend MUW.” Brief for Respondent 24. And he asks this only for his personal convenience.

11 Students in respondent’s position, in “being denied the right to attend the State college in their home town, are treated no differently than are other students who reside in communities many miles distant from any State supported college or university. The location of any such institution must necessarily inure to the benefit of some and to the detriment of others, depending upon the distance the affected individuals reside from the institution.” Heaton v. Bristol, 317 S. W. 2d 86 , 99 (Tex. Civ. App. 1958), cert. denied, 359 U. S. 230 (1959), quoted in Williams v. McNair, 316 F. Supp., at 137 .

12 “Such a plan (i. e., giving the student a choice of a “single-sex” and coeducational institutions) exalts neither sex at the expense of the other, but to the contrary recognizes the equal rights of both sexes to the benefit of the best, most varied system of higher education that the State can supply.’” Williams v. McNair, supra, at 138, n. 15 , quoting Heaton v. Bristol, supra, at 100 .

13 For instance, the School of Nursing takes up 15 pages of MUW’s 234-page course catalog. See Mississippi University for Women, 81/82 Bulletin 185-200.

14 E. g., Bachelor of Arts; Bachelor of Science; Master of Arts; Master of Science. See id,., at 40. MUW also offers special preprofessional pro *744 grams in law, dentistry, medicine, pharmacy, physical therapy, and veterinary medicine. Ibid.

15 MUW’s Bulletin in its Table of Contents lists the following subjects (offered in its School of Arts and Sciences): Air Force ROTC; Art; Behavioral Sciences; Biological Sciences; Business and Economics; Cooperative Education; English and Foreign Languages; Health, Physical Education, Recreation, and Dance; History, Journalism and Broadcasting; Mathematics; Music; Physical Sciences; and Speech Communication. See id., at 3.

16 For instance, the catalog for the coeducational University of Mississippi lists in its general description the “Sarah Isom Center for Women’s Studies,” which is described as “dedicated to the development of curriculum and scholarship about women, the dissemination of information about their expanding career opportunities, and the establishment of mutual support networks for women of all ages and backgrounds.” University of Mississippi, 1982 Undergraduate Catalog 13-14. This listing precedes information about the University’s Law and Medical Centers. Id., at 14-15.

17 The Court argues that MUW’s means are not sufficiently related to its goal because it has allowed men to audit classes. The extent of record information is that men have audited 138 courses in the last 10 years. Brief for Respondent 21. On average, then, men have audited 14 courses a year. MUW’s current annual catalog lists 913 courses offered in one year. See Mississippi University for Women, 81/82 Bulletin passim. It is understandable that MUW might believe that it could allow men to audit courses without materially affecting its environment. MUW charges tuition but gives no academic credit for auditing. The University evidently is correct in believing that few men will choose to audit under such circumstances. This deviation from a perfect relationship between means and ends is insubstantial.

18 The Court, in the opening and closing sentences and note 7 of its opinion, states the issue in terms only of a “professional nursing school” and “decline[s] to address the question of whether MUW’s admissions policy, as applied to males seeking admission to schools other than the School of Nursing, violates the Fourteenth Amendment.” This would be a welcome limitation if, in fact, it leaves MUW free to remain an all-women’s university in each of its other schools and departments — which include four schools and more than a dozen departments. Cf. nn. 13-15, supra. The question the Court does not answer is whether MUW may remain a women’s university in every respect except its School of Nursing. This is a critical question for this University and its responsible board and officials. The Court holds today that they have deprived Hogan of constitutional rights because MUW is adjudged guilty of sex discrimination. The logic of the Court’s entire opinion, apart from its statements mentioned above, appears to apply sweepingly to the entire University. The exclusion of men *746 from the School of Nursing is repeatedly characterized as “gender-based discrimination,” subject to the same standard of analysis applied in previous sex discrimination cases of this Court. Nor does the opinion anywhere deny that this analysis applies to the entire University. The Court nevertheless purports to decide this case “narrow[ly].” Normally and properly we decide only the question presented. It seems to me that in fact the issue properly before us is the single-sex policy of the University, and it is this issue that I have addressed in this dissent. The Court of Appeals so viewed this case, and unambiguously held that a single-sex state institution of higher education no longer is permitted by the Constitution. I see no principled way — in light of the Court’s rationale — to reach a different result with respect to other MUW schools and departments. But given the Court’s insistence that its decision applies only to the School of Nursing, it is my view that the Board and officials of MUW may continue to operate the remainder of the University on a single-sex basis without fear of personal liability. The standard of such liability is whether the conduct of the official “violatefs] clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800 , 818 (1982). The Court today leaves in doubt the reach of its decision.