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U.S. v. COM. OF VA.

Nos. 94-1667, 94-1712.

44 F.3d 1229 (1995)

UNITED STATES of America, Plaintiff-Appellant, v. COMMONWEALTH OF VIRGINIA; George F. Allen, Governor, of the Commonwealth of Virginia; Virginia Military Institute; Joseph M. Spivey, III, President of the Virginia Military Institute Board of Visitors; John Williams Knapp, Superintendent of Virginia Military Institute; The Board of Visitors of Virginia Military Institute; VMI Foundation, Incorporated; VMI Alumni Association; The Virginia State Council of Higher Education and its Members and Officers; Thomas N. Downing; Elizabeth P. Hoisington, Brig. Gen.; Robert Q. Marston; A Courtland Spotts, III, Daniel F. Flowers; B. Powell Harrison, Jr.; Robert H. Spilman; Samuel E. Woolwine; James W. Enochs, Jr.; William A. Hazel; Harvey S. Sadow; Douglas K. Baumgartner; Daniel D. Cameron; Glen N. Jones; John W. Roberts, Defendants-Appellees, and Gordon K. Davies, Defendant. The National Women's Law Center; American Association of University Women; American Civil Liberties Union; California Women's Law Center; Center for Women Policy Studies; Connecticut Women's Education and Legal Fund; Equal Rights Advocates; Federally Employed Women, Inc.; Feminist Majority Foundation; Human Rights Campaign Fund; Lawyer's Committee for Civil Rights Under Law; National Association for Girls & Women in Sport; National Association of Commissions for Women; National Council of Negro Women; National Education Association; National Gay and Lesbian Task Force; National Hookup of Black Women; National Organization for Women; NOW Legal Defense and Education Fund; National Women's Conference Committee; National Women's Party; Northwest Women's Law Center; Trial Lawyers for Public Justice; Women Employed; Women's Law Project; Women's Legal Defense Fund; YWCA of the U.S.A.; Mary Baldwin College; Wells College; Saint Mary's College; Southern Virginia College, Amici Curiae. UNITED STATES of America, Plaintiff-Appellee, v. COMMONWEALTH OF VIRGINIA; George F. Allen, Governor, of the Commonwealth of Virginia; Virginia Military Institute; Joseph M. Spivey, III, President of the Virginia Military Institute Board of Visitors; John Williams Knapp, Superintendent of Virginia Military Institute; The Board of Visitors of Virginia Military Institute; VMI Foundation, Incorporated; VMI Alumni Association; The Virginia State Council of Higher Education and its Members and Officers; Thomas N. Downing; Elizabeth P. Hoisington, Brig. Gen.; Robert Q. Marston; A Courtland Spotts, III, Daniel F. Flowers; B. Powell Harrison, Jr.; Robert H. Spilman; Samuel E. Woolwine; James W. Enochs, Jr.; William A. Hazel; Harvey S. Sadow; Douglas K. Baumgartner; Daniel D. Cameron; Glen N. Jones; John W. Roberts, Defendants-Appellants, and Gordon K. Davies, Defendant. The National Women's Law Center; American Association of University Women; American Civil Liberties Union; California Women's Law Center; Center For Women Policy Studies; Connecticut Women's Education and Legal Fund; Equal Rights Advocates; Federally Employed Women, Inc.; Feminist Majority Foundation; Human Rights Campaign Fund; Lawyer's Committee for Civil Rights Under Law; National Association for Girls & Women in Sport; National Association of Commissions for Women; National Council of Negro Women; National Education Association; National Gay and Lesbian Task Force; National Hookup of Black Women; National Organization for Women; NOW Legal Defense and Education Fund; National Women's Conference Committee; National Women's Party; Northwest Women's Law Center; Trial Lawyers for Public Justice; Women Employed; Women's Law Project; Women's Legal Defense Fund; YWCA of the U.S.A.; Mary Baldwin College; Wells College; Saint Mary's College; Southern Virginia College, Amici Curiae.

United States Court of Appeals, Fourth Circuit.

Decided January 26, 1995.

Attorney(s) appearing for the Case

ARGUED: Jessica Dunsay Silver, U.S. Dept. of Justice, Washington, DC, for appellant. Anne Marie Whittemore, McGuire, Woods, Battle & Boothe, Richmond, VA; William Henry Hurd, Deputy Atty. Gen. of Virginia, Richmond, VA, for appellees. ON BRIEF: Deval L. Patrick, Asst. Atty. Gen., U.S. Dept. of Justice, Washington, DC, for appellant. Robert H. Patterson, Jr., William G. Broaddus, J. William Boland, McGuire, Woods, Battle & Boothe, Richmond, VA; James S. Gilmore, III, Atty. Gen. of Virginia, Richmond, VA; Griffin B. Bell, William A. Clineburg, Jr., King & Spalding, Atlanta, GA, for appellees. Marcia Greenberger, Ellen J. Vargyas, Nat. Women's Law Center, Washington, DC; Robert N. Weiner, Leigh McAfee, Mark Eckenwiler, Stefanie J. Raker, Arnold & Porter, Washington, DC, for Amici Curiae Nat. Women's Law Center, et al. James W. Tredway, III, Christian, Barton, Epps, Brent & Chappell, Richmond, VA, for Amicus Curiae Mary Baldwin College. David M. Lascell, Rebecca A. Kirch, Hallenbeck, Lascell & Pineo, Rochester, NY, for Amici Curiae Wells College, et al.

Before NIEMEYER, Circuit Judge, PHILLIPS, Senior Circuit Judge, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Senior Judge WARD joined. Senior Judge PHILLIPS wrote a separate dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

At issue is the important question of whether a state may sponsor single-gender education without violating the Equal Protection Clause of the Fourteenth Amendment.

In United States v. Commonwealth of Virginia, (VMI I),

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