STUART TAYLOR: Yes. Deputy Solicitor General Paul Bender led off for the Justice Department, and he stressed that VMI’s unique adversative-style education, that’s the buzz word which is kind of the boot camp approach of being abused and harassed by upperclassmen, is a valuable asset and that the VMI degree is a valuable asset to those men who go there, particularly because it’s a very prestigious institution with a loyal alumni body that channels people into successful careers.

He said that there’s no reason women should be denied the benefit of that sort of education; that there are some women who can hack it at a place like VMI, in the records yes, there are some, and that they ought to have that opportunity. He also claims that the arguments VMI has made and the Mary Baldwin people have made for the solution of keeping them in separate places depended on outmoded stereotypes, basically depended on the idea that there are some things women can’t handle, and this is one of them, and that the only remedy, in his view, is to integrate VMI. He says that the Mary Baldwin institution 35 miles down the road is not equal, is not the same, is not as good in, in various ways.

ELIZABETH FARNSWORTH: How about the opposing side?

STUART TAYLOR: Theodore Olsen was the Washington lawyer arguing for VMI. He began stressing the general import of this case, and his suggestion was that all single-sex education, at least at the college level, public education and at the high school level perhaps as well, things like all-girl math classes, would be threatened by a ruling against VMI, and even private women’s colleges would be threatened to the extent that they depend on federal money, especially, he emphasized, if the very broad arguments for treating sex discrimination like racial discrimination that the Justice Department and feminist groups have made are accepted as the basis of ruling in this case.

Specific to VMI, he said, that their style of education has benefits for a certain type of young man who can’t do quite as well in a coed environment and thrives on this kind of boot camp thing, builds self-confidence. You know you can do anything if you can survive this, that sort of thing, and that, and that if you admit women, even a few women, he claims, the benefit, the uniqueness of the place would largely be destroyed.

It would have to–it would have to change to accommodate women because there’s no respect for privacy now. You would have to have some respect for privacy. There would be a problem, the constant harassment of underclassmen by upperclassmen might be perceived or appear to be sexual harassment if it were done by men to women, and that the strict equality of treatment would, would also kind of have to go by the boards.

ELIZABETH FARNSWORTH: Could you tell anything from the questions that the Justices asked? Did they tip their hands at all?

STUART TAYLOR: All eight participating Justices, the ninth being Clarence Thomas, whose son goes to VMI, so he was disqualified, were very active and lively, and various people were making head counts of how they would vote. The two comments that, that stood out the most in my mind were Justice Breyer towards the end said, uh, in essence, what is there that is so important about this really hard-to-grasp adversative thing, and there was laughter in the courtroom at that point as though well, Justice Breyer, the Harvard man, has trouble understanding this weird little adversative thing. And he quickly added, "I’m not being facetious." He really wanted to know.

But the burden of his question was, you, VMI, have to make a pretty good argument to convince me that I should say to a woman who wants to go there, sorry, you can’t go there, because you’d wreck the place, and part of his point was, would women really change it so much, and his part of his point was, to the extent that they would change it, would it really hurt it that much? And I think Justice Sandra Day O’Connor, who’s the swing vote on a lot of cases, perhaps including this one, seemed to strike a little bit of a similar tone in which she suggested that maybe one solution to this case was to have VMI admit women but perhaps keep them in a separate barracks, have them separate in private matters, but, in her words, that the program would be just as tough, just as mean.

And I think the vote counters came out of the argument with a little more confidence than they had when they went in that, that it looks like an uphill battle for VMI to win this case, but it also looks like if the court rules against VMI, it will probably do so on rather narrow ground specific to the facts of the case, rather than throw out some broad pronouncement casting doubt on all single-sex education.

ELIZABETH FARNSWORTH: Well, Stuart, thanks for being with us.

STUART TAYLOR: Thank you.

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