518
Syllabus
(b) The Fourth Circuit failed to inquire whether the proposed remedy placed women denied the VMI advantage in the position they would have occupied in the absence of discrimination, Milliken, 433 U. S., at 280, and considered instead whether the Commonwealth could provide, with fidelity to equal protection, separate and unequal educational programs for men and women. In declaring the substantially different and significantly unequal VWIL program satisfactory, the appeals court displaced the exacting standard developed by this Court with a defer-ential standard, and added an inquiry of its own invention, the "substantive comparability" test. The Fourth Circuit plainly erred in exposing Virginia's VWIL plan to such a deferential analysis, for "all gender-based classifications today" warrant "heightened scrutiny." See J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136. Women seeking and fit for a VMI-quality education cannot be offered anything less, under the Commonwealth's obligation to afford them genuinely equal protection. Pp. 554-558.
No. 94-2107, 976 F. 2d 890, affirmed; No. 94-1941, 44 F. 3d 1229, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Stevens, O'Connor, Kennedy, Souter, and Breyer, JJ., joined. Rehnquist, C. J., filed an opinion concurring in the judgment, post, p. 558. Scalia, J., filed a dissenting opinion, post, p. 566. Thomas, J., took no part in the consideration or decision of the case.
Paul Bender argued the cause for the United States in both cases. With him on the briefs were Solicitor General Days, Assistant Attorney General Patrick, Cornelia T. L. Pillard, Jessica Dunsay Silver, and Thomas E. Chandler.
Theodore B. Olson argued the cause and filed briefs for respondents in No. 94-1941 and petitioners in No. 94-2107. With him on the briefs were James S. Gilmore III, Attorney General of Virginia, William H. Hurd, Deputy Attorney General, Thomas G. Hungar, D. Jarrett Arp, Robert H. Patterson, Jr., Anne Marie Whittemore, William G. Broaddus, J. William Boland, Griffin B. Bell, and William A. Clineburg, Jr.†
†Briefs of amici curiae urging reversal in No. 94-1941 were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Margery
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