United States v. Virginia, 518 U.S. 515, 55 (1996)

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Cite as: 518 U. S. 515 (1996)

Scalia, J., dissenting

dissenting). The same applies, mutatis mutandis, to a practice asserted to be in violation of the post-Civil War Fourteenth Amendment. See, e. g., Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604 (1990) (plurality opinion of Scalia, J.) (Due Process Clause); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 156-163 (1994) (Scalia, J., dissenting) (Equal Protection Clause); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 979-984, 1000-1001 (1992) (Scalia, J., dissenting) (various alleged "penumbras").

The all-male constitution of VMI comes squarely within such a governing tradition. Founded by the Commonwealth of Virginia in 1839 and continuously maintained by it since, VMI has always admitted only men. And in that regard it has not been unusual. For almost all of VMI's more than a century and a half of existence, its single-sex status reflected the uniform practice for government-supported military colleges. Another famous Southern institution, The Citadel, has existed as a state-funded school of South Carolina since 1842. And all the federal military colleges—West Point, the Naval Academy at Annapolis, and even the Air Force Academy, which was not established until 1954—admitted only males for most of their history. Their admission of women in 1976 (upon which the Court today relies, see ante, at 544-545, nn. 13, 15) came not by court decree, but because the people, through their elected representatives, decreed a change. See, e. g., § 803(a), 89 Stat. 537, note following 10 U. S. C. § 4342. In other words, the tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.

And the same applies, more broadly, to single-sex education in general, which, as I shall discuss, is threatened by

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