582
Scalia, J., dissenting
tions of Fact 37, reprinted in Lodged Materials from the Record 64 (Lodged Materials). It said: "The formal system of higher education in Virginia includes a great array of institutions: state-supported and independent, two-year and senior, research and highly specialized, traditionally black and single-sex." 1990 Report, quoted in relevant part at Lodged Materials 64-65 (emphasis added).2 The Court's only response to this is repeated reliance on the Court of Appeals' assertion that " 'the only explicit [statement] that we have found in the record in which the Commonwealth has expressed itself with respect to gender distinctions' " (namely, the statement in the 1990 Report that the Commonwealth's institutions must "deal with faculty, staff, and students without regard to sex") had nothing to do with the purpose of diversity. Ante, at 525, 539 (quoting 976 F. 2d, at 899). This proves, I suppose, that the Court of Appeals did not find a statement dealing with sex and diversity in the record; but the pertinent question (accepting the need for such a statement) is whether it was there. And the plain fact, which the Court does not deny, is that it was.
2 This statement is supported by other evidence in the record demonstrating, by reference to both public and private institutions, that Virginia actively seeks to foster its " 'rich heritage of pluralism and diversity in higher education,' " 1969 Report of the Virginia Commission on Constitutional Revision, quoted in relevant part at Lodged Materials 53; that Virginia views " '[o]ne special characteristic of the Virginia system [as being] its diversity,' " 1989 Virginia Plan for Higher Education, quoted in relevant part at Lodged Materials 64; and that in the Commonwealth's view "[h]igher education resources should be viewed as a whole—public and private"—because " 'Virginia needs the diversity inherent in a dual system of higher education,' " 1974 Report of the General Assembly Commission on Higher Education to the General Assembly of Virginia, quoted in 766 F. Supp. 1407, 1420 (WD Va. 1991). See also Budget Initiatives for 1990- 1992 of State Council of Higher Education for Virginia 10 (June 21, 1989) (Budget Initiatives), quoted at n. 3, infra. It should be noted (for this point will be crucial to my later discussion) that these official reports quoted here, in text and footnote, regard the Commonwealth's educational system—public and private—as a unitary one.
Page: Index Previous 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 NextLast modified: October 4, 2007