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Landmark Sexual Discrimination Case Goes Before Supreme Court

By Joan Biskupic
The Washington Post
WASHINGTON

One of the most important sex discrimination cases to reach the Supreme Court will be argued this week. The case to be argued Wednesday between the US Justice Department and the Virginia Military Institute could produce a new standard for deciding the legality of any classification or discrimination based on sex.

The Justice Department has asked the Supreme Court to use the case to rule that bias based on sex warrants the same tough judicial scrutiny as bias based on race. Were the court to elevate the constitutional protection against sex discrimination - and it is far from a certain that it will - the impact would be huge. All sorts of programs that particularly benefit men (or women) would be in legal jeopardy.

U.S. Solicitor General Drew S. Days III, however, said in a brief to the court, "The long history of discrimination against women, the general irrelevance of sex as a ground for official decision-making, and women's continuing under-representation in government, all support the application of strict (judicial) scrutiny here."

Theodore B. Olson, representing Virginia and its 157-year-old military-style college, will argue against such a high judicial standard, stressing that legitimate and important reasons exist for treating the sexes differently, particularly in education, in prisons and in the military.

Were the court to adopt the Clinton administration's position, Olson said, the military's differing treatment for men and women in combat, the legality of special high school math programs for girls, federal and state financial aide for women-only colleges and tax exemptions for the Boy Scouts or Girl Scouts could all be thrown into doubt.

Government lawyers criticize such "Armageddon talk" and insist that in many cases the government could prove it has a "compelling interest" for separating the sexes and meet the "strict scrutiny" standard. Days asserts in his brief that courts still could give special deference to military distinctions based on sex.

More immediately, United States v. Virginia will determine whether VMI, and the only other all-male, state-run college in the nation, The Citadel in Charleston, S.C., must admit women. Both schools are known for their grueling programs in which first-year cadets must cope with arduous physical routines, constant criticism and humiliation, no privacy and a regimen of enforced conformity - all toward building discipline and loyalty.