Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, September 29, 1994 TAG: 9409290074
SECTION: VIRGINIA PAGE: C-3 EDITION: METRO
SOURCE: ALLISON BLAKE STAFF WRITER
DATELINE: RICHMOND LENGTH: Medium
``Can the board of trustees at Mary Baldwin College, under this arrangement, decide unilaterally that this thing, from their perspective, is not working - and bail out?'' asked 4th U.S. Circuit Court of Appeals Judge J. Dickson Phillips, one of three judges who heard Wednesday's arguments.
Mary Baldwin College, a private college in Staunton, would be the site of the leadership program, where advanced math and science courses and group-living arrangements are part of the plan advanced by the state as an alternative to admitting women to VMI.
The judges also wondered if the lower court that approved the plan intended to retain oversight.
VMI attorney Anne Marie Whittemore responded that the lower court would get a progress report on the program in October. She also assured the judges that Mary Baldwin is contractually committed to the plan.
``This is something new,'' Whittemore said. ``It is something that is going to require vigilance.''
The women's program, backed by Gov. George Allen and the General Assembly, grew from a previous ruling by the same appeals court. Two years ago, the same three judges ruled that VMI's exclusion of women was unconstitutional.
To fix that, the publicly funded school could go private, admit women or come up with an alternative plan, the court ruled.
The women's program emerged. If the courts deem the plan legal, it would be endowed by the private VMI Foundation for about $5.5 million. Meanwhile, Mary Baldwin is getting $50,000 every four months in planning money from the foundation. The college expects to hire an administrator for the program in January.
U.S. District Judge Jackson Kiser approved the plan in May, but the Justice Department appealed, arguing that nothing less than full admission of women to VMI will satisfy the Constitution.
Other than ROTC, the women's program will have none of the military culture so prevalent at VMI.
A Justice Department attorney argued Wednesday that the program would not give women a VMI-type military experience.
Jessica Silver said the issue isn't low demand among women for admission to VMI; it's one of equal opportunity.
``Most women would not do well, [or] want to attend a school with [a military-style program]. That's not a question,'' she said.
The Mary Baldwin proposal, she said, ``is not a remedy for failing to admit women to VMI. VMI is a state institution. I think Virginia is proud of it; a diploma is considered to be very valuable.
``Women of Virginia do not have that opportunity available.''
The General Assembly has approved about $7,100 in tuition stipends to the first 25 students expected to enroll next fall, to make up the difference in costs between private Mary Baldwin and public VMI.
Deputy state Attorney General William Hurd argued that admitting women to VMI would ``sacrifice the interest of many men who do want a men's VMI'' and criticized the government's ``absolute, ideological insistence'' to integrate VMI.
One judge saw the question as:
``Is this just a storefront, or is this real?'' asked Judge Paul V. Niemeyer about the women's program. ``I don't know how we can tell this now.''
In the courtroom Wednesday was an administrator from The Citadel, where Shannon Faulkner is fighting to become the first woman admitted to the Corps of Cadets. She is a day student there now, and her case will be heard by the same appeals court in December, when The Citadel seeks a reversal of a lower court's order to admit her.
Lewis Spearman, assistant to The Citadel's president, said the two cases had limited legal effect on each other, but the outcome of both could answer questions about such things as whether public funds could go to private, single-gender schools.
It's not known when the appeals court will rule, but VMI lawyers have asked for a speedy decision. Kiser has asked that the leadership program at Mary Baldwin open next fall.
It is widely expected that, regardless of what the appeals court decides, the U.S. Supreme Court will be asked to review the case.
by CNB