Since Ginsburg left the field in 1980, the Supreme Court justices had been subtly backtracking from applying the high standard for discriminatory laws she had so laboriously achieved. They did not overtly overrule her great cases, but in one case they approved a law with tougher penalties for male perpetrators of statutory rape, and they passed on an opportunity to disallow the male-only draft registration. Moreover, integrating the Mississippi women’s university represented a big bite of social change, after Ginsburg’s exquisitely careful small change cases. The Court had experienced firsthand what happened when it ordered racial integration of the schools, which had also started with a request to desegregate public universities.
One thing about Justice O’Connor: she never had trouble making decisions. All those years as the only child on an isolated ranch had produced a woman singularly impervious to social pressure. O’Connor voted to hear the case.
The Mississippi University for Women was the oldest single-sex college in the United States. For years before it was founded there was no state institution of higher education for white women in Mississippi at all. The University of Mississippi and Mississippi State had always been male. During Reconstruction, the federal government had forced upon Mississippi two schools for black Mississippians, one for each gender. By the time Hogan v. Mississippi reached the Supreme Court in the fall of 1981, all the colleges but MUW had integrated the sexes, regardless of the degree of racial integration in the other Mississippi schools.
In Hogan, as was often the case, sex and race were devilishly intertwined. The code of proper ladylike behavior, conveyed by all-female schools such as MUW, had traditionally been reserved for women who happened to be white. Schools for African Americans taught working skills such as farming. The “W,” as the Mississippi University for Women was called, all white until 1966, taught its white women students skills like “drawing, painting, designing, and engraving.” As a contemporary scholar put it recently, the single-sex colleges “taught white women to be ladies.”
Throughout the South, sex segregation was also used as a weapon against racial integration. After the Supreme Court ordered the schools racially desegregated in Brown, school districts in the South suddenly initiated programs of sex-segregated schools. And in the W, Mississippi already had a women-only school. Even after racial integration came to the W, the fight to defend sex segregation looked hauntingly similar to the fight for racial segregation. In 1971, ten years before Joe Hogan tried to study nursing, another (white) man, Charles Perkins, had applied for art classes at the W. He dropped his quest after a rock shattered his living room window. Maybe Mississippi could not legally separate the races, but, through sex segregation, at least it could keep its white women away from black men. Wilbur Colom, the African American lawyer for the would-be male coed in Hogan, got the case because, when Joe Hogan decided he was entitled to get his nursing education at a public college in his own hometown, every white lawyer in town turned him down. No white lawyer would take on the Mississippi establishment. It wasn’t white men the W was afraid of, as Colom put it bluntly: “Miscegenation. That was the traditional fear.”
None of this retrograde social context appears on the surface of the Hogan case. Instead, the case appears as a pure sex-discrimination matter: How to justify public money for a women-only college? The state invoked the mantle of women’s schools such as Vassar and Wellesley. Women learned better, became better leaders, and deserved a school of their own since they had been discriminated against for years, the state’s lawyer maintained. Justice Powell’s clerk John Wiley found these arguments rather comical, in light of the subjects the W offered its would-be Sandra Day O’Connors: “the MUW’s ‘contemporary Women’ course series (which is ‘designed to prepare young women for the very active roles demanded of them in the Twentieth Century’) consist of the following: ‘Fashion, Introduction to Modeling, [Advanced] Modeling, and Personal Development [which] presents various methods of self-improvement in appearance and acceptable procedures in social situations.’”
Justices don’t always act predictably. When it came time to decide Hogan, White, who had voted to take the case, voted to affirm, and Powell, who had voted to leave the lower court decision undisturbed, disturbed it by voting to reverse. That left the newbie, O’Connor, deciding the outcome between the four jurists of the conservative Republican-appointed faction who saw no illegal discrimination and the leftover liberals and the centrists, Brennan, Marshall, White, and Stevens, who would strike it down. At conference, O’Connor joined the left, but with less than a ringing endorsement for sure. “The record here,” she said flatly, “does not show the benefit of unisex schools.” William Brennan, the senior justice in the majority, cannily assigned the new female justice to write the sex-discrimination opinion.
Six months later, Martin Ginsburg walked into his wife’s study and put O’Connor’s opinion down on her desk. “Did you write this?” he asked.
She might well have. Until the last paragraph, Justice O’Connor’s opinion in her first sex-discrimination case read like a monograph on the career of Ruth Bader Ginsburg. “We begin our analysis,” O’Connor began, “aided by several firmly established principles. Because the challenged policy expressly discriminates among applicants on the basis of gender, it is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Reed v. Reed.” Reed v. Reed was of course Ginsburg’s first Supreme Court case.
“Our decisions,” O’Connor continued, “also establish that the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification. Kirchberg v. Feenstra … The burden is met only by showing at least that the classification serves ‘important governmental objectives, and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives,’” she concluded, citing more recent cases applying the exact language of Ginsburg’s standard-setting breakthrough in the near-beer case, Craig v. Boren.
Although she did not name Ginsburg, O’Connor’s opinion advanced the project of Ginsburg’s legal crusade to change the sex-role stereotypes that imprisoned members of her sex: “the test for determining the validity of a gender-based classification … must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. See Frontiero v. Richardson, 411 U.S. 677, 684–685 (1973) (plurality opinion).” Frontiero was Ginsburg’s second case.
In case anyone missed the real social revolution embedded in Frontiero, Justice O’Connor made it explicit. If we agree that enabling women to develop is a legitimate goal for the state to pursue, we would still have to see if the system of women’s colleges is the best way to help women to excel. When we decide that, we have to use our reason, rather than “the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women.” After all, she continued, warming to the subject, just look at all the offensively backward-looking arguments the states and federal government have advanced to justify the long list of state schemes we’ve already struck down. Both in its concocted objective and in the inadequate link between sex discrimination in school and its objective, Mississippi failed to provide the exceedingly persuasive justification for its discrimination.
O’Connor took the opportunity to remind the world of how harmful protective institutions such as all-female nursing schools could be. Stereotyping nursing as women’s work harms women, O’Connor suggests: “Officials of the American Nurses Association have suggested that excluding men from the field has depressed nurses’ wages… . To the extent the exclusion of men has that effect, MUW’
s admissions policy actually penalizes the very class the State purports to benefit. Cf. Weinberger v. Wiesenfeld, supra.” If men don’t do it, it doesn’t get paid well, the tough-minded daughter of the West sets out. Stereotyping harms women in every conceivable way. Of course Marty Ginsburg asked his wife, “Did you write this?”
Justice O’Connor’s new Supreme Court BFF, Lewis Powell, had been assigned to write the dissent for the four justices who disagreed. When he received the draft of her opinion, he must have hit the roof. The draft is covered with his handwritten notes, punctuated with exclamation points and indignant rhetoric. He started by challenging the premise that the case even involves sex discrimination. That is just “Absurd,” he scribbled in the margins. It’s a man complaining, he continued. Justice Powell almost seems to have forgotten that men were complaining in many of the decisions he supported in sex-discrimination cases—men such as the widowers Stephen Wiesenfeld and Leon Goldfarb, the aspiring beer guzzler Curtis Craig. And what’s Hogan complaining about, Powell asked? That he has to travel to Ole Miss to study nursing instead of conveniently doing it in his hometown. Convenience! Justice Powell exclaimed. Since when did that get to be a constitutional right? This is indeed a bizarre argument. Civil rights litigation often involves test cases over trivia. One is hard-pressed to imagine him saying that the African American Rosa Parks having to stand for a short bus ride in the bad old days of segregated transportation was trivial.
Powell’s internal memos paint a vivid picture of a “Southern gentleman,” as Penny Clark describes him, who has finally had enough social change. Okay, women workers should get spousal benefits for their husbands, and women should not be discouraged from jury service. But integrated schools are a serious social change in a settled society that suits him just fine. He believes in single-sex education, he wrote. “I have experienced it myself through a wife and three daughters.” To argue that no substantial state interest is being served, he continues, is to condemn the educational judgment that for most of the history of this country has justified the great women’s colleges. (Apparently Powell’s clerk’s merriment over the curriculum offered by the W did not make that big an impact on the justice.) Women who want to go to great segregated colleges should be able to make that choice. The fad for coeducation recently, he grouses, is just fashion. Justice Powell didn’t just want to tell people about how his wife and daughters flourished in a sex-segregated system, he told his clerk, he wanted to remind the world about the wonderful girls’ schools in his state. “Hollins College, Mary Baldwin College, Randolph Macon Woman’s College and Sweet Briar College remain all women’s, and each has a proud and respected reputation.” Powell’s beloved women’s colleges are all private, and thus less beholden to constitutional requirements of equal treatment, but that’s not his point at all. For centuries, girls’ schools have been good for females, full stop. And so, concluded Powell, the public women’s schools are good too and pass the constitutional test.
The extent to which Justice Powell was over the moon in this case is reflected in an astonishing note to the hapless clerk. The clerk was trying to get away from the unavoidable comparison between sex-segregated schools and the touchstone of modern political immorality, racially segregated schools. He suggested, “Because racial segregation was the product of hostile discrimination against blacks, segregated facilities were offered, not as alternatives to increase the choices available to blacks, but as the sole alternative.” “It [racial segregation] was not hostile in my state,” Powell wrote in the margins of the memo. “It was unreasoning acceptance of a system that had prevailed for centuries and approved by Plessy [v. Ferguson, the 1896 case that was overturned in Brown].”
Justice Powell’s sanguine description of race relations in Virginia is more than a little hard to understand. Even in Powell’s beloved Virginia, in every year before Brown, there were at least one or two lynchings.
So Powell dissented. Following receipt of O’Connor’s draft opinion, he circulated his dissenting opinion, with its vision of a “proud and respected” network of southern women’s colleges. In her ultimate opinion, O’Connor deftly dealt with Powell’s justification of segregation on the basis of women’s “choice.” Every segregated institution gives the favored group a choice, she wrote, like white people wanting to choose to go to all-white schools. It’s the excluded people like the plaintiff who are stripped of their choice. And that’s what the Fourteenth Amendment forbids.
As the various drafts were circulating, a weird thing happened, but one fraught with meaning for the development of O’Connor’s contribution to the Court—and women’s equality. Chief Justice Burger noticed that Powell had described O’Connor’s draft as striking down all single-sex education at the Mississippi University for Women. Apparently there had been some talk at conference of the case involving only the nursing school, although the liberal justices had all signed off on O’Connor’s broad opinion by the time Burger noticed. Maybe, Burger wrote to Powell in a private letter, we can confine the decision, which we lost, to apply only to schools of nursing. Uh, Powell writes back, I don’t think so. “It is true that Sandra refers primarily to the school of nursing … but the rationale of her opinion applies with equal force to every other school or department.” (Burger referred to O’Connor’s draft majority decision as the “Court’s opinion” while Powell described her throughout as “Sandra.”) Burger must have written to O’Connor anyway, because two days later she wrote to Powell, offering to cut back on the scope of the opinion.
Powell properly attacked O’Connor’s offer as incoherent: “The logic of the Court’s entire opinion, apart from the aforementioned statements, appears to apply sweepingly to the entire university.” But she stuck with the narrowing language. And so, in a footnote in the middle of a brilliant and unprecedentedly sweeping assertion of the rights of and wrongs to women in her first term on the Court, Justice O’Connor limited her decision to the narrowest possible situation: the school of nursing at the MUW. It was, as Powell correctly sniffed out, narrow, all right, but completely incoherent.
“She only ruled about the nursing school!” Wilbur Colom snorted. Within days of the opinion, Colom recalls, “men flooded the other departments at the W with applications. And the administrators decided they had spent enough money defending a lost cause. The MUW was integrated in every department within a year.” It was the first of many O’Connor opinions that made major social change and then limited the decision to the particulars of the case at hand, leaving everyone who had to make decisions afterward somewhat in the dark. In this case college administrators decided on their own what they should do. In later cases, plaintive requests for guidance reverberated up the food chain in the federal courts: “Justice O’Connor, now what do we do?”
The women of the “W” were horrible to Joe Hogan. He did not even last long enough to get his degree. As boys began to flood into the Mississippi University for Women, however, stereotypes fell like levees. The girls, who had been “living like nuns, shut up in dormitories with mandatory hours,” Colom observed, moved out! “They joined the guys living in apartments in town,” like most college kids in the 1980s. “And then,” Colom reports gleefully, “the college became sort of a center for lesbians. It’s widely thought,” he says, “that a lot of the girls aren’t distracted by the guys at all, as the state said they would be if the college were coed.”
ROLE MODEL
O’Connor’s role in the Hogan decision turned out to be a harbinger. She would be a force for progress and a force of caution and compromise. However conservative her self-image, she had no choice. From the day she was sworn in, she was a light and a lightning rod. On the day of her ceremony, she borrowed a robe that was too short, so her dress peeked out from underneath it in photos shot on the Supreme Court steps. In a preview of the decades to come in treatment of women in politics, the inch of pink cloth elicited yards of criticism and comment.
But she was determined not to fail. Proud and com
petitive—her ferocity on the tennis court was legendary—she was strengthened by an unlimited capacity for work and, as the long-ago incident with the flat tire on the ranch reveals, an intense determination to finish whatever she started. Politician as she had been for so long, she knew that part of her success had nothing to do with making good decisions about cases before the Court. She was a role model.
She started an all-female aerobics class at the Court, innocently saying she had always stopped for aerobics on her way in to work in Phoenix. The command performance early in the morning was a mixed blessing for her female clerks (“while we were up there dancing around, the guys were already working,” one complained). But aerobics gave the girls a real chance to bond with their justice and were a vivid contrast to the all-male basketball games in the “highest court in the land.” Nor was the lesson lost on the politically savvy young law clerks. Once O’Connor started the aerobics, “Justice White didn’t own the athletic franchise anymore,” as Justice Souter’s clerk David Goldberg observed when he came to the Court a decade later.
After she got her sea legs in the first term, the legendarily energetic jurist began to intersperse her opinion-writing duties with a staggering schedule of speech making and symbolic ribbon-cutting. Expectations in the gorgeous glassed-in auditorium at the Wingspread Center in Racine, Wisconsin, could not have been higher when she rose one April day in 1982 to address a meeting of women judges, organized by two prominent feminist academics and two prominent judges’ associations. Deploying her usual combination of optimism about women’s prospects and the bra and wedding ring routine that had served her well in years of Arizona politics, O’Connor was not a hit. During the Q and A someone asked her about work/family balance, a question far newer then than it is today. “Women should always put their families first,” O’Connor answered. Barbara Babcock, the first female professor at O’Connor’s alma mater, Stanford Law School, was not pleased to hear this. O’Connor’s reflexive family-first answer was insulting to a room full of women, many of whom had sacrificed family in whole or in part to be where they were. O’Connor hadn’t yet learned, Babcock remembers, how to do the woman thing.
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