Bench Memos

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Critique of Calabresi’s “Originalism and Sex Discrimination”—Part 5


See Part 1, Part 2, Part 3, and Part 4

I’ll limit myself to a few closing observations on law professor Steven Calabresi’s “Originalism and Sex Discrimination”:

1. Calabresi takes positions on some subsidiary issues of original-meaning methodology (e.g., the role of original expected applications in determining original meaning). For purposes of my critique, I have not taken issue with any of his methodological principles. My objections, rather, have been to how he applies the principles he invokes.

2. As part of his paean to the Court’s VMI ruling, Calabresi asserts in his concluding section (p. 102) that Justice Ginsburg’s determination that VMI’s “unique educational experience could … survive the admission of women” (the quote is Calabresi’s paraphrase) “has been vindicated.” His assertion encapsulates the flaws that pervade his article.

For starters, Calabresi’s assertion rests entirely on an interview that his co-author, Julia Rickert, had with a VMI administrator (with a background in public relations, no less), who reportedly told her that no changes had been made to VMI’s curriculum and that VMI’s “adversative method” (which, as Ginsburg’s opinion tells us, includes “physical rigor” as a component) “has survived fully intact.” How odd that Calabresi would base a resounding declaration of Ginsburg’s vindication on such thin evidence. (Not to mention that the passage of a mere 15 years in the life of a venerable institution hardly seems enough time for a definitive conclusion.)

Even worse, though, the VMI administrator’s reported statements are demonstrably false. As this article discusses, beginning in 2008 (not much more than a year before his co-author’s interview with that administrator), VMI abandoned the sex-neutral fitness test standards that it had maintained from the time it first admitted women. The fitness test “is an integral part of [cadets’] physical education grade each semester and is worth 25 percent of the final class grade.” Thus, it is clearly part of VMI’s curriculum. But over the course of a decade only “about 20 percent of female cadets” had passed the sex-neutral test, “compared with about 80 percent of males.” Therefore, VMI “decided to relax the fitness standards” and to create different standards for male and female cadets. Henceforth, the passing grade for women for pull-ups would be reduced from five to one, and the passing time for women to run 1.5 miles would be extended from 12 minutes to 14.3 minutes. The passing time for men to run 1.5 miles was increased to 12-1/2 minutes. (VMI’s webpage for its fitness test labels the run a distance of 2400 meters—a tiny fraction short of 1.5 miles—and the scoring annex available on that page lists the passing time for women as 14:20 and for men as 12:30.)

The idea that a college-age student demonstrates “physical rigor” by taking more than 14 minutes to run 1.5 miles is a joke.

In short, contrary to what Calabresi credulously reports, it simply isn’t true that VMI’s adversative method “has survived fully intact.” More broadly, while I have no idea what a careful and comprehensive review of the state of VMI fifteen years after the Court’s ruling would show, Calabresi clearly has no sound basis for his conclusion that the VMI educational experience remains unchanged.

Further, from an originalist perspective, why would it matter to Calabresi whether or not VMI had materially changed? If indeed the VMI ruling was correct as a matter of the original public meaning of the Fourteenth Amendment, as Calabresi contends, then the admission of women is warranted whether or not it destroys VMI’s “unique educational experience.”

3. In this age of political correctness, it’s tempting to believe that every elimination of sex differentials advances the public good (except, of course, when gender-neutral standards lead to unwelcome disparate results, as VMI’s traditional fitness standards did). I’ll set aside here such matters as separate public restrooms for men and women and instead direct the reader’s attention to Calabresi’s closing paragraph. There, he calls for the Supreme Court to overrule its decision allowing a system in which only men are required to register for the military draft, and he instead urges that women “be required to register along with men at the age of eighteen for the draft.”

I’m not clear why Calabresi believes that the original public meaning of the Fourteenth Amendment (which by its terms restricts state, not federal, authority) would have any bearing on the constitutionality of the federal draft-registration system. But let’s pass over that.

Reasonable people will surely have different views on whether or not it is good for women, or good for the country, to subject women to being drafted into the military (and, indeed, on whether there should be a draft at all). That important question, I would submit—like the vast bulk of questions involving sex classifications—is a policy question that the Constitution, properly construed, commits to the political processes, not a matter to be dictated by judges. The fact that the Nineteenth Amendment guarantees women half the votes in this country, and thus operates to ensure that the political processes will be as responsive to their understanding of their interests as to men’s, provides further reason to respect that allocation of authority, not, as Calabresi would have it, reason to override it. 


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