University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship Spring 1-1-1996 Institutional Myths, Historical Narratives and Social Science Evidence: Reading the "Record" in the Virginia Military Institute Case Dianne Avery University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the Civil Rights and Discrimination Commons, and the Law and Gender Commons Recommended Citation Dianne Avery, Institutional Myths, Historical Narratives and Social Science Evidence: Reading the "Record" in the Virginia Military Institute Case, 5 S. Cal. Rev. L. & Women's Stud. 189 (1996). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/745 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. INSTITUTIONAL MYTHS, HISTORICAL NARRATIVES AND SOCIAL SCIENCE EVIDENCE: READING THE "RECORD" IN THE VIRGINIA MILITARY INSTITUTE CASE DiANNE AVERY TABLE OF CONTENTS I. INTRODUCTION ...................................... 191 II. TRADITION AND CHANGE ......................... 200 A. The Myth of Continuity ............................. 200 B. Race: VMI's Tradition of Discrimination and Accommodation of Difference ...................... 204 C. Religion: The Transformation from Sectarian Christian Military Institute to Secular Military College .............................................. 212 III. THE HISTORIC MISSION OF VMI: TRAINING THE "CITIZEN-SOLDIER" OR "DRAWING OUT THE M AN "? ................................................. 218 A. Creating a Mission for VWIL: The Remedial Plan.. 218 B. The Lexington Arsenal .............................. 231 C. "The West Point of the South" ...................... 240 1. Military Missions - From Play-Soldiers to Drillmasters to War Heroes ..................... 240 2. "Civil Callings" - From Normal School to Engineering School - "Drawing Out the Man" to Serve the State ............................... 251 IV. "FINDING" FACTS AND RE-CREATING MYTHS: THE ROLE OF THE JUDGE, THE DEFENDANTS, THE VMI ALUMNI AND THE VMI ATTORNEYS.. 268 A. Chief Judge Jackson L. Kiser: Finding Facts or Preserving Myths? ........ .......................... 268 B. The Defendants, the VMI Alumni and the VMI Attorneys ............................................ 272 190 REVIEW OF LAW AND WOMEN'S STUDIES [Vol. 5:189 V. THE SOCIAL SCIENCE EVIDENCE: DEFENDING AND CHALLENGING GENDER STEREOTYPES... 277 A. The Role of the Feminist Experts ................... 277 B. Professor Elizabeth Fox-Genovese .................. 282 C. Professor Carol Nagy Jacklin ........................ 298 VI. UNRAVELING THE "CATCH-22" THEORY OF THE VMI CASE ........................................ 318 A. Student Culture or State Educational Policy? The Invention and Affirmation of the "Catch-22" Theory .............................................. 318 B. "Adversative" Training on the Rat Line ............. 324 C. "A Total Lack of Privacy" .................... 348 D. The Effects of a Gender-Based Dual-Track Physical Training Program .................................... 371 VII. CONCLUSION: "THE CHANGING OF THE GUARD" ............................................... 384 1996] INSTITUTIONAL MYTHS INSTITUTIONAL MYTHS, HISTORICAL NARRATIVES AND SOCIAL SCIENCE EVIDENCE: READING THE "RECORD" IN THE VIRGINIA MILITARY INSTITUTE CASE DIANNE AVERY* I. INTRODUCTION In 1993, The Citadel, a state-supported all-male military college in Charleston, South Carolina, conditionally admitted a high school senior named Shannon Faulkner and then withdrew its acceptance upon discovering that Faulkner is female. Faulkner sued, claiming violation of her constitutional right of equal protection. On August 12, 1995, under a court order and accompanied by United States mar- shals, Faulkner joined The Citadel Corps of Cadets as the first female cadet in its 152 year history.' Less than a week later, Faulkner walked out of The Citadel, accompanied by the "whoops and cheers from scores of cadets and their supporters." 2 She announced to reporters that she was defeated by the accumulated stress of 21/ years of litiga- tion and the realization of how truly alone she was as the single female 3 cadet among 2000 male cadets. * Professor of Law, State University of New York at Buffalo. In writing this Article, I have benefitted in Buffalo from discussions sponsored by the Baldy Center for Law and Social Policy and by the Friday Faculty Forum. Joan Bertin, Shelley Chao, Judith Resnik, Kathy Urbanyo and Mary Wyckoff read the final draft of the Article and kindly shared their reactions with me. I owe particular thanks to Lucinda Finley, Nancy Staudt and Mary Anne Case, who responded to lengthy drafts, and provided support and advice throughout the project. Also, the law librarians at Buffalo, particularly Marcia Zubrow and Bette Waf, have provided invaluable assistance tracking down materials for me. No person, however, read more drafts or provided more encouragement than Fred Konefsky. I cannot thank him enough for his contributions. 1. Mike Clary, Faulkner Takes Her Place as a Citadel "Knob". S. C. School to Oppose Other Female Cadets, WASH. PosT, Aug. 13, 1995, at A3; The Chief Justice Opens Citadel to 1st Woman: Faulkner Set to Join Corps of Cadets Today, WASH. PoST, Aug. 12, 1995, at A14. 2. Debbi Wilgoren, Female CadetLeaves Citadel.Faulkner Had Spent First Week of Train- ing in Infirmary, WASH. Posr, Aug. 19,1995, at Al; see Debbi Wilgoren, The Citadel ReassertsIts All-Male Tradition, WASH. PosT, Aug. 20, 1995, at A3. 3. Wilgoren, Female Cadet Leaves Citadel,supra note 2. 192 REVIEW OF LAW AND WOMEN'S STUDIES [Vol. 5:189 Just a few days after Faulkner abandoned her dream of receiving a Citadel education, forty-two women arrived at the Mary Baldwin College Campus in Staunton, Virginia, to begin four years of training as the "charter class" of the Virginia Women's Institute for Leader- ship ("VWIL"), "determined not to suffer Faulkner's fate."'4 The cadets at the state-supported Virginia Military Institute ("VMI") thirty-five miles away might have whooped and cheered as well, for the opening of VWIL signaled VMI's victory in preserving its "156- year-old all-male tradition."' 5 It was, nevertheless, an uncertain vic- tory, for the fate of VWIL and VMI depended on whether the Supreme Court would grant certiorari, and possibly reverse and remand the decision of the Fourth Circuit Court of Appeals in United States v. Commonwealth of Virginia,6 better known as the VMI case. The VMI litigation began in 1990 when a woman - who remains anonymous - complained to the Justice Department about VMI's all-male admissions policy. 7 In the resulting lawsuit, the United States lost the liability trial before the district court, but successfully estab- lished on appeal that VMI's male-only policy violates the Equal Pro- tection Clause.' The court of appeals, however, "remand[ed] the case to the district court to give to the Commonwealth the responsibility to select a course it chooses, so long as the guarantees of the Fourteenth Amendment are satisfied."9 In the remedial phase of the litigation, the Commonwealth of Virginia and the VMI defendants enlisted nearby Mary Baldwin College to develop a plan for a "parallel" mili- tary college program for women on its campus. Mary Baldwin - a 4. Peter Baker, Green and Gutsy and Full of Gumption: Leadership Institute Welcomes 42 Women in Its Charter Class, WASH. PosT, Aug. 23, 1995, at D1. 5. Id. The Virginia Military Institute, located in Lexington, Virginia, was founded in 1839. See Juliette Kayyem, Recent Development, The Search for Citizen-Soldiers: Female Cadets and the Campaign Against the Virginia Military Institute - United States v. Commonwealth of Vir- ginia, 852 F. Supp. 471 (W.D. Va. 1994), 30 HARv. C.R.-C.L. L. REV. 247, 247 (1995). 6. United States v. Virginia (VMI1), 766 F. Supp. 1407 (W.D. Va. 1991), vacated, 976 F.2d 890 (4th Cir. 1992), cert. denied, 508 U.S. 946 (1993), on remand, 852 F. Supp. 471 (W.D. Va. 1994) (VMI II), aff'd, 44 F.3d 1229 (4th Cir.), reh'g denied, 52 F.3d 90 (4th Cir.), cert. granted, 116 S.Ct. 281 (1995). The Supreme Court heard oral argument on January 17, 1996. For a summary of the argument, see 64 U.S.L.W. 3493 (Jan. 23, 1996); for a transcript, see 1996 WL 16020 (U.S. Oral. Arg.). The Court's decision, expected by June 1996, had not been issued at the time this Article went to press. For ease of reference, the first trial and its appeal will be referred to as VMI I, and the second trial (on remand) and its appeal will be referred to as VMI IL 7. See Kayyem, supra note 5, at 248-49 (noting that "[t]he young woman whose letter sparked the United States' interest in VMI dropped out of the picture fairly quickly," and "her identity was never disclosed in any of the court opinions"); see also id. at 264. 8. VMI I, 976 F.2d 890. 9. Id. at 900. 1996] INSTITUTIONAL MYTHS small, private, liberal arts, all-women's college - had already under- taken "a long-range planning process" that included "considering a more deliberate focus on leadership." 10 At VMI's urging, and with the incentive of the lawsuit, the guidance of the trial and appellate court decisions in VMII, and the promise of state aid and a hefty