Ginsburg Was Advocate for Equity

Supreme Court Justice Ruth Bader Ginsburg, who died Friday, was known for her strongly worded dissents.

But she wrote several decisions that set precedents and policy for higher education.

The decision for which Ginsburg is best known came in 1996, when the Supreme Court ruled that Virginia could not maintain the Virginia Military Institute for male students only. The commonwealth maintained that the "adversative" system at VMI was appropriate only for men. Ginsburg defined the system this way: "Cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the mess hall, and regularly participate in drills. Entering students are incessantly exposed to the rat line, 'an extreme form of the adversative model,' comparable in intensity to Marine Corps boot camp. Tormenting and punishing, the rat line bonds new cadets to their fellow sufferers and, when they have completed the seven-month experience, to their former tormentors."

But Ginsburg rejected the idea that only men could benefit from the system. The suit against VMI was brought by the Justice Department on behalf of a woman who wanted to enroll. And she also rejected VMI's argument that the practice of excluding women would be constitutional because Virginia created an institute for women to become soldiers, but without the adversative system, at Mary Baldwin College, a private women's college in the state. She also rejected the argument that Virginia was supporting VMI as an all-male institution out of its commitment to diversity.

"A purpose genuinely to advance an array of educational options, as the Court of Appeals recognized, is not served by VMI's historic and constant plan -- a plan to 'affor[d] a unique educational benefit only to males.' However 'liberally' this plan serves the state's sons, it makes no provision whatever for her daughters. That is not equal protection," wrote Ginsburg.

And she dismissed the value of the institute for women at Mary Baldwin as an equivalent of VMI.

"VMI, too, offers an educational opportunity no other Virginia institution provides, and the school's 'prestige' associated with its success in developing 'citizen-soldiers' is unequaled. Virginia has closed this facility to its daughters and, instead, has devised for them a parallel program, with a faculty less impressively credentialed and less well-paid, more limited course offerings, fewer opportunities for military training and for scientific specialization," Ginsburg wrote. "VMI, beyond question, possesses to a far greater degree than the [women’s] program ‘those qualities which are incapable of objective measurement but which make for greatness in a … school,’ including position and influence of the alumni, standing in the community, traditions and prestige. Women seeking and fit for a VMI-quality education cannot be offered anything less, under the state's obligation to afford them genuinely equal protection."

Ginsburg traveled to VMI 20 years after her decision forced it to admit women to address students. She said during the visit that she believed her decision "would make VMI a better place." She summed up the decision this way: "There are women who are ready and willing and able to undergo the tough training at VMI and they want that opportunity."

Student Groups That Discriminate

In 2010, Ginsburg wrote that public colleges and universities may limit recognition to student groups that abide by antibias rules -- even when the groups are religious and they object on religious grounds to some of the rules.

The ruling rejected an appeal by the Christian Legal Society, which has sought at many public campuses to be recognized as a student group even though -- in violation of many colleges' antibias policies -- it bars as members gay people and those who do not meet a variety of requirements related to their religious beliefs.

That finding represented a huge victory for the Hastings College of Law of the University of California, whose antibias rules were at issue, and for civil rights and education groups that backed the law school. Hastings fought for the principle at a time when many other law schools and public universities -- facing threatened lawsuits or losing court decisions -- backed down, effectively agreeing to exempt religious groups from some aspects of antibias rules. But Justice Ginsburg's decision said that a public college may require that all student groups accept any student.

Ginsburg focused on Hastings' "all comers" approach to student activities, in which it requires all organizations seeking recognition as an official student group to be open to anyone who wants to participate. While the Christian Legal Society argued that this policy denied it the freedom of religion and association rights it should be provided under the First Amendment, Ginsburg said that as long as the policy is enforced consistently, it is valid for a public college or university.

The decision rejected the idea that the Christian Legal Society (referred to as CLS) was being forced to do anything.

"CLS, in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition," Ginsburg wrote. "The expressive-association precedents on which CLS relies, in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out."

Ginsburg also wrote that it would be impossible for a public college or university to do as the CLS requested and permit organizations to deny membership or leadership to various people based on belief. This was a key part of the CLS argument, as the society said repeatedly that it was not rejecting anyone on the basis of their status.

In Dissent

One of Ginsburg's dissents of note to higher education came in the first of two cases involving the University of Texas at Austin's affirmative action policies. In her dissent, she argued that the Supreme Court should not have heard the case.

"Petitioner urges that Texas’ Top Ten Percent Law [which granted admission to any Texas public college of those in the top 10 percent of their high school class in the state] and race-blind holistic review of each application achieve significant diversity, so the university must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious," she wrote.

In 2018, Ginsburg dissented from a ruling that barred most states from banning gambling on sporting events, including college games.

Ginsburg wrote that the court’s majority had wielded “an axe” to cut down the law when it could have simply used “a scalpel to trim the statute.”

“On no rational ground can it be concluded that Congress would have preferred no statute at all if it could not prohibit states from authorizing or licensing such schemes,” she wrote.