CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #33

[More on Gender Classifications]

The federal government (statute and regulation) reactivates draft registration (not the draft itself) for men only.
Stated purpose: to prepare for a combat-ready military; women generally excluded from combat duty

• Is the purpose an important one?
• Is the classification substantially related to the purpose?
• Would a gender-neutral classification have been equally effective to achieve the government's purpose?
• What role does gender-differentiation within the military play in the evaluation of the gender classification actually at issue? Should the current assignment of roles itself be evaluated under equal protection criteria in this case?
• should it matter that men, not women, are complaining here?

A state establishes a women-only school of nursing, a male applicant is denied and challenges

• justifications:
• remedy past discrimination against women in society
• protect women students from the disruptive presence of men
• should it matter that there are co-educational nursing programs at other public universities in the state?

UNITED STATES V. VIRGINIA, p. 781 (1996).

• what exactly is the "adversative method" of instruction employed at VMI?
• would a parallel women-only program have satisfied the Court, if the "adversative method" had been employed in it? To what extent does the majority call single-sex education into question?
• should the state have relied on Rostker to justify the VMI program? Is that the point of Scalia's dissent?
• what about the other two alternatives offered to VMI by the trial court:
• withdraw state support and go private, soliciting funds from loyal alumni?
• admit women to the VMI program?
• Will admitting women in fact cause an alteration of the program which will impair the effectiveness of the "adversative method"?
• If so, is that an argument for or against the existing VMI program?

Nguyen v. INS, p. 792 (2001)
     1.   What regulation, with what purpose?  Does it employ a gender classification?
     2.   Does plaintiff have standing to assert this gender discrimination claim?
     3.   Is the gender classification substantially related to important governmental purposes?
     Are there alternative, nondiscriminatory means available?  O’Connor
     4.   Assuming a DP/EP violation, can courts grant the relief sought? Scalia said no; why not?
     5.   Should the federal government be subject to lesser scrutiny in immigration matters?

The Equal Rights Amendment, p. 800

• Was the ERA unnecessary, in light of the S. Ct.'s EP decisions?
• Some would like it to be re-proposed. Should its proponents reformulate it? If so, how?