Challenge to Single-Sex Schools under Equal Protection: Mississippi University for Women v. Hogan
![handle is hein.journals/hwlj6 and id is 175 raw text is: CHALLENGE TO SINGLE-SEX SCHOOLS UNDER
EQUAL PROTECTION: MISSISSIPPI UNIVERSITY
FOR WOMEN V. HOGAN
DAVID HOFFMAN*
Eleven years ago, in Reed v. Reed,' the Supreme Court estab-
lished that sex-based discrimination is subject to scrutiny under the
equal protection clause.'2 The cases since Reed have reaffirmed
that principle, but have failed to resolve definitively two important
underlying issues: first, the constitutionally appropriate level of
scrutiny;3 and second, the extent to which the Court will look
behind assertedly benign classifications4 to assess their actual im-
pact on women. Last Term, in Mississippi University for Women
v. Hogan,5 the Court addressed both of these issues in a challenge
to the admissions policy of an all-female nursing school, and held
that the policy violated the equal protection clause of the fourteenth
amendment.6 In doing so, the Court reasserted the propriety of an
intermediate level7 of judicial scrutiny for sex-based classifica-
*Student, Harvard Law School.
'404 U.S. 71 (1971).
2 Id. at 75.
3 Until Reed, equal protection analysis was bifurcated into strict scrutiny, under which
suspect classifications such as race and national origin were examined, and the less exacting
rational basis test, under which economic and social welfare legislation was reviewed. This
two-tier arrangement yielded fairly predictable outcomes: legislation was generally upheld if
examined for a rational basis, but invalidated if subjected to strict scrutiny-unless the law
served a compelling state interest that could be served in no other way. See generally
Developments in theLaw-EqualProtection, 82 HAiv. L. R v. 1065, 1076-1132 (1969). The
manipulability of this approach to constitutional adjudication has been recognized even by
the Court. See Rostker v. Goldberg, 453 U.S. 57, 69-70 (1981) ([L]evels of 'scrutiny' may
... all too readily become facile abstractions used to justify a result.).
In Reed, the Court for the first time applied a heightened level of scrutiny to classifica-
tions based on sex. See Comment, Plessy Revived: The Separate But Equal Doctrine and Sex-
Segregated Education, 12 HARv. C.R.-C.L. L. REv. 585, 626-27 (1977).
Benign classifications are those which extend benefits to historically oppressed groups.
See generally Ginsburg, Some Thoughts on Benign Classification in the Context of Sex, 10
CoNN. L. Ray. 813 (1978); Kanowitz, Benign Sex Discrimination: Its Troubles and Their
Cure, 31 HAsmiNGs L.J. 1379 (1980).
' 102 S. Ct. 3331 (1982).
'Id. at 3340, 3341.
7 See infra, text accompanying notes 37-42.
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Challenge to Single-Sex Schools under Equal Protection: Mississippi University for Women v. Hogan
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