14 F. 3d 3 - Faulkner v. E Jones

PRIOR REPORT: 10 F.3d 226

ORDER

Appellants have filed a motion to stay the mandate pending application to the Supreme Court of the United States for a writ of certiorari and appellee filed a response to the motion.

The Court denies the motion.

Entered at the direction of Circuit Judge NIEMEYER, with the concurrence of Circuit Judge K.K. HALL.

Circuit Judge HAMILTON dissents from the denial of the motion and has filed a separate written dissent.

HAMILTON, Circuit Judge, dissenting:

Before issuing a mandate which compels The Citadel to jettison 151 years of distinguished educational tradition, I believe we should afford the Supreme Court an opportunity to consider two compelling questions of national importance which have not yet been addressed. I, therefore, dissent from the majority's decision to deny the motion for stay of mandate pending application for writ of certiorari.

First, the preliminary injunction affirmed by the majority invokes issues of comity and federalism. Before The Citadel is required to transform itself, I believe the Supreme Court should be afforded the opportunity to consider whether a federal court may properly impose a remedy for a constitutional violation without first providing the state the right to devise and implement its own remedy. In my view, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and its progeny require a federal court to refrain from imposing a particular remedy on a state, even on a preliminary basis, before the state has had the opportunity to fashion a remedy from a variety of permissible alternatives.

Second, the Supreme Court should also be afforded an opportunity to consider a novel issue under the Equal Protection Clause. Specifically, The Citadel claims that, under Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982), and its progeny, including our decision in VMI, 976 F.2d 890 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993), establishing a lack of demand by women for a Citadel-type education would justify South Carolina's decision to provide such educational opportunities only to men. Faulkner rejects this argument, asserting that a lack of demand can never justify a state's decision to deprive a lone woman of the same educational opportunities which the state provides to men. Even the majority could not reach a consensus on this question. Compare Faulkner v. Jones, 10 F.3d 226 (4th Cir.1993) ("[A]ny analysis of the nature of a separate facility [for women] ... must take into account ... the demand (both in terms of quality and quantity....), with Id. at 231 (Hall, J., concurring) ("I question whether, under the Equal Protection Clause, a state can ever have a sufficiently important interest to justify expending funds to maintain an institution that not only practices inequality, but celebrates it."). Before the State of South Carolina undertakes the costly and timely discovery to establish such a lack of demand in a trial on the merits, I believe the Supreme Court should first be afforded the opportunity to rule, as a matter of law, whether such lack of demand would, under the intermediate scrutiny applicable to gender-based discrimination claims, justify a state's failure to provide equal educational opportunities to both genders.

It could be argued that, if the Supreme Court wishes to review these important constitutional questions, it could issue its own stay. Such an argument, in my opinion, abrogates the responsibility of this court by ignoring the appropriate inquiry which we are bound to undertake when deciding whether to grant such a stay. Specifically, Fourth Circuit I.O.P. 41.2 allows this court to grant such a stay if the matter raises a "substantial question" or "set[s] forth good or probable cause for a stay." Unquestionably, the two questions previously discussed qualify as "substantial." In addition, the failure of the majority to reach a consensus on the second question clearly provides "good or probable cause for a stay." Such undefined parameters of our Constitution should be explored before, rather than after, we compel The Citadel to transform itself. See, e.g., Virginia Military Institute v. United States, --- U.S. ----, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993), where Justice Scalia opined: