VMI

[Mark Scarberry]

What if the VMI board decided that it could not do a good job of
providing a military education if VMI were co-ed?  Does the decision in
the VMI case require the board to take the position that it can fulfill
its mission in a co-ed environment?  If not, then a decision by the board
to auction off the school might not be for the purpose of maintaining an
all-male school but simply for the purpose of not running an ineffective
co-ed military school.  Assuming the auction were in fact open to groups
who wanted to buy the school to run it as a co-ed school along with
others who wanted to run it as an all-male school (and perhaps others who
wanted to turn it into a resort hotel complex), would the board's action be
impermissible?  (Or is it naive to think that the auction would not in
some way be rigged so as to assure the continuation of VMI as an
all-male military school?)

          * * * * * * * * * * * * * * * * * * * * * * * * *
          *   Mark S. Scarberry                           *
          *   Professor of Law                            *
          *   Pepperdine University School of Law         *
          *   Malibu, CA 90263                            *
          *   Internet: mscarber at pepperdine.edu           *
          *   Phone: (310) 456-4667, Fax (310) 456-4063   *
          * * * * * * * * * * * * * * * * * * * * * * * * *

On Fri, 22 Aug 1997, Douglas Laycock wrote:

>         Our moderator may cut this off at any time, but until he does:
>
>         I'm not sure Stephen Gilles and I disagree.  My impression, based on
> scanty reports in the national press, was that during the brief pursuit of
> the privatizing option, there was a concerted effort by the VMI
> administration and its alumni to see if a sale were possible.  I assumed, I
> think accurately, that there was no imaginable reason for such a sale except
> to avoid the decree that precipitated investigation of the possibility.  I
> assumed the General Assembly would have to approve.  On those facts, I am
> comfortable imputing purpose to the state.
>
>         Certainly I can imagine a state deciding to sell or even give away
> an operation that it felt no longer served a public purpose, and being
> indifferent as to who bought it.  The feds have a surplus property
> disposition agency whose missino is to sell or give away unneeded federal
> facilities; that's how we got the Valley Forge litigation.  On those facts,
> it is much less plausible to impute the private buyer's purpose to the
> government.
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Page Keeton St.
> Austin, TX  78705
>         512-471-3275 (voice)
>         512-471-6988 (fax)
>         dlaycock at mail.law.utexas.edu
>