(FORTUNE Magazine) – LEFTOVERS OF 1995

Speaking as a chap who has repeatedly nibbled on cold roast pork in the fridge, and therefore knows a thing or two about leftovers, your servant now trots out a passel of Keeping Up ideas that didn't seem quite robust enough for full treatment in the year just ended but on the other hand were too delectable to throw out.

The failure of IRS taxpayer contact representative Thomas S. DeWitt to expand the law of discrimination via a suit alleging that his superiors put him down because he was a Kentuckian. Tom lost his case in an Equal Employment Opportunity Commission decision Solomonically holding: "Appellant has failed to show that 'national origin' as a protected class under Title VII covers state or regional origins."

The New York Times' discovery of the Efficacy Institute, said to do wonders in getting weak students to achieve mightily, and whose promoter, social psychologist Jeffrey P. Howard, is supportively quoted as complaining: "Americans are taught that half of our children are below average in intelligence. It's a crazy and limited idea."

A good-news/bad-news couplet. The good news is that in the runoff election for mayor of San Francisco, the winner was not incumbent Frank Jordan, whose campaign featured televised photos of him taking a shower naked (well, from the waist up) with a couple of wilder talk-show hosts.

The bad news is that the winner was Willie L. Brown, former speaker of the California legislature, who addressed a rally opposing the California Civil Rights Initiative (designed to end affirmative action in the state) and advised students to enroll in the anthropology classes of Cal State Professor Glynn Custred, a co-author of the initiative, and make sure he was "a basket case by the end of the term ... You ought to do what you do best to terrorize professors you don't like." The endorsement of terrorism was not reported in the San Francisco Chronicle and was not an issue in the election.

The fight between Blondie and Dagwood over her burgeoning business career, which led to their visiting a marriage counselor and caused a counselor cited in the Providence Journal-Bulletin to elucidate the deeper meaning of it all, which is that Blondie is a woman of the 1990s who has "decided to work and make some decisions about her life that are good for her and probably good for her family ... But her husband doesn't like it."

Hazel O'Leary's weird performance as Secretary of Energy, leading many critics to groan about her "enemies list" of journalists reporting on the department and her free-spending ways on the junket circuit, while almost nobody mentions the show she put on for employees who had contributed generously to the Combined Federal Campaign (a bunch of charities) and who were rewarded by being allowed to toss balls at a target that, if hit, let them observe the Secretary herself being dunked in a tank of water, except that after one dunk she delegated this assignment to Deputy Secretary William White.

The difficulty of finding an editorial page supporting the death penalty and the even greater difficulty of finding one that opposes the death penalty and was willing to apply its opposition to the Oklahoma bombing after the feds asked the penalty for Tim McVeigh. The New York Times, the Los Angeles Times, and the Washington Post were among the legions prudently remaining silent on this point.

The reaction of Washington Post executive editor Leonard Downie to a New Republic article on racial tensions in the Post newsroom, Len's rejoinder including the immortal line: "Our stated goal for many years has been to try to have our new hires be 50% women and 25% minorities, consistent with filling every vacancy with the best-qualified person possible." Left undeveloped was the rationale for a paper committed to the best-qualified having a goal that limits hires of white males.

Bill Clinton's name's getting mentioned within 30 words of "waffle" or "waffling" in 735 articles in the Nexis database in 1995. (A similar search on Newt turned up only 138 articles.)

THE JUSTICE DEPARTMENT GETS STRICT

The present scholiast recently stayed up late riffling through the 1,867 pages of the 1984 Senate Judiciary Committee hearings on the Equal Rights Amendment--remember that?--and gleaned many a fascinating fact. For openers, he was reminded that an argument to be hammered home in this item was foreshadowed in Keeping Up a dozen years ago. The argument: that if you are sufficiently fanatical in attempting to extirpate all sex discrimination, you will end up abolishing institutions you'd probably prefer to keep, like Wellesley, Hollins, and other single-sex women's colleges deemed meritorious by opinionistas of assorted stripes.

Our 1983 item reported on Donna Shalala's unintentionally humorous ERA testimony before Senator Orrin Hatch's subcommittee on the Constitution. Donna, then president of Hunter College (and now Secretary of the Department of Health and Human Services), was asked whether the ERA--whose whole point was to end all sex discrimination--would permit colleges that discriminate against men to continue receiving the tax exemptions and other government aid needed for them to stay in business. Her answer was, sure, no problem, because lots of women's colleges are there "for the purpose of eliminating past discrimination and for affirmative action." This answer seemed to have triggered a collective "Huh?" from the committee members, including Howard Metzenbaum of Ohio, an up-front agitator for ERA, and we are forever grateful to Senator Hatch for putting Keeping Up's account of Howard's incredulity into the printed hearings along with all those law professor articles.

ERA luckily expired owing to nonratification by needed states, so women's colleges were spared for the time being. In recent years the major threat to their existence has been the VMI case: the Justice Department's five-year-old crusade (it began in the Bush Administration) to make the Virginia Military Institute admit femmes, of all people, into its uniquely "adversative" program (which features endless, mind-numbing physical and emotional stress and total lack of privacy). Virginia's right to maintain this chromosomally undiversified institution was upheld in the federal district court but the appeals court said it could do so only if a comparable college was created for women. All sides appealed this ruling, so the case is now before the Supreme Court, which will hear oral arguments about the time subscribers receive this issue of Fortune. A decision is expected around June--assuming that the Supremes are able to reach a decision (see below).

Most organization feminists profess to be unworried about any threat to private women's colleges. They argue that the current case is irrelevant to the Wellesleys of this world because they are all privately run, while VMI is a state-supported institution, making sex discrimination there unthinkable. In fact the public-private distinction is not so clear-cut. An interesting question is whether private institutions that accept students receiving state or federal financial aid, or federally guaranteed loans, thereby become "public." Several appeals courts have ruled against this concept, but the Supreme Court itself has never reversed its judgment in the 1984 Grove City case, wherein it held that any college admitting students who received such aid was itself deemed a "recipient" of "federal financial assistance" and was thereby subject to the same constitutional scrutiny as state-run schools. Needless to say, just about all women's colleges depend on students receiving such government aid.

The threat to women's colleges does not end there. Several weeks ago the Justice Department suddenly let fly with a bombshell brief on VMI proposing that "strict scrutiny" be applied to college admissions or, indeed, to any situation in which there were "differences in official treatment based on sex." In the past, complaints of sex discrimination were subject only to "intermediate scrutiny," meaning that the discriminator had to show that the state had an "important" interest in the differential treatment. Under strict scrutiny, there must be a "compelling" state interest. Numerous conservative commentators instantly observed that Justice was trying to accomplish in a legal brief what the women's movement had been trying to do with the Equal Rights Amendment to the Constitution.

In the past, only racial discrimination has been subject to strict scrutiny. It is true, as observed here recently, that there is no "bright line" between the different standards of scrutiny; still, the strict standard is a mighty weapon. In 1983 strict scrutiny was a factor in the Supreme Court's support of the Internal Revenue Service when it ruled that contributors to religiously oriented Bob Jones University could not deduct their gifts on tax returns because the school barred interracial dating. Would strict scrutiny be kinder to Wellesley's contributors? More recently the standard has been making it difficult for Detroit and other cities to set up educational programs targeted at young inner-city black males. If programs designed to help only poor blacks are in trouble in a strict-scrutiny world, why would Wellesley get away with programs targeted at middle-class women? Just asking.

Next question: Why would the Clinton Justice Department create these problems for Hillary's beloved alma mater? Why drag strict scrutiny into the case? The answer rated most parsimonious around our house is ideology. Justice is committed to the most extreme feminist perspectives. One of the first aides brought aboard by Deval Patrick, who heads the department's civil rights division, was Isabelle Katz Pinzler, an ACLU activist and nontraditional lady who has opposed any restrictions on women in combat, wants the media to name victims of rape--and opposes women-only colleges. In a 1991 interview with Keeping Up, she stated firmly: "I understand the arguments in favor of single-sex colleges for women, but they should be overruled by policy calling for sex equality in education." In the years before Ruth Bader Ginsburg became a judge, she worked closely with Ms. Pinzler on strategies to promote strict scrutiny as the appropriate standard in sex-discrimination cases.

Possibly you are wondering why the Supremes might have trouble reaching a decision on VMI. One reason is that Justice Clarence Thomas has a son at VMI and is therefore recusing himself, which could lead to a decisionless 4-4 tie (leaving VMI free to remain as it is). To be sure, Judge Ginsburg might also recuse herself because the case could require her to vote on the strict-scrutiny standard she promoted in her activist years. Taking everything together, our bet is that VMI and Wellesley will both succeed in remaining single-sex institutions But then, we had Northwestern in the Rose Bowl.

Reporter Associate David C. Kaufman