The Supreme Court probably reached the right result in its 7-1 decision striking down all-male education at the Virginia Military Institute, given the state’s failure to offer any genuinely equal opportunity to women.

But even so, the broad sweep of Justice Ruth Bader Ginsburg’s June 26 majority opinion in United States v. Virginia could end up doing more harm than good. The Ginsburg opinion contains some powerful and persuasive reasoning. But it unwisely and unnecessarily leaves a cloud over all single-sex education, especially in public institutions; it raises too high the constitutional barrier against sex-based governmental distinctions, at a time when sex discrimination by government is simply not a very serious problem; it flirts obliquely with the unprincipled double standard sought by many feminists, who want sex-based programs for females only; and it reads a bit too much like a symbolic affirmation of triumphant feminist ideology rather than a sober exercise in constitutional law.

Most of these points are well made in Justice Antonin Scalia’s dissent, which unfortunately undermines its own credibility by featuring wildly hyperbolic claims that the decision "shuts down" VMI and will "destroy" the place.

Hyperbole aside, Scalia may well be right- although I hope he’s wrong-in asserting that the Court’s rationale "ensures that single-sex public education is dead."

This prospect is especially troubling at a time when many educational experts and some feminists are citing powerful evidence that single-sex education can benefit girls and boys alike, and when there is a crying need to encourage experimentation with alternatives to current educational orthodoxies.

Justice Ginsburg does disclaim, in a cryptic footnote, any intention of declaring single-sex education unconstitutional except in the context of the "unique…. opportunity available only at Virginia’s premier military institute, the State’s sole single-sex public university or college." She seems to hint in another footnote that separate-but-equal male and female programs might be upheld.

But as Scalia notes, both the newly stringent constitutional standard announced by the Court and its detailed rationale tend to suggest that any program restricted to one sex must be opened to any members of the opposite sex "who have the will and capacity" (in Ginsburg’s words) to participate, at least if the program can be characterized as "unique" (as most can).

Suppose, for example, that your local high school concerned that talented girls are being eclipsed in math classes by more outspoken boys, wants to see whether girls do betterin a single-sex class. If it creates such a class only for girls, any boy could sue on the ground that he was being denied a unique oppurtunity. If the school offers single-sex classes for girls and boys alike, any student could sue on the ground that the class reserved to the opposite sex was more challenging or had a better teacher.

It’s far from clear that such lawsuits would succeed. But as Scalia notes, public officials are likely to be deterred from experimenting by "the costs od litigating the constitutionality of a single-sex education program, and the risks of ultimately losing." Even before the VMI decision, public schools around the country had abandoned or shied away from single-sex experiments because of actual or threatened lawsuits.

The Court could have sent an unambiguous signal that it had no intention of discouraging such experimentation. By failing to do so, it may have effectively imposed coeducational, unisex orthodoxy on all 50 states, forever, as Scalia fears.

It’s harder to tell how the VMI decision might affect private single-sex institutions, which depend heavily on government subsidies. But it will, at least, become harder to distinguish decisions like Norwood v. Harrison (1973)-which extended the ban on racial segregation in public schools by striking down state financial support for segregated private schools-as the Court comes closer to equating sex discrimination with racial discrimination.

And the Court has now come closer than ever before to doing just that. The Ginsburg opinion stops short of adopting the Clinton Justice Department’s suggestion that the Court explicitly subject gender classifications to the same "strict scrutiny" as racial classifications. But it takes a step in that direction by playing up a phrase taken out of context from two prior decisions:

"We note, once again, the core instruction of this Court’s pathmarking decisions:… Parties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action."

While repeating this tough-sounding but analytically vacuous phrase nine times, Ginsburg downplays the traditional formulation of "intermediate scrutiny" for gender classifications: "substantially related to the achievement of important governmental objectives." She thereby conveys the impression that it should be almost impossible for any gender classification to pass constitutional muster-at least if the beneficiaries are male.

Ginsburg reinforces this impression through her detailed rejection of VMI’s arguments For preserving its all-male status. She does not focus sharply on the distinctive unfairness of denying to those women who are both interested and fully qualified the opportunity to attend a venerated and heavily endowed state institution of truly unparalleled prestige. Instead, her opinion exudes intimations that any all-male program anywhere is probably unconstitutional when viewed against the backdrop of our nation’s long history of subordinating women.

It’s obvious that our nation-rather, our planet- has such a history and that discrimination against women persists. But it’s far from obvious that discrimination against women by government persists-especially in education-except in the most vestigial forms.

And as Scalia points out, women are hardly the sort of "discrete and insular minority" for which the Court originally crafted heightened equal protection scrutiny. As a majority of the voting age population, women are quite capable of protecting their group interests at the ballot box.

Given this, the sort of intermediate scrutiny that the Court has applied in the past represents a reasonable middle ground: Our history of subordination of women warrants skepticism of gender classifications, but the obvious voting power of women calls for some deference to majoritarian decisions that certain gender classifications are worth having.

One irony of the feminist crusade to require strict scrutiny is that it could bar the kinds of special programs and preferences for women that many of the same feminists want. That’s why feminist groups and the Clinton Justice Department suggested in their VMI briefs that strict scrutiny should be qualified by a double standard of allowing "compensatory" or "remedial" gender classifications. That’s code language for gender-based programs for females only-akin to the preferences for racial minorities now under such attack, although those are easier to justify than preferences for women.

Justice Ginsburg’s opinion contains oblique hints that she might be receptive to such a double standard: In a footnote, she notes with apparent approval a statement by 26 private women’s colleges in an amicus brief that it is the mission of some single-sex schools "to dissipate, rather than perpetuate, traditional gender classifications." In the next footnote, she quickly adds a suggestion that women can apparently benefit more than men from single-sex education, as well as a quotation from a 1968 book: "The all-male college would be relatively easy to defend if it emerged from a world in which women were established as fully equal to men. But it does not. It is therefore likely to be a witting or unwitting device for preserving tacit assumptions of male superiority."

What’s the point? That all-female colleges are good, but all-male colleges are evil?

The overall tone of Ginsburg’s opinion-which reviews at length the familiar history of subordination of women, and quotes disapprovingly male-supremacist remarks by dead white men like Plato, Thomas Jefferson, and John Adams-also gives resonance to another Scalia complaint:

"Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forbears… Closed-minded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution."