The Supreme Court seems likely to rule this year that the Virginia Military Institute’s long-standing exclusion of women denies them the equal protection of the law. Maybe the Court should.

But the most important thing about the case (United States v. Virginia, set for oral arguments on Jan. 17) is not the future of VMI. It is, rather, the threat to the future of all public single-sex education-and even private single-sex education-posed by the unwise legal doctrines now being urged upon the Court by VMI’s main adversaries.

The Clinton Justice Department and some liberal feminist and civil rights groups are seeking an unprecedented holding that all gender classifications are subject to the same "strict scrutiny" under the equal protection clause as racial classifications.

Such a ruling would (among other things) allow single-sex educational programs only if "narrowly tailored" to serve a "compelling governmental objective." In practice, it would erect a virtually insuperable constitutional barrier to any form of public single-sex education, for men or for women.

And this at a time when evidence is rapidly accumulating that single-sex schools, colleges, and classes within coed institutions bring out the best in many students-especially adolescent girls and college-age women, many of whom flourish in women’s colleges and in all-female math and science classes in coed schools.

Although the Clinton administration feebly denies any agenda to prohibit public (or private) single-sex education, it suggests in the same breath that any single-sex program can be justified only by a "compensatory purpose." That’s code language for an affirmative action, redress-for-past-discrimination, double standard that might allow some single-sex programs for females, but not for males.

But Supreme Court precedent rejects any such double standard in equal protection cases. And while discrimination against women remains a serious problem in many ways, there is little evidence that women generally have less educational opportunity than men. Indeed, women comprise 55 percent of the nation’s college students.

Experimentation with public single-sex education is already chilled by the threat of litigation. It would be put into a deep freeze if the Supreme Court were to adopt the unisex dogmas advocated by Solicitor General Drew Days III and his feminist allies in their ideologically driven assault on VMI. Thus would innovations of increasing interest to educators, parents, and students be denied to the majority of Americans, who cannot afford private education.

And even private single-sex schools and colleges might be threatened, although the law on this point is murky. All private colleges depend heavily on various forms of federal and state funding and tax subsidies. The Court has struck down some forms of governmental assistance and tax exemptions for racially segregated private schools and colleges. If, as the administration contends, gender classifications should be treated the same as racial classifications, it might well follow that government may not provide such assistance to single-sex schools either.

For these and other reasons, the Court should firmly reject the administration’s strict scrutiny argument. But that would not necessarily mean a victory for VMI: Even under established equal protection precedents (subjecting gender classifications to "intermediate scrutiny"), a strong case can be made for requiring this particular all-male college to admit women on the same basis as men.

The U.S. Court of Appeals for the 4th Circuit held in 1992 that it was unconstitutional for Virginia to exclude women from VMI as long as the state did not have a similarly rigorous, all-female program elsewhere, to teach women the leadership skills for military and civilian life that VMI teaches men.

The state responded by joining with Mary Baldwin College, an established private women’s college 35 miles from VMI, to create the state-funded, all-female Virginia Women’s Institute for Leadership, which opened last fall on the Mary Baldwin campus with an entering class of 40 to 50 women. The 4th Circuit ruled last January that the Mary Baldwin program was an adequate remedy, allowing VMI to remain all-male.

VMI’s adversaries stress, however, that the Mary Baldwin program is not even close to being the equal of VMI: The women’s program eschews the most distinctive feature of VMI’s program, the so-called adversative, Marine-boot-camp approach to breaking in first-year students by systematically abusing and harassing them; the educational approaches and campus environments are dissimilar in many respects; and-most importantly, in my view-a degree from the nascent Mary Baldwin program cannot, for the foreseeable future, match the prestige of a degree from VM!, a venerated, 156-year-old institution with a $131 million endowment and a network of thousands of loyal and influential alumni.

The VMI counterargument goes something like this: With 14 public coeducational colleges and more than 30 private colleges, including three private women’s colleges that receive substantial state funding, Virginia provides a wide array of educational opportunities to women as well as men, including ROTC programs just like the one at VMI (which sends only 15 percent of its graduates into military careers). The only state institution that excludes women is VMI. And hardly any women want to go there.

That’s because the distinctive thing about VMI is not the military training (which is available to women through the ROTC programs at Mary Baldwin and elsewhere), but something that does not interest many young women: the adversative, boot-camp approach.

This adversative approach-as weird as it may seem to many of us-has proven singularly effective at making successful leaders out of many young men whose qualifications seemed less than outstanding when they arrived at VMI. Or so the lower courts found, based on expert testimony, and the Justice Department itself stresses.

But educational experts (including those retained by the Justice Department) consider the adversative approach unsuitable for (as well as unsought by) the vast majority of women, in light of the empirically documented differences in the social and psychological development of young men and women. That’s why the Mary Baldwin program-while aspiring to educate women for leadership in male-dominated professions just as effectively as VMI educates men-quite reasonably chose a less spartan means to that end, rather than aping every detail of VMI’s program.

The Mary Baldwin program thus seems likely to benefit more women than would a decision requiring VMI to go coed. But what about those relatively few women who do want a VMI-style education, and who can pass all of VMI’s fitness tests, right down to the prescribed number of pullups? (There are some such women, the lower courts found.)

Here lies the weakest point in VMI’s case. Given the impossibility of creating an all-female program that could soon replicate VMI’s prestige and alumni network, it’s hard to justify excluding from VMI those women who are willing and able to take the same abuse as the men.

VMI’s answer is that its adversative approach would be destroyed by admitting any women. But this is hardly self-evident. If the number of women willing and able to endure college-as-boot-camp is as small as VMI claims, then their presence would have only a marginal impact on the institution. If, on the other hand, it turns out that a lot of women are ready for a VMI-style education, then it’s unfair to restrict that opportunity to men.

The bottom line may thus be that the Supreme Court should require VMI to admit any women who can pass all the same tests that men must pass to win admission.

But if the justices do so order, they should signal at the same time that the Constitution does not require VMI to take the next step that the Clinton Justice Department would no doubt seek: watering down the required number of pullups, the abuse by upperclassmen, and other adversative practices to the extent necessary to attract and graduate women in substantial numbers, and to cater to their special needs. (Remember the department’s argument last year that The Citadel, in South Carolina, should exempt Shannon Faulkner from the head-shaving required of all male cadets.)

To start down this road really would begin to destroy the very "adversativeness" that is VMI’s principal distinction, and that the Justice Department ostensibly seeks to make available to women.

The Court should also make it crystal clear that any ruling against VMI does not mean that the Constitution bars states from experimenting with other single-sex educational programs, for men and women alike.

This is a hard case. (In my Oct. 3, 1994, column, "Feminism and Educational Opportunity," I argued that VMI should win, and I flip-flop here with some ambivalence.) The decision should be handled with extraordinary care, or it will make bad-law.