Shannon Richey FAULKNER, individually and on behalf of all others similarly situated; United States of America, Plaintiffs-Appellees, v. James E. JONES, Jr., Chairman, Board of Visitors of The Citadel, the Military College of South Carolina; Carroll A. Campbell, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; T. Easton Marchant, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Barbara S. Nielsen, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; William F. Prioleau, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; William E. Jenkinson, III, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Leonard C. Fulghum, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; James M. Leland, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; John A. McAllister, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Davis S. Boyd, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Julian G. Frasier, III, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Larry J. Ferguson, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Steve D. Peper, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Wallace I. West, Jr., Director of Admissions and Recruiting at The Citadel, the Military College of South Carolina; Claudius E. Watts, III, President of The Citadel, the Military College of South Carolina; State of South Carolina; The Citadel, the Military College of South Carolina; The Board of Visitors of the Citadel, the Military College of South Carolina, Defendants-Appellants, 10 F.3d 226

OPINION NIEMEYER, Circuit Judge: Shannon R. Faulkner was conditionally admitted to The Citadel, a South Carolina state military college, to begin classes in the fall of 1993. When her female gender was discovered, however, The Citadel withdrew its acceptance in accordance with its 150-year-old policy of admitting only males. Faulkner then filed this suit to compel her admission, contending that the college’s policy of excluding females violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

The district court issued a preliminary injunction ordering that Faulkner be admitted to day classes at The Citadel, but not, consistent with her request, to its Corps of Cadets.

Pending briefing and argument on appeal, we stayed the order, concluding that “public interest demands that resolution of an issue of such extraordinary complexity not be compressed into a proceeding solely to determine whether a stay is granted.” Balancing the relative harms of the parties on a scale adjusted by the plaintiffs likelihood of success on the merits, we now conclude that the district court did not abuse its discretion in issuing the preliminary injunction and affirm. I The Citadel, established in 1842, is a state-supported four-year military college, located in Charleston, South Carolina.

Although it provides undergraduate, evening and graduate courses to a total student population of almost 3,800, The Citadel’s unique undergraduate education incorporating a rigorous military training is made available only to its Corps of Cadets, consisting of approximately 2,000 students. By means of an adversative military methodology which the parties characterize as being similar to that employed by the Virginia Military Institute in Lexington, Virginia, described in United States v.

Commonwealth of Virginia, 766 F.Supp. 1407 (W.D.Va.1991), The Citadel seeks, according to its mission statement, “to educate male undergraduate students as members of the South Carolina Corps of Cadets and to prepare them for postgraduate positions of leadership through academic programs of recognized excellence supported by the best features of a disciplined military environment and rigorous training.” Throughout its 150-year history, The Citadel has maintained a policy of admitting only men to its Corps of Cadets. It has, however, admitted women to other educational programs. Shannon R.

Faulkner, as an honor student at Wren High School in Anderson County, South Carolina, applied for admission to The Citadel in January 1993. The Citadel was her first choice for college because she hoped “to attend a college in a military environment” and believed The Citadel’s program to be “unique” in South Carolina and to offer “many advantages which [she] could not receive at any other college in South Carolina.” The Citadel, not realizing that Faulkner was female, admitted her on a provisional basis, as it does for every student.

When The Citadel discovered that Faulkner was female a short time thereafter, it promptly revoked her admission. Alleging that the male-only admissions policy of The Citadel denied her equal protection of the laws, Faulkner filed suit in March 1993. Shortly thereafter, in May 1993, the South Carolina General Assembly passed a joint resolution which affirmed a state policy of favoring single-gender educational institutions.

The resolution declares that: South Carolina has historically supported and continues to support single-gender educational institutions as a matter of public policy based on legitimate state interests where sufficient demand has existed for particular single-gender programs thereby justifying the expenditure of public funds to support such programs. The General Assembly also formed a ten-member committee to examine the need for single-gender educational opportunities for women in South Carolina and to submit recommendations for the General Assembly to consider at the beginning of its 1994 session.

On July 8,1993, Faulkner filed a motion in the pending litigation for a preliminary injunction mandating that she be permitted to attend day classes pending the outcome of the litigation. Her motion did not request that she be admitted to the Corps of Cadets. Faulkner argued that even The Citadel’s expert testimony conceded that her attendance in the classroom only would not have harmful effects.

On August 12, 1993, following a hearing, the district court granted Faulkner’s motion for a preliminary injunction, concluding that the “irreparable harm that [Faulkner] will suffer if her constitutional rights are continued to be denied her far outweighs any irreparable harm The Citadel will sustain if she is admitted to the Day Program.” Indeed, the court concluded that it was “unable to perceive of any significant irreparable harm or harm that will be suffered by The Citadel if this plaintiff is admitted to the Day Program.” This appeal followed, and, to allow for full briefing and argument, we stayed the effect of the district court’s preliminary injunction and ordered an expedited

schedule for briefing and argument. II The Fourteenth Amendment, which was adopted after the Civil War to provide the newly-freed blacks with the same protection of the laws as that afforded to other persons, states in deceptively simple language, “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” Although the clause clearly provides that a law must apply with equal force to all persons within a class defined by the law, it does not require that a law, which is limited in its scope to a particular class, apply in the same way to persons outside of that class.

While it may be popular to believe that the Equal Protection Clause prohibits distinctions even in classifications — for that conclusion is suggested by the overly generalized statement that “all men are created equal” — the clause accommodates the opposite notion, that people are created differently. Fundamental injustice would undoubtedly result if the law were to treat different people as though they were the same. See Jenness v.

Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971) (“Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike.”). Thus, different classes are routinely defined by legislation without objection. For example, statutes limit the licensing of drivers to a class of persons 16 and over, or drinking to a class of persons 18 and over. In addition, classifications by gender have been utilized to require men to register for the draft, but not women, see Rostker v.

Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981), and to qualify only men for employment in maximum security prisons, see Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). In short, the Fourteenth Amendment “does not deny to States the power to treat different classes of persons in different ways.” Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). When a regulation undertakes to define a class, however, the criteria for defining the class must be related to the purpose of the regulation.

See Reed, 404 U.S. at 76, 92 S.Ct. at 254 (holding that Idaho statute which gives preference to the appointment of men over women as estate administrators violates the Equal Protection Clause). We may thus begin the analysis for determining whether the equal protection of the laws is denied with the inquiry of whether the classification made has an appropriate relation to the purpose of the regulation. A regulatory classification which is made for a purpose unrelated to the purpose of the regulation, or which is broader than that appropriate for the regulation, may reveal prejudice and define discrimination.

See e.g., Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967) (finding that a state’s interest in regulating marriage is unrelated to race and therefore a statute prohibiting racially mixed marriages has “no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification”). Even when a classification is appropriately related to the regulation’s purpose, we must weigh and evaluate the state’s interest in accomplishing the regulation’s purpose.

Under the current equal, protection jurisprudence, the adequacy of the state’s purpose varies with the nature of the classification. Thus, a classification based on race or national origin or which affects fundamental rights secured by the Constitution is examined most closely because the classification is deemed inherently suspect. Only a compelling state interest, advanced by the least restrictive means, will justify the classification on these bases. See, e.g., Palamore v.

Sidoti, 466 U.S. 429, 432-33, 104 S.Ct. 1879, 1881-82, 80 L.Ed.2d 421 (1984) (holding that custody decision based on race is not justified). On the other hand, classifications based on economic factors need only be rationally related to a legitimate governmental interest. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-40, 105 S.Ct. 3249, 3253-54, 87 L.Ed.2d 313 (1985) (applying rational basis test to economic and social legislation).

A regulation that classifies by gender, such as that at issue in this case, is not subject to the same strict scrutiny as is one that classifies on the basis of race or national origin, due to the acknowledged differences between males and females, but it nevertheless demands more scrutiny than do economic regulations. See United States v. Commonwealth of Va. (“VMI”), 976 F.2d 890, 895-98 (4th Cir.1992), cert. denied sub nom., Virginia Military Institute v. United States, — U.S. -, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993).

The scrutiny to be given regulations classifying by gender has been characterized as intermediate. “To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective.” See Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465 (1988); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982). Legislative distinctions based on gender may thus be justified by an important governmental interest in recognizing demonstrated differences between males and females.

But intermediate scrutiny will reject regulations based on stereotypical and generalized conceptions about the differences between males and females. See Hogan, 458 U.S. at 724-25, 102 S.Ct. at 3336-37; Frontiero v. Richardson, 411 U.S. 677, 684-85, 93 S.Ct. 1764, 1769-70, 36 L.Ed.2d 583 (1973). These principles were applied to circumstances strikingly similar to those before us in the VMI case. In VMI, we accepted the district court’s factual findings which recognized physical and psychological differences between men and women.

The heart of VMI’s military training program, aimed at producing citizen soldiers, depended on a methodology that reduced the cadets in training to an as-equal-as-possible status by physical and mental adversity, stress, deprivation of privacy, and minute regulation of behavior, and at the same time, relied on instilling values based on a strict code of conduct. While the evidence demonstrated that the adversative relationship of male against male tended to produce a desired result, an adversative relationship of male against female was believed to lead to different consequences. See VMI, 976 F.2d at 896.

We also accepted the finding by the district court that if women were admitted to VMI, differences in physical ability between men and women, as well as concerns for privacy, would require VMI to adopt a “dual-tracking” program for training men and women in order to achieve equality in effect. This conclusion was based on the evidence that the military service academies, which are coeducational, found it necessary in every case to adopt dual-track programs for men and women. Id.

We recognized, however, that dual-tracking would yield effects that might be unequal between the sexes, leading to jealousy and resentment. Id. In light of the district court’s findings, we concluded in VMI that coeducation would so fundamentally change VMI’s military program that neither males nor females would receive the training which VMI offered through its single-gender program. “It is not the maleness, as distinguished from femaleness, that provides justification for the program.

It is the homogeneity of gender in the process, regardless of which sex is considered, that has been shown to be related to the essence of the education and training at VMI.” VMI, 976 F.2d at 897. With respect to the educational program, we observed that scientific studies, offered into evidence supported the conclusion that single-sex education is pedagogically justifiable both for males and females. Id.

Thus, with respect to both VMI’s military and educational aspects, we held that a single-gender policy was justified by an important state purpose and that the state could appropriately offer a single-gender military education. While providing a single-gender military education was held to constitute an appropriately important state purpose, we could find no state policy justifying Virginia’s decision to offer this unique type of education only to men. VMI, 976 F.2d at 899. No evidence was presented that women might not also benefit from a program of military training designed to produce women citizen soldiers.

The state offered only diversity as an announced justification. We concluded, however, that a policy of diversity is not advanced by the establishment of an institution for only one gender. Id. We remanded the case to the district court with instructions to elicit a plan from the state complying with the Fourteenth Amendment. We allowed for the possibility that a plan could still permit VMI to remain a state-supported single-gender institution, if that were the will of Virginia, so long as women were offered a parallel program. Id. at 900.

The order in VMI did not, however, direct that any parallel program which the state might choose to provide be identical for both men and'women. In a circumstance where a gender classification is not justified by an acknowledged difference between men and women, the equality of treatment demanded cannot be satisfied by “separate but equal” facilities. See VMI, 976 at 898 n. 7. “Separate but equal” does not amount to equal. Thus, in the context of a racial classification which was not justified by the regulation’s purpose, the requirement of equal treatment could not be satisfied by “separate but equal” treatment.

See Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954). When, however, a gender classification is justified by acknowledged differences, identical facilities are not necessarily mandated. Rather, the nature of the difference dictates the type of facility permissible for each gender. The point is illustrated by society’s undisputed approval of separate public rest rooms for men and women based on privacy concerns. The need for privacy justifies separation and the differences between the genders demand a facility for each gender that is different.

Therefore, any analysis of the nature of a separate facility provided in response to a justified purpose, must take into account the nature of the difference on which the separation is based, the relevant benefits to and the needs of each gender, the demand (both in terms of quality and quantity), and any other relevant factor. In the end, distinctions in any separate facilities provided for males and females may be based on real differences between the sexes, both in quality and quantity, so long as the distinctions are not based on stereotyped or generalized perceptions of differences.

That said about our decision in VMI, we come to the problem before us, whether the district court abused its discretion in entering a preliminary injunction, based on VMI, ordering that The Citadel admit Shannon Faulkner to day classes pending the outcome of the litigation on the merits. Ill On the state of the record as it now exists, we can perceive no reason why our holding in VMI would not apply in this ease. The Citadel is a state-supported military college not unlike the Virginia Military Institute, which was the subject of our holding in VMI.

South Carolina has demonstrated that, in contrast to Virginia’s unwillingness to take a position in VMI, see VMI, 976 F.2d at 894, South Carolina has adopted a policy supporting The Citadel. A resolution adopted in May 1993 by both houses of the legislature embraced all the positive contributions of The Citadel and reaffirmed a policy of providing its benefits only to males. While the announced South Carolina policy reaffirms The Citadel’s positive contributions, it does not connect these values to a male-only characteristic.

Rather, the values stated in the resolution would appear to relate to a single-gender policy for institutions. The resolution also offers no explanation for the failure to offer women the same opportunity to participate in a single-gender institution and achieve similar goals as that afforded to men at The Citadel. Although South Carolina has appointed a committee to review the absence of opportunity for women, the committee will not report to the legislature until January 1994.

Notwithstanding this difference, South Carolina has not hesitated to argue its case in reliance on VMI, contending that The Citadel should not be required to admit Faulkner and thereby impose coeducation, when this court was not prepared to impose coeducation in VMI. The argument is valid and, were it not for other circumstances present here, it might be .determinative. In VMI, however, no preliminary injunction was sought. In this case, a preliminary injunction was sought and, in the judgment and discretion of the district court, was entered.

The order imposed does not require structural changes to The Citadel’s program. While the presence of a female in the day classes may be disruptive in the first days, an order permitting Faulkner’s attendance is not tantamount at this time to integrating or altering the military program at The Citadel.

The district court found in these circumstances that the irreparable injury to Faulkner, if the motion were to be denied, was “crystal clear,” yet found that any injury to The Citadel was “minimal at best.” Indeed, the court stated, “I am unable to perceive of any significant irreparable harm or harm that will be suffered by The Citadel if [Faulkner] is admitted to the Day Program.” The evidence tends to support the finding. Dr.

Richard Richardson, an expert in higher education and a consultant to the South Carolina Commission on Higher Education, stated that The Citadel could still maintain its primary mission, even if women were added to the classroom. Claudius E. Watts, III, the President of The Citadel, also testified that the academic offering and performance of men at The Citadel would not be affected by the admission of women. Similarly, Dr. Thomas W.

Mahan, who has taught education and psychology at The Citadel for nearly twenty years, testified that there was no evidence to assume that admission of women would lower the performance of men academically. While such evidence does not address all the gains and losses that distinguish single-gender education from coeducation, we cannot say that the district court’s factual findings are clearly erroneous. That nevertheless does not end our review.

In determining whether the district court abused its discretion in entering the preliminary injunction, we must still review the district court’s evaluation of the continuing status of the parties pending the outcome of the litigation, focusing on the relative hardships that would result if the relief were to be granted. See Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802 (4th Cir.1991); Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir.1977).

When weighing the potential harms, moreover, a court is required to keep sight of the relevant strengths of the parties’ positions on the merits. Thus, while a substantial discrepancy in the potential harms would have to be found to favor a party whose potential for success on the merits was no better than even, less discrepancy in relative harms may suffice when that party’s chances for success on the merits are probable. In this case, ordering Faulkner to day classes will probably shake The Citadel’s stability temporarily.

However, the preliminary injunction will not change or destroy any material aspect of The Citadel’s program. Moreover, no temporary adverse impact would be irreversible for The Citadel. Denying Faulkner’s access, on the other hand, might likely become permanent for her, due to the extended time necessary to complete the litigation. The most telling aspect of this case, and that which distinguishes this case from VMI, is the presence of this time pressure, combined with an absence of present opportunity for Faulkner.

South Carolina is not prepared to provide an alternative remedy to Faulkner at this time, and it has not suggested one. Any alternative would have to await the results of the state committee’s study, a court review of the committee’s report, and implementation. In the meantime, current state policy denies Faulkner any relief to which she probably would be entitled in the long run, whether by attendance at The Citadel or at some other institution. Under these circumstances, we conclude that the district court did not abuse its discretion in enteiing the preliminary injunction for the limited, but temporary relief.

We are quick to note that the status imposed by the preliminary injunction is not permanent and does not determine the outcome on the merits. Those issues must await trial and findings by the district court. We trust that the court will proceed to hear the merits without undue delay, recognizing the importance of the interests of all parties which remain at stake. AFFIRMED. . Apparently, The Citadel’s application form does not call for a statement of gender and Faulkner decided not to volunteer the information so that she could be "considered on the merits.” .

See Lincoln's Gettysburg Address ("Four score and seven years ago, our fathers brought forth upon this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.") and the Declaration of Independence ("We hold these Truths to be self-evident, that all Men are created equal.").