February 1, 1996
Task Force: Ms. Sarah E. Gallop; Professor Stephen C. Graves, Task Force Chair; Professor Kenneth R. Manning; Mr. Alan E. Pierson; Professor Lisa A. Steiner; Mr. Frank P. Tipton; Professor J. Kim Vandiver; Professor William B. Watson
This section describes the status of court cases challenging the current policy, the status of "anti-ROTC" legislation, and the status of ROTC at some other universities.
Active Court Cases on "Don't Ask, Don't Tell, Don't Pursue" Policy
There have been a number of court challenges over the years regarding DOD policy restricting homosexuals from participation in the armed forces. Many of these cases address DOD policy prior to the current "don't ask, don't tell, don't pursue" policy. The following is a summary of the three cases that address the current policy and are considered most likely to reach the Supreme Court. There are three additional cases which also challenge the policy but are reportedly moving more slowly. (Meinhold v. United States Department of Defense, California, 1994; Selland v. Perry, Maryland, 1995; Cammermeyer v. Aspin, Washington, 1994.)
This summary has been compiled from information provided by Palmer & Dodge, the American Council on Education, other university colleagues, and Lambda, a national gay and lesbian organization. If and when these three cases are heard by the Supreme Court, it is expected that some advocacy groups and universities may file amicus ("friend of the court") briefs supporting the rights of homosexual service members.
Able v. United States
This case was brought by six lesbian or gay members of the armed services, alleging that the regulation violates their equal protection rights under the fifth amendment and their free speech rights under the first amendment.
In 1994, a New York district court issued a preliminary injunction restricting the defendants from investigating, discharging, or taking any other adverse action against these six plaintiffs based on their self-identification as gay or lesbian. The court ruled that the plaintiffs' constitutional claims raised serious questions about the lawfulness of the policy.
On appeal in 1995, the Second Federal Circuit Court (New York) determined that the lower court had applied an improper standard in issuing the injunction. Specifically, it held that the "serious question" standard did not apply, and that the plaintiffs instead had to prove a "likelihood of success". The court returned the case to the district court for a determination of this issue, to be combined with the trial on its merits, but ruled that the preliminary injunction would hold.
Back in the New York district court, Judge Eugene Nickerson ruled that the military's restrictions violated the rights of homosexuals under the first and fifth amendments saying that "The Supreme Court has held that the first amendment will not countenance the prescription of the expression of an idea because others find that idea repugnant." The government then appealed the decision to the Second Circuit Court.
Oral arguments in the Second Circuit Court began in January 1996. A decision from the 3-judge panel is anticipated by summer 1996. It is expected that whatever the outcome, it will be appealed to the Supreme Court, where it would not be heard for at least one year from that time.
Lambda asserts that this is the case most supported by the gay and lesbian community and that the Second Circuit is known for moving cases along fairly quickly. Because of these factors, it is believed that perhaps this case will be the first to request a hearing before the Supreme Court.
Thomasson v. Perry
In 1995, Lt. Paul Thomasson delivered a letter to four Navy admirals for whom he had served stating that he was homosexual. The Navy instituted separation proceedings on that basis.
A Virginia district court upheld the DOD policy, and granted the defendant's motion for summary judgment, holding that the policy did not violate Thomasson's freedom of speech, his freedom to associate, his equal protection rights, his due process rights, or the Administrative Procedure Act.
The case is currently under appeal in the Fourth Federal Circuit Court (Virginia), a 13-judge panel. Lambda notes that this court is known for its rapid pace. A decision is anticipated within the year, and a subsequent appeal to the Supreme Court is expected.
Philips v. Perry
In 1995, Philips, a member of the armed forces, told an officer that he was homosexual. He was then interviewed and admitted to having engaged in homosexual acts. Separation proceedings were instituted.
A Washington district court granted the defendant's motion for summary judgment and held that discharge for engaging in homosexual conduct did not violate equal protection guarantees. The court also ruled that discharge of Philips would not violate his substantive due process rights or his first amendment rights to free speech, since his discharge was based on having committed homosexual acts.
The case is now under appeal in the Ninth Federal Circuit Court (Washington). Lambda notes that this court is known for proceeding at a slower pace than others. The 3-judge panel is expected to make a decision within the year and an appeal to the Supreme Court is expected.
"ROTC Access To Campuses" Legislation
Legislation that would deny DOD grants and contracts to institutions with anti-ROTC policies was originally introduced by Representative Gerald Solomon (R-NY). Once referred to as the Solomon Amendment, the "ROTC Access to Campuses" legislation has been passed by both the House and Senate, and is now part of the pending DOD authorization bill. The language, as it appears in the pending DOD authorization bill, is found in Appendix II.
This legislation states that " ... No funds appropriated or otherwise available to the Department of Defense may be made obligated by contract or by grant (including a grant of funds to be available for student aid) to any institution of higher education that, as determined by the Secretary of Defense, has an anti-ROTC policy and at which, as determined by the Secretary, the Secretary would otherwise maintain or seek to establish a unit of the Senior Reserve Officer Training Corps... "
The legislation defines "anti-ROTC policy" as " ... the term 'anti-ROTC policy' means a policy or practice of an institution of higher education that-- (1) prohibits, or in effect prevents, the Secretary of Defense from maintaining or establishing a unit of the Senior Reserve Officer Training Corps at that institution, or (2) prohibits, or in effect prevents, a student at that institution from enrolling in a unit of the Senior Reserve Officer Training Corps at another institution of higher education..."
The DOD authorization bill is expected to pass in the very near future.
Summary of Actions at Other Schools
In 1990, the Faculty of Arts and Sciences Faculty Council issued a statement concerning the exclusion of students from ROTC on the basis of sexual orientation and recommended suspension of Harvard's participation in the Navy, Army and Air Force ROTC programs (through cross-enrollment at MIT) in two years "if insufficient progress in resolving the issues of discrimination has been made to justify continuing support and cooperation."
Connected to this action, a president-appointed Student/Faculty Committee on the Status of ROTC provided advice and analysis about the future relationship with ROTC and issued a report in October 1992 with four options: re-establish the ROTC program on campus; uphold the status quo; terminate the university subsidy of ROTC; and sever ties completely.
The committee supported the third option and recommended that Harvard explore discontinuing its payments to MIT for Harvard students' participation in the MIT ROTC programs. The result of conversations between Harvard and MIT on this matter was that MIT was unwilling to waive Harvard's fee payment.
In May 1993, the Faculty of Arts and Sciences endorsed the recommendations of the student/faculty committee. Following lengthy campus debate, President Rudenstine issued a 7-page statement on November 23, 1994, which outlined his view of the situation and summarized his recommendation to use voluntary restricted contributions (an alumni pool of funds) to pay the administrative fee to MIT for a period of at least 3 to 4 years. In December 1994, the Harvard Corporation affirmed President Rudenstine's statement.
Dartmouth currently has an Army ROTC program on campus that is operated by Norwich University.
In 1991, Dartmouth adopted a new equal opportunity policy which stipulates that Dartmouth will not provide direct financial support to programs or organizations that do not comply with the policy, but that the college may in some cases indirectly support programs (e.g. with space and utilities) if the college's interests justify such support.
In August 1991, Dartmouth trustees announced that ROTC continuation would be contingent on a DOD policy change and that without change by April 1993, the college would discontinue ROTC starting with the Class of 1997. In February 1993, the trustees (encouraged by President Clinton's efforts) postponed the discontinuation for one year to April 1994.
On February 28, 1994, the Faculty of Arts and Sciences voted that "the present DOD policy on homosexuals in the military, although changed, remains incompatible with the educational mission of the College and the most generally accepted interpretation of the College's policy of equal opportunity" and further voted to urge the Board of Trustees to commence disestablishment of ROTC at Dartmouth effective April 1994.
On April 16, 1994, the Board of Trustees announced its decision to continue Dartmouth's participation in the Army ROTC program. The trustees also decided that Dartmouth will make concerted efforts to change the federal policy through joining amicus (friend of the court) briefs, pressing administration officials, members of Congress, and the military leadership to change the policy, and working with other colleges and universities to revise the law. A staff member of the president's office has been monitoring the issue and identifying such opportunities.
University of Pennsylvania
Penn currently has Navy and Army ROTC programs on campus.
In 1990, the University Council (advisory to Penn's president and provost) voted to remove ROTC by 1993 if the DOD policy was not changed. A 1993 change in leadership at Penn (new president and provost) made this timeline impractical. In November 1993, the interim provost established the Committee on ROTC Arrangements to examine the current relationship between Penn and ROTC and to explore alternative arrangements. The options considered by the committee included: maintain the status quo; change the university's nondiscrimination policy; move towards a more arms-length arrangement; terminate any relationship with ROTC; and negotiate cross-town or consortia arrangements with other local colleges.
The May 1994 committee report recommended creating arms-length or consortia arrangements with ROTC. Since then, the university has pursued such relationships with DOD. Most recently, the new provost petitioned DOD in August 1995 to suggest the creation of an arms-length arrangement with ROTC. Penn is now pursuing arrangements with the military branches individually and is receiving varying responses. The matter remains unresolved although some resolution is hoped for by spring 1996.
Princeton has an Army ROTC program on campus. However, as part of an understanding between Princeton and DOD, this program is not considered a university program, but rather a campus association. As such, it does not fall formally within the jurisdiction of university policies. The status of ROTC as an association and the inconsistency between DOD and Princeton policies are noted in university handbooks and related materials.
A 1989 Presidential Committee on the Princeton/ROTC relationship determined that because of the lack of direct control, the university's equal opportunity policy did not apply to ROTC. It was deemed acceptable to allocate space to ROTC, provided that the university "distances itself from the unit's discriminatory practices to avoid complicity in them." The committee also committed to forthrightly condemning the ROTC practices and pressuring legislators to bring about their elimination.
On November 1, 1993, the faculty voted 42-33 to recommend termination of the Army ROTC program at Princeton by June 30, 1994 unless the Army repeals all regulations restricting the speech of gay men, lesbians and bisexuals.
On November 12, 1993, the trustees considered the faculty resolution. Although they recognized the importance of the nondiscrimination policy, they also affirmed the importance of providing ROTC opportunities to Princeton students. They decided that, on balance, ROTC should remain on campus.
On November 14, 1993, President Harold Shapiro issued a statement describing the trustees' affirmation of the importance of ROTC opportunities to Princeton students, the university and the nation. The statement observed that despite recent modifications to the DOD policy, the military continues to discriminate on the basis of sexual orientation. Princeton's publications will continue to note the inconsistency of the DOD policy with the nondiscrimination policy of the university. Princeton will continue its efforts to change the federal policy so that all who wish to serve in the armed forces may do so regardless of their sexual orientation.
Johns Hopkins University
Johns Hopkins currently has an Army ROTC unit on campus. Students can also participate in the Air Force ROTC unit at the University of Maryland.
A 1990 committee found a conflict between the military policy and the university's nondiscrimination policy. Although it did not recommend the removal of ROTC, the committee did propose a phase-out beginning in 1995 if no change had occurred by that time. An interim report was released at the half-way point (January 1993), supporting this recommendation and further urging university officials to continue pressuring legislators to change the federal policy.
A second interim report in the fall of 1993 recommended that together with the American Council on Education (ACE), Johns Hopkins would file an amicus (friend of the court) brief in the Meinhold case being appealed. However, they missed the deadline for filing.
In the fall of 1995, a new committee, with many of the same members from the 1990 committee, recommended to keep ROTC because of the important purpose that it serves on behalf of students, the university and the nation. University publications now acknowledge that there is an inconsistency between the university's nondiscrimination policy and DOD's policy. The president and the trustees affirmed these actions.
Northwestern has a Navy ROTC program on campus. Students can also participate in the Air Force ROTC program at Illinois Institute of Technology and the Army ROTC program at the University of Illinois at Chicago.
In 1988, a group of faculty and students asked the Provost to add sexual orientation to the university's nondiscrimination policy. This was done with the explicit understanding that the ROTC programs would be exempt. The university's nondiscrimination policy applies only to programs operated by Northwestern.
Vanderbilt has Army and Navy ROTC programs on campus. Students can also participate in the Air Force program at Tennessee State University.
Vanderbilt's nondiscrimination policy excludes ROTC and reads as follows:
"Vanderbilt University is committed to the principle of non-discrimination on the basis of being or being perceived as homosexual, heterosexual, or bisexual. In affirming its commitment to this principle, the University does not limit freedom of religious association, does not require adherence to this principle by government agencies or external organizations that associate with but are not controlled by the University, and does not extend benefits beyond those provided under other policies of the University."
Cornell has Army, Navy and Air Force ROTC programs on campus.
Cornell's nondiscrimination policy prohibits only unlawful discrimination. Discrimination on the basis of sexual orientation as practiced by the military is not unlawful. There has been no debate on campus with regard to ROTC and sexual orientation.
Rutgers has Army and Air Force ROTC programs on campus.
The Rutgers undergraduate catalog states that the DOD policy does not conform with Rutgers' nondiscrimination policy. The statement reads as follows:
"Rutgers, The State University of New Jersey, has a clear policy that seeks to guarantee that the services and benefits offered to its students are available equally to all. This includes equality regardless of sexual orientation. However, ROTC programs are governed by the United States Department of Defense, which maintains a policy of discrimination against gays, lesbians, and bisexuals. Hence, equal opportunities are not guaranteed to all who may wish to fully participate in ROTC programs.
The university's opposition to the Department of Defense policy of discrimination will be actively maintained until full equality of access and benefits is available to all, regardless of sexual orientation. In the meantime, the university has secured the rights of all students to enroll in and receive academic credit for ROTC courses."
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