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Vietnam Veterans: Vietnam Veterans Recognition Day 04/26/1981 (2)
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Ronald Reagan Presidential Library
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This is a PDF of a folder from our textual collections.
Collection: Blackwell, Morton: Files
Folder Title: Vietnam Veterans:
Vietnam Veterans Recognition Day 04/26/1981
(2 of 2)
Box: 51
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file Ve tovort
Proferree
STRANGERS
AT HOME
VIETNAM VETERANS
SINCE THE WAR
Edited by
CHARLES R. FIGLEY
SEYMOUR LEVENTMAN
PRAEGER
PRAEGER SPECIAL STUDIES
PRAEGER SCIENTIFIC
z
18
THE CASE FOR VETERANS'
PREFERENCE
DEAN K. PHILLIPS
The National Organization for Women oppose(s) any state, federal,
county, or municipal employment law or program giving special
preference to veterans.
The above resolution, which indiscriminately opposes all veterans'
preference laws, was adopted by the National Organization for Women
(NOW) at their 4th Annual Convention in September 1971. At that
time, American soldiers were still dying on the battlefields of Indochina.
This resolution was printed in the 1973 NOW publication "Revolution:
Tomorrow is NOW." A proposed modification drafted in consultation
with this author by the individual who chaired NOW's committee on
Women in the Military was ignored at the 9th Annual NOW Conven-
tion in 1976. This proposal would have supported Veterans preference
for disabled veterans and more limited preference for non-disabled
veterans. A legislative aid from NOW's Washington, D.C. office advised
this author that the 1971 NOW veterans preference resolution has
not been rescinded or modified and still represents NOW's official
This chapter is for Don MacMillan, Len Gilmer, and Dennis Rhoades. With special
appreciation to Ed Lukey, Tom Kiley, and Guy McMichael. It is not the official Veterans
Administration position, nor does it reflect VA opinion.
343
344 / Dean K. Phillips
The Case for Veterans' Preference / 345
position." A proposed change similar to that submitted in 1976 was (at
statute remained on the books until 1967 when it was repealed by PL
the request of the Federally Employed Women) resubmitted and again
90-130.
ignored at the October 1979 NOW Annual Convention and December
When the Korean War broke out, very few women attempted to
board meeting.
enlist in the armed forces. A 1977 Department of Defense Background
During the past three generations, the United States has become
Study reports:
involved in World War II, Korea, and Vietnam. Those who served on
active duty during thes^ three armed conflicts at the very least experi-
With the advent of the Korean war, an unsuccessful effort was made
enced a disruption in life style, generally from two to four years at very
to recruit some 100,000 women to meet the rapidly expanding
low pay,1 and at worst were disabled or killed. In fact, 523,000 American
manpower requirements. Young women just were not interested in
serving, perhaps because of the unpopularity of that war àt the time.
military personnel died and more than 2.7 million were disabled during
Between 1948 and 1969, even including nurses, the percentage of
that period. Due to several factors, the casualties of these wars were
women in the military never exceeded 1.5 percent and averaged 1.2
suffered almost excl- vely by men. One major factor was that while
percent of the total active strength.³
the military often had to draw its infantry, armor, and artillery soldiers
from draftees, women have been completely exempt from the draft.
At the time of the escalation of the Vietnam War in 1964 the
Two other apparent factors include statutes, regulations, and policies
percentage of women on active duty was less than 1 percent of the total
limiting the percentage of women comprising the armed forces and
military strength. It would appear that again women generally were not
more restrictive enlistment standards for women. Consequently, more
interested in entering the military. Despite the fact that Congress lifted
than 98 percent of America's 30 million veterans are men. Any exami-
the 2 percent statutory bar in 1967, women did not reach 2 percent of
nation of the validity of veterans' preference in civil service employ-
total active duty strength until mid-1973,4 six years later. American
ment and how it has or has not discriminated against women should be
ground troops had been pulled out of Vietnam in March of that year.
considered within this framework.
Undoubtedly, the low percentage of women in the military during
Until 1972 the number of Military Occupation Specialities (MOS)
Vietnam might be in part attributed to the unpopularity of the war and
available to women has been highly restricted and women have been
enlistment standards that were more strict for women. Another factor
subject to higher standards for enlistment. For example, men have been
was that prior to 1972 only 35 percent of all enlisted MOSs were
required to meet only those standards established for the particular
opened to women. That year a Pentagon decision resulted in over 80
MOS for which they enlist, sometimes not requiring a high school
percent of MOSs opening to women by 1976.
degree. On the other hand, women must have either earned a high
Currently, major restrictions on the recruitment of and duties
school degree or passed a comparable equivalency examination.
assigned to women in the U.S. military establishment are not explicitly
However, in order to determine whether the extreme language of
incorporated in federal law. According to the conclusions of a 1977
the aforementioned 1971 NOW resolution can be justified, a review of
Brookings Institution study, it is the current policies established by the
efforts of American women to enter the military (particularly during
individual military services themselves that limit opportunities for
time of war) must be considered. During World War II, when the United
women.5 A reading of the July 22 and September 1, 1977, hearings
States had an available manpower pool about half as large as that during
before a subcommittee of the Joint Economic Committee of the U.S.
Vietnam, 16.5 million Americans served on active duty-350,000 of
Congress indicates that despite the fact that most MOSs are now
whom were women. The role of women was exclusively limited to
opened to women, females comprise only 6.6 percent of active duty
noncombat jobs, although those women stationed in Europe lived in the
personnel, and long-range armed forces plans call for the percentage of
same conditions as noncombatant men and suffered the same casualty
women serving on active duty to be about 10 percent of our total
rates as noncombatant men (0.5 percent). Following World War II, the
strength. The Department of Defense reports active duty women were
number of women on active duty dropped from 266,000 (2.2 percent of
19,000 in 1964; 25,000 in 1968; 117,000 in 1978; and the goal for FY
12.1 million personnel) in 1945 to 14,000 or 1 percent of the 1.4 million
1984 is 208,000.⁷ The Brookings study refers to surveys indicating that,
total strength in 1948.2
in general, neither female nor male members of the armed forces appear
In 1948 Congress passed legislation that precluded women from
to oppose the concept of assigning women to combat units or aboard
comprising more than 2 percent of total active duty strength. This
naval combat vessels. However, the report concludes that "many of the
The Case for Veterans' Preference / 347
346 1. Dean K. Phillips
women who endorse a combat role for women do not appear to want
were suffered by individuals who had not requested combat arms
such a role for themselves."8 Nevertheless, women have correctly
training or Vietnam duty. The casualty rate for draftees is illustrated in
concluded that their preclusion from assignment to combat vessels
Tables 18.1 and 18.2.
under 10 U.S.C. 6015 had adversely affected their chances for career
Because of advances in medical techniques and the courage of
advancement and in 1978 a class-action suit in which the American Civil
helicopter medivac pilots and crews, Vietnam veterans survived crip-
Liberties Union represented female Navy personnel was successful in
pling wounds that would have been fatal due to shock or loss of blood in
overturning the statute that had limited assignment of women to
previous wars. Thus, the percentage of Vietnam soldiers suffering
hospital ships and transports [Owens V. Brown, 455 F. Supp. 291 (1978)
amputation or disabling injury to their legs or feet was 300 percent
Regardless of the various factors that resulted in very few women
higher than in World War II and 70 percent higher than in Korea. 15
serving on active duty during the Vietnam War, the fact remains that
Casualty rates were disproportionately higher for blacks who
the brunt of the "blood and guts" years of the Vietnam era was borne by
enlisted for combat arms MOSs earlier in the war and for their younger
men. During the decade that has become known as the Vietnam era, the
manpower pool was double that of World War Il when nearly 25 million
TABLE 18.1: Army Draftee Casualties as a Percentage of
young men were of draft age. Over 9.3 million ultimately served on
Total Army Enlisted Casualties, 1965-70
active duty and 3.1 million in Vietnam.
An extensive and well-researched study done in conjunction with
Killed in
Ralph Nader's Center for the Study of Responsive Law concluded that
Action
Wounded
the soldiers who fought in Vietnam were hardly drawn at random from
1965
28
24
the general population. Student draft deferments grew by 900 percent
1966
34
35
between 1951 and 196610 and were primarily utilized by middle class
1967
57
58
youths who had the money and life style conducive to college. Hence,
1968
58
57
much of the fighting in Vietnam was done by the working class and
1969
62
54
urban poor who were less able to utilize that legal dodge.
1970
57
57
In 1965 many youths were enlisting in the military service as a
Source: "Extension of the Draft and Bills Related to the Voluntary Force Concept and
means of upward social mobility that they could not find in civilian
Authorization of Strength Levels," Hearings before the Committee on Armed Services,
life,¹¹ only to find themselves carrying a rifle. By 1965 one soldier of
House of Representatives, 92d Cong., 1st sess., February 23-25, March 1-5, 9-11, 1971.
every six killed in Vietnam was a draftee. However, as the scope of the
war became more prolonged and manpower needs increased, Americans
became aware of the fact that enlistment in the infantry, armor, or
TABLE 18.2: Army Draftees Killed in Action as a
artillery increased the odds of being wounded or killed. Consequently,
Percentage of Total Army Enlisted Killed In Action
increasingly fewer men enlisting in the armed forces requested combat
for Selected Occupational Groupings, 1965-70
arms MOSs. Since the armed forces had to rely on the draft to meet
manpower needs in the combat arms, draftees began to shoulder an
Helicopter
ever-increasing load of the fighting. By 1966 one of every five Ameri-
Infantry
Armor
Artillery
Medical
Crews
cans killed was a draftee. In 1967 and 1968 more than one of every three
1965
29.0
30.0
27.3
45.0
9.1
American soldiers who died was a draftee. By 1969 and 1970 draftees
1966
34.6
30.6
35.9
44.1
28.8
suffered more than 40 percent of total U.S. casualties in Vietnam and 60
1967
60.6
49.5
50.4
52.9
36.8
percent of U.S. Army combat deaths. Draftees comprised 54 percent of
1968
63.5
49.6
59.5
50.4
21.0
those wounded in 1969.12 By 1970 less than 5 percent of individuals
1969
68.8
50.0
59.5
50.8
18.6
enlisting requested that they be trained for infantry, armor, or artil-
1970 1st half
69.4
42.1
55.4
54.2
23.7
lery.¹³ That year 57 percent of Army casualties were draftees. 14 Enlis-
Cumulative
60.1
49.5
55.1
50.4
22.6
tees who had not requested any specific MOS or duty station, and had
Source: "Extension of the Draft and Bills Related to the Voluntary Force Concept and
been sent to Vietnam in combat arms slots, comprised 30 percent of the
Authorization of Strength Levels," Hearings before the Committee on Armed Services,
1970 casualties. Thus nearly 90 percent of U.S. casualties that year
House of Representatives, 92d Cong., 1st sess., February 23-25, March 1-5, 9-11, 1971.
348 / Dean K. Phillips
The Case for Veterans' Preference / 349
brothers who were later drafted while many of their predominantly
Military service benefits, especially for the young with limited educa-
white counterparts were safe in college under the mantle of the student
tion or training, accompany the responsibility. Since October 1966,
draft deferment. Blacks comprised less than 5 percent of college
some 246,000 young men who did not meet the normal mental or
enrollments in 1965.16 Department of Defense reports indicate that
physical requirements, have been given opportunities for training and
between January 1961 and April 1975, 57,505 American soldiers died in
correcting physical problems, while such opportunities are not open to
their sisters.24
Vietnam. 17 While blacks averaged about 9.3 percent of total active duty
personnel in 1965-70,¹⁸ they suffered 7,241 or 12.6 percent of the
deaths-35.5 percent in excess of their percentage of the U.S. armed
The editors give only the briefest attention to the hardship suf-
forces and 30 percent in excess of their presence in Indochina. (During
fered by those who served in combat in World War II, Korea, and
the Vietnam fighting, blacks comprised 10 percent of U.S. armed forces
Vietnam or the loss of time suffered by those who served in noncombat
in Southeast Asia.) Disproportionately high casualty rates for Spanish-
roles during those wars, much less the gruesome plight of Project
surnamed soldiers have also been reported.¹
100,000 soldiers. Ironically, upon their release from active duty, very
The unusually high casualty rates for minorities during Vietnam in
few veterans find that their military training has prepared them to
part can be attributed to Project 100,000, which the Department of
assume many civilian jobs. A 1969 Bureau of the Budget Report, limited
Defense implemented in October 1966. Under this program, more than
to those veterans who secured employment, found that only 12 percent
300,000 men whose intelligence induction tests scores were between
had used skills or training gained in the military. A 1973 Veterans
the tenth and thirtieth parcentiles were no longer determined ineligible
Administration study reported that less than half of the veterans
for induction. Thirty-seven percent of these Project 100,000 men were
surveyed received any technical or academic training while on active
sent to the infantry units in Vietnam. During the first years of the
duty. Of those veterans who had received training, only 29.6 percent
program, 225,000 men were admitted into the military under the
indicated that their training was helpful in obtaining a civilian job.
modified mental standards, but only 7.5 percent of them received
Individuals who entered the military with less than a high school degree
remedial education. Reportedly, more than 41 percent²⁰ of this group
(for example, Project 100,000 people) fared even worse: "About half as
were black; more than 40 percent of the Project 100,000 men were
many of the veterans with 1 to 11 years of schooling received technical
given combat-related assignments in infantry, armor, or artillery; and
or vocational training in the service as those who had a high level of
half of the Army and Marine contingent went to Vietnam. By the time
education attainment.²⁶
they were an average of 18 months into their period of service, the
A blatant misunderstanding of Project 100,000 was demonstrated
Project 100,000 men had been decimated-10 percent were either killed,
in a January 1979 civil action filed against ten federal agencies by Sears,
wounded, or received less-than-honorable discharges.² For political
Roebuck and Company. Sears apparently attempted to prevent the
reasons, the 1 million-member force comprised of the Reserves and
federal government from enforcing affirmative-action statutes and
National Guard was not called to active duty to serve in Vietnam. The
regulations. Sears claimed that the government created a dispropor-
activation of 3 percent of that force occurred in 1968, but those
tionately white male management segment of the population, in part,
individuals were mainly support troops. Understandably, there were
through its military institutions-the subjection of only males to the
long waiting lists to enter the Guard and Reserve units-at the end of
draft and the limitation on the percentage of women permitted in the
1968, the waiting list for the Army National Guard exceeded 100,000.
armed forces. Sears alleged that training and education in the military
Only 1 percent of the National Guard Reserve soldiers were blacks.²
and subsequently under the GI Bill has been exclusively utilized by
Despite the fact that the agony of Vietnam was suffered almost
males. Incredibly, Sears cited Project 100,000 as an example of the army
entirely by men, and a disproportionate percentage of minority men,
turning "into the nation's largest school."27 This suit was dismissed
treatises on sex discrimination often ignore perhaps the most blatantly sexist
May 15, 1979, for failure on the part of Sears "to present a justiciable
policy in our nation's history: the limitation of the drafting of those who
case or controversy."
will die and be crinpled in combat exclusively to the male sex. A case in
During the Vietnam era, men argued unsuccessfully before federal
point is a lengthy sex discrimination law school text released in 1975.23
courts that Congress' exemption of women from the draft denied men
The text quotes a woman whose complaint ignored the plight of Project
the "equal protection" guaranteed them under the Constitution. In all
100,000 soldiers:
five cases the men were ultimately unsuccessful as the courts ruled that
350 / Dean K. Phillips
The Case for Veterans' Preference / 351
the subjection of only males to the draft was rationally related to a
messengers, and custodians, the preference was to extend for the
legitimate power of government-to raise and support armies under
duration of the war and for a period of five years following the
Article I, section 8 of the Constitution.28
conclusion of the war. Congress had the authority to permit this
particular preference to continue, and it is still implemented at this
writing.
THE VETERANS' PREFERENCE ACT OF 1944
The hearings indicate that the proposed legislation was nearly
universally embraced. However, the National Civil Service Reform
In June 1944, the month allied paratroopers and infantry soldiers
League and the League of Women Voters urged that points not be
made the Normandy landings at tremendous human cost, the 78th
added to the test score of an eligible veteran, widow, or wife of a
Congress passed PL 359: The Veterans' Preference Act of 1944. In
severely disabled veteran unless the score was a passing one. 30 N. P.
addition to breaking new ground for veterans, this law codified the
Alifas, president of District 44, International Association of Machinists,
various statutory, regulatory, and executive-order provisions that had
introduced a statement that urged the bill not be passed. While he did
already been in existence.
not claim the veterans' preference law might adversely affect women as
Among its several sections, the act provided for an addition of five
a class, Alifas warned of "having the population divided into two rival
points to the civil service test scores of nondisabled war veterans. Ten
camps for the next couple of generations." He further warned that the
points were added to the passing test scores of disabled veterans, and
proposed legislation "goles] so far in giving preference to ex-servicemen
compensably disabled veterans were then placed at the head of the civil
and
women
that American citizens without military service may as
service register. Ten points were also granted to widows and wives of
well seek other employment if now in the [civil] service and refrain
severely disabled veterans. Although the points could not be used for
from making application for government positions in the future.^
promotions, they could be used more than once. This procedure applied
After some effort Alifas was able to persuade the chairman of the
to government jobs other than some positions in the excepted service
Senate Committee on Civil Service to include his written testimony on
where no examinations are given (for example, scientists) or the
the record.
positions of guards, elevator operators, and custodians where veterans
While Congress ended five-point preference for post-World War II
were granted absolute preference. In addition, the "rule of three"
veterans, it later granted five-point preference to those nondisabled
provided that if a veteran were among the top three applicants for a
veterans who served on active duty during the Korean War. Ten-point
particular job with a government agency, in order to bypass the veteran
preference was retained for veterans disabled even during peacetime
and select a nonveteran, the agency was required to receive written
and that policy exists to this day. Individuals entering the military
permission from the Civil Service Commission. Veterans were also
between 1955 and 1966 were not eligible for five-point preference.
granted certain job retention rights over nonveterans with similiar
However, five points were granted nondisabled veterans (PL 89-554,
status and performance records in the event of a reduction in force.
September 6, 1966) upon the expansion of the Vietnam War. In
Additionally, due process rights in cases of disciplinary action, such as
September 1967 Congress provided the five-point preference retroac-
dismissal or suspension from civil service jobs, were granted veterans,
tively for nondisabled veterans who served during the years 1955-67
widows, and wives of severely disabled veterans. After some debate,
[PL 90-83(6)(B)]. The granting of this five-point preference to those
what was to become PL 359 passed the House and ultimately the Senate
entering active duty was not terminated until the passage of PL 94-502
with only one negative vote. A reading of the statute and the legislative
in October 1976. Hence, Congress responded to the Vietnam War by
history that includes the Hearings, House, and Senate Reports,2 and a
extending five-point eligibility to individuals who served during the
review of excerpts from the Congressional Record during the period
nearly 22-year span between 1955 and 1976. Thus, far more than the
immediately prior to the passage of the act, indicate that although
9.3 million who served during the Vietnam era, including 3.1 million
readjustment appeared to be a major concern of Congress, it was clearly
who served in Vietnam, were eligible for the five-point preference.
the intent of Congress to place no restriction on the number of times an
Additionally, while theoretically not in the job market, nondisabled
eligible individual could utilize veterans' preference. Nor did Congress
veterans who served during the Korean War and World War II remain
set a date after which a veteran could no longer exercise veterans'
eligible for five-point preference.
preference. However, for the positions of guards, elevator operators,
As the Vietnam War drew to a close, an increasing number of
The Case for Veterans' Preference / 353
352 / Dean K. Phillips
women's organizations called either for an end to or a reduction of
Writing job descriptions to fit the qualifications of particular (nonvet-
veterans' preference. A 1975 study by the Women's Program Commit-
eran female) applicants.
tee of the Denver Federal Executive Board reviewed the effects of the
Listing jobs with CSC as "intermittent" employment to discourage
Veterans' Preference Act of 1944.32 While grossly understating the
veteran applicants.
plight of draftees by observing that "those drafted into military service
Requesting and returning certificates unused until veterans who are
may have suffered disruptions in their normal life style, the study
blocking the register have been hired by another agency or for other
concluded that veterans' preference had an adverse effect on the
reasons are no longer blocking the register.
employment prospects of women since less than 2 percent of America's
30 million veterans are females. Reportedly nonveteran females ac-
On October 4, 1977, Alan K. Campbell, chairman of the U.S. Civil
counted for 53 percent of the Civil Service certifications but only 44
Service Commission, testified before the House Subcommittee on Civil
percent of the selections, while veteran males accounted for only 27
Service and stated that veterans' preference had seriously impaired the
percent of those certified but 34 percent of those selected for Civil
employment prospects of women in the 2.8 million-member federal civil
Service jobs. The study pointed to a 1974 Civil Service Commission
service. He reported that veterans comprise 25 percent of the national
report on handicapped veterans who indicated that of 199,592 veterans
labor force but hold down about 50 percent of the federal jobs.
studied who were receiving ten-point veterans' preference, only 10
On May 22, 1978, during hearings before the House Committee on
percent were coded as handicapped under the Civil Service Commis-
Post Office and Civil Service, Chairman Campiell reported that barely
sion's criteria for reporting physical impairment." From this, the
half of veterans hired by the federal government in 1977 were
Women's Committee study concluded that many veterans receiving ten
Vietnam-era veterans:
points as being disabled were not significantly adversely affected by
military service. The study pointed out that to be eligible for ten-point
preference a veteran need only establish the present existence of a
Finally, in relation to the specifics of the impact of veterans' prefer-
service-connected disability or be receiving compensation, disability
ence, not only on women but on veterans competing with veterans, 45
percent of the veteran hires last year were veterans who served
retirement, benefits, or pension based on a public statute. The fact that
before Vietnam. That means that the Vietnam veteran today is
such disability need not be suffered as the result of combat wounds was
competing with the pre-Vietnam veteran for jobs, and obviously at a
illustrated with the example of a veteran whose ten-point disability
disadvantage because of the greater experience the older veteran
preference was reportedly the result of the loss of an eye while playing
has.³⁰
handball. The Denver study further reported that the average number
of active duty years served by male veterans studied that received
No information was presented by Campbell to indicate how many of the
preference points was 16.7 years, thus implying that many veterans
pre-Vietnam veterans hired had served between 1955 and 1964.
enjoying preference points were not first-term enlistees or draftees but
In the years following the passage of PL 359, nearly all 50 states
retired career officers and noncommissioned officers.
and many local governments have adopted veterans' preference policies
The adverse effects of veterans' preference on women in federal
that vary widely in scope from "absolute" preference as in Massachu-
hiring were later cited in a comptroller general's report to the Congress
setts and New Jersey to minimal five- or ten-point "one time" use
in 1977 in which examples of federal civil service registers "blocked" by
preference in Colorado. Often the preference is similar to federal
veterans were cited. This report recommended that Congress con-
preference that could be placed roughly in the middle of a degree-of-
sider limiting veterans' preference to a one-time use and/or imposing a
preference continuum. When challenged in the federal district and
time limit for use of veterans' preference. These recommendations
circuit courts and the U.S. Supreme Court, all of these statutes have
were based on responses received by the General Accounting Office
ultimately been upheld as constitutional.
from numerous government agencies.
It might appear that the Civil Rights Act of 1964 would provide an
The report also revealed that the same agencies reported using
effective vehicle for establishing a prima facie case of discrimination
"questionable procedures to obtain women who cannot be reached on
against women through the use of statistics. This would then shift the
the CSC (Civil Service Commission) registers." Specific examples in-
burden to the defendant (government) to justify its practice of extend-
cluded:
ing preference to veterans-particularly in those jurisdictions where
354 / Dean K. Phillips
The Case for Veterans' Preference 1 355
such preference is absolute. However, in enacting Section 712 of the
ence was unconstitutional in that it denied women equal protection of
Civil Rights Act of 1964 [42 U.S.C., Section 2000(e), et seq.], Congress
the law as guaranteed by the Fourteenth Amendment.
specifically exempted veterans' preference from attack under the act:
While the lower court acknowledged that the Massachusetts sta-
"Nothing contained in this subchapter shall be construed to repeal or
tute "was not enacted for the purpose of disqualifying women from
modify any federal, state, territorial, or local law creating special rights
receiving civil service appointments, it held that the current
or preferences for veterans."
formula was too severe and recommended a "point system" similar to
As a result, the Civil Rights Act has generally not been an avenue
that utilized by the federal government as acceptable alternative.⁴¹
of approach for those who would challenge veterans' preference. Two
Because of the constitutional question involved, the Massachusetts
more recent exceptions may or may not indicate a new trend. One
attorney general appealed the district court decision directly to the U.S.
exception resulted when a nonveteran female attorney successfully
Supreme Court. On October 11, 1977, the U.S. Supreme Court, by a
utilized Title VII of the Civil Rights Act in alleging sex discrimination
vote of 6 to 3, vacated the lower court order and remanded the case back
with respect to the Veterans Administration's longstanding policy of
to that court with specific instructions (46 U.S. Law Week 3237-38).
submitting only names of veterans for appointment to membership of
These instructions directed the lower court to apply the Washington V.
the Board of Veterans Appeals, Krenzer V. Ford, 429 F. Supp. 499 (1977).
Davis, 426 U.S. 229 (1976) doctrine, which held that in order to prove a
The court held that the policy of total exclusion of nonveterans was not
claim of invidious discrimination under the equal protection argument,
created by statute and, therefore, the court did not permit the exemp-
a plaintiff must prove that there was an actual intent to discriminate on
tion under section 712 when it ruled in favor of the plaintiff. The VA
the part of the legislature when it enacted a statute that resulted in an
did not request that this decision be appealed.
adverse impact upon a particular class.
Another exception occurred February 5, 1979, when the federal
Since in its March 1976 decision the lower court had conceded that
judge for the Northern District of Illinois held that the Chicago
the Massachusetts legislature had not intended to discriminate against
Regional Office of the Veterans Administration and the U.S. Civil
women when it passed its veterans' preference statute, it appeared that
Service Commission had violated the rights of women and black
upon remand the lower court would apply Washington V. Davis in a man-
Veterans Administration employees under Title VII of the Civil Rights
ner that upheld the constitutionality of the veterans' preference sta-
Act.³⁹ Claims had been hired from a special Civil Service
tute.
list comprised mainly of white Vietnam-era veterans with college
However, on May 3, 1978, in its application of the Washington V.
degrees. The court held that the federal government had gone beyond
Davis doctrine, the lower court ruled 2 to 1 that the Massachusetts
any legal authority it had been granted by Congress-despite the
legislature intended to discriminate in passing an absolute veterans'
exemption in section 712 of the act. The Solicitor General denied the
preference statute. The two member majority justified this conclusion
VA request that this case be appealed.
by claiming that since 98 percent of veterans are male and only 2
percent are female, the legislature "intended" to injure the employment
THE MASSACHUSETTS CASE
interests of women in passing an "absolute" veterans' preference law
[Feeney V. Massachusetts, 451 F. Supp. 143 (1978)].
The Massachusetts statute was the subject of a landmark June 5,
In June 1978 the attorney general of Massachusetts appealed this
1979, decision rendered by the U.S. Supreme Court, 442 U.S. 256
latest decision and in October 1978 the U.S. Supreme Court agreed to
(1979). The constitutionality of that statute was upheld by a vote of 7 to
hear the case. After seeking input from the general counsels of numer-
2. The statute provides that all disabled and nondisabled veterans with
ous government agencies,* the Solicitor General of the United States
passing test scores must be ranked ahead of nonveterans even if the
filed a 42-page amicus brief with the U.S. Supreme Court in December
nonveteran scored higher on the competitive examination. This is far
more absolute than the five- and ten-point federal preference statute.
On March 29, 1976, this case first gained national attention as Anthony
"Editors' note: As the special assistant to the VA general counsel, Mr. Phillips was
actively involved in the preparation of a November 1978 memorandum in which the VA
V. Massachusetts, 415 F. Supp. 485 (1976) when a three-federal-judge
encouraged the Solicitor General of the U.S. to file a brief urging the U.S. Supreme Court
panel voted 2 to 1 to declare that the "absolute" Massachusetts prefer-
to uphold the constitutionality of the Massachusetts veterans' preference statute. While
356 / Dean K. Phillips
The Case for Veterans' Preference / 357
1978. This brief defended the general concept of veterans' preference
only the "rational basis" test in their cases. Thus the government had to
and requested that the U.S. Supreme Court uphold the constitutional-
prove only that the drafting of exclusively men was reasonably related
ity of the "absolute" Massachusetts veterans' preference statute, ob-
to the accomplishment of a legitimate power of government-raising
serving that
and maintaining the armed forces. Under the "strict scrutiny" test,
which the courts apply if the plaintiff claims denial of equal protection
in many respects, military gender distinctions operate to the disadvan-
by government action on the basis of race (a suspect classification), the
tage of men, not in their favor. Conscription extends only to men, and
only men are sent into combat. Thus, all women in the military have
government is held to a considerably tougher standard: It must prove
entered the service voluntarily, while many men have not. We
that its classification must be necessary to promote a compelling
recognize, of course, that seemingly preferential treatment is not
government interest. Since the Massachusetts veterans' preference
always benign, and that women as well as men may suffer because of
statute recently at issue is neutral on its face (and because sex has not
gender distinctions in the military. Nonetheless, in significant re-
yet been held to be a suspect classification), it is not surprising that in
spects, men have plainly been disadvantaged by the gender distinc-
applying Washington V. Davis the U.S. Supreme Court found the Massa-
tions established by the military. The district court's assumption that
chusetts statute did not deny women equal protection of the law.
the veterans' preference perpetuates a form of discrimination against
Combat veterans in particular were angered at the rather cavalier
women is therefore not altogether accurate.
reference to the draft laws made by the lower court in Feeney: "women
have always been ineligible for the draft."⁴³ Rather than concluding
The Solicitor General further contended that the lower court's distinc-
that women have always been ineligible for the draft, that court would
tion between "nurpose and intent" was illusory and that it could not
have been more accurate in stating that women have never been subjected
properly conclude the Massachusetts preference statute's adverse effect
to the draft. This is particularly so in light of the high casualty rates of
on women was intended by the legislature. (In its prior decision the
draftees in Vietnam. The lower court also stated that "from 1948 until
lower court conceded that the legislature intended to benefit veterans
1967, women were prohibited from making up more than 2 percent of
rather than to injure women.) The Solicitor General later permitted
the total personnel in the armed forces." That court ignored the fact
four separate government agencies each represented by a female
that after the 2 percent statutory bar was lifted in 1967, women in
general counsel (Equal Employment Opportunity Commission, Depart-
1968, 1969, 1970, 1971, and 1972 still failed to comprise even 2 percent
ment of Labor, Department of Defense, and Office of Personnel
of the armed forces, while many of their male counterparts were faced
Management) to file a subsequent amicus brief in February 1979. The
with a most onerous task in Indochina. NOW and nine other organiza-
brief, while taking no position on the validity of the Massachusetts
tions filed a 27-page amicus brief with the U.S. Supreme Court
statute, attempted to draw a distinction between the "absolute" prefer-
addressing Feeney and claiming that "women's participation in the
ence formula of Massachusetts and the more moderate federal formula.
military had been severely limited throughout American history."
Oral arguments were heard February 26, 1979 (47 U.S. Law Week, 3579-
However, the fact remains that most women did not seek enlistment in
80).
the military during the Korean and Vietnam Wars and, hence, belated
It is ironic that the mantle of the equal protection clause of the
cries of denial of equal protection, particularly from NOW, have a
Constitution that had been denied those men who tried to prove in
hollow ring. In fact, a June 1, 1979, letter from the director of Freedom
court that the draft was sexist during the Vietnam War was now being
of Information and Security Review of the Department of Defense
utilized by nonveteran women who claim that some forms of veterans'
reported that from 1964 to 1971 women filed no lawsuits in any of the 94 federal
preference deny them equal protection of the laws. Because sex, unlike
district courts claiming that restrictive statutes, regulations, or policies injured their
race, has been held not to be a "suspect" classification by the Supreme
employment opportunities by making it more difficult for them to enlist in the military.
Court, men attempting to avoid the draft utilizing the aforementioned
During the entire Vietnam War (1964-73) no such suits were filed against
equal protection argument were able to convince the courts to apply
the Departments of the Army or Navy and only two such suits were
filed against the Department of the Air Force during the later stages
the VA memorandum was not supportive of lifelong "absolute" preference for nondis-
abled veterans as a policy issue, it warned that the striking down of such a statute from a
of the war (1971 and 1972) and women's organizations did not partici-
constitutional standpoint would ultimately render less absolute forms of preference
pate as plaintiffs in either suit.
vulnerable to future constitutional challenge.
A review of previous court decisions with respect to challenges to
The Case for Veterans' Preference / 359
358 / Dean K. Phillips
veterans' preference statutes gave a rather clear indication that the
modification efforts as in the best interests of Vietnam-era veterans.
Supreme Court would uphold the constitutionality of the Massachu-
However, subsequent to the defeat of that measure, Campbell reported
setts statute.45 Future efforts to modify veterans' preference statutes
different conclusions in May 1979: "We found that Vietnam Era
will probably be limited exclusively to legislative action.
Veterans accounted for 71 percent of all the veterans hired [in federal
government] in fiscal 1978. In calendar year 1976 that rate was 68
percent."⁴
ADMINISTRATION EFFORTS TO MODIFY THE FEDERAL LAW
While there have been some more recent efforts on the part of the
Department of Defense to expand the role of women in the military,
With the exception of eliminating life-long preference for veterans
the fact remains that DOD's goal calls for women to comprise no more
retiring with the equivalent rank of major or above (PL 95-454, section
than 10-11 percent of military personnel by FY 1984. Effective October
307) the administration effort to modify veterans' preference during
1, 1979 the policy was modified so that the disparity in Army enlistment
the 95th Congress was unsuccessful. Under that proposal, as originally
standards has been considerably narrowed. (The attrition rate for
presented in March 1978, nondisabled Vietnam-era veterans would
women, though still higher than for men has dropped significantly since
have been limited to a one-time use of the preference, which would
a 1975 directive which no longer permitted automatic discharge upon
have to have been utilized within ten years after separation from active
pregnancy.) Effective Oct. 1, 1979, the Army enlistment standards were
duty. That would have immediately eliminated the eligibility of about
modified so that they are virtually the same for men and women. The
one-half of those who-served during the Vietnam era and two-thirds of
impetus for the liberalization of this policy was at least in part a court
those who actually served in Indochina. Major veterans' organizations
challenge by the American Civil Liberties Union.⁴⁷
argued that this would violate an implied contract the government
made with those who served on active duty during time of war. While
they did not think this reasoning could apply to those veterans seeking
DEJA VU: REGISTRATION FOR THE DRAFT
federal employment who served on active duty from January 1955 to
September 1966 and were "grandfathered" in under the Vietnam-era
At the same time the assertion that veterans' preference denies
amendments to the Veterans Preference Act of 1944, many Vietnam-
women equal protection was under review by the U.S. Supreme Court,
era veterans knew that World War II and Korean War veterans had
the House Armed Services Committee reported favorably 30 to 4 in
been provided the opportunity to use preference points more than once
May, 1979, on proposed legislation (HR 4040 sections 812-815) that if
with no time limit. For that reason some thought it unfair that
enacted as written would have required that only men register for the
Vietnam-era veterans should be limited to a one-time use that must be
draft. While this provision was later killed by a House vote of 252-163, a
exhausted within ten years after separation. In June 1978 the time limit
similar measure (S. 109) was reported favorably 12 to 5 by the Senate
was changed to 15 years by the House Committee on Post Office and
Committee on Armed Services on June 19, 1979. If enacted, as written
Civil Service. On September 11, 1978, the House of Representatives
S. 109 also would have required that only males register for the draft.
rejected the administration proposal to modify veterans' preference by a
At this writing S. 109 has not yet faced a full Senate vote. Although
vote of 222 to 149. The House then voted 281 to 88 to retain veterans'
there was public notice of the House and Senate Armed Service
preference in federal civil service in its current form. It would appear
Committee hearings on this matter, a review of the witness lists,
that an effort to modify veterans' preference prospectively in the event
Committee Reports, and Hearing transcripts indicates that no womens'
of another war rather than retrospectively may fare more successfully
organizations offered oral or written testimony before these commit-
tees claiming that women should be "eligible for the draft" from either
in the Congress.
It appears unlikely that any substantial modification of the Veter-
an equal employment opportunity or equal responsibility point of
ans Preference Act of 1944, as amended, will be enacted by the 96th
view.4 It is the opinion of this writer that if this proposed legislation is
Congress. In May 1978, Campbell reported that barely half of the
enacted and men are subject to the draft, numerous lawsuits will be
veterans hired in federal service in 1977 were Vietnam-era veterans. By
filed by them claiming that the subjection once again of only men to
implying that Korean War and World War II veterans comprised nearly
draft registration denies them equal protection of the law. In a case
half the veterans hired that year, he justified the administration
decided subsequent to the Vietnam War, the U.S. Supreme Court
360 / Dean K. Phillips
The Case for Veterans' Preference / 361
established a three-tiered test redefining the standard for violations of
19. Dr. Ralph Guzman, Mexican American Casualties in Vietnam. The Congressional Record,
the equal protection clause in sex discrimination cases. Accordingly, in
Vol. 115, October 8, 1969, PP. 29292-93.
the opinion of this writer, it is now an open question whether men
20. Chance and Circumstance, op. cit., p. 129
would be successful if they filed suits challenging the constitutionality
21. Office of the Assistant Secretary of Defense (Manpower and Reserve Affairs),
Project One Hundred Thousand: Characteristics and Performance of 'New Standards' Men, December
of any future legislation that continues to exempt women from draft
1969.
laws. If such suits are filed and prove successful, the issue of whether
22. Chance and Circumstance, op. cit., P. 49
the Equal Rights Amendment would require women to face any future
23. Barbara Allen Babcock et il., Sex Discrimination and the Law-Causes and Remedies,
draft laws would then be ampot question.
(Boston: Little, Brown, 1975).
24. Ibid, P. 177.
25. Bureau of the Budget, A Survey of Socially and Economically Disadvantaged Veterans,
November 1969.
26. Veterans Administration, Office of Controller, Readjustment Profile for Recently
Separated Vietnam Veterans, conducted by the Department of Veterans Benefits, June 1973.
NOTES
27. Sears, Roebuck and Company V. Attorney General of the United States et al., Civil Action 79-
0244 filed January 24, 1979, dismissed May 15, 1979, in the U.S. District Court for the
1. Soldiers at pay grade E-3 received the following monthly salaries (which include
District of Columbia, P. 18.
combat pay) while in combat zones: 1944, $76; 1952, $144.37; and 1968, $193.70. Military
28. United States V. St. Clair, 291 F. Supp. 122 (1968); Suskin V. Nixon, 304 F. Supp. 71
Compensation Background Papers: Compensation Elements and Related Manpower Cost Items Their Purpose
(1969); United States V. Cook, 311 F. Supp 618 (1970); United States V. Dorris, 319 F. Supp. 1306
and Legislative Background, Department of Defense, Third Quadrennial Review of Military
(1970); and United States V. Reiser, 394 F. Supp. 1060 (1975), rev'd 532 F. 2d 673 (9th Cir.
Compensation, Office of the Secretary of Defense, August 1976.
1976).
2. Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and
29. "Preference in Employment of Honorably Discharged Veterans where Federal
Logistics), Use of Women in the Military-Background Study, May 1977.
Funds are Disbursed," Hearings Before the Committee on Civil Service, U.S. Senate on
3. Ibid.
S. 1762 and H.R. 4115, May 19 and 23, 1944; "Extension of Preference to Veterans who
4. Ibid, Table I.
Desire to Compete for Positions in the Federal Service," Report No. 1289 to accompany
5. Martin Binkin, and Shirley J. Bach, Women in the Military. (Washington, D.C.:
H.R. 4115 by the House of Representatives, March 27, 1944; "Extension of the Draft and
Brookings Institution, 1977).
Bills Related to the Voluntary Force Concept and Authorization of Strength Levels,"
6. "The Role On ,Vomen in the Military," Hearings before the Subcommittee on
Hearings before the Committee on Armed Services, House of Representatives, 92d
Priorities and Economy in Government of the Joint Economic Committee, 95th Cong., 1st
Cong., 1st sess., February 23-25, March 1-5, 9-11, 1971.
sess, July 22 and September 1, 1977.
30. "Preference in Employment of Honorably Discharged Veterans," op. cit. PP. 34
7. America's Volunteers, A Report on the All-Volunteer Armed Forces, Office of the
and 68.
Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics), Washington,
31. Ibid, P. 63-64.
D.C., December 31, 1978, P. 70.
32. Federal Women's Program Committee, Denver Federal Executive Board, Veterans'
8. Women in the Military, op. cit., P. 52, footnote 38
Preference Act Study-A Review of the Discriminatory Aspects of the Veterans' Preference Act of 1944. as
9. Paul Starr, The Discarded Army: Veterans After Vietnam. (New York: Charterhouse,
amended, Spring 1975.
1973).
33. Ibid, PP. 6-7.
10. Lawrence M. Baskir and William A. Strauss, Chance and Circumstance: The Draft, the
34. Ibid, PP. 17-18.
War. and the Vietnam Generation (New York: Knopf, 1978), P. 22.
35. Comptroller General of the United States, Conflicting Congressional Policies: Veterans
11. A. S. Albro, Civilian Substitution-Studies Prepared for the President's Commission on All-
Preference and Apportionment V. Equal Employment Opportunity, Report to Congress, September
Volunteer Armed Force, Study No. Five, November 1970.
29, 1977.
12. "Extension of the Draft and Bills Related to the Voluntary Force Concept and
36. Ibid, P. 20.
Authorization of Strength Levels," Hearings before the Committee on Armed Services,
37. "Hearings before the Subcommittee on Civil Service," Committee on Post Office
House of Representatives, 92d Cong., 1st sess., February 23-25, March 1-5, 9-11, 1971.
and Civil Service, House of Representatives, October 4-5, 1977.
13. "Defense Report/Draftees Shoulder Burden of Fighting and Dying in Vietnam,"
38. "Hearings before the Committee on Post Office and Civil Service House of
National Journal, August 15, 1970.
Representatives, 95th Cong., 2d sess. on H.R. 11280 March 14, 21; April 4, 5, 6, 11, 12, 28;
14. 1971 Hearings before the Committee on Armed Services, op. cit. P. 172.
May 8, 12, 15, 22, and 23, 1978. "Civil Service Reform" Serial No. 95-65 at page 785.
15. The Discarded Army, op. cit., P. 54.
39. Jeanette Thompson et al. V. Administrator of Veterans Affairs et al., U.S. District Court,
16. 113 Cong. Rec. 10000 (1967) (remarks of Congressman Hawkins).
Northern District of Illinois 74-C-3719.
17. Department " Defense, U.S. Casualties in Southeast Asia by Grade and Military Service,
40. Anthony V. Massachusetts at 495.
unpublished, December 31, 1978.
41. Ibid, at 496.
18. U.S. Bureau of the Census, Statistical Abstracts of the United States 1977, 98th ed.,
42. In two cases a plurality of the U.S. Supreme Court justices did rule that sex was a
P. 368, Table 587.
suspect classification: Frontiero V. Richardson, 411 U.S. 677 (1973) and Schlessinger v. Ballard,
362 / Dean K. Phillips
498 U.S. 419 (1975). In the former case, the court held unconstitutional a government
policy denying certain benefits to the dependents of female armed forces personnel
readily available to male personnel. In the latter case the majority opinion upheld a
Department of the Navy statute mandating the separation from active duty of the male
plaintiff for twice failing to be promoted within a nine-year period while similarly situated
female officers had 13 years in which to secure promotion before mandatory separation.
The court found that restrictions upon sea duty for women had provided them with fewer
promotional opportunities.
43. Anthony V. Massachusetts at 490.
44. Ibid, at 489.
45. Subsequent to Washington V. Davis, three equal-protection challenges to veterans'
preference legislation have been unsuccessful: Branch V. DuBois, 418 F. Supp. 1128 (1976);
Bannerman V. Dept. of Youth Authority, 436 F. Supp 1273 (1977); Ballow V. State, Department of
Civil Service, 372 A.2d 333 (App. Div. 1977), aff d, 75 N.J. 365, 382 A.2d 1118 (1978).
Prior to Washington V. Davis, equal-protection attacks on the federal Veterans' Prefer-
ence law were unsuccessful: White V. Gates, 253 F.2d 868, cert. denied, 356 U.S. 973 (1958);
and Colemere V. Hampton, N.C. 72-72 (D. Utah, October 11, 1973).
Additionally, the federal act has been enforced by the U.S. Supreme Court without
any suggestion of possible constitutional infirmity. Hilton V. Sullivan, 334 U.S. 323 (1948).
Constitutional attacks on state veterans' preference statutes have likewise been
unsuccessful: Koelfgen V. Jackson, 355 F. Supp. 243 (1972), aff mem. 410 U.S. 976 (1973);
Feinerman V. Jones, 356 F. Supp. 252 (1973); Rios V. Dillman, 499 F. 2d 329 (5th Cir. 1974).
46. Statement of Alan K. Campbell, director, Office of Personnel Management,
before the Committee on Veterans' Affairs, U.S. Senate at Oversight Hearings with
Regard to Veterans' Employment Programs and Policies, May 23, 1979, at page 8.
47. Breaman V. Brown, Civil Action 79-0512 filed February 15, 1979, in the U.S. District
Court for the District of Columbia.
48. While not concerning themselves with disadvantages men as a class have been
subjected to because of this nation's draft laws, several women's organizations have
(particularly since the end of the Vietnam War) gone on record requesting the expansion
of employment opportunities for women in the military. See testimony before the
Military Personnel Subcommittee of the House Armed Services Committee, November
16, 1979 by the ACLU's Women's Rights Project, the Federally Employed Women, and the
Women's Equity Action League. Also see "The Role of Women in the Military" Hearings
before the Subcommittee on Priorities and Economy in Government of the Senate
Economic Committee, 95th Congress, 1st Session, July 22 and September 1, 1977.
49. Craig V. Boren, 429 U.S. 190 (1976).
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE ATTORNEY GENERAL
JOHN W. MC CORMACK STATE OFFICE BUILDING
ONE ASHBURTON PLACE. SOSTON 02108
FRANCIS x. BELLOTTI
ATTORNEY BENERAL
February 25, 1980
Dean K. Phillips
1700 Sherwood Hall Lane
Alexandria, Virginia 22306
Dear Dean:
I have just finished reading the final draft of your
illuminating chapter written for "Strangers at Home: Vietnam
Veterans Since the War". Thank you once again for your note
of special acknowledgment.
It has occurred to me that I have never provided you
with a similar written "thank you" for your personal in-
volvement in the Feeney case. Presenting that case to the
Supreme Court of the United States was deeply satisfying,
but the effort was certainly made easier by the ready
availability of crucial statistics not only from your
agency, but from your personal writing. Equally important
to the Commonwealth's success was the amicus brief filed
by the Solicitor General. That brief reinforced many of the
arguments I made to the Court and was certainly of material
assistance to the Commonwealth's defense of our veteran
preference statute. I know that you and your agency were
instrumental in convincing the Solicitor General to file
that brief and, on behalf of the many veterans whose interests
I represented before the Court, I thank you for your active
role of advocacy.
As you know, the Feeney case has been appealed to the
Supreme Court once again. This time the appeal raises only
a single discrete procedural issue and I think it unlikely
that the Court will note probable jurisdiction. In the
event the Court does note jurisdiction, however, I am con-
fident I can count on you for assistance once again.
Thanks.
Very truly yours,
The R.Kg
Thomas R. Kiley
First Assistant Attorney General
TRK/vb
DISENSE
OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE
WASHINGTON, D. C. 20301
ANIBITA
June 1, 1979
Ref: CORR 79-160
PUBLIC APPAIRS
Mr. Dean K. Phillips
1700 Sherwood Hall Lane
Alexandria, Virginia 22306
Dear Mr. Phillips:
This is in response to your Freedom of Information Act request
dated May 12, 1979, for information on the number of cases "filed
between August 4, 1964 and March 28, 1973, against the government
by women claiming that more stringent standards existed for
women that wanted to enter the military service".
Each Military Department has reviewed its litigation subject files
for the period covered by your request. The Army and Navy report
that their records do not reflect the filing of any such cases during
the period in question. The Air Force reports two cases: Callahan V.
Laird, Civ. No. 71-500M (D. Mass., filed 1971), dismissed as moot,
(Dec. 1974); Howard V. Nixon, Civ. No. 16834 (N.D. Ga., filed 1972),
dismissed voluntarily by plaintiff, (July 1973).
We hope this information will be of assistance to you.
Sincerely,
Charles W. Hinkle
Director, Freedom of Information
and Security Review
National Organization for Women, Inc.
425 13th Street, N.W. Suite 1048 Washington, D.C. 20004
(202) 347-2279
NATIONAL
ORGANIZATION
July 29, 1979
Dean K. Phillips
1700 Sherwood Hall Lane
Alexandria, Virginia 22306
Dear Mr. Phillips:
I have received your letter asking whether the September,
1971 resolution concerning veteran's preference has been rescinded or
modified.
The resolution has not been rescinded or modified and still
represent's NOW's official position.
Sincerely,
Phyllis g. West
Phyllis G. West
Legislative Aide
.
Tomorrow
This is a summary of NOW's existing resolutions and policies by issue. It can
be used to acquaint Chapter members with NOW's policies prior to the National
Conference. Use this in conjunction with the workbook for action you received
earlier to hold pre-Conference discussions with your Chapter. Only if all
members are well acquainted with existing policies can we move forward at the
1973 Conference to devise strategy to implement these policies, as well as
making any new policy we might need.
INDEX
I - under the Law
A. Bevel Register Amondment
v Legisle the Gash
a. Child Rights
A. Report of Trst Form on National Legislation
& Report of Task Form on Sex Legislation
a -
a Report of Complience Task Form
VI - Care
8. Labor Sundersh
I & I 5
c Employment ml - Family
& Reselutions I at Wastern Regional Confermer
a Help Warred AM
& Conformers, Costiders a Training
YM Repredement
F. Talent Banks
a Women in -
no - in Family Releborg
K Ap Discrimination
A Report of Test Form - Marriage, Govern -
L Yourse's Proference
Family Relations
& Income Tax, Social Security & Retirement
K. Report of Women 0 Test Ferm
K Bulligion
L - in Parenty
A Regurt of Test Form on - - -
M. Minority Wornan
Religion
M. Report of Tesm & Credit Trel Form
c. Report of Federal Communication Commission
x - -
yea Test form
- Dirthd Justices - -
⑉ Senthy of Education
A Report of Test Form - Invoice
= Fuminies and -
a. Higher Iduation
A Membership Mystique
& Women's
w Pultical -
4 I 1 x I
a Resplucions
a - - - - -
& All chepters develop employment conferences on employment problems to implement NOW policy on
equal opportunity in employment and disseminate information an problems in opportunity for employ-
ment and promotions, wages, hours, working conditions, protective laws, frings benefits. (Pension, leave,
etc) (Dec. 1958)
4. Chapters should work with local labor unions, particularly when many union members are war 100, to got
Ideas and enlist support for joint action. Chapters should also contact other women's organizations (BPW,
National Council of Women, Negro Women's groups) to attempt to use group pressure to combat SSX
discrimination in employment. (Dec. 1958)
5. Urge expension of service occupations such as shopper service, werdrobe tenders, development of "proo
tical mothers" (like practical nurses) etc. (Oct., 1965)!
6. Offer career counseling to all women. (Mar., 1970)
F. Talent Banks
Develop Executive banks of able women so when employers Indicate willingness to hire women, but claim
they can't find qualified women, NOW can supply them with names. (Dec., 1958)
a Women in Business
1. Encourage and support the formation of businesses for women and women in business. (Mar., 1970)
2. Provide information on securing Small Business Administration loans and obtaining government contracts
available to minority businesses. (Mar., 1970)
& Encourage and suggest procedures for wornan who wish to pool money to form economic - for
businesses, etc. (Mar., 1970)
4. Urge repeal of state and local laws which deny wamen the some freedoms, inditions and privileges as
men have for borrowing money, owning real estate, and operating businesses. (Mar., 1970)
5. That NOW develop lists of business and professional women and businesses owned by women on national
and local levels and disseminate there for the purpose of enseuraping support of the business or practices
of such women. (Sept. 1971)
H Age Discrimination
Campsign against age discrimination, which operates as . particularly serious handicap for women re-enter-
ing the labor market after rearing children, and which is imbued with the denigrating image of women
viewed solely, 4 90% objects in instances such as the forcing of airlines stewardesses to resign before the
age of 32. (Oct 1958)
L Veteran's preference
That NOW GRESSE any state, federal, county, or municipal employment Law or procram giving special
Telesance Involorans. (Sept. 1971)
d Income Tax, Social Security and Retirement
1. Eliminate tax provisions which discriminate against single persons;
2 child care deductions, as above.
2 Revise social security laws to eliminate distrimination against discresd women and working whres. (See
also Marriage and the Family)
4. Revise getirement and pension plans to ellminate SEX discrimination. (Dec., 1968)
5. Demand that OFCC, EEOC and Wage and Hour Division prohibit employers from discriminating against
women by issuing Immediate rulings requiring employers to provide equal contributions and equal benefits
in OR fringe programs, Including retirement. (Sept. 1971)
a Amend the Social Security Act to provide benefits to husbands and widowers of decreased and disabled
women workers under the same conditions as they are provided to wives and widows, and to provide more
equitable retirement benefits for families with working wives. Guarantee husbends and children of womin
employees of the Federal Government the same frings benefits provided for wives and children of male
employees. Provide tax deductions for child-care expenses insurred in the home. (April, 1971 board
meeting)
K Report of the Women and Volunteerism Tack Force, October, 1972
1. NOW's standpoint on volunteerism.
The 1971 NOW Conference passed the following resolution:
that NOW distinguish between (1) voluntary activities which serve to meintain women's dependent
and secondary status on the one hand, and (2) change-directed activities which leed to more
active participation in the decision making process;
that NOW sook to raise the consciousness of women engeged in these volunteer activities, so that
they use their "velunteer power" in an effort - change policies descriment so the interests of
women.
NOW thus makes . rough dicotomy between service reluntering and volunteering for change. NOW -
courages the latter kind which is in sizence citizens' participation in the democratic process.
4
A2
Tuesday, December 5, 1978
THE WASHINGTON POST
Justice Backs Veterans' Job Law;
White House Aides Upset
By Kathy Sawyer
Several White House aides spent
to change these statutes, it should be
Washington Post Staff Writer
the weekend trying to talk the office
the president and the Congress."
Over the objections of some White
of the solicitor general out of filing
The Justice Department filed the
House aides, the Justice Department
the brief, or at least into modifying it
brief as a friend of the court in the
yesterday filed R legal brief with the
substantially because they feel it does
case of Helen B. Feeney, a former
Supreme Court contending that laws
not accurately reflect the president's
Massachusetts state employe who was
that give veterans a preference in gov-
views, White House sources said. The
stymied in her attempts to change
ernment jobs are constitutional.
offices of Stuart Eizenstat, Carter's
jobs when veterans were given prefer-
News of the department's position
top domestic policy adviser, counsel to
ence over her.
stirred indignation among women's
the president Robert Lipshutz and
A U.S. court in Massachusetts last
groups and some federal officials who
Sarah Weddington, Carter's adviser
spring ruled that the state's veterans
on women's issues, were doing the
preference statute was unconstitu-
have fought to have such preferences
"dickering" for the White House, the
tional because it "deprives women of
curtailed.
sources said.
equal protection of the law."
Throughout the debate over civil
Deputy Solicitor General Frank H.
The Justice Department brief has
service reorranization, earlier this
Easterbrook, who wrote the brief, said
been in the works since Oct. 10, when
year, President Carter had called for
his office views the brief as
the Supreme Court agreed to hear the
rutbacks in the lifelong job prefer-
"completely supporting the presi-
case. Easterbrook said. He and other
ences extended to 30 million veterans,
dent's position."
government sources said the brief had
group that is 98 percent male and 92
The real question here," he said,
been circulated widely for comment
percent white. That issue was the
"goes to who's in charge here: the
and that certain changes had been
Conly minor one the president lost
president and the Congress, or the ju-
made along the way in response to the
when Congress approved the historic
dicial branch? We're saying it's not
concerns of the White House and
vivil service legislation in October.
the courts
If somebody is going
other agencies.
"I assume the President could have
nate against women" in enacting the
A number of executive branch offi-
instructed us not to file the brief,"
statute and that "only purposeful dis-
cials, including several women, and
Easterbrook said. However, he noted
erimination violates the equal protec-
women's group leaders said over the
also that one of the articles of im-
tion clause" of the Constitution. More-
weekend that they were dismayed to
peachment against President Richard
over, the brief contends that govern-
learn of the brief's thrust.
Nixon contained the argument that
ments have legitimate reasons for
"It's absurd to have these people in
the president was "trying to tell the
adopting veterans' statutes.
the solicitor general's office taking a
Justice Department what to do."
Any discrimination resulting from
position opposite to that of the presi-
The 38-page Justice Department
the statute, however unintentionally,
dent," said Judith Lichtman, execu-
brief states that the U.S. "has an in-
is partly a result of women's exclusion
tive director of the women's Legal
terest in participating in the case in
from the military, the brief states,
Defense Fund.
order to defend those portions of the
adding that "it is by no means clear
Some couroes suggested the solici-
federal veterans preference laws that
that the restrictions on women's par-
tor general's office is developing a
might be affected by the court's rul-
ticipation in the military are unconsti-
"history of differing with the adminis-
ing."
tutional."
tration position, and they cited previ-
If the court finds in favor of Massa-
Sometimes, the brief said, "military
ous Supreme Court cases-one involv-
chusetts, it could jeopardize the whole
gender distinctions operate to the dis-
ing the snail darter and the Bakke
range of U.S. benefits given to veter-
advantage of men, not in their favor."
case, involving so-called reverse dis-
ans in housing, education and numer-
Although the brief upholds the con-
crimination-in which this had occur-
ous other categories, according to
stitutionality of the concept of veter-
red.
Easterbrook and other officials.
ans preferences, Easterbrook said, it
Easterbrook and other government
The Justice Department argument,
does not hold that all veterans prefer-
sources responded that such disagree-
as summed up in the brief, is that the
ence statutes necessarily are constitu-
ments "happen all the time," as part
state did not "purposefully discrimi-
tional.
of standard operating procedures.
Thursday 7, 1978 THE WASHINGTON POST
Carter Still Upset
By Veterans' Rule
By Kathy Sawyer
Washington Post Staff Writer
President Carter, displeased by a Justice Depart-
The reason the Justice Department brief does not
ment brief that appeared to conflict with his views
conflict with the president's position is that it
on veterans preference laws, said yesterday that he
merely upholds the constitutionality of the concept
still believes such laws should be curtailed.
of preferential job treatment for veterans. The brief
The brief, filed Monday with the U.S. Supreme
thereby reasserts that it is the president and Con-
Court, said that such laws, which grant preferential
gress, not the courts, who must make any changes
job treatment for veterans, are constitutional.
in the laws, according to officials of both the White
Carter had sought to curtail the preferential
House and the Justice Department.
rights for able-bodied veterans while increasing
Also yesterday, the Justice Department said that
them for the smaller numbers of disabled and Viet-
Bell had invited women's rights groups to submit a
nam era veterans.
legal memorandum on the case, which involves a
When he learned about the brief on Monday, one
challenge to a Massachusetts veterans preference
administration official said, the president was con-
law by a woman who consistently was passed up for
cerned not so much with its substance but with the
job opportunities in favor of veterans. Bell said he
likelihood that, through headlines and "15-second
would consider that memorandum "in evaluating
news broadcasts" it would be misinterpreted as a
any possible government options for further partici-
change in the administration's position.
pation in the case."
Neither the president nor Attorney General Grif-
The White House had helped set up a meeting
fin Bell was aware of the brief's contents until Mon-
yesterday morning between Bell and representa-
day, the day the U.S. solicitor general's office filed
tives of the women's groups, which have fought for
it, according to officials of both the White House
modifications in the veterans preference laws, offi-
and the Justice Department.
cials said.
"There has been a problem with the solicitor gen-
"I'm not confident, but I'm hopeful. that Justice
eral's office not consulting with the people who
would be persuaded (by the memo) to reevaluate its
ought to know," one administration official said.
position," said Judith Lichtman, who represented
"There is a degree of independence in (that
the Women's Legal Defense Fund at the meeting.
office) that is of concern among White House
Bell, concerned about the lack of notice to him-
aides," said another.
self on the brief, yesterday asked Solicitor General
In a statement issued yesterday through White
Wade H. McCree to give him "the same notice he
House press secretary Jody Powell, Carter said the
gives to other agencies" when requesting comments
attorney general has advised him that "the Justice
on any legal action, according to Justice Depart-
Department brief in no way conflicts with the presi-
ment spokesman Terry Adamson.
dent's policy on veterans preference in federal em-
"The attorney general must then bear the respon-
ployment."
sibility for any communication with the White
House, as he deems necessary." Adamson said.
Carter went on to say that a federal law granting
Officials at both the White House and the Justice
preferential job treatment for nondisabled veterans
Department emphasized their desire to "insulate"
"unduly interferes with employment opportunities
the solicitor general's office from undue political in-
for women and minorities and with efficient and
fluence.
businesslike management."
STARS AND STRIPES -- THE NATIONAL TRIBUNE
April 26, 1979
page 2
Phillips Tells VES Supreme Court
Will Uphold Veterans' Preference
The United States Supreme Court
will probably uphold the constitu-
tionality of the "absolute" Mas-
sachusetts veterans' preference
statute in a landmark decision
sometime in June or July accord-
ing to Dean K. Phillips, an attorney
and former vice chairman of the
Colorado Board of Veterans' Af-
fairs.
Phillips, at the invitation of the
Deputy Assistant Secretary of La-
bor for Veterans Employment Dr.
Dennis R. Wyant, addressed the
1979 Veterans Employment Ser-
vice annual training conference in
Phoenix, Arizona on April 10, 1979
on the matter of Veterans' Pre-
Dean K. Phillips
ference.
Phillips reported that the Mas-
Phillips pointed out that the 2%
sachusetts case [Feeney v Com-
statutory bar was lifted by Con-
the Civil Rights Act of 1964 private
monwealth] would turn on whether
gress in 1967 but that women had
industry is required to have exami-
the State Legislature intended to
not comprised 2% of the military
nations certified as job related. He
discriminate against women as a
until 1973-six years later. He re-
did state that a 1978 class action
class when it enacted the veterans'
ported that women were subjected
suit filed by Navy women [Ownes v
preference statute at issue. He
to higher enlistment standards and
Brown] in Washington federal
reported that on March 29, 1976, the
had 65% of MOS's closed to them
court was successful in overturn-
lower court, in originally ruling 2-1
until 1972. However, women filed
ing & statute that had limited
that the statute denied women
no lawsuits from 1964-1971 alleg.
assignment of women to hospital
equal protection of the law (as
ing that higher enlistment statutes,
ships and transports.
provided for in the 14th amend-
regulations. and policies denied
In closing remarks, Phillips
ment to the Constitution), con-
them equal employment opportun-
stressed the difference between
coded that the Massachusetts pre-
ity in enlisting in the military.
constitutional questions and policy
ference law was not enacted for
Phillips also pointed out that men
questions with respect to veterans'
the purpose of disqualifying
had been victims of "perhaps the
preference legislation and ex-
most sexist institution in the coun-
women from receiving civil ser-
pressed a concern that if the Mas-
try's history-the draft, which was
sachusetts statute were declared
vice appointments
The case had then been appealed
used to select only men to be killed
unconstitutional, then less absolute
to the U.S. Supreme Court which
and crippled in combat."
forms of preference might be sub-
ruled on October 11, 1977, that the
Phillips reported that the draft
jact to the same fate.
was used to secure combat arms
lower court had not proven intent
to discriminate. The Supreme
personnel for Vietnam in the late
Court then vacated the lower court
1960's and early 1970's as very few
order and remanded the case back
men enlisted for combat arms. By
On June 5, 1979
to the lower court, instructing it to
1969 Phillips reported that 62% of
rule on whether Massachusetts had
U.S. Army casualties were draf-
(Massachusetts V.
intended to discriminate against
tees. He further reported that the
Feeney 442 U.S. 256)
women in passing the statute. The
casualty rate for Blacks exceeded
their percentage of Vietnam forces
the U.S. Supreme Court
Supreme Court cited Washington v
by 30%. He also took issue with
Davis as a guideline which stood
voted 7 to 2 to uphold
language in the lower court ruling
for the proposition that a neutral
in 1976 which read the women
the constitutionality
statute resulting in a dispropor-
have always been ineligible for the
tionate impact on a protected class
draft." Phillips asserted that more
of veterans preference.
is not denying that class equal
correct language would have
protection of the law unless It can
stated that women were never
be proven that the legislature
subjected to the draft.
actually intented that the legisla-
Phillips, who served in Vietnam
tion be discriminatory.
in 1967-68 with a paratroop recon-
The lower court held on May 3,
naissance platoon, stated that the
1978 that the Massachusetts legis-
military currently was comprised
lature had intended to discriminate
of only 6.6% women and that long
against women in passing the
statute and once again ruled that it
range plans called for women to
denied women equal protection.
make up only 10-11% of the mili-
The lower court cited as evidence
tary. He expressed concern that
that the state legislature intended
for those MOS's that do require
to discriminate the fact that 98% of
considerable physical strength
America's veterans are males. It
women have not been judged DD the
reasoned that an "absolute" form
basis of individual ability but have
of veterans' preference would dis-
been excluded as a class. Under.
criminate against females as a
class. The court further wrote that
women had been precluded by
statute from comprising more than
3% of the military from 1948-1967.
Dean K. Phillips
December 20, 1980
Addendum to the
VETERANS PREFERENCE CHAPTER
O Page 345. Women now comprise more than 10% of active duty military
personnel.
0 Pages 359-360. Several key developments have occurred since I
completed this Chapter in December 1979.
o The Soviet Union's invasion of Afghanistan resulted in President
Carter's 180 degree turn on the issue of draft registration. In 1979
he opposed suggestions that we return to the draft. In February 1980
President Carter recommended to the Congress that young men and women
be required to register for the draft. During the resultant debate
before the Congress, "feminist" groups varied on whether women should
be subjected to draft registration. For the first time since the
final stages of World War II, the issue of drafting women was no
longer just the subject of cocktail party prattle there was actually
a possibility that it could become policy.
The past policy of NOW and most other feminist organizations had
heretofore been to take a "low profile" on the issue of the draft.
(Congressional Quarterly, April 21, 1979). Pressed by the February
1980 Carter announcement, "feminists" in their thirties and forties
who avoided service during Korea and Vietnam were now publically
stating that it was acceptable to them if the young women of the 1980s
faced draft laws and military service. Often this inconsistency was
not well received by the 20-year old women who were so generously
thrust into the role of "equality of responsibility" by their once
reluctant older sisters.
o The Congress did fund the President on June 12, 1980, for the
renewal of an all-male draft registration only. On July 2, 1980,
President Carter issued Presidential Proclamation Number 4771
providing for the commencement of Selective Sevice registration on
July 12, 1980, of males born in 1960 and 1961.
On July 18, the 3rd Circuit Court of Appeals voted 3-0 to declare
the proposed male only draft registration unconstitutional in that it
denied men equal protection of the law. Goldberg V. Rostker,
49 LW 2066, 8 Military Law Review 2343, July-August 1980. U.S.
Supreme Court Justice Brennan exercised on July 19th his authority to
set aside the 3rd Circuit order pending review of the full U.S.
Supreme Court (49 LW 3013 U.S.).
It is my opinion that before July 1981 the U.S. Supreme Court will
uphold the constitutionality of the male only draft by a substantial
margin perhaps by a vote as one sided as 8-1 or 9-0. The court will
reason that the Congress under Article I, Section 8 of the Constitution
has broad discretion in its charge of raising and maintaining an armed
forces and that limiting the draft to males falls within that
discretion.
In my opinion, there is a deep need for draft registration.
During Vietnam, 10% of the U.S. Armed Forces were Blacks and 12.6% of
U.S. casualties were Blacks. However, over 30% of today's U.S. Army
troops are Blacks (40% in the combat arms), and the casualty rate for
Blacks could run as high as 40% if we got into a shooting wa.' now. If
we returned to a draft with no student deferments, a more representa-
tive cross section of American youth would fill the ranks of the U.S.
Armed Forces and the burden of defending the interests of our nation
would be more evenly distributed. As it is, only 50% of U.S. Army
enlistees during FY 1980 had a high school degree or its equivalency.
Our "friends" from the National Organization for Women (NOW)
testified March 19, 1980, before the Committee on Armed Services of
the United States Senate with respect to the Department of Defense
Authorization for appropriations for Fiscal Year 1981 (S.2294).
While acknowledging that she was " not a military expert.
the NOW representative drew conclusions that only an expert would be
qualified to make - she opposed draft registration on the grounds that
"We have a volunteer armed service in place which is working
(If 30% to 40% casualties for Blacks in the event of a war is
"working", then NOW doesn't appear as sensitive to the plight of
Blacks as their leadership would have us think.) However, if a draft
were instituted, the NOW representative stated that women should be
included. This "on the record" statement favoring the drafting of
women if men were drafted contradicted more spontaneous comments
attributed to NOW representatives during the previous month when
President Carter first announced his plan to require both young men
and women to register. At that time the informal position of some
feminists was said to be - no drafting of females until the ERA was
ratified. (Interestingly, during the past three years every major
poll has indicated that a significantly higher percentage of women
oppose the ERA than men.)
THE WASHINGTON POST
FEBRUARY 1, 1980 page 1
O'Neill: Congress Will Not Pass
Registration of Women for Draft
By Michael Getler
Hilda Mason, a D.C. city council.
Washington Post Staff Writer
woman, said the trouble in the Per-
"Howe Speaker Thomas P. (Tip)
sian Gulf was really "an economic
1 O'Neill Jr. (D-Mass.) publicly cau-
struggle to preserve corporate wealth,
rather than a threat to the people,"
tioned President Carter yesterday not
"and she wondered "what ever hap-
to propose registration of women for
-pened to that man who came to the
the military draft, warning that such
White House with a bible in his
a move would not make it through
hand."
Congress.
Rep. Patricia Schroeder (D-Colo)
"As I read the Congress," the
did not attend the conference but sub.
speaker told reporters on Capitol Hill,
mitted a statement saying that putting
"it wouldn't go
it would be anath-
money for the draft instead into beef-
ema around here" and the White
ing the National Guard and Re-
serves would send a much clearer sig.
House would be "better off" dropping
nal to Moscow than "just compiling a
the idea.
list of American youth."
On the other hand, he said, he
Schroeder said the president's deci-
senses a "strong feeling" in Congress
sion to ask for registration was made
favoring registration of men.
by only a small group in the White
The president is scheduled to make
house, was contrary to the advice of
known next week if he wants some 16
experts, and "not one top Selective
million women between the ages of 18
Service or Defense Department offi-
and 26, as well as a roughly similar
cial was brought into the decision."
While the United States unquestion-
number of young men, to register for
ably has key interests in the Persian
a possible draft.
Gulf, she said our allies' interests are
If O'Neill's assessment is correct, it
greater. Yet, the United States is gu-
would mean there is virtually no
ing ahead with registering youth
chance to include females in draft
"without asking any aid from the
registration, because Congress would
countries who stand to lose the most
have to provide authority.
if oil shipments are interrupted-Ja-
In another development yesterday,
pan and Europe."
women representing almost a score of
A number of women said the draft
THE WASHINGTON POST 2-14-80
women's rights, civil rights and anti-
should be invoked only if the United
war groups from around the country
States were "attacked."
page A-7
gathered in Washington and said at a
"Look," Abrug said at the close,
press conference that they were op-
"the purpose of this press conference
sposed to registration of either men or
is to make clear we are concerned
O'Neill Declined Award,
women and claimed that women had
about what is happening in this coun-
Favors Registering Women
the political power to stop such
move.
try Cold War, the use of the draft and
the hysteria, the return to the
Associated Proce
"Women have always led antiwar
registration for political purposes to
House Speaker Themas P. (Tip)
movements, and we must sperk out
help fan the flames."
O'Neill Jr. (D-Mass. said yesterday
now against efforts to get ws into an-
Though she condemned the Soviet
that be turned down an award from
other war," warned former member of
moves in Afghanistan, she said events
an Orthodox Jewish group that mis-
(Congress Bells Abzug, who was drop-
there and in Iran are not justification
takenly believed be opposed register-
ped last year as a White House ad-
for the president's shift from a policy
viser on women's issues and is now
of self-reliance in energy to what she
ing women for military service.
president of "Women USA."
called an "immoral new Cold War
"Tm in favor of registration" of
The parade of speakers to the press
campaign that would sacrifice Ameri-
young men and women for the draft,
can lives to back up our dependence
conference podium demonstrated, ac.
O'Neill told reporters.
cording to Gloria Steinem, editor of
on foreign oil and the shamelessly
Ms magazine, that this wasn't an at-
profiterring American oil monopoly."
The impression that be opposed reg.
Istering women was apparently caused
tempt to present a nice, near state-
by O'Neill's previous statements that
ment but rather was meant to show
the depth of feeling around the coun-
Congress opposed the idea and would
try against registration, the draft and
reject a registration plan if recom-
military solutions to current prob-
mended by President Carter. Carter
lems.
has since submitted the proposal to
Though Steinem and others found it
Congress.
ironic that women might be drafted
before they even gained their "Const:
O'Neill yesterday repeated his -
tutional rights" under an Equal
"overwhelmingly" in Congress.
Rights Amendment to the Constitu-
tion that is still unadopted, the tone
of the speakers was predominantly an-
tiwar.
"What we need is Amtrak, not MX,".
said 74-year-old Maggie Kuhn, head of
the "Grey Panthers," in a reference to
the nation's rail system and a new
Pentagon missile system, respectively.
DEPARTMENT OF DEFENSE AUTHORIZATION FOR
APPROPRIATIONS FOR FISCAL YEAR 1981
HEARINGS
BEFORE THE
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
NINETY-SIXTH CONGRESS
SECOND SESSION
ON
S. 2294
TO AUTHORIZE APPROPRIATIONS FOR FISCAL YEAR 1981, FOR
PROCUREMENT OF AIRCRAFT, MISSILES, NAVAL VESSELS,
TRACKED COMBAT VEHICLES. TORPEDOES, AND OTHER
WEAPONS AND FOR RESEARCH, DEVELOPMENT, TEST, AND
EVALUATION FOR THE ARMED FORCES, TO PRESCRIBE THE
AUTHORIZED PERSONNEL STRENGTH FOR EACH ACTIVE
DUTY COMPONENT AND THE SELECTED RESERVE OF EACH
RESERVE COMPONENT OF THE ARMED FORCES AND FOR
CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE,
TO AUTHORIZE THE MILITARY TRAINING STUDENT LOADS,
AND FOR OTHER PURPOSES
PART 3
MANPOWER AND PERSONNEL
FEBRUARY 19; MARCH 6, 10, 12, 17, 18, 19, 21 ; APRIL 2, 1980
Printed for the use of the Committee on Armed Services
U.S. GOVERNMENT PRINTING OFFICE
61-319 o
WASHINGTON : 1980
1710
1711
DEPARTMENT OF DEFENSE AUTHORIZATION FOR
APPROPRIATIONS FOR FISCAL YEAR 1981
men, even including pregnancy as a factor. They also generally pre-
sent less discipliary problems.
Women have served, and in combat situations. During World War
II, 200,000 women served, often under hostile fire. They received Pur-
WEDNESDAY, MARCH 19, 1980
ple Hearts. And they were taken as prisoners of war. They served in
Korea, and they served in Vietnam. Playing the language game of
U.S. SENATE,
classifying an army nurse or Women's Air Service pilot as noncom-
SUBCOMMITTEE ON MANPOWER AND PERSONNEL,
batant does not change the fact that they are in combat. Moreover,
COMMITTEE ON ARMED SERVICES,
they served at greater risk to themselves because they have not had
Washington, D.C.
adequate combat training. And, in tests of combat effectiveness done
by the military, women have performed as well as men, and sometimes
STATEMENT OF JUDY GOLDSMITH, VICE PRESIDENT-EXECUTIVE,
better.
NATIONAL ORGANIZATION FOR WOMEN, INC.
Lest you think that in saying this we are glorifying combat, or
women in combat, let me assure you that we are not. We want neither
Ms. GOLDSMITH. Thank you very much, Mr. Chairman.
our young women nor our young men exposed to combat. We tell you
I am pleased to appear before you to address the question of draft
that women are as effective in combat because it is so widely and
registration of women.
erroneously believed to be untrue, and because that supposed inability
As vice president-executive of the National Organization for
is the basis of the sex discrimination restrictions that limit women in
Women, the largest national organization dedicated to the eradica-
the military and indeed throughout society.
tion of sex discrimination, I am representing over 100,000 women and
Those who oppose the registration and draft for females say they
men in this country who are committed to equality for women.
seek to protect women, but omission from the registration and draft
The National Organization for Women opposes a reinstatement of
ultimately robs women of the right to first-class citizenship and paves
the draft registration, and since a registration serves no other purpose
the way to underpaying women all the remaining days of their lives.
than as a preparation for a draft, we are also saying that we oppose
Discrimination against women in the military depresses opportuni-
the draft. We oppose it strongly, and we oppose it for both men and
ties, career paths, training and benefits for women. The military
women.
provides thousands of jobs, training programs, and educational op-
We have a volunteer armed service in place which is working, and
portunities which are, for the most part, presently closed to women.
which could work even better, if present discriminatory practices were
Military pay which is, on the average, some 40 percent higher than
eliminated which prevent full utilization of those women already in
female civilian pay, could be the only way out of poverty for countless
the military and those who seek a career within it.
young women.
If the objective is really to increase the number of people capable
Discrimination against women in the military also costs this Nation
of being mobilized in a short period of time and to improve the
literally billions of dollars a year. The Army, for example, spends
quality of the national defense, the easiest way to accomplish that
$3,700 to recruit a high quality male, while the cost of recruiting a
without increasing the war atmosphere in the world and without in-
high-quality female is only $150.
voluntarily disrupting the lives of young people is to remove those
Under the present discriminatory system, women are at a considera-
discriminatory restrictions. Without those practices, women recruits
ble disadvantage in the military. Nevertheless, they will be increas-
would be in far greater supply and of a higher caliber than additional
ingly called upon to serve. Why ! Recause they are needed: Recause the
male recruits. Under existing practices, feinale numbers are depressed
pool of available young men will decline 25 percent in the next dozen
to a current 8 percent of the Armed Forces. The current discrimina-
years. Because women today are an essential part of our Nation's work
tory practices are based upon outmoded concepts of both women's
force and are a key part of the trained and trainable technical pool of
role and combat.
young people required to operate a modern military.
If a draft and registration are instituted, NOW believes they must
In closing, let me reiterate and emphasize that our goal is not to see
include women. As a matter of fairness and equity, no draft or regis-
women in combat. It is not to see men in combat. In particular, we
tration that excluded one-half of the population in 1980 simply on
strongly oppose either of them being compelled to serve through a
the basis of gender could be deemed fair. It would also ignore the out-
draft.
standing record of women in military service.
However, this Nation must recognize realities. In the past we have
Women recruits are performing well in diverse military occupa-
deluded ourselves that women were protected fror. the ugliness of war.
tional groups. They have a consistently higher educational level than
They were not. They have served, they do serve, and as each day passes,
their male counterparts. They do better on military entrance tests,
the likelihood of their serving, in every capacity, as volunteers or
their retention rate is higher, and they lose less time from duty than
draftees, increases.
Reality has ended the debate about whether women will serve in
the military. They must, but at what cost to themselves!
1712
1713
I thank you.
Senator NUNN. Thank you very much, Ms. Goldsmith.
Ms. GOLDSMITH. If the test were a reasonable, justified test, and that
Senator Warner, I believe, has to leave. I will defer to him for
is the way it came out, yes.
questions.
Senator NUNN. Senator Exon!
Senator Warner. Thank you, Mr. Chairman.
Senator Exon. Ms. Goldsmith, thank you very much for your testi-
Again, Ms. Goldsmith, we are grateful to you for taking the time
mony. There are parts of your testimony that I agree with whole.
to come and express forthrightly the views of your organization. I
heartedly. There is discrimination in the armed services today, We
read it carefully, and I wonder if I might ask you, you recognize now
have been involved in some of that, in trying to straighten it out. I
that this exclusion of women from combat is a form of discrimination.
happen to represent this Armed Services Committee on the Board
Ms. GOLDSMITH. Yes.
of Visitors, so to speak, which is the controlling agency at West Point.
I have been to West Point. I am just pleased to report that the Com-
REMOVING DISCRIMINATION
mandant of West Point and all of the officers there, after being quite
skeptical, are very high on the women that we have at West Point
Senator Warner. Recognizing reality, as you say, if we go to a
today, and the graduates that are coming out of that institution have
draft, then do you want that discrimination removed so that in every
been written up, and lots of publicity has been received. We have some
respect women are treated coequally with men from the very day of
excellent women up there taking part in the role that women must
induction through all types of combat?
play.
Ms. GOLDSMITH. That is correct. I agree with your earlier statement
I would agree generally with the statistics that you have here regard-
that it is unreasonable to say that you must have equity in the registra-
ing the role of women, that women are going to have to play if we
tion process, but that you are going to stop it somewhere along the line.
become involved in hostilities or a state of war once again. That part
We would like to see the combat bar removed, whether there is a draft
of your testimony is well taken, and certainly I would just say that I
or not.
think to take an old institution like the armed services, that have been
Senator Warner. Thank you.
male oriented, right or wrong, for years, and it is very, very difficult
Senator NUNN. Does that same answer apply to having 80,000
to make these changes, but I think significant strides are being made.
females drafted as opposed to 570,000 males? Would you agree with
needs! that kind of selective process based on the determination of military
FUTURE ROLE FOR WOMEN
Ms. GOLDSMITH. We are talking about the discrepancy between the
I for one feel that the future role women are going to play is a very
80,000 and the 570,000 that was referred to earlier!
key one, both in a peacetime armed services and a semipeacetime
Senator NUNN. Right.
armed services which is the role I think we are in right now, and they
Ms. GOLDSMITH. Yes.
are going to play a key role if we find ourselves in a full wartime situa-
Senator NUNN. The administration's plan for first 650,000 people
tion once again. Do you agree with the statement that one of the other
in an emergency would be to take in about 570,000 males and about
witnesses made today, that was quite shocking to mel That witness
80,000 females, and really what I am asking is your opinion on that,
testified-Before I ask that question, I would say one of the difficul-
the equity
ties we have had at West Point, of course, is the law we now have
Ms. GOLDSMITH. I do not think there is any way that can be seen as
where women are not allowed to begin combat positions, 80 that does
equitable. I do not know what kind of logistical or specific technical
limit, and that is discrimination in a sense.
needs the Army may have that may determine what numbers they take,
Now, I happen to feel that, going back, I happen to feel that that
but the organizational position is that the sexes must be treated equally
is discrimination that is needed. Do you agree that the only real test
in any governmental action.
as to who should be in the battlefield situation are the physical and
Senator Nunn. What about a test of physical or mental capability
mental aptitudes of individuals, regardless of sex.
for combat that would not be related to gender Would you go along
Ms. GOLDSMITH. I am not a military expert, and I do not know
with that
what kinds of determinations are used to assign people, but I think
EXPERIENCE AND COMMONSENSE
that whatever they are, they must be on the basis of ability. I-do not
think that gender ought to or can enter into it reasonably, justifiably.
Ms. GOLDSMITH. Oh, certainly. We must assume that the military
Defense of one's nation is a citizen's responsibility. I can't see, how
uses both its vast experience and commonsense in assigning people to
that can know gender. Women have defended this country from the
appropriate positions. Certainly, there are some women who would
time the Nation was settled. Women were pioneers in the West, and
there are some men who would not be qualified for those same posi-
not be qualified for certain positions, combat or otherwise. Certainly,
carried guns, and defended their lands and their families. Women
have done that. Women can continue to. And I know that there is
tions. It must be based on individual ability, capability.
an emotional resistance to the idea of women in combat. I think per-
Senator NUNN. Even if it came out nine to one
haps we need to see that in a fuller perspective, and see that combat
is a terrible thing for people. Certainly it would be terrible to see wo-
men in body bags.
DEFENSE IS EVERYBODY'S RESPONSIBILITY
tistics on and beating are deplorable in our society. I do not know
Senator NUNN. I certainly concur on that last point. I think the sta-
I have an 8-year-old daughter. I do not have a son. She is not of
what the answer rape is, but I certainly share your concern on that. I have
draft age, and I'm an optimistic person, but not so optimistic that I
visited several homes taking care of women who have been victimized.
think we will have reached world peace in the next 10 years. I know
I have great identification with that problem.
it is possible that she could be subject to that. I do not want her to. If
One footnote. Women who are going in on a volunteer basis today
I had a son, I can't imagine that I would feel any differently, and I
are being trained for combat. They are not going into combat arms,
think that we must, particularly in a world where women are reason-
but they are being trained in the combat arena in all of the services.
ably assuming a just position of equality, I can see no justification-
Ms. GOLDSMITH. In all of the services!
I see, in fact, an intolerable chauvinism that says it is acceptable for
Senator NUNN. That is my understanding.
young men to go off to battle, to war, to be taken prisoners of war,
Mr. GOLDSMITH. If there is some way I could get access to that in
to be maimed and to be killed, and not women. I don't want anyone to
formal format, I would appreciate it.
be exposed to that, obviously, but I think it is clear that defense is a
Senator Exon. I would just interject there to back that up; at West
citizen's responsibility.
Point, for example, women cadets there do everything that the male
Senator EXON I would certainly agree with you that defense is
cadets do. The report we get back is that they are pretty tough soldiers.
everybody's responsibility. I guess maybe to put it in perspective, the
Ms. GOLDSMITH. Very good.
way I see it, and without trying to be overdramatic about it, I am just
Senator Exon. I think that is generally true. We are training the
talking about the actual situation, I have sons and daughters, and I
women more and more, at least in the defensive combat role if not the
have grandsons and granddaughters. Maybe it is only natural for
offensive role.
fathers and grandfathers to be overly protective of their daughters
Senator NUNN. Thank you very much, Ms. Gol.' mith.
and granddaughters than their boys.
Our next witness is Rabbi Herman Neuberger, chairman of the Jew-
I would just say that getting down to the crux of the situation, if I
ish coalition against women's draft. Rabbi Neuberger, we are happy to
were depending for the survival of our Nation on who could best
have you here.
handle a bayonet in a combat situation, I would just have to feel that
Rabbil
my sons and grandsons would be in a better position to do that than
my daughters and granddaughters.
Now, I suspect there are some people who are not going to agree
with me on that, but I happen to feel that very sincerely, and it is
very difficult for me to accept this theory that women-it isn't any-
thing that they are less capable, but there are more things that wom-
en can do better than men, and men can do better than women, but one
of them is not handling a bayonet in my opinion.
Ms. GOLDSMITH. If I could just please respond to that briefly, I ap-
preciate the basis of your feelings. I understand that. But no one has
disagreed here today that women are essential to the military, and that
they will serve. People have talked generally in terms of women serv-
ing on a volunteer basis, as opposed to being drafted, but women will
serve. They will be in the military. If there is arined conflict, they
will be involved, and they will serve at a disadvantage because they
will be serving without adequate combat training, although they will
be in countries where armed conflict occurs.
There were women in Vietnam who were not designated combat, but
who were clearly subject to the same kinds of jeopardy, and I would
prefer to see a woman designated combat and have adequate combat
training.
I could say also just as a footnote to this that I would like to see the
same kinds of concern for the safety of women in the civilian society,
where rape occurs once every 8 minutes, and 1 out of every 4 married
women is an abused spouse. Yes, I appreciate the concern for the
welfare and the safety of women. I would like to see it extended to the
civilian world. I would also like to see it extended to men.
Senator Exon. Thank you, Ms. Goldsmith.
Thank you, Mr. Chairman.
49 LW 2066
The United States LAW WEEK
7-29-80
armed services, especially combat posi-
continuously allocated funds to increase
tions: in a time of mobilization the
the number of women in the armed serv-
primary need of the military services
ices. It is incongruous that Congress
will be in combat-related positions and
believes on the one hand that it sub-
in support position personnel who can
stantially enhances our national defense
readily be deployed into combat; there-
to constantly expand the use of women
fore, in order to maximize the flexibility
in the military, and on the other hand
of personnel management, women
endorses legislation excluding women
should be excluded from the MSSA.
from the pool of registrants available
Further, the Government argues that
for induction.
we should defer to the congressional
The President. the Director of the
determination that this is the best way
Selective Service System. and DOD rep-
to run our armed forces.
resentatives informed Congress that in-
Military opinion, however, backed by
cluding women in the pool of those eligi-
extensive study. is that the availability
ble for induction would increase military
of female registrants would materially
flexibility. The record reveals that in
increase flexibility, not hamper it. The
almost any conceivable military crisis
Department of Defense (DOD) esti-
the armed forces could use skills now
mates that in a time of military mobili-
almost entirely concentrated in the
zation it would require approximately
female population of the nation. Con-
650,000 inductees within the first six
gress itself has appropriated funds for
months, and it could advantageously
the increased recruitment and use of
use 80,000 women among these 650,000
women in the armed services.
inductees. The DOD's view is that
The problem with the Government's
women would be useful in a mobiliza-
argument is that the record before us
tion, though not necessary since there is
proves that there already is extensive
a sufficient male population to supply
use of females in the military and that
the 650,000 inductees.
this utilization will substantially in-
The projection of 80,000 female in-
crease. The die is already cast for sub-
ductees in a time of mobilization reflects
stantial female involvement in the mili-
needs in addition to the 150,000 to
tary. Furthermore, the military does not
250,000 women who would already be in
lose flexibility if women are registered
the services and takes into account the
because induction calls for females can
statutory and policy restrictions on
be made according to military needs as
women in combat, according to congres-
they accrue in the future. Though mili-
sional testimony. As was further ex-
tary flexibility might call for less use of
plained to Congress, the figure of 80,000
female inductees than male inductees in
female inductees does not represent an
a given crisis situation. it is the an-
estimate of the number of positions
tithesis of "flexibility" to exclude
women could fill-i.e., noncombat and
women from the pool of registrants that
noncombat reserve positions-but rep-
could be called upon in a time of national
Armed Forces
resents the number of female inductees
need. Accordingly, the complete exclu-
that would be of overall benefit to the ef-
sion of women from the poo!
DRAFT REGISTRATION-
fectiveness of a mobilization plan. The
registrants does not serve impo
Registration of males only for possi-
scenario envisioned is as follows: upon a
governmental objectives and is
ble involuntary induction into armed
military mobilization the immediate
substantially related to any allege
forces discriminates between males and
need would be combat troops; male in-
governmental interest. Thus, the MSSA
females in violation of Fifth Amend-
ductees cannot be moved into basic
unconstitutionally discriminates be-
ment.
combat positions until after 12 to 14
tween males and females.-Cahn, J.
Ordinarily, statutory classifications
weeks of training. and considerably
-USDC EPa (three-judge court):
based on gender are unconstitutional
more for highly skilled combat posi-
Goldberg v. Rostker, 7/18/80. (The ef-
unless they are substantially related to
tions: the only immediately deployable
fect of this decision has been stayed by
an important Government interest. This
source of combat-trained manpower
U.S. Supreme Court Justice Brennan,
"important Government interest" test
would be existing male personnel on
acting in his capacity as Circuit Justice
is the appropriate standard to apply in
noncombat assignment: the immedi-
for the Third Circuit. See 49 LW 3013.)
this case. Accordingly, it is the Govern-
ately deployable male military person-
ment's burden to establish that the ex-
nel are, to a substantial degree, in posi-
clusion of females from registration for
tions where they do clerical and typing
selective service promotes an important
work, nursing. and other similar jobs
Government objective and is substan-
that in the civilian work force are
tially related to the achievement of that
disproportionately filled by women; the
objective. Despite the extensive record
pool of female registrants would have a
compiled in this case, the Government
strong concentration of skills not large-
simply has not met this burden. This
ly available among the pool of male reg-
court has combed the record and the leg-
istrants: thus, inducted women could be
islative history for purported justifica-
moved into noncombe jobs with Little
tions for the total exclusion of women
or no training and release men for im-
from the Military Selective Service Act
mediate deployment into combat. In-
(MSSA), but find each proffered justifi-
ducted women could complete work left
cation unconvincing.
undone by the combat deployment of
The Government's principal argu-
the men in noncombat units.
ment may be summarized as follows:
It is difficult to accept the inconsist-
women cannot fill all positions in the
ent positions of Congress. Congress has
so
THE WASHINGTON POST
Fednesday, Outsber 22. 1980
The Rebirth of a 9-Year-Old Draft Case
This is the first in 0 series of oc-
Had there been a trial at this point,
vasional articles that will trace the
it might have ended quickly. By 1974,
tiffs with which to dispute the govern-
course of one major case through this
for one thing, there was no draft. If
ment's argument. In the end, however,
term of the Supreme Court.
there was no draft, there might be no
the government did their work for
them.
By Fred Barbash
Case. Only an obscure provision of the
Washington The Staff Wester
1949 draft law making men previ-
It was the winter of 1979 and lawyer
Nine years ago, hil: men were being
oualy deferred from the draft eligible
Weinberg recalls feeling pessimistic
drafted and killed in Vietnam, a Phil-
until their 35th birthday - was used
about the chances for keeping the case
to keep it a barely live controversy.
alive. There was still no draft and be
adelphia judge dismissed a suit chal
langing the milits draft. The action
falt the judges were skeptical about al-
But even if there had been a draft
lowing the case to continue.
went largely unnoticed outside of town,
law still on the books, the nation's
"You never know when the draft
for it was just another antiwar protest,
courts had never made it illegal to dis-
one among thousands.
might be reinstituted," Weinberg recalls
tinguish between men and women in
telling one of the judges during a private
On July 18, 1980, a three-judge fed-
the law. In 1974, legislatures and Con-
conference, trying anything to convince
oral court panel ruled in the and -
gress could, with little justification,
him the case was still relevant. "You
that draft registration was unconstitu-
deny almost anything on the basis of
dever know when there might be some
tional because it excluded women, send-
gender. There was no legal precedent
kind of invasion."
log the issue to the Supreme Court
to throw out the draft, or anything
A few weeks later, in December last
alse, because women were excluded.
where it may produce a landmark ruling
year, the Soviet Union invaded Af-
this term.
But in 8 totally unrelated case (Craig
ghanistan. President Carter announced
"Where in the devil," a Justice De.
Va. Boren) in 1976, the Supreme Court
reinstitution of draft registration and
changed all that. From then on, the
COB of the judges joked to Weinberg:
partment lawyer taken by surprise that
July day commented, "did that ruling
court ruled, distinctions between men
"You must have a pipeline to Brezh-
and women in the law would have to
nev."
come from?"
be "substantially related to an impor-
That saved the case. But it didn't
The answer how a nine-year-old
tant government interest."
make the case. That was left, once
relic of a case was reborn is another
To judges, the new language was crit-
again, to the government. In the years
strange tale of the legal system. of how
ical, just short of enactment of the
of the case's delay, the utilization of
it is ruled by luck, as much as by
Equal Rights Amendment. To the gov-
women in the military increased dra-
Judges, cedents. by accidents as well as by pre-
ernment, it was potentially devastating.
matically, from 39,000 at the beginning
Government lawyers would now have
to over 150,000 by 1979. The military
The care dismissed nine years ago
to show that the exclusion of women
was quietly studying female effective-
indeed the name one that produced
from the draft by Congress was based
ness and finding, for example, that
the July 18 ruling now before the Su.
on an important reason. Vague justi-
properly trained women could load 95-
Preme Court It started, its backers con-
fications, stereotypes, were no longer
pound shells into 155 mm howitzers
ande, without a prayer: both the facts
adequate. And the justifications for ex-
just as effectively as men. The Army in-
and the law were against it. It bung
cluding women in the draft law were
structed field commanders to allow
laced with stereotypes.
women full battlefield access in the
8 desperately, by a loophole, all that
time, waiting for the facts and the law
When Congress enacted the original
event of war, removing many, though
to change. By luck, they did. In the
draft legislation in 1949, as a judge in
not all, of the old restrictions.
three-judge panel ruling, the case with-
the 1980 case would describe it, there
Finally, when the president proposed
was "an aura of male chauvinism per-
that women be included in the new
sput a prayer didn't even sound close.
meating congressional attitudes toward
draft, the administration bauled out
It owes much of its success to the
women in the military."
top Pentagon officials to support this
government, which could have brought
Here. for example, is Rep. James E.
position before a akeptical Congress.
the case to trial before everything
Van Zandt (R-Pa) in 1948 discussing
The "work women in the armed
shanged. Donald Weinberg, a lawyer
a reason for not letting women com-
forces do today is sesential to the readi-
for the draft eligible class of men rep-
mand men in the military. "There in
nees and the capability of the forces,"
amented in the suit, thinks he might
a not a member of the House Com-
Assistant Defense Secretary Robert B.
have lost then Instead, government
mittee on Armed Services," Van Zandt
Pirie told Congress. "It is in the interest
Lawyers, doing what law school students
said during one hearing, "who has not
of national security that, in an emer-
are taught to do for defendants, moved
received a telephone call or a call in per-
gency requiring the conscription for
(at every step along the way to avoid tri-
son from enlisted men objecting to the
military service of the nation's youth,
mL Then, to make matters worse, the
idea of having to take orders from a
the best qualified people for a wide va-
government provided the facts that
WAVE officer. Put yourself in the po-
riety of tasks in our armed forces be
convinced the judges that the all-male
altion of an enlisted man and I am
available. The performance of women
straft was unconstitutional
sure you will agree with them."
in our armed forces supports the con-
The case, - ft now stands, challenges
And here is then-Gen. Dwight D. Ei-
clusion that many of the best qualified
the draft registration because it distin-
senhower expounding before a congres-
people
will be women."
guishes between the sexes for no sub-
sional committee on how the committee
This type of testimony would ulti-
stantial reason. But when a group of
members did not have to worry about
mately decide the case. And an as-
selraft-eligible war protesters began it
expenditures for pensions for women
traordinary public admission by a Jus-
8 July 16, 1971, in U.S. District Court,
in the military. Few women will ever be-
tice Department lawyer during those
BI discrimination was only a minor
come eligible by serving their full 30
hearings would put the nail in the cof-
part, a way of achieving something else.
years, be said. "They will ordinarily
fin
The suit originally was intended to
and thank beaven they will ordi-
Larry L Simms, deputy assistant at-
and the Vistnam war. It challenged
narily get married" and lsave the ear-
torney general (he works for the agency
the draft as involuntary servitude (slav-
vice.
erguing against the draft in Philodel-
my), a violation of due process and of
The antidraft lawyers dug up all the
phia), told members of Congress that
the right of free expression and as an
material from the 40s and put it in
the historical record the male chau-
lilegal tool of an unconstitutional war.
the record.
vinist comments in 1948 and 1949
The government would still argue
ware to devastating that a whole new,
Judge James H. Gorbey quickly die-
that the affairs of the military are ex-
missed the suit, sending it, be must
empt from the Supreme Court's new
after-the-fact record would be required
have thought, to that same never-never
to defend the all-male draft.
standard for reviewing distinctions
land where most of the other antiwar
based on gender. And even if the mil-
As a result of Simma' testimony, the
suite were put to rest.
judges decided it wasn't even worth ex.
Mary was not exempt, there was still
The plaintiffs appealed and on May
a substantial reason that could pass
ploring in depth the 1948 legislative
11, 1973, the 3rd U.S. Circuit Court
muster under the new standard: mili-
history to find a reason for excluding
women.
of Appeals in Philadelphia agreed with
tary flexibility.
Gorbey that most of the claims should
To replace combat-capable males
In their opinion, the three judges
based their ruling in large measure on
be thrown out. One, the Sex diecrim-
with combat-barred females denies the
instion component, should be pre-
military the flexibility is obtains
government testimony. Military experts
bad testified, they recalled, that women
served, the court ruled, simply because
through an all-male draft and conscrip-
are necessary in the event of an emer-
"The printipal reason the govern-
there bad been no prior rulings on
tion," the government argued.
gency callup. They had testified that
ment proffers for a male-only registra-
tim," the court sold, "is that it provides
military flexibility. We therefore hold
that the complete exclusion of women
from the pool of registrants does not
serve important governmental ohjec-,
tivra' and in not 'substantially related'
to any alleged government interest."
which to base a dismissal. Gorbey than
Had the case gone to trial, instead
of being delayed. there would have
women have been "a success story" in
approved the sex discrimination count
the military.
for consideration by a three-judge pan-
been little data available to the plain-
MEMORANDUM
THE WHITE HOUSE
file Vetsioups
WASHINGTON
23 April, 1981
Time: 4:00 PM
please votumn to
FOR:
MORTON BLACKWELL
SHANNON FAIRBANKS
FROM:
LARRY DE MEO, X2646 Pape
SUBJECT:
PLANS FOR CEREMONIES ON 26 APRIL, NATIONAL
RECOGNITION DAY FOR VIETNAM-ERA VETERANS
The American Legion has laid the groundwork for Recognition
Day activities to be held at Constitution Gardens (adjacent
to the Lincoln Memorial). This is the site donated by the
Federal Government to the Vietnam Veteran Memorial Fund (VVMF)
for the proposed construction of the privately-funded Viet-
nam Veteran Memorial.
The Legion's Park Service permit extends from 1:00 PM to
3:30 PM, Sunday, 26 April, 1981.
The Legion has issued the following invitations for speakers
at the ceremony:
1. Marion Barry, Mayor, District of Columbia.
2. Rep. Donald J. Albosta (D MI-10)
3. Jan C. Scruggs, President, VVMF
As of this time, it is not yet known whether Mayor Barry will
attend. The attendence of Albosta and Scruggs is confirmed.
The Military District of Washington (MDW) has arranged for a 28-
piece Navy band for the ceremony. The Joint Military Organiza-
tion will provide a Joint Service Color Guard composed of members
of the five military services.
Secretary of the Air Force Verne Orr has been confirmed as the
Administration representative, and will speak at the ceremony.
The Veterans Administration, in conjunction with the Department
of Health and Human Services, has been tasked to draft a speech
for Secretary Orr. The VA will also arrange for a Chaplain (ten-
tstively scheduled to be CH. Clarence Cross of the Washington
VA Medical Center) to open and close the ceremonies, and is
now working with the American Legion, MDW and the National Park
Service for logistical support.
Proposed Schedule of Events:
12:30 AM to 1:15 PM: Legion escort assembles at
Arlington Cemetery Gates (see
attached Legion press release).
1:15 PM to 2:00 PM:
Legion escorts "walkathon" vet-
erans across Memorial Bridge to
the ceremony site.
(1:45 PM)
Navy band and Color Guard in place.
2:00 PM to 2:25 PM
Posting of Colors; Legion MC in-
troduces Chaplain Cross; Invocation.
2:25 PM to 2:35 PM Mayor Barry (OR Legion Executive
Director Robert Spanogle) -speech.
2:35 PM to 2:55 PM
Presentation of "walkathon" funds
to Jan Scruggs, President, VVMF.
2:55 PM to 3:05 PM
Legion National Commander, Michael
Kogutek--speech.
3:05 PM to 3:15 PM Air Force Secretary Verne Orr--speech.
3:15 PM to 3:25 PM
Rep. Donald Albosta--speech.
3:25 PM to 3:30 PM Benediction and Retrieval of Colors.
The Veterans Administration is notifying the members of both Congression-
al Veterans Affairs Committees of these activities. It is not known
if any of these Congressmen will attend.
DOD and VA will handle publicity (in addition to Legion efforts) pending
the release of the Presidential Proclamation by the White House Press
Office.
The Legion has contacted the American Red Cross to try to arrange for
medical support. Neither MDW nor Park Service can provide this service.
The following Veterans Organizations have indicated they will send
representatives and will encourage local members to attend:
1. Veterans of Foreign Wars
2. Disabled American Veterans
3. AMVETS
4. Blinded Veterans Association
5. Paralyzed Veterans of America
6. National League of Families
At this time there is still a hitch on the provision of chairs. The
Park Service cannot provide personnel to work on weekends, and is re-
luctant to release its chairs unless someone is detailed to pick them
up immediately upon the close of ceremonies, lest they be stolen.
The VA is now working with MDW and the Park Service to arrange for
personnel and transportation to pickup, emplace, retrieve and re-
turn the Park Service chairs. However, the availability of chairs
is not yet confirmed.
Due to the nature of the ceremony and concern among the Veteran Or-
ganizations for Vietnam Veteran issues, it is recommended that Mrs.
Elizabeth Dole attend.
For Godand Country
National Public
Relations
U.S
NEWS RELEASE
Division
Wm. M. Detweiler, Chairman
NEWS HOTLINE
(800) 428-2686
(317) 637-6649
Frederick Woodress, Director
(INDIANA)
P.O. Box 1055
Indianapolis, Indiana 46206
THE
(317)-635-8411
AMERICAN
CONTACT:
Bob Bowen /Washington
1608 K St., N.W.
Washington, D.C. 20006
LEGION
(202)-861-2792
FOR IMMEDIATE RELEASE
SUBJECT SUMMARY: The American Legion will observe National Vietnam Veterans Day
with a march in support of the Vietnam Veterans Memorial. Urges
area veterans to join in walk across Memorial Bridge.
WASHINGTON, D.C.--Acting on President Reagan's signing of a Congressional
Resolution designating April 26 "National Vietnam Veterans Recognition Day, "The American
Legion is calling on area veterans to join a march Sunday afternoon to the planned site of
the Vietnam Veterans Memorial.
The march is scheduled to begin about 1 p.m. at Arlington Cemetery, cross the
Memorial Bridge, and proceed to the west end of Constitution Gardens near the Lincoln
Memorial, where a short ceremony will be held.
Leading the march will be two Jacksonville, Ill., Legionnaires, Kim Splain and Junior
Wyatt. The men, both Vietnam era veterans, began their 818 mile walk to Washington
from their hometown on March 14 to draw attention to the memorial which is to be
constructed through public donations.
During the ceremony at the memorial grounds Sunday, Splain and Wyatt will present
to the Director of the Vietnam Memorial Fund a check representing the amount of money
their walk has generated in cash and pledges.
Veterans interested in joining in the walk are requested to meet at the Arlington
National Cemetery visitor's parking lot on the Virginia side of Memorial Bridge at 1 p.m.
The pace will be maintained at wheelchair speed. For additional information call (202)
861-2790.
(end)
42181
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
April 21, 1981
grouper
FOR:
ED GRAY
THROUGH:
RON FRANKUM
FROM:
SHANNON FAIRBANKS
SF.
SUBJECT:
Vietnam Veterans Recognition Day
Action Forcing Event
Sunday, April 26, 1981
Vietnam Veterans Day
Background and Discussion
It is a well known fact that the President received strong
support from the veterans organizations early and through
out his campaign. The Veterans of Foreign Wars even broke
tradition and formed a political action committee to martial
support for the President.
However, there are unmistakeable signs that the organizations'
faith in the Administration has begun to erode. I know that
one of their major concerns is the fact that the President
has not yet nominated anyone to fill the position of Administrator
of the Veterans Administration.
ISSUE 1. Under the circumstances, I think one of the best
actions that could be taken on Vietnam Veterans Recognition
Day is the announcement of the nominee for the VA Administrator
position. I think it would be perceived by the organizations
as a substantive as well as symbolic action, and would begin
to allay their doubts and fears about the Administration's
commitment to veterans.
Action
I will contact Ed Meese's office (Ed Thomas) and try to
get the decision to appoint pushed forward.
A call (no response) has been placed to Wayne Roberts.
ISSUE 2. The main event planned for Sunday is a ceremony
scheduled for 2:00 p.m. in Constitution Gardens and sponsored
by the American Legion.
I recommend that someone from the Administration be asked to
deliver the President's greetings to the assembled Veterans
Groups.
2
Recommendation concurred in by Major Robert Kimmitt, NSC
staff who believes it is important for the Administration to
show its concern in a visible way.
Action
Secretary of the Air Force Verne Orr is standing ready
to be asked. ( contact: Dennis LeBlanc, White House
Military Office). You must decide whether it would be
appropriate to ask Secretary Weinberger first. (contact:
Lt. Col. Grant Green, Special Assistant to Sec. Def.
x4138)
3. It is appropriate to arrange for one of the ceremonial
bands to play for this kind of memorial event.
Action
The ceremonial troops have been alerted and a final go-
ahead needs to be given to Col. Muratti (x2150) by
10:00 a.m., Wednesday, April 22, 1981. Your OK NEEDED.
4. It would be appropriate to name the Veterans Administration
as the action agency to co-ordinate Federal participation in
the ceremony, and to generate public announcements' at Federal
installations.
Action
Please indicate how to proceed. Our contact person for
the VA is Nick Longworth. He will be in my office
tomorrow at 9:00 a.m.
CC: Martin Anderson
Robert Carleson
Morton Blackwell
THE WHITE HOUSE
fall
WASHINGTON
May 21, 1981
Robert Sniffen
Vietnam Veterans Foundation
P.O. Box 1544
Washington, D.C. 20013
Dear Mr. Sniffen:
Enclosed is a ceremonial copy of the Presidential proclama-
tion concerning the recognition day for the Vietnam Veteran.
Thank you for your inquiry.
Sincerely,
Morton C. Blackwell
Special Assistant to the
President for Public Liaison
for Veterans
sent by b
5 27/8