The Law School’s Veterans Legal Services Clinic’s high-profile case involving a former cadet at the United States Military Academy at West Point was recently dismissed on the grounds of intermilitary immunity, which bars military members from suing for injuries that occurred during their service.
In the lawsuit, the cadet — referred to as “Jane Doe” — accused a male cadet of raping her and Army officials of creating a sexually hostile environment. When the clinic and the plaintiff first brought the case to the Southern District Court of New York in 2013, the court decided to proceed, ruling that the equal protection clause applied equally to male and female cadets. The decision last month in the Second Circuit Court of Appeals reversed the lower court’s ruling on the grounds that civilian courts are “ill-equipped to second-guess” Army officials’ decisions regarding “discipline, supervision, and control of” its members.
Shikha Garg LAW ’19, who has been working on the case since January, told the News that the decision wrongly exempts the military from ordinary constitutional review and leaves Doe to weigh her next options.
“At a time when we are debating things like the military transgender ban, it’s especially dangerous to suggest that the military is exempt from the same obligations that other actors would be,” Garg said.
According to the lawsuit, Doe, one of about 200 women in a class of 1,300 cadets, encountered a “misogynist culture” at the military academy, including sexually explicit and offensive comments within earshot of West Point’s faculty and administrators. These faculty members and administrators, she alleged, did nothing to intervene. After being raped by a male cadet in 2010, she was honorably discharged from the academy, according to her statement in the court record.
Ellen Haring, director of the Service Women’s Institute in the Service Women’s Action Network, told the News that she is “hugely disappointed” by the appellate court decision.
She added that the Feres principle established in Feres v. United States, which bars military members from suing for injuries, does not apply in the case of the West Point, which she said functions more like a university than a military unit. Haring submitted a friend-of-the-court brief in support of Doe.
“A student was raped and then further harassed because of the rape — what does that have to do with combat and war?” Haring said. “The service academies compete with civilian schools, … but when it comes to treating students, they invoke their doctrine.”
In a dissent, Judge Denny Chin of the United States Court of Appeals for the Second Circuit echoed Haring’s stance in arguing that Doe’s injuries did not arise incident to military service, but to her status as a student.
“The actions and decisions she now challenges had nothing to do with military discipline and command,” Chin wrote. “Instead, she seeks recourse for injuries caused by purported failures on the part of school administrators acting in an academic capacity overseeing a learning environment for students.”
Garg said Chin’s arguments follow closely the clinic’s and Doe’s claims that were made since the filing in the district court.
Doe’s case is an attempt in a long history of trying to chip away the steady expansion of the Feres principle, Haring said.
“I would have thought it has a very good chance,” Haring said. “Judges don’t always accept [the Feres principle]; they just got a crappy judge.”
Garg added that Doe has three legal options now: to appeal the appellate court decision to the Supreme Court, to petition for an en banc hearing that would put the case before all the judges in the appellate court, or to appeal the three claims that were originally dismissed at the District Court.
Haring said she hopes ultimately Doe’s next step is to appeal to the Supreme Court, but she said the expenses of appeal might be a challenge.
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