The American Council on Education (ACE) and 10 other organizations involved in higher education have filed an amici curiae brief asking the US Court of Appeals for the Second Circuit to uphold a District Court ruling that declares the military's "don't ask, don't tell" policy unconstitutional.
The 11 amici represent 4,380 institutions of higher learning, including MIT and the 1,700 colleges and universities that are members of the ACE.
The brief, filed on December 23 by attorneys Jeffrey Swope and Kenneth W. Salinger of the Boston law firm Palmer and Dodge LLP, which represents MIT, supports Lt. Col. Jane Able (a pseudonym) and five other gay and lesbian members of the armed forces and the Coast Guard.
The MIT faculty voted in 1996 to ask the Institute to find an appropriate case on which to take a position on the issue. After doing research to identify such a case, Palmer and Dodge suggested to the ACE that Able v. US was well-suited because the issues were sharply defined and the decision was clearly stated.
Able v. US was filed in 1994 and tried in the Eastern District of New York in March 1995. Judge Eugene Nickerson ruled that the government's policy violated the First and Fifth Amendments of the US Constitution. The government appealed.
In the brief, the ACE notes that the Appeals Court decision "will have a profound impact on institutions of higher education that are seeking to honor their commitments both to nondiscrimination and the preservation of their ROTC programs."
"For decades the amici have been working to achieve and foster respect for diversity in American higher education," the brief states. "They have done this for two reasons: they know from deep experience that with greater diversity comes better education; and they also know that diversity advances knowledge and develops leadership in ways that break down stereotyped preconceptions, thereby preparing young people for a pluralistic society������������������
"This statute interferes with the ability of colleges and universities to offer Reserve Officer Training Corps (ROTC) programs in conjunction with the Department of Defense without violating their own policies against discrimination on the basis of sexual orientation.
"In so doing, the statute threatens the academic freedom of institutions of higher education and of their students."
According to the brief, the government has not been able to show that the trial court's finding that the "government's stated interest in 'unit cohesion,' 'privacy' and 'limiting sexual tension' are anything more than 'euphemisms for catering to the prejudices of heterosexuals' and condoning widespread animosity against homosexuals."
The brief says "these findings were proper and were fully supported by the record of this case," arguing that a policy based solely on such animosity is unconstitutional because it violates the right to equal protection of the laws.
Besides the ACE, other amici on the brief are the Association of Colleges of Nursing, the American Association of Community Colleges, the American Association of State Colleges and Universities, the American College Personnel Association, the Association of American Law Schools, the Council of Graduate Schools, the National Association of State Universities and Land Grant Colleges, the National Association of Student Personnel Administrators and NAWE: Advancing Women in Higher Education.
A version of this article appeared in MIT Tech Talk on January 14, 1998.
