by the Senate Committees on Equal Opportunity and Student Affairs

The Reserve Officers Training Corps (ROTC) is the largest source of commissioned officers for the various branches of the armed services. Rutgers - New Brunswick houses both Air Force and Army ROTC programs. The Air Force program is also host to students from nine nearby institutions including Princeton University, and Middlesex County College. Rutgers students at Camden and Newark may enroll in programs at nearby colleges such as St. Joseph’s University and NJIT.

The Air Force ROTC program consists of 16 credits of academic courses taught by the Department of Military Education (Air Force) plus eight semesters of non-credit Leadership Laboratory. The Army program requires 18 credits plus eight semesters of Management and Training Laboratory. The full program descriptions from the 1997-1999 New Brunswick Undergraduate Catalog are given in Appendix I. Course summaries and enrollments for 1996/7 are given in Appendix II.

Both programs provide monthly stipends in the junior and senior years to students accepted into the programs and offer two to four year tuition scholarships. These stipends and scholarships are awarded directly to the students without university involvement.

As a land grant institution, Rutgers is required to offer military training, although not specifically ROTC. The Land-Grant College Act (Morrill Act) of 1862, provided funding for institutions of higher learning in each state. In this act each state received federal land to be sold to provide an endowment for

Students in the ROTC programs benefit from the leadership and management skills they acquire and the self-discipline they develop. ROTC is an important entry point for a career in the armed services, the largest employer in the country or, after service obligations are fulfilled, a job in industry.

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(1) http://www.uky.edu/CampusGuide/land-grant.html

Additionally the scholarships and stipends paid to ROTC cadets finance their college education. The nation also profits; the MIT ROTC Task Force noted (2):

The presence of ROTC at Rutgers allows us "to contribute to the nation’s well being by providing ‘citizen soldiers’ for the military’s officer corps."

Students in an ROTC program are subject to the Department of Defense’s "Directive on Homosexual Conduct in the Armed Forces" (Don’t Ask, Don’t Tell, Don’t Pursue Policy) that states [Appendix III]:

where sexual orientation is defined as an "abstract sexual preference for persons of a particular sex, as distinct from a propensity or intent to engage in sexual acts".

However, under the policy a student shall be barred from the program for "engaging or attempting to engage in a homosexual act or soliciting another to engage in such an act; for stating that he or she is a homosexual or bisexual, or words to that effect; or for marrying or attempting to marry an individual of the same sex. " (3) A cadet who asserts his or her constitutional right of free speech to state that he or she is homosexual faces exclusion from ROTC.

Moreover, if evidence that an applicant has engaged in "homosexual acts" is received from a source other than the student, it is not to be discussed with the student, but rather forwarded to the Commandant who determines if the information is sufficiently credible to bar the student, who is then barred and given ten days to present written evidence to rebut the credibility of the evidence. The student has no "other recourse or rights of appeal". Unit commanders are urged "do not dismiss any allegation of homosexual conduct as trivial" [Appendix III]

Transsexual and transgendered persons are deemed medically unfit to serve in the armed forces or ROTC.

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(2) Final Report of the ROTC Task Force, March 20, 1996, amended April 17, 1996

(3) AFROTC Form 500, May 94

No Rutgers University ROTC students have been disenrolled for homosexual behavior. We are not aware of any lesbian, gay, bisexual, or transgendered students in ROTC at Rutgers.

It must be emphasized that the decision to deny enrollment to applicants who have "engaged in homosexual conduct" is not that of the Rutgers ROTC programs, nor is it merely an Air Force or Army decision. They are following federal law (Title 10, USC, Section 654) as enacted by Congress, signed by the President, and implemented in DoD directives. Federal law is supreme over state law and institutional policy.

There are a number of challenges to the constitutionality of the "Don’t Ask, Don’t Tell, Don’t Pursue " Policy in the federal courts. These challenges center on the First Amendment right of free speech and the broader Fourteenth Amendment concept of equal protection under the law.

One case, involving free speech, has reached the Supreme Court. It involved a Navy lieutenant who wrote in a letter to his commanding officers "I am gay." His discharge was upheld by the Fourth U.S. Circuit Court of Appeals and the Supreme Court declined to hear an appeal, without comment on October 21, 1996, According to Matthew Coles, Director of the American Civil Liberty Union’s Lesbian and Gay Rights Project (4),

The argument that the policy is unconstitutional because it violates equal protection under the law centers on the concept that a group of people are singled out for unequal treatment -- namely, heterosexual behavior (within certain norms) is allowable while homosexual behavior of any sort is grounds for discharge. Appendix IV gives an up-to-date summary prepared by the Servicemembers Legal Defense Network of legal actions challenging the don’t ask policy (5).

For non-military persons the Supreme Court declared unconstitutional "a Colorado anti-gay rights initiative that would have disallowed legal protection for lesbians and gay men. The Court’s decision called the Colorado law an irrational law ‘born of animosity’ toward an entire class of persons" (6). The question that remains is whether the military because of their special mission are constitutionally allowed to make such discrimination and if discrimination is constitutional, whether there is a valid constitutional reason for extending it to universities.

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(4) http://www.aclu.org/news/n102196a.html

(5) http://www.sldn.org/scripts/menu.ixe?pagetype=The+Policy

(6) http://www.aclu.org/news/w102596b.html

The federal government seeks to mandate that the Department of Defense be able to recruit students and operate ROTC programs on college campuses by threatening to withhold federal grants:

and further

Rutgers has received between $7-14 million per year in DoD grants since fy92 with the exception of fy94 when we received nearly $24 million in grants. For fy97 the total for DoD grants alone is $13.4 million. The total grant money at risk is approximately $70 million with another $40 million in student grant money. The potential monetary loss is so high that the University cannot consider taking actions that will result in it being determined to have an "anti-ROTC" policy.

(7) DoD Directive 1322.13 [Federal Register: April 8, 1997 (V62, pp 16691-5]

Approved November 1972, Board of Governors

Revised November 1981, Board of Governors

(See Appendix VI for the complete Policy)

A. Warning on Discrimination: The university has placed the following warning included in the New Brunswick Undergraduate Catalog:

It is questionable whether the right to enroll has been "secured". The no-credit ROTC Leadership and Management and Training labs are open only to cadets. All credit bearing ROTC courses are, in principle, open to all students and a number of students who do not continue with the program do enroll in the 100- and 200- level courses with a few non-cadets taking the advanced courses as well. However, the 300- and 400-level credit bearing courses for both ROTC programs are listed in the schedule of classes as requiring a special permission number to register, which may have the practical effect of discouraging, if not prohibiting, registration by non-cadets. (See Appendix II.) In addition the Rutgers Army ROTC web site (8) states:

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8) http://www-rci.rutgers.edu/~eweber/webmaster/faq1.htm#7.

B. Scholarship money: All ROTC scholarships and stipends (see Appendix VII) involve transactions between the programs and the student without university intervention. The university has abandoned its former policy of supplementing ROTC scholarships with its own money. ROTC students continue to receive need-based support from university, state and federal funds.

C. Amici Brief in Able v. USA: Rutgers has recently joined in the amici curiae brief filed by the American Council of Education (and ten other organizations) asking the Second Circuit Court of Appeals to uphold a district court ruling (in Able v. USA) that declares the military’s "Don’t Ask, Don’t tell" policy unconstitutional. According to Vice President Joseph Seneca, "Rutgers has taken this action because ROTC policies established by the Department of Defense are inconsistent with the University’s commitment to nondiscrimination on the basis of sexual orientation. Rutgers has joined in the ACE brief to emphasize to the court the dilemma faced by numerous institutions of higher education which have students who receive the benefit of ROTC programs. Rutgers is committed to being part of a process that seeks to change Department of Defense policy, and the brief underscores the seriousness of the issue at stake." (9)

Appendix VIII gives a "Summary of Actions at Other Schools" prepared in 1996 by the Massachusetts Institute of Technology Task Force on ROTC. Universities have reacted to discrimination by ROTC programs in three general ways:

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10) http://web.rutgers.edu/undergrad/learngoa.htm

Rutgers faces a difficult ethical dilemma. The "Don’t Ask, Don’t Tell, Don’t Pursue" policy strikes at two of the central tenets of a modern university -- academic freedom and willing acceptance of diversity. On the other hand, the university faces a devastating loss of federal grants if it does not accept this legal discrimination.

There is some hope that within a few years the US Supreme Court will declare the policy unconstitutional and thereby release the university from its dilemma. It is clear to this committee that as long as this hope persists, the university will not face the difficult decision on how to resolve the dilemma. Therefore, we discuss below some middle-ground "solutions" which seek to mitigate the effects of discrimination and/or dissociate the university from the discrimination, while allowing it to persist.

The Massachusetts Institute of Technology has recently faced the issue of discrimination by ROTC and chosen the first approach -- mitigation. The MIT ROTC Task Force (Appendix IX) saw the issue as a conflict between two principles -- "inclusion" that "respects the rights and privileges of all within the community to explore myriad aspects of the human experience" and the value to a democratic society of the "citizen soldier". They recommended a modified ROTC program that would allow the gay student to participate in all on-site aspects of ROTC but would preclude a ROTC scholarship and a commission.

Apart from the very real question of whether such modified program can, in fact, be negotiated with the military*, we feel this "MIT solution" is gravely flawed

because it allows ROTC to continue to abridge the academic freedom of any student -- gay or straight -- who wishes to earn a commission. The "Don’t Ask, Don’t Tell, Don’t Pursue" policy encourages allegations of "homosexual behavior" against cadets with the admonition to the unit commander "do not dismiss any allegation of homosexual conduct as trivial". For fear of being accused of being gay, even a straight cadet would fear to speak out in class supporting a gay issue, or attend a gay meeting, or own a book by a gay author or on a gay subject, or associate with gay friends. Only by forgoing the possibility of a military career can a gay student claim the academic freedom we prize as a part of university life and the opportunity to openly explore his or her sexuality. For a straight student this "solution" can only result in a flawed "citizen soldier" -- ignorant of gay culture and intolerant of gays.

The other approach is for a university to dissociate itself from ROTC and its discrimination. The "off-campus solution" is to not allow an on-campus ROTC program but to permit students to take ROTC courses at other colleges with or without college credit -- Harvard, for example, allows its students to enroll in the MIT ROTC program. This type of solution allows a university to ethically distance itself from the discrimination by basically pretending it doesn’t exist. For the purposes of efficiency, ROTC does encourage some centralization of programs at "senior" institutions. But because of efficiency considerations, it seems unlikely that the DoD would allow Rutgers-New ________________________

*Non-enrolled students (defined as students who do not intend to enroll in the ROTC program) are not allowed to participate in the leadership or management and training laboratories or in off-campus summer programs because it would require the programs to assume liability for these students, which the DoD is not willing to do.

Brunswick to adopt such an approach; by DoD regulations a university is deemed to have an anti-ROTC policy if the school "prevents the Secretary of Defense from maintaining, establishing, or efficiently operating a unit of the Senior ROTC " at the school. (Appendix V)

If the university is barred from adopting an "off-campus solution", we are left with the option of keeping ROTC on campus while adopting measures that in the strongest possible way dissociate the university from the taint of discrimination. The current university policy, far from being anti-ROTC, can be construed as pro-ROTC. The university support for ROTC programs, detailed in Section VII-C, is substantial; the ROTC buildings are located in center of the College Avenue Campus. ROTC, and by implication its discrimination, is presented to students and the public as an integral and welcome part of the university.

In Section XI of this report we recommend that the university adopt a neutral policy toward ROTC that would not allocate university public monies to support ROTC and would make it abundantly clear that the university does not endorse ROTC’s policy of discrimination, but rather tolerates it only because of a federal mandate.

This policy is implemented by having employers sign an "Equal Employment Opportunity Statement" (Appendix X), which provides a loophole: "where employers believe applicants in any of these categories [race, religion, ancestry, gender, sexual orientation, ...] are unable to meet their bona fide occupational qualifications for employment, the employer may continue to use the facilities ... if they inform [the university] of their policy and the reasons that justify it. This information will be made available to student[s] ... upon request."

In practice this policy, as implemented, is ineffective. Apart from the military, Career Services is unaware of any employer who has recruited at Rutgers who has not signed the Equal Employment Opportunity Statement. Nor, should an employer admit to have a non-conforming policy, is there any process of evaluating whether the employer has reasons for discriminating reflect "bona fide occupational qualifications". No employer has been denied access to university facilities for recruiting because of discriminatory employment policies.

We find it hard to believe that only employers who do not discriminate choose to recruit at Rutgers. We need a process of verification that does not encourage nor even allow a recruiter to gain access to our facilities by signing an undocumented equal employment opportunity statement.

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† For example, Rutgers-Newark and Rutgers-Camden, because of their smaller student bodies, do not have ROTC programs and students are allowed to enroll in ROTC programs at other nearby colleges. Likewise, Princeton University has Army ROTC but no AFROTC. The Rutgers Undergraduate Schedule of Classes includes Princeton sections under the AFROTC listing (Department of Military Education). These sections are, in fact, taught at Princeton for students from Princeton and other nearby colleges.

Moreover, as the policy now stands, should an employer admit to a non-conforming employment policy, there is no process for informing students. The Equal Employment Opportunity Statements are simply kept on file in an administrative office. The entire responsibility for learning of discrimination and obtaining a copy of the recruiter’s employment policy is left up to the student, even though the university will have this information stored away in a filing cabinet.

In Section XI we recommend that implementation of the existing policy be modified so that the spirit of the Board of Governors’ policy is carried out, that students be informed when an employer has a non-conforming employment policy and provided with a copy of that policy, and finally that the university forthrightly disassociate itself with any discrimination resultant from any non-conforming policy.

In making these recommendations in response to federally mandated discrimination by ROTC against homosexuals we assume five principles:

1. The University must unequivocally and publicly state its total opposition to this discrimination.

2. But because of the amount of money involved, the University cannot take actions against the ROTC programs which will result in its being deemed to have an "anti-ROTC" policy and consequently losing federal grant and student financial aid monies.

3. Nevertheless, the University must not passively accept this discrimination but should forthrightly acknowledge the existence of discriminatory policies within the University’s ROTC programs and strongly disaffiliate itself from this discrimination.

4. The University must ensure that the ROTC programs are open to homosexual students to the fullest extent allowed by the federal mandate.

5. Students who elect to enroll in a ROTC program or take military science courses must not suffer discrimination, public humiliation, or similar consequences because of their choice.

As long as discrimination on the basis of sexual orientation persists:

1. The University should adopt a neutral policy toward ROTC that provides the minimum institutional support needed for the ROTC programs to operate "efficiently", while continuing to oppose their discriminatory policies.

2. To the fullest extent possible the University should not provide public monies for the support of these programs.

3. The university logo and all indications that the ROTC buildings are university facilities should be removed.

4. ROTC personnel should not be given the "courtesy" title of Rutgers professor unless federally mandated.

5. A warning of discrimination such as appears in the New Brunswick Undergraduate Catalog should be included in all university publications that refer to the ROTC programs including especially the schedule of classes and all ROTC linked web sites.

6. All credit-bearing military science courses should be open to all students without special permission, subject only to requirement of prerequisite credit-bearing courses.

7. Military science courses closed to any student because of his or her sexual orientation should not be given graduation credit nor listed in any university publication.

8. The University should replace any ROTC stipends or scholarship money that any ROTC cadet may lose if he or she is disenrolled from the program of bona fide homosexuality.

9. Rutgers should initiate formation of a joint ROTC-faculty/staff committee to explore ways that the ROTC programs can be made accessible to homosexual students to the fullest extent allowed by the federal mandate and that ROTC cadets can come to understand and tolerate homosexuality and other diversities.

10. The University should continue to participate in efforts such as joining amici curiae briefs that seek to relief the University of the burden imposed by the "Don’t Ask, Don’t Tell" policy.

11. These measures should be rescinded once it is determined that the ROTC programs no longer discriminate.

1. The administration should ensure the current Board of Governors Policy on Recruitment by Outside Employers is fully implemented in a manner consistent with the spirit of this policy.

2. The following disclaimer should be posted prominently with all announcements regarding military recruiting (including Internet notices and recruiting sites), and a copy should also be given to students who sign up for interviews:

"Rutgers University, the State University of New Jersey is committed to providing its students and graduates with equal opportunities to obtain employment without discrimination including that based on sexual orientation. The military's 'Don't ask, Don't tell' policy violates the Rutgers nondiscrimination policy. The presence of military recruiters at Rutgers should in no way be construed as an endorsement of the military's practice of discrimination."

3. The following disclaimer should be posted prominently with all recruiting announcements (including Internet notices and recruiting sites) for any company which does not certify that its employment policy conforms with the Rutgers policy on non-discrimination, and a copy shall also be given to students who sign up for interviews:

"Rutgers University, the State University of New Jersey is committed to providing its students and graduates with equal opportunities to obtain employment without discrimination. This company’s employment policy differs from the Rutgers nondiscrimination policy and the presence of their recruiters at Rutgers should in no way be construed as an endorsement of their employment policy. A copy of their policy may be obtained from .... . "

It is our intent that these recommendations be only interim actions until the Supreme court rules on the constitutionality of "Don’t Ask, Don’t Tell, Don’t Pursue". But we are uncomfortably aware that temporary solutions often become permanent. This cannot be. For the long term, we cannot accept discrimination; the very fabric of the university will be destroyed if we ignore our ethical concerns and allow "Don’t Ask, Don’t Tell, Don’t Pursue" to eat away at academic freedom and condition our welcome of cultural diversity within the university.

Submitted jointly by the Equal Opportunity Committee:

Joe Pifer, Chair Abosede George Roselle Wilson

Roger Abrams Richard Lehman

Emily Bartels Joseph Mule’

Kenneth Carlson Richard Norman

Amber Clayton Susana Rotker

Michele Cortese Pheroze Wadia

and the Student Affairs Committee:

John Ruvolo, Chair Helen McCloskey

Raphael Caprio Gwendolyn McLoof

Louie Crew Ameenah Poole

Carrie Davenport Michael Salpas

Vincernza Italiano Michael Shapiro

Lori Krantz Tony Solimine

Peter Li Scott Sugarman

Roselle Wilson

Whereas, academic freedom and willing acceptance of diversity are central tenets of a modern university.

And whereas, the ROTC programs at Rutgers practice federally mandated discrimination against homosexual students.

And whereas, this discrimination rejects the value of diversity, and abridges the academic freedom of all ROTC students, gay or straight.

SUMMARY: The Director of Defense Procurement is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a statutory prohibition on providing funds to institutions of higher education which have an anti-ROTC policy.

A. Background

This interim rule implements Section 541 of the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104-106). Section 541 provides that no funds available to DoD may be provided by contract or grant to institutions of higher education which have an anti-ROTC policy.

.....

2. Sections 209.470-1 and 209.470-2 are revised to read as follows:

209.470-1 Policy.

(a)(1) Section 558 of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) provides that no funds available to DoD may be provided by grant or contract to any institution of higher education that has a policy of denying or that effectively prevents the Secretary of Defense from obtaining for military recruiting purposes--

(i) Entry to campuses or access to students on campuses; or

(ii) Access to directory information pertaining to students.

(2) Section 541 of the National Defense Authorization Act for Fiscal Year 1996 (10 U.S.C. 983) provides that no funds appropriated or otherwise available to DoD may be obligated by contract or by grant, including a grant of funds to be available for student aid, to any institution of higher education that, as determined by the Secretary of Defense, has an anti-ROTC policy and at which, as determined by the Secretary, the Secretary would otherwise maintain or seek to establish a unit of the Senior Reserve Officer Training Corps, or at which the Secretary would otherwise enroll or seek to enroll students for participation in a unit of the Senior Reserve Officer Training Corps at another nearby institution of higher education. This prohibition applies to new contracts and all contract modifications. (See 243.105.) This prohibition shall cease to apply to that institution upon a determination by the Secretary that the institution no longer has an anti-ROTC policy.

(b) Institutions of higher education that are determined under 32 CFR part 216 to have the policy or practice in paragraph (a)(1) or (a)(2) of this subsection shall be listed as ineligible on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs published by the General Services Administration. (See FAR 9.404.)

(c) In cases where a determination is made under 32 CFR part 216 that specific subordinate elements of an institution of higher education, rather than the institution as a whole, have the policy or practice in paragraph (a)(1) or (a)(2) of this subsection, 32 CFR part 216 provides that the prohibition on use of DoD funds applies only to those subordinate elements. 209.470-2 Procedures.

(a) Agencies shall not solicit offers from, award contracts to, or consent to subcontracts with ineligible contractors.

(b) After a determination of ineligibility under 209.470-1(a)(1), departments and agencies shall make no further payments under existing contracts with the institutions, and shall initiate termination action. PART 243--CONTRACT MODIFICATIONS

APPENDIX V - 2

3. Section 243.105 is revised to read as follows:

243.105 Availability of funds.

(a)(i) 10 U.S.C. 2405 prohibits adjustments in price under a shipbuilding contract entered into after December 7, 1983, for a claim, request for equitable adjustment, or demand for payment under the contract, arising out of events occurring more than 18 months before submission of the claim, request, or demand.

(ii) Section 558 of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) [[Page 25409]] provides that no funds available to DoD may be provided by contract or contract modification, nor may contract payments be made, to an institution of higher education that has a policy of denying or that effectively prevents the Secretary of Defense from obtaining for military recruiting purposes--

(A) Entry to campuses or access to students on campuses; or

(B) Access to directory information pertaining to students. (See 209.470.)

(iii) Pursuant to 10 U.S.C. 983, no funds may be obligated by contract or contract modification to an institution of higher education that has an anti-ROTC policy. (See 209.470.)

Rutgers, The State University of New Jersey, is firmly committed to a policy of equal opportunity and affirmative action and will implement this policy in accordance with State and Federal statutes, executive orders, and regulations. This applies to the three major areas of University activity, education, employment and contracting, as follows:

It is University policy to make the benefits and services of its education program available to students without discrimination on the basis of race, religion, color, national origin, ancestry, age, sex, sexual orientation, disability, marital or veteran status. This applies to undergraduate, graduate and professional schools. Douglass College, however, as a traditionally and continuously single-sex institution, may, under Federal law, continue to restrict college admission to women.

It is University policy to provide equal employment opportunity to all its employees and applicants for employment regardless of their race, religion, color, national origin, ancestry, age, sex, sexual orientation, physical or mental disability, marital, military or veteran status, and to use as a basis for selection in employment only those characteristics which are demonstrably related to job performance or requirements. Where applicants for employment in one of the aforementioned categories are on that account not considered able to meet the bona fide qualifications for employment, the University officer with hiring authority may only act to disqualify them on such a basis with the approval of both the Vice President for Administration and Associate Treasurer and the University Counsel. This applies to the administration within each employment category of personnel actions such as recruitment, hiring, promotion, training, compensation, transfers, layoffs, returns from layoff, terminations, benefits, tuition assistance, education, and social and recreational programs. In addition, the University will make special efforts to recruit, employ, and advance in employment qualified members of minority groups, women, individuals with disabilities, special disabled veterans, and veterans of the Vietnam era.

It is University policy that contractors and subcontractors performing work or rendering services to the University observe a policy of nondiscrimination and affirmative action in all personnel matters. Further, it is University policy that the maximum practicable opportunity to participate in the performance of University contracts and subcontracts be provided to minority business enterprises.

Approved November 1972, Board of Governors

Revised January 1974, Board of Governors

Revised September 1974, Board of Governors

Revised January 1978, Board of Governors

Revised November 1981, Board of Governors