Protected Class Status and Veterans

Rear Admiral John E. Gordon, JAGC, USN (Ret.)

 former Judge Advocate General U.S. Navy

Presented at the Conference for

Improving the College Education of Veterans

At the

Servicemembers Opportunity Colleges

Washington, D.C.

October 22, 2009

It is either unlawful or against higher educational policy to discriminate against college students on the basis of sex, race, religion or sexual orientation.  There is some apparent evidence that US military veterans students are subject to various discrimination by our higher education institutions.  This presentation makes the case that veterans should receive protected class status and discusses how this can be achieved.

My topic today relates to the various forms of discrimination that a veteran of a U.S. Military Service may be exposed to as a student or a potential student at an institution of higher learning.  Some forms of  discrimination are protected by law.  I am not going to discuss those here.  There is a substantial body of law regarding discrimination in job hiring practices and in processes and standards for admission to colleges and universities, but very little if any applies to overt, subtle or perceived discrimination based on an individuals status as a veteran.

A great deal of this discrimination resulted from the severe emotion that this country experienced during the Vietnam War.  Prior to that event, military service was honored by our schools and was often considered an advantage.  No one can dispute that the World War II GI bill was the vehicle that had a huge and historical effect on expanding the university system in our country.  Sixteen million people qualified for significant assistance in attending post high school educational institutions.  Schools everywhere were beneficiaries of the vast amount of money appropriated and the result was a population that became more educated across the board from liberal arts to highly technical areas.  In a substantial way, this helped make the United States the world’s greatest industrial leader in both manufacturing and research and development.  Veterans of that war were clearly mainstream and universally revered and respected.

But all that changed during the Vietnam War.  The lack of popular support for the war itself spilled over to the people who served even though in most cases those who served were not volunteers but were conscripted.  Being spit upon and being called “baby killers” became commonplace for people in uniform.  This in turn put pressure on many universities to shut down their ROTC units and deny military recruiters access to students.  It was only a natural evolution that the college culture took on some of those feelings, resulting in various forms of discrimination to those students who have served their country.

Today’s student veterans are faced with issues of discrimination that may tend to separate them from other students.  There are two categories of veterans who are students, those who have served their enlistments and are now civilians and those who currently serve in reserve  or National Guard units.  The challenges facing each are similar but the latter category has additional issues especially when ordered to active duty during a semester.

It is not my intent to outline and discuss all the various forms of discrimination veterans experience, but I would like to discuss a few, mostly in general terms.  A most comprehensive list of these kinds of problems are listed in Chapter 3 of “Educating Veterans in the 21^st Century” by Douglas Herrmann, Charles Hopkins, Roland B. Wilson and Bert Allen.  They categorized the problems into 9 distinct categories.

             I.  Selection of a College or University to Attend

             II. Transition

             III. Acquiring Academic Skills

             IV. Campus Culture

             V. Educational Program Problems

             VI. Financial Problems

             VII. Academic Credit Problems

             VIII. Health Problems

  IX.  Employment Problems for Veterans at Graduation

My own experience is that those issues surrounding getting successful grades and finances are the most relevant.

Those veterans with stressful combat experience have the most difficulty.  Their powers of concentration can be a challenge.  Add that to the experience for new college students of being truly alone and isolated for the first time and one can see how much more complex it is for veterans.  Oddly enough an individual while in the military rarely finds oneself alone.  The military fosters team work and soldiers are taught to seek support from other soldiers and peer units.  In the military a young enlistee’s daily life and routine is pretty much arranged for him or her.  So even an experienced veteran can find college a lonely and frightening experience.

Most higher learning institutions have some sort of program to assist veterans, but I am sure their programs are quite diverse and range from poor to excellent.

Those issues related to study skills are very important.  Some veteran’s expectations may at times be unrealistic.  A student veteran should not expect the spoon feeding experienced in the military.  All enlistee’s go through a basic course, and afterwards are assigned to a school where specific skill training is taught.  Each individual may have some modicum of choice, but in the military all such decisions are made on the basis of the “needs of the service.” For example a pilot coming out of basic flight training may want to fly jet fighters, but if there is not a current requirement for fighter pilots, he may be involuntarily assigned to fly helicopters (even though that pilot was the best in his flight class).  But a student veteran because of status should receive equal assistance of academic counseling that members of currently legally protected classes. 

Financial assistance.  Virtually every student veteran receives some financial assistance from the Federal Government and the amount can sometimes be substantial.  So how do schools discriminate against veterans when they are all already getting some aid.  Such assistance is rarely sufficient to cover all expenses.  It is often the case that a veteran needs financial aid from the college or university to continue towards a degree.  Some schools reportedly use the last years veterans compensation as a base for financial aid and a student veteran may fail to qualify even though that income is no longer available. 

One problem recently widely reported by the press is that the Government pays out assistance at its schedule, not the requirements of the university.  During September of this year their were numerous stories of schools requiring up front payments even knowing that the veteran’s assistance was a month away.  This can prevent a student veteran from enrolling for the current semester, and may result in the Government denying payment because the veteran is not properly registered, a vicious cycle for sure. 

There are schools that understand and help student veterans with these types of problems, but help is sporadic.  Most schools are very careful not to discriminate against those in a legally protected status, and since student veterans do not qualify on the sole basis of being a veteran, mistreatment can occur.

I believe that a few words regarding campus culture are important.  Since all of today’s veterans are volunteers, there may be some common personality traits among them.  For one thing illegal drugs are strictly forbidden in the military and anyone caught using them may be court martialed and is certain to be discharged from military service with a minimum or an “other than honorable discharge.”  While I am sure there are some drug abusers in the military, there is nonetheless a no tolerance policy that has serious consequences.  I am not inferring that all college students are drug users, but the presence of illegal drugs on many, if not most, college campuses is there.  A student veteran’s exposure to this can be very tempting.  It would seem that a school should have a strong veteran’s counseling program .

But a student veteran has the undeniable right to be treated equally with other protected students.  There have been reported incidents of some professors making anti-military or anti-veteran statements.  Can you imagine the furor if that same professor were to make anti- gay or racial or sexist statements?  In other instances professors can be so anti-military that they discriminate against veterans by refusing them assistance at the same level as regular students, or worse, to not offer help at all.  Neither of those actions should be acceptable.  I submit veterans deserve legal protection because of their status, equal to that given protected classes.  What higher sacrifice and service can a person offer than a commitment to defend one’s country and subject oneself to harms way and all that it brings?

Let’s turn to the students who are members of active reserves or the National Guard, who not only experience the same discrimination as veterans, but have some additional issues to face.  Our country has a rich tradition of using citizen soldiers for national defense.  They are often called to sacrifice their time which can affect their careers and to prevent normal life by subjecting themselves to being involuntarily called to active duty.  This may not only be called to war, but for duty involving natural emergencies such as storm disasters.  These calls are rarely programmed and can be quite interruptive of an orderly life.

Ask yourself, if you were a full time student in the middle of a semester when Uncle Sam or your Governor called on you to report for duty.  How would that impact you?  What are the schools obligations?   Should a grade of “incomplete” be assigned ? Should the transcript state that the student veteran “withdrew”?  Should a failing grade be assigned?  Upon return should the individual called to duty be placed in the same student status they were in when called?  Or should each professor have total discretion on how to handle the situation?   Do colleges and universities have a duty to foster national defense by encouraging its students to serve?  I am not saying there is a current foundation in law to solve these specific problems, but wouldn’t a school that was interested in student veterans at least have a written policy on these issues?

Well we have spent some time on the problem.  It is now time to discuss the solution.  It seems clear that all U.S. veterans have made some sacrifice for their country.  One is the amount of time spent doing their job when on active duty.  Some are wounded, often seriously and others pay the ultimate sacrifice.  Those people who have never deployed with a combat unit may find it difficult to comprehend what it is like.  One often hears a military person describe his life as hours and hours of boredom followed by a brief period of sheer terror.  During all of those hours of boredom, a servicemember’s life is controlled by superiors.  Every daily aspect such as when you eat, what you eat, when you sleep and where you sleep are all specified for you

Being in the military is not like being employed.  In my past role as Judge Advocate General of the Navy I was often queried about military justice.  For example some wondered why a separate criminal justice system was needed when there plenty of jurisdictions that can try acts of crime committed by service personnel.  The answer is easy.  The Code of Military Justice is not a criminal system, but is rather a “good order and discipline” system.  What might be a behavioral problem on the outside might be a crime in the military.  Failure to show up at work can cause a civilian to lose a job, but failure to show up for work in the military is a crime and depending on the circumstances can land a service member in jail for years.

The reason I make these statements is to demonstrate what the veteran has done to assure his fellow citizens are kept safe. An individual who experiences low pay and long hours and serious risk of harm  in defense of his or her country deserves the same safeguards in an academic setting that many others who are members of a statutorily protected class receive.  Many student veterans experience actual or perceived discrimination in our schools  from school administrators, faculty and other students who simply disagree with that veteran’s lifestyle.  It is time to make it right and give student veterans equal protection under the law similar to that given to other classes who have received legally protected status.

The best solution would be to make students who are veterans members of a legally protected class.  To digress just a moment, I sometimes wonder how we ever got to any protected classes under our constitution.  The Declaration of Independence is fairly much based on forming a classless society.  That all ended when the Civil Rights Act of 1964 passed.  It created legally protected classes.  Over the years the courts have sustained this law.

Not all discrimination is illegal.  Legally protected status as a member of a certain class results from specific legislation guaranteeing specified  rights to certain people.  Members not in the class may or may not have the same rights but lack a specified law making them members of a specific class makes those rights general in nature.

Given that there is certain discrimination against veterans, should those individuals who are student veterans be made the beneficiary of a protected class?  Is the discrimination experienced by our student veterans in colleges and universities severe enough to impose a legal sanction?  While I have attempted to discuss some of the problems veterans experience there is insufficient time here to prove the case conclusively.  I leave such proof to others.  But accepting that there is serious discrimination against veterans, I am proposing some alternative solutions for your consideration.

One idea to resolve these issues might be a an academic standard imposed by some administrative authority.   A strong veterans advocacy program might be part of an accreditation program.  We could discuss a myriad of similar ways to accomplish the intended goal of equal treatment for veterans.  However, in the end you would likely experience uneven, widely divergent programs, some better that others.  Enforcement would be a major problem.

It is no secret that most institutions of higher learning receive federal funds.  There are many ways this happens  but the largest amount given by the Federal Government is for research and development.  A recent Washington Post article by Daniel de Vise sites a 2008 National Science Foundation report which ranks all schools by how much money has been received for research and development from the Federal Government.  The number one ranked school was Johns Hopkins University and it received $1.7 Billion.  Then numbers go down from there but the article sited George Washington University as being ranked 111^th and it received $143 Million.

Everyone knows that whenever the Federal Government gives away money, there are strings attached.  One of those strings is that veterans who work for a higher educational institution are protected from discrimination by that institution.   Veterans who are students at the same educational institution are not protected from discrimination by that institution outside of employment.  However, veterans could be protected from discrimination while students by conferring guaranteed  protected class status for student veterans regardless of employment by an institution.  There are two ways to do this.  One way is to have the President issue an Executive Order and the other is legislation made into a law.

One may assume that an Executive Order would be the simplest way to accomplish this.  No one can argue the validity of the power of the President to write rules and regulations on how federal grants may be spent.  What could be easier than simply preparing and issuing a presidential document that requires implementation of a program at each institution that gives student veterans protected status.

Sounds simple but Executive Orders can be extremely difficult to execute.  It would be simple if the President felt strongly enough about the issue to order a draft prepared and presented to him for signature.  But unless the President has strong desire to do that, any preparation of an Executive Order would be subject to the whims of a vast bureaucracy.  A proposed Executive Order is usually sent to all parts of the government by the office of Budget and Management.  All interested parties have the ability to comment and make changes.  There may be hundreds of interested parties.  Once all the inputs are in changes are made and the new order is sent out to the same offices.  The process is iterated as many times as necessary until a proposal is agreed to by all.  This process can take years.  Moreover, an Executive Order need not last beyond the President who created it.  After an Executive Order is signed it can be reviewed changed or rescinded by any subsequent administration.

A much better solution is the passing of a statute.  This is particularly preferred because Congress has a distinct responsibility to protect veterans.  Not every congressman has large industry or other special interest groups  located in his district that requires his attention, but every congressman has veterans in his district.  And veterans do vote and votes is what all members of congress pay attention to.  So the incentive for them to act on an issue involving veterans is 100 per cent.

It would not be difficult to come up with short legislative language that would make student veterans a protected class.  The rules of how a proposed bill becomes law can, however, be cumbersome.  Most bills follow the prescribed path.  Essentially a congressman writes a bill and submits it for action.  After the bill is referred to the appropriate committees, hearings are held, mark ups are made and the bill finds it way to the floor for a vote.  It can be amended at any point during that process.  Once a bill passes either the House or Senate it referred to the other body where the process may be repeated all over again.  Once a Conference Committee agrees the final bill goes back to the Senate and House for final passage and eventual signature by the President.  This process can be long and tedious.

There is however, a commonly used short cut as any lobbyist can tell you.  Just as the bill we talked about previously can be amended at any point, so can any other bill.  It only takes one member to offer an amendment to any appropriate bill at the right time and place.  The most common way to a quick fix is to offer an amendment to the target bill in final mark up before it goes to the floor.  This usually goes unnoticed..  But the most lethal place for such an amendment is during a conference committee mark up.  Conference Committees usually meet in executive session and involve only selected members or conferees.  Amendments there are a technical violation of the rules, a violation which is more often than not waived. If such an amendment is successfully placed on a bill that is in conference, it can not be amended on the floor of the House or Senate.  Each body only gets to vote yes or no on the entire bill.

An amendment that makes student veterans members of a legally protected class may be received quite favorably in Congress. Taking care of veterans in congress is very popular in Congress and most members would love to take credit for voting a benefit for such a large number of people.  This is especially true when such an amendment can be passed into law and not cost the Federal Government anything.

Some people may have reservations about creating Protected Class Status whether by Executive Order or by Statute.  It might be argued that such status would make veterans a group that non-veterans would envy.  Envy could lead non-veterans to not accept and help veterans.  This outcome is not necessarily bad.  Envy might lead some non-veterans to enlist.  But for those who would not choose to enlist, it is unlikely to lead to real envy.  Few students and academics want to risk their life and limb as do veterans.  Actually, protected class status might call attention to the sacrifices of veterans and lead members of the academic community to not only stop any discrimination against veterans but may also lead some members to help veterans to catch up academically with non-veteran students.

So academia has four choices regarding what to do for veterans in higher education.   One choice is to continue to allow for members of the academic community to sometimes treat veterans poorly.   That choice seems intolerable and requires some action.   Protected class status for veterans seems possible to establish in one of three ways.

First, academia itself may create procedures by which accreditation is denied to institutions that permit discriminatory behavior toward veterans.  Second, the President may be persuaded that there is a need for an Executive Order that would establish protected class status for veterans.   Third, such status may be established by congress passing a statute making discrimination toward veterans illegal, thereby establishing protected-class status.

You can probably discern which option strikes me as the best.   But regards of my position on these three options, you have your own viewpoint on what should be done.  Regardless of which option you choose, I am confident that you do not want our veterans to be the object of abusive and unfair treatment in higher education, treatment that makes it harder for them to get a degree than it is for non-veteran students to do so.