In the Army, sex discrimination begins at West Point

When Defense Secretary Chuck Hagel told a commencement crowd at the U.S. Military Academy at West Point last month that sexual misconduct in the military is a betrayal of the Army’s sacred oaths and trusts, the latest incidents he might have had in mind were allegations at the academy itself.

A sergeant first class stands accused of videotaping female cadets without their consent while they were showering or using the bathroom. The accusation is particularly unsettling because the suspect was a staff adviser reportedly “responsible for the health, welfare and discipline” of 125 cadets, including oversight of their “moral-ethical” well-being.

For those of us working to eliminate formal discrimination against women in the armed forces, these charges are disturbing — but not surprising. Individual servicemen who treat female comrades as second-class soldiers appear to be merely following the lead of the military’s top brass. Until women are fully accepted in the military’s warrior culture, their minority status will put them at greater risk of being abused.

West Point is considered a progressive institution where women have been enrolled for almost 40 years. But the number of female cadets has remained low. The academy’s first integrated class, the Class of 1980, was 10 percent female. In the more than three decades since then, the representation of women has not risen above 16 percent. Why do so few young women attend this prestigious — and taxpayer-funded — academy when, as of 2011, women earn 56 percent of all bachelor’s degrees awarded nationwide?

Participants at a recent conference on women at West Point put this question to the academy’s administrators, professors and staff. Their answer was not that the applicant pool contained few qualified women or that the academy was admitting all qualified women who applied. Instead, we were told, the admissions office follows an explicit “class composition goal” for women, which was set at 14 to 16 percent for class years 2008 to 2013.

To calculate the academy’s goal for women, leaders apparently rely on Army demographics. Because women make up roughly 15 percent of the active Army, the leadership has decided that the West Point admissions office should aim to enroll no more women than would constitute 16 percent of the class. As a document we received from a member of the West Point board of visitors observes, this method for setting the class composition goal ensures that the academy’s “demographic future will replicate the Army’s demographic past at best.”

The crucial question is whether the goal functions as a tool to increase the historically low number of female cadets or as a quota on — that is, an allocation for — the number to be admitted. Under Supreme Court case law — the most relevant cases are Regents of University of California v. Bakke, Gratz v. Bollinger and Grutter v. Bollinger — college admissions quotas, whether designed to operate for or against members of a protected class, are automatically suspect and are almost sure to be struck down as violations of equal protection of the law. Although those cases involved quotas based on race, there is every reason to believe that the court would strike down a backward-looking, rigid sex-based quota like this one as well.

Whether the goal is a quota or not, West Point must explain why it has such low expectations for women. Under the military’s policy of excluding women from ground combat, 81 percent of the Army’s officer occupational specialties were open to women; the academy’s much smaller goal for women based on the demographics of the past Army was not a rational way to select the cadets most qualified to become the commissioned officers of the future.

Today, as we look forward to an Army in which 100 percent of occupational specialties will soon be open to women, the goal appears utterly irrational and symptomatic of a culture of sexism.

There is no excuse for surreptitiously videotaping female cadets. But an institution that limits its number of women to a token fraction suggests that women are fair game for a form of sex discrimination that is different only in degree from the sex discrimination that underlies West Point’s fundamental policies. It sends the message that women are less worthy. And as a distinct, less valuable minority, women are more likely to be abused.

Until military leaders begin treating women as first-class soldiers who are as fit as their male counterparts for all occupational specialties, unit assignments and even West Point admissions, then sexual harassment, assault and even rape will continue to be routine.

Anne M. Coughlin is a professor at the University of Virginia School of Law and founder of the Molly Pitcher Project, which led to the filing of the first lawsuit (Baldwin v. Panetta) to challenge the military’s policy of excluding women from ground combat. Army Col. Ellen L. Haring is a graduate of West Point and a plaintiff in Baldwin v. Panetta.