Doe v. Selective Service System
| Decision Date | 10 March 1983 |
| Docket Number | No. 3-82 Civ. 1670,3-83 Civ. 100.,3-82 Civ. 1670 |
| Citation | 557 F. Supp. 937 |
| Parties | John DOE, Richard Roe and Paul Poe, Intervenors-Plaintiffs, v. SELECTIVE SERVICE SYSTEM, Major-General Thomas K. Turnage, Director, and United States Department of Education, Terrel H. Bell, Secretary, Defendants. Bradley BOE, Carl Coe and Frank Foe, Plaintiffs, v. SELECTIVE SERVICE SYSTEM, Major-General Thomas K. Turnage, Director, and United States Department of Education, Terrel H. Bell, Secretary, Defendants. |
| Court | U.S. District Court — District of Minnesota |
William J. Keppel, Minneapolis, Minn., for plaintiffs John Doe, Richard Roe and Paul Poe.
E. Gail Suchman and Daniel W. Lass, Minneapolis, Minn., for Bradley Boe, Carl Coe and Frank Foe.
Neil H. Koslowe, Washington, D.C., and James M. Rosenbaum, U.S. Atty., Minneapolis, Minn., for defendants Selective Service System, Major-General Thomas K. Turnage, Director, and U.S. Dept. of Educ., Terrel H. Bell, Secretary.
This matter comes before the court upon the motions of plaintiffs in these cases for a preliminary injunction enjoining the defendants from enforcing Section 1113 of the Department of Defense Authorization Act of 1983, Pub.L. No. 97-252, 96 Stat. 748 (1982) () and any regulations promulgated thereunder. Defendants oppose the motions.
Plaintiffs John Doe, Richard Roe, Paul Poe, Bradley Boe, Carl Coe and Frank Foe are all male residents of Minnesota, 19 to 21 years old, subject to Section 3 of the Selective Service Act who intend to apply for financial aid for the 1983-84 school year under Title IV of the Higher Education Act of 1965, 20 U.S.C. §§ 1070-1089, who will be unable to complete their educations without financial aid, and who cannot file a truthful statement of compliance with Section 3 and regulations thereunder. Defendant Selective Service System is an agency of the United States. Defendant Major-General Thomas Turnage is the Director of the Selective Service System. Defendant United States Department of Education is an agency of the United States. Defendant Terrel H. Bell is the Secretary of the United States Department of Education.
It is important to note at the outset that these cases involve only a challenge to the constitutionality of Section 1113 linking availability of federal financial assistance under Title IV of the Higher Education Act of 1965 to draft registration. These cases do not challenge the constitutionality of the law requiring registration: the validity of that law has already been upheld by the United States Supreme Court in Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). In addition, these cases are not cases in which the propriety of registration versus nonregistration has been raised or argued. Finally, this decision should not be interpreted as passing on the constitutionality of any law that would deny federal financial assistance to students after conviction for nonregistration. That issue is not before the court. The court turns now to the issues that these cases do raise.
In considering plaintiffs' motions for a preliminary injunction, the court must determine whether or not the standards set forth in Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8th Cir.1981) have been met. The court in that case held that:
whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on the other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.
Plaintiffs contend that they will suffer irreparable harm if an injunction does not issue. Plaintiffs John Doe and Paul Poe allege that they will be unable to complete their educations without financial aid. Plaintiff Richard Roe alleges that he may be unable to complete his education without financial aid. Plaintiffs Bradley Boe, Carl Coe and Frank Foe similarly allege that they will be unable to complete their educations without financial aid.
Plaintiffs point to the status of education as an important right in our society and allege that deprivation of that right constitutes irreparable harm. The United States Supreme Court in Pyler v. Doe, ___ U.S. ___, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), declined to find public education a right granted by the Constitution, but did find that education was not merely some governmental benefit indistinguishable from other forms of social welfare legislation. Id. 102 S.Ct. at 2397. After noting the importance of education in maintaining our basic institutions, the Court observed that:
education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.
Id. Education has long been recognized as providing the means to "earn an adequate livelihood, to enjoy life to the fullest, and to fulfill ... the duties and responsibilities of good citizens." Dixon v. Alabama State Board of Education, 294 F.2d 150, 157 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961).
Plaintiffs contend that deprivation of a post-secondary education, or even delay in attaining that education, and consequent inability to pursue a chosen profession or occupation constitutes harm for which there is no adequate remedy at law. The Supreme Court has upheld a district court's conclusion that even a temporary inability to practice a profession constitutes such harm. See Withrow v. Larkin, 421 U.S. 35, 44 n. 8, 95 S.Ct. 1456, 1463 n. 8, 43 L.Ed.2d 712 (1975).
Defendants contend that plaintiffs have failed to demonstrate a threat of irreparable harm because plaintiffs have not alleged that they have actually applied for Title IV assistance, qualified for that assistance, and been denied such assistance. Under proposed regulations, most students will not be required to complete a statement of compliance until just prior to the time they actually receive the assistance. Thus, defendants argue, plaintiffs have not substantiated any present or immediately threatened irreparable harm to themselves.
The court is not persuaded by defendants' argument. The application process for financial aid has already begun. As noted in the Memorandum Order, January 24, 1983, § 1113 by its terms imposes a mandatory system linking availability of financial aid to draft registration. It was there pointed out that, "it must therefore be presumed that the Secretary will comply with the mandatory terms of Section 1113, and that implementation of the Section will lead inexorably to the denial of financial assistance, although the exact date of that denial cannot be presently determined." Id. at 6. Plaintiffs here allege that they intend to apply for aid, that they will be unable to complete their educations without aid, and that they cannot file a truthful statement of compliance. It is thus inevitable that plaintiffs will be denied financial assistance and, consequently, the opportunity to pursue their educations. Regional Rail Reorganization Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 358, 42 L.Ed.2d 320 (1974) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923)).
Plaintiffs also claim that they are threatened with a second type of irreparable harm. Plaintiffs allege that § 1113 violates their fifth amendment right against self-incrimination. Plaintiffs argue, first, that the statute penalizes those who assert the fifth amendment by denying them access to Title IV funds, impermissibly burdening the exercise of that privilege, and, second, that the statute's scheme of operation serves to incriminate those who assert the privilege because the very act of applying can lead directly or indirectly to incriminating evidence.
Defendants again maintain that plaintiffs have failed to establish a threat of irreparable harm. According to defendants, plaintiffs cannot establish that any action that poses an immediate danger to their fifth amendment rights has been taken against them. Plaintiffs do not claim that they need a preliminary injunction in order to decide whether to apply for Title IV funds, defendants argue. Furthermore, plaintiffs will not be required to submit a statement of compliance until much later in the application process.
The court finds defendants' arguments unconvincing. Many unregistered students, including plaintiffs, are faced with the choice now of waiving their right against self-incrimination by beginning an aid application process that will inevitably require them to furnish proof of registration or, alternatively, of foregoing financial assistance to avoid self-incrimination. Educational institutions have traditionally imposed deadlines for aid applications that precede the actual awarding of funds by several months. The University of Minnesota, which plaintiffs Doe, Poe and Roe plan to attend, last year set a deadline of March 1, 1982 for applications for the 1982-83 school year. No such deadline has been set for the current year, apparently because of these actions, but at some point an application in practical effect is too late. In addition, some schools and universities are requiring students to certify compliance with registration requirements at the time of application. Defendants acknowledge that since final regulations may not be published...
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