Blameuser v. Andrews

• Decision Date: 27 August 1980
• Docket Number: No. 79-1992,79-1992
• Citation: 630 F.2d 538
• Parties: William BLAMEUSER, Plaintiff-Appellant, v. Colonel Donald ANDREWS, United States Army, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 538

630 F.2d 538

William BLAMEUSER, Plaintiff-Appellant, v. Colonel Donald ANDREWS, United States Army, Defendant-Appellee.

No. 79-1992.

United States Court of Appeals Seventh Circuit.

Submitted Aug. 27, 1980. ^*

Decided Sept. 22, 1980.

William Blameuser, pro se.

Joan F. Kessler, U.S. Atty., Lawrence O. Anderson, Asst. U.S. Atty., Milwaukee, Wis., for defendant-appellee.

Before FAIRCHILD, Chief Judge, and SWYGERT and PELL, Circuit Judges.

PELL, Circuit Judge.

The plaintiff-appellant, William Blameuser, challenges the district court's grant of summary judgment in favor of the defendant, Colonel Donald Andrews. The plaintiff was, at the time he commenced this action, a student at St. Norbert College. ¹ The defendant, a professor of military science, is in charge of the Army Reserve Officers' Training Corps (ROTC) program at the college. The plaintiff's complaint alleges that the defendant impermissibly considered the plaintiff's political and social beliefs in denying him admission to the ROTC's advanced course. Specifically, the plaintiff argues that he was illegally discriminated against because of his views on white supremacy and his Nazi sympathies. The district court held that the defendant demonstrated a compelling state interest for considering the plaintiff's beliefs and that those beliefs warranted denying the plaintiff admission to the program. Blameuser v. Andrews, 473 F.Supp. 767 (E.D.Wis. 1979).

The facts are to a large extent uncontested. The objective of the Army's senior ROTC program is to attract and prepare selected students, who are paid a monthly stipend, to serve as commissioned officers in the Regular Army or the U.S. Army Reserve. The program is a major source of newly commissioned officers in the Army and includes young men and women from all economic and social strata of our society. The ROTC program is divided into two courses of study. The basic course is normally pursued by a cadet during the freshman and sophomore years of college. Subject to certain requirements, generally all students at a participating college or university are eligible for enrollment. Indeed, the plaintiff here has already enrolled in and completed the basic course. The advanced course is normally pursued in a cadet's junior and senior years. The advanced course includes advanced camp-a six week training period conducted at a military installation, usually between a cadet's junior and senior years. Admission to the advanced course is subject to several requirements including the cadet's possession of "officer potential." Army Regulation 145-1, P 3-17. The defendant Andrews, as a professor of military science, is charged with recruiting the "best qualified" students in the basic course for enrollment in the advanced course. Id. P 2-36.

The plaintiff is a self-proclaimed member of the National Socialist Party of America (NSPA). ² He has publicly professed his belief in white supremacy-a doctrine which he regards as justifying the exclusion of all black and Jewish people from American society. In an application for an ROTC scholarship, he stated:

Should the United States become involved in an anti-communist war I would immediately go into the army and apply for action oversees (sic). I would not, however, volunteer to fight on the side of the Isaelis or of Negro communists in Africa.

Nevertheless, he professes his "loyalty . . . to the U.S. Constitution and The Republic for which It Stands," and has executed the loyalty oath required for enrollment in all ROTC courses.

In a letter to the plaintiff dated October 24, 1978, the defendant stated the reasons for the denial of the plaintiff's application to enroll in the advanced course. The letter stated that a variety of considerations were taken into account and "no single factor . . . prompted this decision." The letter acknowledged, however, that

your publicly stated personal beliefs which appeared in an issue of the St. Norbert Times was the major factor. These beliefs are inconsistent with the policies of the Army, and it would be your duty to uphold and support these policies if you were to become an Army officer. It is highly improbable that you could successfully accomplish this task.

The newspaper article adverted to is an interview of the plaintiff in which he explained his beliefs and the tenets and goals of the NSPA. Among the sentiments expressed by the plaintiff are the following:

We are against any mixing of the races. By the white races I mean all white Europeans of non-Jewish descent.

Q: . . . . If you gained control of the government what would you do with Black and Jewish peoples?

Blameuser: That's a good question. Since it has been pretty well proven that segregation within a society does not work, the best thing that I could think of would be to deport, or repatriate these people to, let's say Africa. That would mean that I'd have to take over a country there to ship these Negroes over.

Q: You would have to take over a country there?

Blameuser: Yes, unless the ones already there would accept them.

Q: What if they didn't want to go?

Blameuser: Any who did not go would become rigidly segregated, noncitizens. So that implies they will not be forced to go, but would be confined to special areas.

Q: You would take away their rights as American citizens?

Blameuser: That is right. They would not be considered American citizens.

Q: Do you agree with this?

Blameuser: Yes!

Q: Well what about the eastern races? Are they inferior too?

Blameuser: We would not allow these races to mix with the whites, but the Orientals would be allowed to stay since they have proven to be civilized.

Blameuser: . . . I am not saying they are not human. What I am saying is that the Blacks are obviously further behind the whites on the evolutionary scale. I'd say they are a hundred or two hundred thousand years behind the white race.

Blameuser: I would like to make a closing remark, and that is "At the end stands victory." This was a Nazi slogan from W.W.II. You see I believe that in the final analysis the N.S.P. will take over America and possibly the whole world.

The record also indicates that the defendant considered evidence showing that the plaintiff had been observed wearing clothing similar to that of a Nazi stormtrooper and had distributed Nazi publications such as a "comic" strip entitled "Aryan" which advocates boycotting "Jew Stores" and concludes with a character resembling Uncle Sam stating "There is only one meaningful political alternative to Jewish capitalism or Jewish communism-that is National Socialism! Learn the facts-Stop the Jewish Parasites-Help Build a Strong White America." Viewed in the light most favorable to the plaintiff, as the record must be on the defendant's motion for summary judgment, it is fair to say that the plaintiff was denied enrollment in the advanced course primarily because of his Nazi sympathies and his belief in white supremacy. ³

The district court concluded that the plaintiff's complaint presented a justiciable controversy within the court's jurisdiction to decide. Although the defendant does not concede the justiciability of this case, he does not devote any argument to the issue in his brief in this court. We believe the district court correctly assumed jurisdiction over the case. Although the courts are reluctant to intervene in military matters, the specific protections of the Bill of Rights are applicable with respect to the military. The plaintiff here places at issue " 'one of the liberties' the Supreme Court has declared to be long recognized as protected by the Constitution." Crawford v. Cushman, 531 F.2d 1114, 1121 (2d Cir. 1976). Cf. Brown v. Glines, 444 U.S. 348, 100 S.Ct. 595, 62 L.Ed.2d 540 (1980) (reviewing Air Force regulations prohibiting petitioning on base without prior approval of base commander). Moreover, this is not a case where the plaintiff seeks wide-ranging relief beyond the judiciary's jurisdiction to grant. Compare Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). The case is justiciable, and we therefore proceed to the merits of the plaintiff's First Amendment claim.

The plaintiff's personal beliefs, although abhorrent to democratic principles, are political in nature and thus fall within the core of the interests which the First Amendment's guarantee of free speech was intended to protect. The plaintiff is, of course, free to hold those views, to associate with those who share them, and indeed to seek to persuade others to adopt them. See Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264. But this is not a case where the Government is attempting to suppress the plaintiff's ideas or to punish him for expressing them.

Instead, the Government has withheld a benefit from the plaintiff because of his political convictions. Although the old right-privilege doctrine has been abandoned, see Elrod v. Burns, 427 U.S. 347, 360-61, 96 S.Ct. 2673, 2683, 49 L.Ed.2d 547 (1976) (opinion of Brennan, J.) and cases cited therein, the courts have recognized that when the benefit at issue is in the form of the establishment or continuation of an employment relationship, substantial Government interests may justify burdens on political speech and association which otherwise could not withstand the exacting scrutiny given to governmental conduct affecting fundamental rights. See, e. g., United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 564, 93 S.Ct. 2880, 2889, 37 L.Ed.2d 796 (1973) ("the government has an interest in regulating the conduct and 'the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the...