Edwards v. Schlesinger

• Decision Date: 11 July 1974
• Docket Number: Civ. A. No. 1825-73,1826-73.
• Parties: Don EDWARDS et al., Plaintiffs, v. James R. SCHLESINGER, Individually, and as Secretary of Defense, et al. Defendants. Jerome WALDIE et al., Plaintiffs, v. James R. SCHLESINGER, Individually, and as Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — District of Columbia

377 F. Supp. 1091

Don EDWARDS et al., Plaintiffs, v. James R. SCHLESINGER, Individually, and as Secretary of Defense, et al. Defendants.

Jerome WALDIE et al., Plaintiffs, v. James R. SCHLESINGER, Individually, and as Secretary of Defense, et al., Defendants.

Civ. A. Nos. 1825-73, 1826-73.

United States District Court, District of Columbia.

June 19, 1974.

As Amended July 11, 1974.

Virginia M. Dondy and Thomas S. Martin, Washington, D. C., for plaintiffs.

Royce Lamberth, Asst. U. S. Atty., Washington, D. C., for defendants.

OPINION

GASCH, District Judge.

This matter came before the Court upon defendants' motion to dismiss or, in the alternative, for summary judgment. Plaintiffs cross-moved for partial summary judgment. Also pending before the Court is plaintiffs' motion for certification of the class which plaintiffs seek to represent. In order to set the background for a discussion of the issues raised by these motions, a chronological development of the suit is set forth below.

I.

Plaintiffs filed these two actions on September 26, 1973, seeking declaratory relief, an injunction and damages against the United States Air Force Academy (C.A. No. 1825-73) and the United States Naval Academy (C.A. No. 1826-73) for their alleged unconstitutional failure to consider women for appointment to those service academies. Extensive discovery followed.

On March 11, 1974, plaintiffs filed a motion, pursuant to local rule 1-13(b), to certify the class. On April 29, 1974, the defendants moved to dismiss the complaints, or, in the alternative, for summary judgment. At the same time, defendants also moved to consolidate the two actions. Plaintiffs cross-moved for summary judgment May 15, 1974, and a hearing was held June 4, 1974, at which time the motions were taken under advisement. On June 14, 1974, plaintiffs moved for a temporary restraining order, and a hearing was held that same day. By Order dated June 14, the Court denied the request for a temporary restraining order, for reasons set forth therein. At the same time, the Court ruled on defendants' motion for consolidation, granting the same insofar as the Naval and Air Force Academies were concerned.¹

The facts as presented by the various motions and oral arguments are as follows: Plaintiffs in each case are two Congressmen who have nominated female applicants for the respective academies. Also named as party plaintiff in each case is one female nominee. Plaintiffs allege that those individuals nominated who are female are routinely refused consideration for appointment to the Academy, to the detriment of their rights under the Equal Protection Clause of the Fourteenth Amendment and Due Process Clause of the Fifth Amendment to the Constitution.²

There is no doubt that neither the Air Force Academy nor the Naval Academy will consider a female nominee. Air Force regulations provide that an "applicant must be a male citizen of the United States."³ Likewise, Navy regulations indicate that "candidates for admission to the U. S. Naval Academy must be male citizens of the United States."⁴ In light of the fact that selections to the Academies are made during the spring of each year, the parties agreed that five positions at each Academy should be held open pending the outcome of this lawsuit or until June 18, 1974, whichever came earlier.⁵

Because oral argument could not be held until June 4, 1974, and the case having been taken under advisement at that time, plaintiffs moved for a temporary restraining order June 14, asking this Court to extend for 10 days the period open for possible appointment of women. The Court, finding no irreparable injury or probability of success on the merits, denied that motion.⁶

The fundamental question raised by this lawsuit is whether or not plaintiffs suffer a deprivation of constitutional rights through the policy of the Air Force and Naval Academies. As will be seen below, this question is not susceptible to a simple solution. Before discussing this issue, however, the motion to certify the class will be dealt with.

II.

Plaintiffs seek to maintain these suits as class actions, on behalf of "all past, present, and future female applicants to the U. S. Air Force and Naval Academy who have been, are being, and will be denied admission by the discriminatory practices complained of herein."⁷ The class is of the type described by Fed.R.Civ.P. 23(b) (2):

the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; . . . .

At the outset, it should be noted that plaintiffs' motion is untimely. Local rule 1-13(b) provides that "within 90 days after the filing of a complaint . . . plaintiff shall move for a certification under Rule Fed.R.Civ.P. 23(c)(1) . . . ." The complaints in these cases were filed September 26, 1973, but the motions to certify the class were not filed until March 11, 1974.

Proceeding to the merits of certifying the class, it can be seen that the group of people sought to be included is ill-defined, particularly with respect to those "future" members of the class. Notice, a desirable, although not required, element, would be impossible.⁸ This Court adheres to the view that where injunctive and declaratory relief is requested, such relief, where appropriate, can be fashioned to run to the benefit of those sought to be included in the class.⁹ In light of this, no compelling reason is presented to complicate the lawsuit by certification of the class, and the speedy resolution of the issues presented here would be aided by proceeding with the named plaintiffs only.

III.

The preliminary question which must be resolved in order to deal with the merits of this case is what standard should be applied to the Air Force and Naval Academies' refusal to consider women for admission to those institutions. The choice, of course, is between the "rational relation to a legitimate governmental interest" test,¹⁰ and, in the case of a "suspect classification," the "compelling state interest" test.¹¹ The difference in stringency between the two tests is significant. Plaintiffs have pressed strenuously upon the Court an argument that the latter test should be applied; for reasons set forth below, it is the Court's conclusion that the "rational relationship" test should be applied.

In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), the Supreme Court considered the constitutionality of the Idaho probate code, which provided that within the various classes of persons eligible to administer a decedent's estate, "males must be preferred to females . . . ."¹² Idaho justified the statute on the grounds that the automatic preference of males reduced the workload of the probate courts by eliminating one area of contest in the course of probate.¹³ The Court measured this objective by asking "whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to the state objective that is sought to be advanced by . . . § 15-314."¹⁴ Applying this test, the Court concluded that reducing the courts' workload by eliminating equal consideration of females with males for letters of administration was not "consistent with the command of the Equal Protection Clause."¹⁵

The importance of Reed becomes apparent when one reads Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Frontiero involved a challenge to the constitutionality of four statutes¹⁶ which provided that wives of male members of the armed forces were to be automatically considered dependents for the purposes of increased housing allowances and medical and dental benefits, but in the case of husbands of female members, they were to be so considered only if the service-woman was able to prove that her husband was dependent upon her for more than one-half of his support.

Justice Brennan, with three Justices concurring, concluded that sex should join race,¹⁷ alienage,¹⁸ and national origin¹⁹ as an inherently suspect classification, thus imposing "strict judicial scrutiny" upon any sex-based classification.²⁰ In so concluding, the plurality opinion found "at least implicit support for such an approach in our unanimous decision . . . in Reed v. Reed . . . ."²¹ This implicit support stemmed from the following language in Reed:

To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause . . . .²²

Justice Brennan felt that this represented a "departure from `traditional' rational basis analysis . . . ."<sup>23</sup> Relying on this, the plurality opinion concluded that "any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience . . . involves the `very kind of arbitrary legislative choice forbidden by the Constitution . . . .' Reed v. Reed . . . ."²⁴

Justice Stewart concurred in the result, "agreeing that the statutes before us work an invidious discrimination in violation of the Constitution."²⁵ relying on Reed. Also placing reliance on Reed was Justice Powell, who was joined in his concurring opinion by the Chief Justice and Justice Blackmun. Justice Powell argued vigorously that "it is unnecessary for the Court in this case to characterize sex as a suspect classification, with all of the far-reaching implications of such a holding."²⁶ The Court, said Justice Powell, "can and should decide this case on the authority of Reed and reserve for the future any expansion of its rationale."²⁷

Thus, sex was not clearly made an inherently suspect classification, as only four members of the Court were willing to apply strict judicial scrutiny to such classifications. Four members clearly were not.²⁸ Plaintif...