Monday, December 15, 2008

ROTC and Columbia University's non-discrimination policy

Add 09Dec11: This version was submitted by e-mail in February 2011 to the Task Force on Military Engagement.

Question: Can ROTC, under current law, co-exist on campus with Columbia's non-discrimination policy, as currently written?

My answer: Yes.

Using the non-discrimination policy as the reason for excluding a critical part of society from the University is a dangerous interpretation of the policy. In principle, the non-discrimination policy is meant to promote organic diversity and constructive engagement on campus, and protect inclusion at Columbia, which rightfully includes ROTC along with other critical relationships that may be cast as discriminatory in some aspect, such as a women's college and religions. Advancing the university's higher pedagogical and public service missions through real diversity, engagement, and inclusion will necessitate, at times, some sensitive trade-offs; the non-discrimination policy addresses the friction that may result. Columbia's non-discrimination policy becomes grossly corrupted when it is misused as a tool of exclusion, as has happened with ROTC at Columbia.

Barnard's admissions policy is the clearest example that, when justified by the greater good, lawful accomodations with the non-discrimination policy are made for existing University associations. I believe other similar examples at Columbia can be found. The question is not whether lawful accomodations can be made with the non-discrimination policy, because they already are. The proper question is whether a lawful accomodation is justified for the greater good.

Just as importantly, it does not appear from a plain reading of Columbia's non-discrimination policy that hosting ROTC on campus, under current law, would in fact violate Columbia's non-discrimination policy.

Read COLUMBIA UNIVERSITY EQUAL EDUCATIONAL OPPORTUNITY AND STUDENT NONDISCRIMINATION POLICIES AND PROCEDURES ON DISCRIMINATION AND HARASSMENT.

From opening paragraph: Columbia University is committed to providing a learning environment free from unlawful discrimination and harassment . . . Consistent with this commitment and with applicable laws, it is the policy of the University not to tolerate unlawful discrimination . . .

Key phrasing is "unlawful discrimination". Whatever is one's personal opinion of it, military personnel policy is lawful, not unlawful.

From second paragraph: Columbia University does not discriminate against any person in the administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other University-administered programs . . .

Key phrasing is "its [Columbia's] ... policies". Military personnel policy is set by the federal government and is not Columbia's policy. Military personnel policy is limited to a defined jurisdiction.

A distinction can be made between the military's commissioning requirements and the academic program on campus. In order to serve its wider pedagogical function, much of the ROTC program normally is open to the general student body. Other universities that host ROTC with non-discrimination policies similar to Columbia's policy are able to distinguish between university policy and federal policy. President Bollinger, as the former provost of Dartmouth AROTC and former president of UMichigan AROTC, AFROTC, and NROTC, is well-suited to manage the ROTC relationship on campus.

From Definitions: Discrimination is defined as: • treating members of a protected class less favorably because of their membership in that class; or • having a policy or practice that has a disproportionately adverse impact on protected class members.

Lawful accomodations, such as Barnard's admissions policy, do not infringe the protection of a legally "protected class". As a practical matter, ROTC enhances the course offerings for Columbia students, while the addition of ROTC on campus would not subtract nor replace anything that currently exists for students. Nor would ROTC require Columbia to rewrite the non-discrimination policy. "Military status" enumerated as a legally protected class in Columbia's non-discrimination policy also ensures that members of ROTC would be protected and raises the question of the University's responsibility to Columbia's ROTC students.

From Definitions: Discriminatory Harassment - Discriminatory harassment is defined as substantially interfering with an individual's educational experience by subjecting him or her to severe or threatening conduct or to repeated humiliating or abusive conduct, based on his or her membership in a protected class.

ROTC and its manifestations on campus (office, classes, training, etc.) would not be a separate zone on campus that allows discriminatory harassment. ROTC cadre and participating students would be held to the same standards of behavior as all Columbians. Columbia students should feel as safe in ROTC offices as anywhere else on campus.

Post-script:

Task Force,

Due to subsequent feedback, I learned I omitted 2 significant pieces of analysis in my original opinion on ROTC and Columbia's non-discrimination policy:

From opening paragraph: Consistent with this commitment and with applicable laws . . .

Key phrasing is "applicable laws". Anti-discrimination laws for ordinary civilian employers have sometimes been cited in the case against ROTC at Columbia. However, for obvious reasons, laws that regulate ordinary civilian employers do not apply to military personnel policy, which is regulated by separate federal statutes and case law.

From third paragraph: Nothing in this policy shall abridge academic freedom or the University’s educational mission.

The superseding provision in Columbia’s non-discrimination policy retains the University's discretion to promote the “University's educational mission” notwithstanding any other provision of the nondiscrimination policy. The University Senate is deciding whether ROTC will be included in the University’s educational mission. While Columbia can decide to exclude ROTC, the same discretion allows Columbia to add ROTC to the University's educational mission without compromise.

Thank you for your consideration.

Original version posted on 15DEC08:

Question: Can ROTC, under current law, co-exist on campus with Columbia's non-discrimination policy, as currently written?

My answer: Yes.

Using the non-discrimination policy as the reason for excluding a critical segment of society from the university is a dangerous interpretation of the policy. The non-discrimination policy is meant to promote organic diversity and constructive engagement on campus, and protect inclusion at Columbia, which rightfully includes ROTC along with other critical relationships that may be cast as discriminatory in some aspect, such as a women's college and religions. Advancing the university's higher educational and public service missions through real diversity, engagement, and inclusion will necessitate, at times, some sensitive trade-offs; the non-discrimination policy addresses any friction that may result. Columbia's non-discrimination policy becomes grossly corrupted when it is misused as a tool of exclusion, as has happened with ROTC at Columbia.

Barnard's admissions policy is the clearest example that, when justified by the greater good, lawful accomodations with the non-discrimination policy are made for existing university associations. I believe other similar examples at Columbia can be found. The question is not whether lawful accomodations can be made with the non-discrimination policy, because they already are. The proper question is whether a lawful accomodation is justified for the greater good.

Just as importantly, it does not appear upon a plain reading of Columbia's non-discrimination policy that hosting ROTC on campus, under current law, would in fact violate Columbia's non-discrimination policy.

Read COLUMBIA UNIVERSITY EQUAL EDUCATIONAL OPPORTUNITY AND STUDENT NONDISCRIMINATION POLICIES AND PROCEDURES ON DISCRIMINATION AND HARASSMENT.

From opening paragraph: Columbia University is committed to providing a learning environment free from unlawful discrimination and harassment . . . Consistent with this commitment and with applicable laws, it is the policy of the University not to tolerate unlawful discrimination . . .

Key phrasing is "unlawful discrimination". Until the DADT law changes, DADT is the law and therefore lawful, not unlawful.

From second paragraph: Columbia University does not discriminate against any person in the administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other University-administered programs . . .

Key phrasing is "its ... policies". DADT is a federal law, not Columbia's policy, and is limited to a defined jurisdiction. A distinction can be made between the military's commissioning requirements and the campus academic program. In order to serve its wider pedagogical function, much of the ROTC program normally is open to the general student body, subject to ordinary logistical restraints. Other universities with ROTC on campus and non-discrimination policies similar to Columbia's non-discrimination policy distinguish between university policy and federal policy, for example, MIT. As Johns Hopkins University does with their Army ROTC, Columbia can even take the extra step of supporting ROTC on campus while explicitly objecting to DADT. President Bollinger, as the former provost of Dartmouth AROTC and former president of UMichigan AROTC, AFROTC, and NROTC, should be prepared to manage the ROTC relationship on campus.

From Definitions: Discrimination is defined as: • treating members of a protected class less favorably because of their membership in that class; or • having a policy or practice that has a disproportionately adverse impact on protected class members.

The addition of ROTC on campus would not, as a practical matter, subtract nor replace anything that currently exists for Columbia students nor would it require Columbia to rewrite the non-discrimination policy. "Military status" enumerated as a protected category in Columbia's non-discrimination policy also ensures that ROTC on campus would be protected and raises the question of the university's responsibility to Columbia's ROTC students.

From Definitions: Discriminatory Harassment - Discriminatory harassment is defined as substantially interfering with an individual's educational experience by subjecting him or her to severe or threatening conduct or to repeated humiliating or abusive conduct, based on his or her membership in a protected class.

ROTC and its manifestations on campus (office, classes, training, etc.) would not be a separate zone on campus that allows discriminatory harassment. ROTC cadre and participating students would be held to the same standards of behavior as all Columbians. An LGBT person should feel as safe in ROTC offices as anywhere else on campus.

Eric

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