The intersection between civil rights and judicial deference to the military recently surfaced in a case decided by the United State Court of Appeals for Second Circuit in Manhattan, which ruled in August 2017 that a female cadet cannot sue the U.S. Military Academy at West Point over her sexual assault by a male cadet.

The facts of the case portray a misogynist environment at West Point, a Hudson Valley institution that trains future military officers and doubles as a university. The plaintiff, identified as Jane Doe, was one of 200 women in a class of 1,300 cadets.

Male cadets sang sexually explicit and offensive chants while marching on campus, and they made sexually-explicit comments on a regular basis while the West Point administration looked the other way and even condoned these comments. While West Point provided training on sexual assault, Doe contends it was inadequate “and did little to combat the overwhelmingly misogynistic culture of the school.” Morever, Doe alleged, the harassment to which she was subjected “resulted from practices and policies that the individual defendants permitted to proliferate and, indeed, implemented or encouraged, depriving Doe of an equal education because of her gender. [Doe further] alleges that the individual defendants created, promoted, and tolerated a misogynistic culture, including by, for example, setting separate curriculum requirements for women and men (self-defense for first-year female cadets and boxing for first-year male cadets), requiring sexually transmitted disease testing for female but not male cadets, warning female cadets that it was their burden to spurn sexual advances from male cadets while openly speaking to male cadets about sexual exploits and encouraging them to take advantage of any opportunity to have sex, imposing inadequate punishment for offenders, and permitting sexually explicit, violent, and degrading group chants during team building exercises, with verses such as the following:

 “I wish that all the ladies/were holes in the road/and I was a dump truck/I’d fill ‘em with my load ”

“I wish that all the ladies/were statues of Venus/and I was a sculptor/I’d break ‘em with my penis.”

In addition, Doe alleged, “male faculty members routinely expressed sympathy with male cadets over the lack of opportunities to have sex, and suggested that they seize any chance they could to do so.” Cadets who perpetrated sexual assaults were not punished, and “female cadets understood ‘that they risked their own reputations and military careers’ by reporting sexual assaults against them.” A Department of Defense survey found that 51 percent of female cadets and 9 percent of male cadets reported that they had experienced sexual harassment at West Point.

Against this backdrop, Doe sued West Point officials after a male cadet had raped her. She claims the West Point medical clinic did not perform any forensic collection or preservation of any evidence of the sexual assault. Doe eventually resigned from the program, stressed over the incident.

As dissenting Second Circuit Judge Denny Chin noted, had Doe been enrolled at a public or federally-funded private college other than West Point, she would clearly have a case against the institution. But, in addition to being a public university, West Point is also a military academy. That implicates a set of rules that courts must apply when these institutions are sued over constitutional violations, in this instance, the protection against government-sponsored gender discrimination.

Roadblocks To Suing The Military

All constitutional lawsuits against the federal government must survive an initial hurdle. Unlike lawsuits against states and local municipalities, there is no federal statute that allows citizens to sue the federal government over constitutional violations. (The statute that provides for lawsuits against state and local governments is known as Section 1983). In 1971, the Supreme Court—which included holdovers from the more liberal Warren Court era—held in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that constitutional claims may proceed against the federal government in certain instances, unless “special factors counseling hesitation are present.” The “special factors” clause is a trap door for the plaintiffs, as it invites a motion to dismiss the case. As a result, in the nearly 50 years since the Court decided Bivens, only two plaintiffs have been able to proceed with their cases in the Supreme Court; one involved a federal inmate whose asthma was not properly treated, and the other involved employment discrimination against a federal defendant. The Supreme Court routinely notes that it is “reluctant to extend Bivens liability to any new context or category of defendants.” In 2017, the Supreme Court again drove that point home, noting that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.”

The related constitutional doctrine that can roadblock a lawsuit like this is the so-called Feres doctrine, named after a Supreme Court case from 1950. The Feres doctrine prevents plaintiffs from challenging “basic choices about the discipline, supervision, and control of service personnel,” as civilian courts are not authorized to “second-guess military decisions.” In 1985, the Supreme Court stated that allegations “go[ing] directly to the ‘management’ of the military” that “might impair essential military discipline” cannot form the basis of a lawsuit.

To the uninitiated, the Feres doctrine would merely prevent a soldier from challenging a commanding officer’s military strategy or in-service discipline. But the Feres doctrine extends much further than that. In a lawsuit that I handled nearly 15 years ago, for example, the United States Court of Appeals prevented a black mechanic from challenging the supervisory racial harassment he endured while working at an Air National Guard base. The Court held that “a Guard Technician’s employment as a civilian is ordinarily in support of a mission that is ultimately military in nature.” It further held that any lawsuit that against the plaintiff’s military supervisor (who targeted him for racial harassment) would potentially impair “their military relationship.” One judge on that Court took issue with this reasoning, “warn[ing] against an undisciplined expansion of the Feres doctrine.” Despite that criticism, the Feres doctrine remains strong in the federal courts.

The Bivens and Feres doctrines combined to doom Jane Doe’s lawsuit against West Point. Even though Doe was still a college student, the Court held that “a West Point cadet is a member of the military,” as a federal statute classifies cadets at the Military Academy as members of “the regular army.” In addition, the Second Circuit held, “Doe’s alleged injuries clearly are covered by the Supreme Court’s [prior] holding . . . that ‘no Bivens remedy is available for injuries that arise out of or are in the course of activity incident to service.’” What this means for Doe is her lawsuit would essentially require the courts to second-guess military decisionmaking. She cannot do so. The Court reasons:

“The allegations in Doe’s Amended Complaint do not merely invite, but require a most wide-ranging inquiry into the commands of Lieutenant General Hagenbeck and Brigadier General Rapp. Specifically, as they relate to these defendants’ conduct, Doe’s allegations center on the implementation and supervision of allegedly inadequate and harmful training and education programs relating to sexual assault and harassment; on the alleged failure to provide properly both for the report and investigation of sexual assault claims, and for the support of cadets who are assaulted; on the alleged lack of sufficient numbers of female faculty and administrators at West Point and on the failure to recruit female cadets; on the allegedly inadequate punishment meted out not only to perpetrators of sexual violence but also to those who engage in misogynistic chants, slurs and comments; and, most broadly, on the assertedly culpable tolerance of a hostile culture toward women at West Point. Adjudicating such a money damages claim would require a civilian court to engage in searching fact-finding about Lieutenant General Hagenbeck and Brigadier General Rapp’s ‘basic choices about the discipline, supervision, and control’ of the cadets that they were responsible for training as future officers.”

But didn’t the rape and West Point’s follow-up actions (and inactions) implicate matters other than military discipline? That is not how the Court of Appeals sees it. It explains that “the United States Military Academy at West Point has a single, unitary mission: to ‘train officer-leaders of character to serve the Army and the Nation.’” Its cadets swear an oath to always obey the legal orders of superior officers. “Cadets are divided into companies, each commanded by an Army officer, ‘for the purpose of military instruction,’ and are ‘trained in the duties of members of the Army,’ and even paid as members of the Army.” The Court deemed it “fanciful” for Doe to argue that “this Court might disaggregate those aspects of cadets’ lives that concern ‘education’ from those involving their training to be future officers,” as “academic and military pursuits are inextricably intertwined at the United States Military Academy, which exists for ‘the instruction and preparation for military service’ of Army members.”

Judge Chin dissented. Chin is one of the few judges on the Second Circuit who had worked as a civil rights lawyer before joining the bench. He notes that the military has adopted regulations to address the issue of gender discrimination and sexual harassment, and that all commanders and supervisors are required to ensure sexual harassment is not tolerated. As for the Feres doctrine, quoting from a law review article written by former Chief Justice Earl Warren in the early 1960s, Judge Chin noted that “our citizens in uniform may not be stripped of basic civil rights simply because they have doffed their civilian clothes.” In addition, as the Supreme Court noted in 1983, “This Court has never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.” In the end, Judge Chin concluded, the Feres doctrine cannot apply because Doe’s injuries did not arise “incident to service.” At the time of the rape, Doe was involved in purely recreational activity, out for a walk with another cadet, and—apart from her military training—she was still a college student. Doe was neither on active duty nor on active status, and she was not a soldier on the battlefield or military base. “There was ‘nothing characteristically military’ about what she was doing, and her injuries did not arise out of military employment.”

The Dissenting Opinion

Judge Chin went on to reason that Doe’s claims did not implicate “delicate questions involving military discipline” nor “call into question the military judgments and decisions that are inextricably intertwined with the conduct of the military mission.” Instead, the lawsuit challenged “academic decisions and policies, and the individual defendants were acting as educators and school administrators, tasked with providing their students with a positive learning environment, one free from sexual discrimination and harassment.”

The fact that the Court of Appeals decided this case by a 2-1 vote suggests that Doe’s claims had arguable merit, as an experienced federal appellate judge believed she had a case. The closeness of this vote, however, does not mean another plaintiff with a similar claim might prevail in the future. This ruling sets a precedent that courts in this jurisdiction must follow in the future. The only redress for plaintiffs like this is the Supreme Court. Until that happens, West Point and other military academies are a Constitution-free zone for sexual assault victims.

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Stephen Bergstein is a civil rights lawyer in New Paltz, New York.