Memorandum — Faulkner v. Jones

No. 95-31 rE

In The

Supreme Court of the United

October Term, 1995

*

SHANNON RICHEY FAULKNER,

Petitioner,

and the

UNITED STATES OF AMERICA,

Respondent.

JAMES E. JONES, JR., et al.,

Respondents/Petitioners.

*

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

Sd

MEMORANDUM SUGGESTING MOOTNESS OF

PETITION FOR WRIT OF CERTIORARI OF

SHANNON RICHEY FAULKNER

>

M. Dawes Cooke, Jr. CHARLES J. Cooper*

BARNWELL, WHALEY, MIcHAEL A. CARVIN

PatrersON & Hetms VINCENT J. COLATRIANO

134 Meeting Street Davip H. THompson

Charleston, South Carolina SHAW, Pittman, Ports

29402 & TROWBRIDGE

(803) 577-7700 2300 N Street, N.W.

Washington, D.C. 20037

Rosert H. Hoop

Hoop Law Firm ee) roe)

172 Meeting Street CHARLES MOLONy CONDON

P. O. Box 1508 Attorney General for the

Charleston, South Carolina State of South Carolina

29402 TrevA G. ASHWORTH

(803) 577-4435 KENNETH P. WooDINGTON

CAMERON B. LITTLEJOHN, JR.

P. O. Box 11549

Columbia, South Carolina

29211

(803) 734-3970

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 }

OR CALL COLLECT (402) 342-2831 \

TABLE OF CONTENTS

STATEMENT

ARGUMENT

CONCLUSION ..

Page

TABLE OF AUTHORITIES

Page

CASES

Church of Scientology v. United States, __. U.S. __

113 S.CE. 447 CHFGE) ccccccvccccscsesanesisrvsssvats 4

CIA v. Holy Spirit Ass’n, 455 U.S. 997 (1982).......... 8

Deakins v. Monaghan, 484 U.S. 193 (1988)............. 8

DeFunis v. Odegaard, 416 U.S. 312 (1974)............ 4,6

Faulkner v. Jones, 51 F.3d 440 (4th Cir. 1995).......... 2

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)..... 5

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312

US. 270 (1961) .. ccccnccxseanbanweeenes saan ee ees 5

Murphy v. Hunt, 455 U.S. 478 (1982)..............066. 6

North Carolina v. Rice, 404 U.S. 244 (1971)............ 4

O’Shea v. Littleton, 414 U.S. 488 (1974)................ 5

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424

(1976) «0. vicccavess ound bahaueeeeeeeee eee reas +

Preiser v. Newkirk, 422 U.S. 395 (1975)................ 4

SEC v. Medical Comm. for Human Rights, 404 U.S.

AOS (1972)... cvcinesessandeeee ee ee 3

Steffel v. Thompson, 415 U.S. 452 (1974)............... 3

United States v. Munsingwear, 340 U.S. 36 (1950)...... 8

United States Parole Comm'n v. Geraghty, 445 U.S.

SOO (SGU) . oc csccdevenesenedadanmeaasaeate rors eae 7

Weinstein v. Bradford, 423 U.S. 147 (1975)........... 4,6

RULES

S. Ct. R. PAB on cecss ene 1

No. 95-31

. —

In The

Supreme Court of the United States

October Term, 1995

+

SHANNON RICHEY FAULKNER,

Petitioner,

and the

UNITED STATES OF AMERICA,

Respondent.

JAMES E. JONES, JR., et al.,

Respondents/Petitioner:

%

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

+

MEMORANDUM SUGGESTING MOOTNESS OF

PETITION FOR WRIT OF CERTIORARI OF

SHANNON RICHEY FAULKNER

+

Pursuant to Rule 21.2(b) of this Court’s Rules,

respondents James E. Jones, Jr., et al., (“Respondents”) file

this memorandum to advise the Court of certain facts

which, in Respondents’ view, render the writ of certiorari

filed by petitioner Shanon Richey Faulkner moot.

ca —

a

STATEMENT

On July 10, 1995, Faulkner petitioned this Court to

review the Fourth Circuit’s decision in Faulkner v. Jones,

51 F.3d 440 (4th Cir. 1995), holding that the State of South

Carolina’s failure to provide women an all-female mili-

tary education substantively comparable to that offered

to men at The Citadel violated the Equal Protection

Clause. In light of Faulkner’s unique status as a rising

college junior, the court fashioned a bifurcated remedy.

The court provided “special, conditional relief for Faulk-

ner, requiring that she be admitted to the Corps of Cadets

unless, before the beginning of Faulkner’s junior year, the

state provide[d] a parallel program [for women].” 51 F.3d

at 450. As for all other women, the State was allowed to

formulate its own remedy that would offer women an

educational experience substantively comparable to that

which the State provided for men.

Accordingly, on August 12, 1995, Faulkner arrived at

The Citadel as a prospective member of the Corps of

Cadets. On August 18, 1995, however, Faulkner volun-

tarily withdrew from The Citadel.

¢

ARGUMENT

Clearly, Faulkner’s voluntary withdrawal from The

Citadel has removed any personal stake that she had in

this matter. Her lawyers admit that she “is not currently

pursuing a Citadel education” and is not even “inter-

ested” in doing so. Motion of Nancy Mellette to Add

Party or to Intervene, dated September 11, 1995, at 5, 17a.

Still, while her lawyers acknowledge “the potential argu-

ment that her claims are moot” — an understatement, to

say the least — and concede that her petition is “endan-

gered,” Motion of Nancy Mellette at 5, 8, they refuse to

dismiss her petition for certiorari and, indeed, have

argued in the district court that her claim for admission

to The Citadel, despite her voluntary withdrawal, is not

moot and should therefore not be dismissed.! As the

United States in its capacity as plaintiff-intervenor has

succinctly stated, “petitioner’s [Faulkner’s] withdrawal

from The Citadel renders her individual claim moot.”

Memorandum for the United States in Opposition at 7

n.4, Faulkner v. Jones (No. 95-31).

Under Article III of the United States Constitution,

“i]t is well settled that federal courts may act only in the

context of a justiciable case or controversy.” SEC v. Medi-

cal Comm. for Human Rights, 404 U.S. 403, 407 (1972)

(quoting Benton v. Maryland, 395 U.S. 784, 788 (1969)). If

there is no actual controversy between the litigants, a

case is by definition moot and therefore not justiciable.

As the Court has explained, “[t]he rule in federal cases is

that an actual controversy must be extant at all stages of

review, not merely at the time the complaint is filed.”

Steffel v. Thompson, 415 U.S. 452, 460 n.10 (1974). Accord-

ingly, the Court has repeatedly held that a case is moot

1 Acknowledging the potential mootness of Faulkner’s

petition, Faulkner’s lawyers have filed a motion seeking leave

of this Court to effectively substitute another person as their

petitioner in these proceedings. As we shall demonstrate in our

forthcoming opposition to this motion, Faulkner’s lawyers can-

not resuscitate Faulkner’s mooted petition, and their motion

should be rejected.

where a subsequent change in the relevant facts or law

negates the existence of an actual controversy. See, e.g.,

Weinstein v. Bradford, 423 U.S. 147 (1975) (plaintiff’s challenge

to certain procedural rights in considering parole eligibility

were moot on account of his complete release from super-

vision); Preiser v. Newkirk, 422 U.S. 395 (1975) (plaintiff's

due process challenge to the adequacy of procedures for

transferring prisoners to maximum security facilities ren-

dered moot by his subsequent transfer to a medium secu-

rity prison); North Carolina v. Rice, 404 U.S. 244, 246 (1971)

(plaintiff’s challenge to a drunk-driving sentence after he

had been completely discharged was moot because “fed-

eral courts are without power to decide questions that

cannot affect the rights of litigants in the case before

them”); DeFunis v. Odegaard, 416 U.S. 312, 317 (1974)

(student’s challenge to state law school’s admissions pol-

icy rendered moot by his registering for the final quarter

of law school since “[t]he controversy between the parties

has thus clearly ceased to be ‘definite and concrete’ and

no longer ‘touch[es] the legal relations of parties having

adverse legal interests’ ”) (quoting Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 240-41 (1937)); Pasadena City Bd. of

Educ. v. Spangler, 427 U.S. 424, 430 (1976) (equal protec-

tion challenge to the racial composition of local public

schools “clearly moot” since plaintiff students had gradu-

ated and “no longer ha[d] any stake in [the case’s] out-

come”); Church of Scientology v. United States, ___ U.S. __,

113 S.Ct. 447, 449 (1992) (“[I]f an event occurs while a

case is pending on appeal that makes it impossible for the

court to grant ‘any effectual relief whatever’ to

a prevailing party, the appeal must be dismissed”) (quot-

ing Mills v. Green, 159 U.S. 651, 653 (1895)).

As previously mentioned, Faulkner has opposed a

motion filed in the district court to dismiss her claim as

moot. Faulkner’s opposition is based on her assurances

that if women were admitted to The Citadel, she would

“consider re-applying.” Affidavit of Shannon Faulkner

(“Faulkner aff.”), dated September 12, 1995, attached to

Memorandum in Opposition to Motion to Dismiss Plain-

tiff Faulkner (“Memorandum”) (App. 7). She argues that

she still has a personal stake in the outcome of this

litigation because she may seek readmission at some

unspecific time in the future if, but only if, other women

are admitted. Memorandum at 2 (App. 2). Under Article

Ill, however, a justiciable controversy must be current

and cannot be predicated on mere speculation that such a

controversy may arise in the future. See, e.g., O'Shea v.

Littleton, 414 U.S. 488, 494 (1974) (a plaintiff’s injury

“must be both ‘real and immediate,’ not ‘conjectural’ or

‘hypothetical.’ ”) (quoting Golden v. Zwickler, 394 U.S. 103,

109 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co.,

312 U.S. 270, 273 (1941); United Public Workers v. Mitchell,

330 U.S. 75 (1947)); Lujan v. Defenders of Wildlife, 504 U.S.

555, 564 (1992) (alleged injury must be “actual or immi-

nent,’ not ‘conjectural’ or ‘hypothetical’ ”) (quoting

[Whitmore v. Arkansas, 495 U.S. 149, 155 (1991)] (quoting

Los Angeles v. Lyons, 461 U.S. 95, 102 (1983))). Thus,

despite Faulkner’s assurance in the district court that,

although she does “not know where the future leads,”

Faulkner Aff. at 2 (App. 7), it may someday lead her

to seek admission to The Citadel, her petition is moot

since she “is not currently interested in pursuing a

Citadel education.” Motion of Nancy Mellette to Inter-

vene at 17a. -

Faulkner has also argued in the district court that her

case falls within the exception to the mootness doctrine

for controversies that are “capable of repetition, yet evad-

ing review.” DeFunis, 416 U.S. at 318 (quoting Southern

Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)); Mem-

orandum at 3 (App. 3-4). Yet, this exception applies only

where “two elements combine: (1) the challenged action

was in its duration too short to be fully litigated prior to

its cessation or expiration, and (2) there was a reasonable

expectation that the same complaining party would be

subjected to the same action again.” Weinstein, 423 U.S. at

149. Faulkner cannot satisfy either element. The alleged

constitutional violation, denial of admission to The Cita-

del, extends over four years and as the history of this case

demonstrates will not evade review. Furthermore, Faulk-

ner has failed to demonstrate with any degree of certainty

that she will again seek admission to The Citadel. See,

e.g., Murphy v. Hunt, 455 U.S. 478, 482 (1982) (“The Court

has never held that a mere physical or theoretical possi-

bility was sufficient to satisfy the test stated in Weins-

tein.”). Not surprisingly, Faulkner is unable to cite any

authority to support her remarkable suggestion that a

plaintiff who voluntarily renounces the relief she sought

(and received) may continue to litigate the case because

she may again be denied that relief if she someday renews

her claim.

Faulkner also claims to have a personal stake in this

case because there is a motion pending in the district

court for certification of a class. (App. 3). To support this

proposition, Faulkner cites United States Parole Comm'n v.

Geraghty, 445 U.S. 388 (1980). Geraghty, however, merely

held that a denial of class certification may be appealed

even after the named plaintiff’s individual claim becomes

moot. The Geraghty Court made clear that a plaintiff who

has no personal stake in the outcome of the case at the

time the class certification request is decided cannot pre-

vent the mootness of the action. 445 U.S. at 404 n.11.

Thus, Geraghty expressly precludes the result Faulkner

seeks to achieve.

CONCLUSION

For the foregoing reasons, Respondents suggest that

Faulkner’s request for review is moot and her petition for

a writ of certiorari should therefore be dismissed.?

M. Dawes Cooke, Jr.

BARNWELL, WHALEY,

PATTERSON & HELMs

134 Meeting Street

Charleston, South Carolina

29402

(803) 577-7700

Rosert H. Hoop

Hoop Law Firm

172 Meeting Street

P. O. Box 1508

Charleston, South Carolina

29402

(803) 577-4435

*Counsel of Record

CHARLES J. CoopER*

MicHaAeL A. CARVIN

VINCENT J. COLATRIANO

Davip H. THOMPSON

SHAW, PITTMAN, Potts

& TROWBRIDGE

2300 N Street, N.W.

Washington, D.C. 20037

(202) 663-8000

CHARLES MOLONY CONDON

Attorney General for the

State of South, Carolina

Treva G. ASHWORTH

KENNETH P. WOoDINGTON

CAMERON B. LITTLEJOHN, JR.

P. O. Box 11549

Columbia, South Carolina

29211

(803) 734-3970

2 Aiternatively, the Court may wish, in light of the moot-

ness of Faulkner’s claims, to grant Faulkner’s petition, vacate

the court of appeals’ judgment insofar as it relates exclusively to

Faulkner and provides relief unique to Faulkner, and partially

remand to the court of appeals with directions that it instruct

the district court to dismiss those aspects of this case as moot.

See United States v. Munsingwear, 340 U.S. 36 (1950). See also

Deakins v. Monaghan, 484 U.S. 193, 199-200 (1988); CIA v. Holy

Spirit Ass'n, 455 U.S. 997 (1982).

App. 1

APPENDIX

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

SHANNON RICHEY

FAULKNER, individually and

on behalf of all others

similarly situated,

Plaintiff-Intervenor,

CASE NO.

2:93-0488-2

MEMORANDUM IN

OPPOSITION TO

V.

and the UNITED STATES of

AMERICA,

Plaintiff-Intervenor,

MOTION TO

_ DISMISS PLAINTIFF

JAMES E. JONES, Jr., et al. FAULKNER

Defendants,

and the

STATE OF SOUTH

CAROLINA, et al.,

Additional Defendants.

Nee eee eee eee eee eee eee

Defendants maintain that with Plaintiff Faulkner

entering and withdrawing from the Corps of Cadets in

August of 1995, the claims she presented are moot. While

Plaintiff filed her claim as a class action and has made

motions to certify the case at different times, there has

been no ruling as to class certification. The Defendants

claim that since the class is not yet certified and the

injunctive rulings have applied solely to Plaintiff Fau-

Ikner despite her request for class relief, she should be

dismissed from this case.

App. 2

Plaintiff submits that her case is not moot for two

reasons: (1) Plaintiff still has a legally cognizable interest

in the outcome; and (2) extraordinary conditions exist

which negate Defendant’s claims of mootness.

(a) Plaintiff Faulkner still has a legally cognizable inter-

est in the outcome of this litigation.

A case may become moot when the issues presented

are no longer live or the parties lack a legally cognizable

interest in the outcome. Powell v. McCormack, 395 U.S. 486,

496 (1969). In the case at hand, it is clear the issues are

still “live” since the United States itself is a plaintiff-

intervenor and another individual (Nancy Mellette) seeks

to intervene, and no party to this case contends that the

underlying legal issue of discrimination by Defendants is

resolved. Additionally, Plaintiff Faulkner asserts that she

still has a legally cognizable interest in the outcome of

this suit. While Faulkner initially withdrew from The

Citadel on August 18, 1995, Faulkner contends that males

who have withdrawn from The Citadel have been re-

admitted. In her Affidavit (See Exhibit A, Affidavit of

Shannon Richey Faulkner), Faulkner states that she is still

interested in attending and graduating from The Citadel,

but would not re-apply without the presence of other

women. Faulkner, like males who withdraw from The

Citadel, has the right to re-apply for admission. The

Citadel implies that because Faulkner withdrew she for-

feited her right to re-enter, which is not the case. In fact,

this interpretation perpetuates the Defendants’ policy of

treating males different from females.

App. 3

Additionally, Faulkner still has an interest in the class

action aspect of this case, which has yet to be ruled upon.

In Defendant’s motion to dismiss Faulkner, they rely

upon Pasadena City Board of Education v. Spangler, 427 U.S.

424, 430 (1976). However, in United States Parole Commis-

sion v. Geraghty, 445 U.S. 387, note 7 (1980) the Supreme

Court limited the holding of Pasadena to the facts pre-

sented.

The case is not moot. A controversy still exists in

Faulkner’s right to be afforded the same rights entitled to

males at The Citadel, including the right to attend, the

right to withdraw, and the right of re-admission.

(b) Extraordinary conditions exist which negate Defen-

dants’ claim of mootness.

Federal Courts have long recognized that cases rai-

sing substantial issues should not be dismissed for tech-

nical jurisdictional reasons where the only effect of the

dismissal is simply the renewal of the lawsuit. See United

States v. W.T. Grant Co., 345 U.S. 629 (1983). For instance,

in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911),

the Supreme Court held an action over an expired order

was not moot since the issues were “capable of repetition,

yet evading review” 219 U.S. at 515. The Supreme Court

used similar reasoning in Moore v. Ogilive, 394 U.S. 814

(1969) to declare a “continuing controversy” existed

regarding candidates in a prior election and rejected

arguments of mootness. 394 U.S. at 816.

There can be no question that the issues presented

are “capable of repetition, yet evading review” due to the

hundreds of inquiries from women who The Citadel will

App. 4

not even let apply due to their gender. Lastly, Faulkner’s

personal situation is capable of direct repetition. Should

Faulkner seek re-admission, as stated in her affidavit, she

would be forced to re-institute litigation to secure equal

rights in the re-admission process.

No one can dispute that Faulkner entered and left the

Citadel under unique, difficult and novel circumstances.

Faulkner asserts that she has a continuing interest in this

case and that the equities mandate her remaining a party.

For the foregoing reasons, Defendants’ motion to dismiss

Faulkner as a party should be denied.

Henry Weisburg Valorie K. Vojdik

Thomas Swift New York University

Mary Warren School of Law

Vanessa Beever 137 MacDougal Street

SHEARMAN & New York, New York

STERLING 10012-1096

Citicorp Center

153 East 53rd St.

New York, New York

10036

/s/ Suzanne E Coe Robert R. Black

Suzanne E. Coe

23 Broad Street

a & COE, P.O. Box 643

408 N. Church Street, epee Oe SOaee

Suite C

Greenville, S.C. 29601

App. 5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

SHANNON RICHEY

FAULKNER, individually and

on behalf of all others

similarly situated,

Plaintiff-Intervenor,

CASE NO.

2:93-0488-2

and the UNITED STATES of

AMERICA,

Plaintiff-Intervenor,

v.

JAMES E. JONES, Jr., et al.

Defendants,

and the

STATE OF SOUTH

CAROLINA, et al.,

Additional Defendants.

Nm ee eee eee”

AFFIDAVIT OF SHANNON RICHEY FAULKNER

Shannon Richey Faulkner, being duly sworn, states the

following:

1. Iam the Plaintiff in this action. I filed this action

as a class action on behalf of myself and other women

similarly situated. In August of 1995, I was admitted to

the Citadel and withdrew from the Citadel on August 18,

1995. I withdrew due to severe stress from the situation.

Due to stress, I could not keep my food in my stomach.

Much of this stress was from the litigation itself. How-

ever, a great deal of stress was from being the only

App. 6

woman at the Citadel, the constant presence of the press,

and the feeling that the entire world judged every mis-

take, mishap and movement I made. From this stress and

the feeling that I could not trust anyone with my feelings

since the persons surrounding me in the infirmary had

testified against my admission. I really could not foresee

any situation changing. Being this upset, I chose to with-

draw from The Citadel. Even the process of deciding to

stay or leave added stress;

2. When I decided to withdraw, I knew that I was

under a great deal of stress. I have never been so emo-

tional in my life. Looking back, I cannot believe how the

situation evolved into emotional catastrophe for me. |

usually am not very emotional and try to avoid making

decisions based upon my feelings. I did not want to make

a final decision to leave the Citadel, and knew that my

state of mind was not rational. I asked General Poole if I

could have a medical discharge to see another doctor and

seek another medical opinion (besides the opinion of Dr.

Robinson, who testified against me even being there and

submitted an affidavit attempting to block my admis-

sion). General Poole told me that this was not an option.

3. Under the circumstances, I believe it was the best

thing for me to withdraw from the Citadel. However, I do

believe that the Citadel was not truly interested in my

staying. I now recognize that it was an impossible task to

require myself to perform under the world’s spotlight in

surroundings where I did not have even a person to

confide in. Being completely cut off from the outside

world, except for the glare of cameras, I felt stranded,

isolated and hated.

App. 7

4. I am not attending college at this time. Instead, I

am using this time to reflect and determine my future. I

am also beginning counseling to help me deal with stress

and eliminate the effects stress has had on my life.

5. While I do not know where the future leads me, I

still fundamentally believe in the justice of my case. I also

believe that had other women been with me, the outcome

might have been different. I often think about how differ-

ent it would be with other women to share the burdens

and challenges of being the “first”.

6. I understand that there are other women who

have inquired into admission to The Citadel, and others,

such as Nancy Mellette, who are already determined to

attend. I understand that other Citadel students have

withdrawn from the Citadel and been re-admitted upon

application. If other women were present at the Citadel, I

would definitely consider re-applying to finish my degree

at The Citadel. I attended day-classes at The Citadel for

approximately a year and a half. All of my credits have

been accepted by transfer by The Citadel or originated at

The Citadel. I am classified as an incoming Junior. I do

have a concern about my credits fully transferring in

another college since I am in upper-level courses now.

Additionally, I still respect The Citadel as a school and

still think about wearing “The Ring”. However, I do not

want to be alone again.

7. When I entered The Citadel, I truly did not

fathom the burden I put on myself by being the only one.

I do not think anyone could truly foresee the awful

feeling this was.

|

App. 8

8. I do not believe the gates of The Citadel should

be shut on me for trying to accomplish the impossible.

The Citadel re-admits male cadets who leave under much

different reasons. I have not foreclosed the option of

requesting re-admission from The Citadel; However, I

would not go in alone again.

9. I filed this action as a class action. My interests

have not changed at all since the day I filed this action. I

fought for the right to be treated equally. I still desire this

right, including the right to be re-admitted with other

women. I request this Court deny The Citadel’s motion to

dismiss me as a Plaintiff. I still stand ready to serve as a

class representative, as I requested years ago, and still am

detrimentally affected by The Citadel’s state-sanctioned

policy of treating me different from males.

/s/ Shannon Richey Faulkner

Shannon Richey Faulkner

Date: 12 Sept 95

SWORN TO BEFORE ME THIS

12 day of September, 1995.

/s/ Suzanne E. Coe

Notary Public for South Carolina

My Commission Expires: 5/6/2002

App. 9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Defendants,

and the

STATE OF SOUTH CAROLINA,

et. al.,

Additional Defendants.

SHANNON RICHEY FAULKNER, ) CASE NO.

individually and on behalf of all ) 2:93-0488-2

others similarly situated, )

Plaintiff-Intervenor, )

4 ) AFFIDAVIT OF

) ALBERT

and the UNITED STATES of ) EDWARD

AMERICA, ) FAULKNER, JR.

Plaintiff-Intervenor, )

v. |

JAMES E. JONES, Jr., )

et. al. )

)

)

)

)

)

)

)

PERSONALLY APPEARED BEFORE ME, ALBERT

EDWARD FAULKNER, JR., being duly sworn, and states:

1. I am the father of Shannon Richey Faulkner, the

Plaintiff in this action;

2. I went to Charleston on August 18, 1995, due to a

call we received from Shannon about her stomach and

her desire to return home;

3. Along with Suzanne Coe and my son Todd, I

went to The Citadel to check on Shannon;

App. 10

4. When we arrived at the Infirmary, we went to

Shannon's room. I have never, in the twenty years I have

raised Shannon, seen her as emotional and irrational as

that day. She was hysterical, said she could not take the

pain of her stomach and stress anymore and wanted to

come home. As a parent, I have never felt so powerless in

my life. | know that Shannon truly did want to attend The

Citadel and graduate. I also know that on August 18,

1995, my heart broke when I saw how difficult and lonely

this was for her. Throughout this, General Poole kept

coming in and asking “What are you going to do”, to us

all. We would respond that we were talking and needed

time. Shannon asked him, in my presence, if she could

have a medical leave to consult another doctor about the

pain in her stomach and stress. General Poole told her

this was not possible. When we had been in the room

about 45 minutes with Shannon, General Poole pulled me

aside and told me Shannon had 15 minutes to make a

“final” decision to stay or go. He told me that if she was

not in “formation” in 15 minutes, she would have to

withdraw. At this point, Shannon was so upset that I was

powerless to do anything about it. During the approxi-

mate 45 minute session we had with Shannon, we tried to

get her other counsel on the phone and let her know how

everyone was behind her. When the nurse (Beth Summer-

ford, who testified against Shannon before this Court)

learned that we were using the phone, she sent someone

in to take it out of the wall to further cut Shannon off. I

was in disbelief at the pettiness.

When our 15 minutes were up, Shannon was still

hysterical. There was no way she could be in formation.

General Poole came in the room, and asked for either an

App. 11

immediate decision or for Shannon to go to formation

immediately. That was when Shannon told them she

desired to withdraw.

5. During this entire process, a massive press entou-

rage was gathered outside the infirmary, in Shannon’s

direct view. She would look out the window and cry,

holding her stomach.

6. While in with Shannon, I saw what kind of stress

she really was under. I have never actually “felt” loneli-

ness coming from someone like | did in her infirmary

room. It is a feeling I never hope to feel again.

7. I have no doubt that Shannon left The Citadel

under extreme stress. We have now engaged counseling

services to help her deal with her feelings regarding the

litigation. The family is helping Shannon determine her

future. Everyday, her feelings about her future are

brighter. She has repeatedly told us that it would have

been different if she had not been alone. Shannon has

stated repeatedly to me and other family members that if

other women were present, she would consider finishing

her education at The Citadel.

As always, we support Shannon and any plans for her

future. Should she decide to apply for re-admission to

The Citadel, we would support her decision. However,

we would require that this time she not be alone.

/s/ Albert E. Faulkner, Jr.

ALBERT EDWARD FAULKNER, JR.

App. 12

SWORN TO BEFORE ME

THIS 12 day of September, 1995.

/s/ Suzanne E. Coe

Notary Public for South Carolina

My Commission Expires: 5/6/2002