Amicus Curiae Brief — Johnson v. Robison

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SUPREME CouRT, u. 8 LE >

IN THE 1——

Supreme Court of the United States

OCTOBER TERM, 1973

No. 72-1297

DONALD E. JOHNSON, ADMINISTRATOR OF

VETERANS’ AFFAIRS, ET AL.,

Appellants,

WILLIAM ROBERT ROBISON, ETC.

Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MASSACHUSETTS

BRIEF FOR THE NATIONAL INTERRELIGIOUS

SERVICE BOARD FOR CONSCIENTIOUS OBJECTORS

AS AMICUS CURIAE

DONALD S. BURRIS

Suite 1015, Barlow Building

5454 Wisconsin Avenue, N. W.

Washington, D.C. 20015

Attorney for Amicus Curiae

rs hs Siete

—

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ................... 1

c Acc 3

STATUTES AND REGULATIONS INVOLVED ........ 3

QUESTIONS PRESENTED .............. Snes Sa NS 5

STATUIRGINT. OFF THRE CAGE inno 6c 5.60 onten SS ta cncs 6

SUMMARY OF ARGUMENT hh 9

U ³ Wn nd eed eed SUS 13

I. Congress has mandated that conscientious

objectors serve their country in a manner

which disrupts their lives for the same

period that a nonconscientious objector

must serve in military duties 13

A. The background of alternate service ............ 13

B. The statutory and regulatory framework i8

C. The practical effects of disruption for

rr. eri TAPE x 21

II. The Veterans Readjustment Benefits Act

was designed to compensate persons serving

their country for the disruption in their

lives caused by two years of compulsory

ORSON | SSL OCGA AR RSS ORS TOR BL 25

A. The structure of the Act ..... 2.00... 0....050. 25

B. The general legislative purposes 25

III. The exclusion of conscientious objectors from

benefits under the Veterans Readjustment Benefits

_ Act bears no reasonable relationship to the

purposes of the Act and therefore represents an

unconstitutional classification 33

(ii) Page

IV. Section 211(a) of Title 38 did not bar the District

Court from reviewing the constitutionality of the

statutory exclusion from veterans benefits 38

A Fes ee ee Pewee ee ee re 41

AUTHORITIES CITED

CASES:

Appeal of Peter W. Sly, Board of Veterans Appeals, 1972.

og er» | ee Pa eee es . 7, 13,39

Bolling v. Sharpe, 347 U.S. 497 (1954) .............. 11, 33

Braunfield v. Brown, 366 U.S. 599 (1961) .............. 38

Breen v. Local Board No. 16, 393 U.S. 460 (1970) ........ 40.

Bullock v. Carter, 405 U.S. 134 (197 ᷣꝶꝶꝰ7 36

Clark v. Gabriel, 393 U.S. 256 (1968) .................. 40

Fein v. Local Board No. 7, 405 U.S. 365 (197⸗ᷣꝶ77 40

Fishgold v. Sullivan Drydock and Repair Corp., 328

. AA ⁰⁰1AAA ˙¹w ͤmꝗ 1: bbe . 460 46 5 22

Gardiner v. Tarr, 341 F. Supp. 423 (D. D.C. 19777 14

Graham v. Richardson, 403 U.S. 365 (1970) ............- 34

Hackney v. Tarr, 460 F. 2d 575 (4th Cir, 1972)........ 10, 20

Hester v. Melidosian, 261 F. Supp. 659 (D.C. Pa. 19660) 39

Howze v. United States, 272 F. 2d 146 (9th Cir, 19599 20

Jefferson v. Hackney, 406 U.S. 535 (1972 ·D27722 12

Leedom v. Kyme, 358 U.S. 184 (1958) ................-. 39

McGowan v. Maryland, 366 U.S. 420 (1961) ............. 33

Me Kart v. United States, 395 U.S. 185 (1969) ............ 39

Miller v. Laird, 349 F. Supp. 1034 (D.D.C. 1972) ......... 36

Morey v. Doud, 354 U.S. 457 (1957)7)ʒ )) 36

Ng Fung Ho v. White, 259 U.S. 276 (1921177 39

Oestereich v. Local Board No. 11, 393 U.S. 233 (1968) 40

Reed v. Reed, 404 U.S. 71 (1971777 36

Reynolds v. United States, 292 U.S. 443 (1934) .......... 39

Roodenko v. United States, 147 F. 2d 752, cert denied,

ee eg Ee aie ng Sabbedipgcn Sale ne A 17

(iti) Page

Royster Guano Co. v. Virginia, 253 U.S. 412 (19200) 7,37

San Antonio Independent School District v. Rodriquez,

/ ˙AA AA kamiceendin 33, 34, 35

Schnieder v. Rusk, 377 U.S. 163 (1960ů õ P.;:nni; ;; 33

Shapiro v. Thompson, 394 U.S. 618 (1969999 12 11, 12

Sherbert v. Verner, 374 U.S. 398 (1963)) 38

United States v. Boardman, 419 F. 2d 146 (Ist Cir, 1969) . . .20

United States v. Dudley, 451 F. 2d 1300 (6th Cir, 1971)... .14

Wisconsin v. Yoder, 406 U.S. 205 (197 2ùł·;fr 38

Zannie v. Liberty National Bank & Trust Co., No. D-78774

(N.Y.S. Ct., December 4, 1972), 6 Selective Service

Re ie ae eye 21

STATUTES AND REGULATIONS:

Constitution of the United States:

Fifth Amendment

. cxce 21, 23

Oe EE ee EER 8 so 6.0. 8 earns 0h.6.004 CA a dae passim

r rene passim

Sure rden passim

SE UBC. BIGGIN ese SSS i 4,5

SOUBC, g BOSONS) 20 ccwcwsccccccbuivbeaves 22

SO UBC. Daw, . ᷣͤ „ 14, 18

50 U.S.C. App. S 4G0Cb( )))): 39, 40, 41

r 14

D re 14, 18

. A ˙ ˙²˙Ä˙ .. Kenne 21

aer tente . ei Ni ee. 18

Selective Service Act of 1951, C l ùhùͥhh 17

Selective Service Regulations, 8 79, Rule XIV (1917) 16

Selective Training and Service Act of 1940, §5(g) . .9, 14, 16

TEXTS:

1 Annals of Congress, Ist Congress (1789) ............. 16

Army Times, vol. 33, no. 52 (August 1, 1973) ......... 31

Gingrich, Service for Peace, (Mennonite Central

CG, BUNUN bacatevcncvcuweks actu tacece ba 17

(iv) Page

Publishing House, 1922)... 2.2... 2... ee eee ee ee 16

Hearings, Committee on Veterans Affairs,

House, 89th Cong, Ist sess, (1960) 28

Hearings, Subcommittee on Veterans Affairs,

Senate, 89th Cong, Ist sess, (19690) 28, 30, 32

Hearings on Selective Service and Military Compensation,

committee on Armed Services, Senate, 92nd Cong,

r ia cad cas oer) ee 31

House Report No, 1258, 89th Cong, 2nd sess, (1966) . .28

Local Board Memorandum No, 64, (19690)0ͥõõ 20

Local Board Memorandum No. 98, (1969h0 ⸗- 18

NISBCO, The Reporter for Conscience’ Sake ........... 22

Peterson & Fite, Opponents of War, 1917-18,

(University of Michigan Press, 1957) ..............- 16

Schlissel, Conscience in America, (Dutton, 1968) 16

Selective Service System, Special Monograph No. 11,

Conscientious Objection, (1958 1777))j 15, 16

Selective Service System, National Advisory

Commission Report, (196770)zꝛn 26

Selective Service System, Semi-Annual Report of the

Director of Selective Service, (December

c A 2

Senate Report No. 269, 89th Cong., Ist sess. (1965) . passim

Silard, Invalid Disruption Rules for CO

Alternative Service, 3 Col. Survey of Human Rights

. ddl! ; e 20

1966 U.S. Code Cong. Rec. & Admin. News ........... 25

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 72-1297

DONALD E. JOHNSON, ADMINISTRATOR OF

VETERANS’ AFFAIRS, ET AL.,

Appellants,

WILLIAM ROBERT ROBISON, ETC.

Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MASSACHUSETTS

Rule 42(2) of the Rules of this Court, with the Clerk of the Court.

The National Interreligious Service Board for Con-

scientious Objectors (NISBCO) is a tax-exempt charitable

and educational organization which since its founding in

1940 has provided various counseling and informational

services to registrants under the Selective Service System

and to members of the nation’s armed forces who seek

assistance in applying for transfer to noncombatant service

or discharges for reasons of conscience. The organization’s

Board of Directors includes representatives of the Men-

nonite Central Committee, American Baptist Church,

Church of the Brethren, United Methodist Church, Christ’s

Catholic Conference, Lutheran Council in the USA,

Church of the Brethen, United Methodist Church, Christ’s

Sanctified Holy Church, Friends United Meeting, United

Presbyterian Church (USA) and Unitarian Universalist

Association. Its Consultative Council represents almost

fifty separate religious organizations. Furthermore, since its

founding in 1940, NISBCO has been called upon by both

the Selective Service System and the various armed services

to comment upon various legislative and regulatory

proposals and to suggest procedural and substantive changes

in the statutes and regulations which, in NISBCO’s judg-

ment, would insure a more equitable administration of

applications for conscientious objector status.

The National Interreligious Service Board for Con-

scientious Objectors has a direct and substantial interest in

the outcome of this proceeding.* One of the stated aims of

the organization is to provide counsel and assistance to

those seeking meaningful alternative service and to those

[persons classified] I-W who seek equitable treatment.

Another is to provide professional counseling and up- to-

date literature and memos on every facet of the conscien-

tious objector's claim and appeal procedures. In pursuit

of these aims, NISBCO has served as an educational

*Counsel wishes also to acknowledge the assistance of Duane Shank

of NISBCO in the preparation of this brief.

resource advising the Congress and the military and draft

authorities on the problems of conscientious objection.

Representatives of NISBCO have testified on numerous

occasions to the need for a fair and equitable administra-

tion of the system of alternate service. Moreover, as one

of the largest and most experienced counselling organiza-

tions in this country, NISBCO has viewed at first-hand

the disruption alternate service has caused in the lives of

conscientious objectors and the hardship resulting from the

failure to allow educational benefits at the conclusion of

this service. In fact, in the period since the decision of the

District Court in this proceeding, the organization has

received numerous inquiries from conscientious objectors

tions for such benefits and in the process chronicling the

c having on

their lives.

In the view of the amicus, there is no basis, either in

logic or in law, for denying conscientious objectors who

have performed their obligations to serve their country in

work of national importance, the right to receive educational

benefits afforded as a matter of course to those who have

served an identical period of time in active military service.

Instead, NISBCO urges that this Court uphold the decision

of the District Court and thus reaffirm that conscientious

objectors perform important service in the national interest

and are not to be treated as second-class citizens.

OPINION BELOW

The opinion of the District Court for the District of

Massachusetts is reported at 352 F. Supp. 848.

STATUTES AND REGULATIONS INVOLVED

Section 1652(a)(i) of the Veterans’ Readjustment

Benefits Act of 1966, 38 U.S.C. §1652(a)i) defines

“eligible veteran under the Act as:

any veteran Who . . served on active duty for

a period of more than 180 days any part of which

occurred after January 31, 1955 and who was

discharged or released therefrom under conditions

other than dishonorable or . . . was discharged or

released from active duty after such date for a

Section 1661(a) of the Act, 38 U.S.C. §1661(a),

provides:

Except as provided in subsection (c) and in

the second sentence of this subsection, each

eligible veteran shall be entitled to educational

assistance under this chapter for a period of one

and one-half months (or the equivalent thereof in

part-time educational assistance) for each month

or fraction thereof of his service on active duty

after January 31, 1955. If an eligible veteran has

served a period of 18 months or more on active

duty after January 31, 1955, and has been re-

leased from such service under conditions that

would satisfy his active duty obligations, he shall

be entitled to educational assistance under this

chapter for a period of 36 months (or the equi-

valent thereof in part-time educational assist-

ance).

Section 101 (21) of Title 38 defines the term active

duty as including:

Y full-time duty in the Armed Forces, other

than active duty for training;

) full-time duty (other than for training

purposes) as a commissioned officer of the

Regular or Reserve Corps of the Public Health

Service (i) on or after July 29, 1945, or (ii)

before that date under circumstances affording

entitlement to ‘full military benefits’ or (iii) at

any time, for the purposes of chapter 13 of this

title;

OO — — —

„O) full-time duty as a commissioned officer

of National Oceanic and Atmospheric Adminis-

tration or its predecessor organization the Coast

and Geodetic Survey (i) on or after July 29, 1945,

or (ii) before that date (a) while on transfer to one

of the Armed Forces, or (b) while, in time of

war or national emergency declared by the Presi-

dent, assigned to duty on a project for one of

the Armed Forces in an area determined by the

Secretary of Defense to be of immediate military

hazard, or (c) in the Phillippine Islands on

December 7, 1941, and continuously in such

islands thereafter, or (iii) at any time, for the

purposes of chapter 13 of this title;

„O) service as a cadet at the United States

Military, Air Force, or Coast Guard Academy,

or as a midshipman at the United States Naval

Academy; and

„) authorized travel to or from such duty or

service.

Section 21 1a) of Title 38 provides, in pertinent part,

that:

the decisions of the Administrator on any ques-

tion of law or fact under any law administered

by the Veterans Administration providing benefits

for veterans and their dependents or survivors

shall be final and conclusive and no . . court of

the United States shall have power or jurisdiction

to review any such decision

QUESTIONS PRESENTED

1. Whether the educational assistance provisions of the

Veterans’ Readjustment Benefits Act, 38 U.S.C. §$§1652(a)

(i) and 1661(a), that provide financial assistance to veterans

\ — 6

who have served a requisite period of active duty but not

to conscientious objectors who have completed a similar

period of alternate service, are violative of the Due Process

Clause of the Fifth Amendment?

2. Whether the statutory prohibition against judicial

review of the decisions of the Administrator of the

Veterans Administration, 38 U.S.C. §211(a), should bar

review of the claim that the educational assistance

provisions of the Act are unconstitutional?

STATEMENT OF THE CASE 2

This proceeding was instituted by William Robert

Robison, a conscientious objector who satisfactorily per-

formed two years of alternate service in the national

interest at Peter Brent Brigham Hospital in Boston,

Massachusetts. At the conclusion of his employment, Mr.

Robison enrolled as a full-time student at Northwestern

University Law School. Shortly thereafter, he was informed

by the Veterans Administration in response to his request

for assistance, that whatever his need he was not entitled

to educational benefits under the Veterans’ Readjustment

Benefits Act of 1966.

Facing a possible financial crisis, Robison brought suit

in the District Court for the District of Massachusetts on

behalf of himself and all similarly-situated conscientious

objectors. The complaint asked for a declaratory judgment

that the provisions of the Veterans’ Readjustment Benefits

Act which barred conscientious objectors from seeking

educational benefits were violative of the Due Process

Clause of the Fifth Amendment and imposed a penalty

in violation of the First Amendment right to free exercise

of religion. The Government moved to dismiss the

complaint on three grounds: (1) because the court lacked

jurisdiction under 38 U.S.C. §211(a) to review the deci-

*The complaint is reproduced at Appendix, pages 5-9.

sions of the Administrator of any question of law or fact

under any law administered by the Veterans Administra-

tion’’; (2) because Robison had not exhausted his adminis-

trative remedy before the Board of Veterans’ Appeals; and

(3) because the statutory distinction between active military

service and alternate service was not constitutional. The

case was then heard upon the plaintiff's motion for

summary judgment and defendants’ motion to dismiss.

The District Court granted summary judgment in favor

of Robison’s position. The court rejected the contention that

Section 211(a) barred review on the ground that:

‘Plaintiffs do not seek review of any such

decision nor any affirmative relief . but

rather a declasatory judgment dhe a ‘law being

administered by the Veterans Administration’

violates the Constitution of the United States.

352 F. Supp. at 853.

The court dismissed in similar fashion the contention that

c et etm yt

Peter W. Sly, Board of Veterans’ Appeals, 1972. Docket

No. 72-07421.’’ 352 F. Supp. at 853. The court then

went on to discuss the merits of the constitutional issue.

In examining the challenged legislative classification,

the court applied the traditional standard of reasonable-

ness—i.e. whether the exclusion of conscientious objectors

from educational benefits bore a fair and substantial

relation to the object of the legislation, Royster Guano

Co. v. Virginia, 253 U.S. 412, 415 (1920), rather than

the stricter compelling interest test utilized by this Court

with respect to suspect classifications or fundamental rights

or liberties. The court cited the following four legislative

purposes listed in the preamble to the Veterans’ Act:

(J) enhancing and making more attractive service

in the Armed Forces of the United States,

(2) extending the benefits of a higher education

to qualified and deserving young persons who

might not otherwise be able to afford such an

education, (3) providing vocational readjustment

and restoring lost educational opportunities to

those servicemen and women whose careers have

been interrupted or impeded by reason of active

duty . . . and (4) aiding such persons in attaining

the vocational and educational status which they

might normally have aspired to and obtained

had they not served their country. 38 U.S.C.

4 51651.

Noting that the first stated purpose was intended by

Congress to be a subordinate one, 352 F. Supp. at 857,

the court rejected the premise that this purpose was served

by denying benefits to conscientious objectors in light of

the procedural safeguards in the Selective Service laws

against fraudulent conscientious objector claims and because

of the small likelihood that there were a group of persons

who were eligible for conscientious objector status, knew

about the educational benefits provisions, and were willing

to go into active service despite their well-founded con-

scientious objection to participation in the military simply

because they sought educational benefits at the conclusion

of their service. Jd. at 857. The three remaining purposes,

in the court’s view, reflected Congress’ desire simply to

eliminate the educational gaps between persons who served

their country and those who did not, Id. at 858, and

would not serve to uphold the classification between active

duty and alternate service since ‘‘the disruption is equal as

between the two groups. Id. In its discussion, the court

rejected the claim that the potential hazards of certain

forms of duty in the armed forces were relevant to the

congressional objectives in passing the Veterans’ Benefit

Act.

Finding that Sections 1652(a)(i) and 1661(a) of the statute

were thus unconstitutional in their application to con-

scientious objectors, the court ordered that Robison and the

members of his class — conscientious objectors who had

satisfactorily completed 180 days of alternate service or

been granted early release therefrom on the basis of hard-

ship or medical disability — be considered eligible to

receive educational benefits to the same degree and extent

as veterans of military service pursuant to 38 U.S.C.

§101 (21) and §1652(a){i). 352 F. Supp. at 862.

The District Court stayed its judgment pending this

appeal and this Court granted the Government’s request

for review on May 14, 1973.

As amicus, we concentrate our discussion on one of the

two issues raised on appeal: Whether the exclusion of con-

scientious objectors from eligibility for veterans’ educational

benefits violates the Due Process Clause of the Fifth

Amendment. We agree with the District Court’s summary

rejection of the Appellants’ contention that judicial review

of this issue is foreclosed by 38 U.S.C. §211(a), and deal

briefly with that issue in the final section of the brief.

SUMMARY OF ARGUMENT

The concept of conscientious objection to military service

has been well recognized by the Federal Government at

least since the Selective Service Act of 1940, and its roots

go back further in American history. Under the basic

system that has existed from 1951 to the present,’ con-

scientious objectors are required, in lieu of induction,

to serve two years of alternate service in a job which,

in the judgment of the officials of the Selective Service

System, contributed to the maintenance of the national

health, safety, or interest. While there are differences in

the precise nature of their respective service, conscientious

Actual authority to induct registrants into the Armed Forces and

alternate service expired on July 1, 1973.

r dain: ancien tos (Gatien

designed to insure that the effect on their lives will be

similar to that experienced by men on active duty. See

Hackney v. Tarr, 460 F. 2d 575 (4th Cir. 1972). And just as a

military member is subject to punishment under Title 10

of the United States Code for failing to perform his

The Veterans’ Readjustment Benefits Act of 1966, 38

U.S.C. §§1651-1697, (hereinafter sometimes referred to as

the Act’’ or the 1966 Act’’) was the most recent in

a series of statutes which granted to eligible veterans a

wide range of benefits, among which were monthly

payments for educational or vocational training at approved

colleges, universities and similar institutions. The 1966

Act was the first to extend these benefits to veterans of

the so-called ‘‘cold war’’ and subsequently its provisions

became applicable to veterans who served during the years

this country was engaged in the Vietnamese conflict.

Section 1652 (a)(i) of Title 38 provides that to be

eligible for benefits under the 1966 Act, a person must

have served on active duty for more than 180 days

and have been other than dishonorably discharged. The

definitional section of Title 38, Section 101 (21), which is

applicable to all veterans’ benefits legislation under that

title, defines ‘‘active duty’’ by setting forth various forms

of service, including full-time military service, duty as a

Public Health Officer and study at an Armed Forces

academy. Conscientious objectors who are called to and

do perform alternate service, while not specifically excluded

from educational benefits in Section 101 (21) or any section

of the 1966 Act, are rendered ineligible for such benefits

by indirection — i.e. by the failure of §101 (21) to

mention alternate service as a form of eligible service.

an unconstitutional discrimination violative of the equal

protection guaranteed all citizens through the Due Process

Ciouas’ of ia Pith Ateaduomt’ See ra. Seas e.

Thompson, 394 U.S. 618 (1969); Bolling v. Sharpe,

347 U.S. 497 (1954).

classification, which, under prior decisions of this Court,

would require that the Appellants demonstrate a compelling

federal interest in the classification. Clearly; there was no

compelling interest in excluding conscientious objectors

from entitlement to veterans’ benefits. But even under the

Veterans’ Readjustment Benefits Act of 1966.

The basic objective of the 1966 Act, as the District

Court found, was to compensate veterans for the depriva-

tion of educational and economic opportunities that inhere

in national service, 352 F. Supp. at 858, or phrased in

slightly different terms, to attempt to eliminate the

educational gaps between persons who served their country

and those who did not. Id. As we have stated and

show in graphic detail below, the disruption suffered by

veterans of alternate service is equal to, if not greater than,

that suffered by veterans of military service for, besides

being called into service involuntarily, a conscientious

objector does not enjoy certain re-employment rights

automatically attaching to veterans of military service.

Thus, the exclusion of conscientious objectors, even if

simply bears no relationship to the legislative purpose of

compensating young men for their disruption in their lives

caused by being subject to and inducted under the Selective

Service laws. Moreover, while Congress appears to have

had a second purpose in mind in enacting the 1966 Act,

namely, enhancing and making more attractive service in

the Armed Forces. . 38 U.S.C. §1651, the exclusion

of conscientious objectors fares no better as a possible

basis for validating the statute. For as suggested by the

court below, the assumptions that the exclusion of con-

scientious objectors will somehow prevent less than honest

claims to such status by persons who were now reluctant

to do so because of the absence of benefits or lead persons

of strong beliefs who are eligible to qualify as objectors

to enter into active military duty in order to receive

educational benefits are far too speculative and do not

support the required inference that a rational connection

exists between the exclusion and the goal. 352 F. Supp.

at 857-858. In our judgment, these assumptions border on

the frivolous .**

Section 211(a) of Title 38 is not a bar to judicial review

of the issue of the constitutionality of the 1966 Act as

applied to conscientious objectors. That section seeks to

prevent decisions of the Administrator of the Veterans

Administration of any question of law or fact under any

law administered by the Veterans Administration providing

benefits for veterans’? (Emphasis added). This may be a

"The suggestion that the exclusion is designed to save the Govern-

ment from larger expenditures, first raised in this Court, is, we think,

similarly without merit. Compare Jefferson v. Hackney, 406 U.S.

535(1972).

the ground that it had no jurisdiction to do so. In the

Appeal of Peter W. Sly, Board of Veterans’ Appeals

Docket No. 72-07421 (1972). Given the wording of the

statute referring to questions under any law administered

by the Appellant, its evident purposes and the ordinary

presumption in favor of judicial review of constitutional

questions regarding the powers of an administrative agency,

we think it clear that the court below correctly ruled that

the cause was not barred by §211(a).

ARGUMENT

CONGRESS HAS MANDATED THAT CONSCIENTIOUS

OBJECTORS SERVE THEIR COUNTRY IN A MANNER

WHICH DISRUPTS THEIR LIVES FOR THE SAME PERIOD

THAT A NON-CONSCIENTIOUS OBJECTOR MUST

SERVE IN MILITARY DUTIES

A. The Background of Alternate Service

Under each Selective Service Act enacted by Congress

since 1940 and the regulations promulgated thereunder,

every male citizen upon registering for the draft at age 18

has been placed within the lowest classification and then

reclassified by his local draft board according to his

changing status until such point as he became eligible for

. . . prescribe(d),’” 50 U.S.C. App. 84560), to

perform approved civilian alternate service contributing to

by his local board to report for military service had he

not been classified as a conscientious objector. See

Gardiner v. Tarr, 341 F. Supp. 423 (D.D.C. 1972); see

also 32 C. F. R. §1660.4(a) (1972; United States v.

submit to induction into the Armed Forces. 50 U.S.C.

App. 84560).

This system of civilian alternate service represented a

legislative judgment that the right to conscientious

objection from military service did not release a young

man of his obligation to serve his country for a period of

two years.* It was made in light of a long tradition of

conscientious objection, espoused often in the face of great

difficulties, throughout American history.

In the American colonies many members of various peace

“By contrast, in Great Britain conscientious objectors were exempted

from all forms of national service during World War II.

churches felt compelled to refuse service in the local

militia and some even refused payment of so-called Indian

war taxes’’, even in the face of threats of punishment

for such actions. Several states responded by recognizing in

general terms the right of conscientious objection from

participation in warfare. Selective Service System, Special

Monograph No. 11, Conscientious Objection (1951), at 30.

alternate service provision, providing that: :

All Quakers, Mennonists, Moravians, and

others conscientiously scrupulous of bearing arms,

who shall appear on any alarm with the militia,

though without arms, and obey the commands of

the officers in extinguishing fires, suppressing in-

surrection of Slaves or other evil-minded persons

during an attack, in caring for wounded, convey-

ing intelligence as expresses or messengers, Carry-

ing refreshments to such as are on duty, and in

conveying to places of safety women and children,

aged, infirm, and wounded persons, are free and

exempt from the penalties of the Act. Id.

The Continental Congress similarly assumed the right to

conscientious objection:

As there are some people who from religious

principles cannot bear arms in any case, this

Congress intend no violence to their consciencies,

but earnestly recommend it to them to contribute

liberally, in this time of universal calamity, to the

relief of their distressed brethren in the several

colonies, and to do all other services to their

oppressed country, which they can consistently

with their religious principles. Id. at 33.

Following the Revolutionary War, several states and

James Madison proposed that the Constitution contain a

specific guarantee of the right to exemption from military

service of persons ‘“‘religiously scrupulous of bearing

arms, 1 Annals of Congress, 1st Cong. (1789), at 433;

states from military duty. Special Monograph No.~11,

person to be excused from military service upon payment

of a bounty fee. Id. at 42-48. But many conscientious

objectors resided in states that did not exempt them from

other than carrying arms, and thus were torn between

paying a bounty fee or being sent to military prisons.

During the First World War, the Selective Service

Regulations provided a basic form of noncombatant service

for conscientious objectors. Selective Service Regulations,

§79, Rule XIV (1917). In practice, however, these persons

were inducted into the Armed Forces and then assigned to

noncombatant duty such as the Medical or Quartermaster

Corps. This created serious difficulties for those persons

who were conscientiously opposed to wearing a uniform

or directly contributing toward the mission of the Armed

Forces. The treatment of these persons was quite severe.

See generally Hartzler, Mennonites in the World War.

(Mennonite Publishing House, 1922); Peterson & Fite;

Opponents of War 1917-18 (University of Michigan Press,

1957); Schlissel, Conscience in America (Dutton, 1968).

In Section 5(g) of the Selective Training and Service Act

of 1940, the Congress for the first time made provision

for both conscientious objectors who would accept non-

combatant duty within the Armed Forces and those who

am St OEE eee Theis ection! shined

in pertinent part: i

ente bee tn d . bail ed coed

to require any person to be subject to combatant

training and service in the land or naval forces

of the United States, who, by reason of religious

training and belief, is conscientiously opposed to

participation in war in any form. Any such person

claiming such exemption from combatant training

and service because of such conscientious objec-

tions whose claim is sustained by the local board

shall... . , in lieu of such induction, be assigned

to work of national importance under civilian

direction.

Section 50g) remained unchanged during the six years the

Act was utilized, and under it developed a program known

as Civilian Public Service (CPS). Almost 12,000 con-

scientious objectors performed their work of national

importance at little or no pay in 151 CPS camps across

the country, with any earnings theoretically designed to be

placed into a special fund held by the Treasury Department

and earmarked for various relief work after the war.

Gingrich, Service for Peace (Mennonite Central Committee,

1949).5 This sytem of compulsory alternate service was

upheld by the federal courts on the express ground that

a soldier was deprived of similar rights by being required

to offer his life on the field of battle’’. Roodenko v.

United States, 147 F. 2d 752, cert. denied, 324 U.S.

860 (1944). Subsequently, in 1951 the Civilian Public

Service program became what we now term the alternate

service program. Selective Service Act of 1951, $1(g).

This brief history demonstrates that there has been in

this country a constant regard for the beliefs of those

ße fund, amounting to $1.4 million, was frozen by the Treasury

and merged into the Department’s general receipts in the late 19508.

citizens who felt conscientiously opposed to military

service, and a concomitant recognition that the conscientious

objector should be required to perform some form of service

in return for his being exempted from active military duties.

In light of this understanding, the fact that the Congress

in the 1940 Act recognized the right to be exempt from

either combatant or from both combatant and noncombatant

duties, but called for persons in the latter category to

perform work of national importance, must be viewed

as a congressional judgment that all conscientious objectors

would be required to serve the country in a manner closely

akin to the military service required of the ordinary draftee.

B. The Statutory and Regulatory Framework

In accordance with the requirement of service and the

analogy to other draftees, the Selective Service statute and

regulations have continued to set forth stringent require-

ments for the selection and supervision of alternate service.

Under the statute the registrant’s work must be ‘‘contribut-

ing to the national health, safety or interest. 50 U.S.C.

App. 84560) Under the most current regulatory language,

the work must not be in the competitive job market, the

compensation must relate to the pay received by Armed

Forces personnel and the registrant must work outside of

his community. See 32 C. F. R. §1660.6(a). There are no

geographic limitations on the last criterion; in fact, the

previous regulation, in effect when the appellee was

called to alternate service, expressly sanctioned ‘‘assignment

and abrupt reassignment in any part of the United States,

or overseas, including war zones. 32 C. F. R. §1660.31(b)

(1971). And finally, the local boards have been instructed

through the years to strictly employ these standards. For

example, Local Board Memorandum No. 98, Determina-

tion of Work for I-W Service, issued on September

11,1969, stated:

he Presidential Regulations define appropriate

civilian work as being limited to employment by

the Government, or by certain non-profit organiza-

) tions, but this does not require the local board

he local board, in carrying out its responsi-

bility... must see that the path of

conscientious objector... processed for...

civilian work parallels as nearly as possible to

the path of the I-A man in his processing for

performance of military duty. Under this theory,

the conscientious objector’s pay should be

reasonably comparable to the pay, allowances and

other benefits received by the man inducted into

the Armed Forces; and his assignment should be

beyond commuting distance from his home.

The registrant does not have the right to select

the work which he is to perform unless the job

selected is deemed by the local board to be

appropriate for the individual registrant, even

though the work selected by the registrant may

fall within the definition appearing in the regula-

tions. Local boards consider work assignment on

an individual case basis . . . an assignment to a

particular job for one registrant does not bind

his local board or other local boards to approve

a similar job for another registrant.”’

(Empahsis added).

In sum, it is, fair to say that through the years the

Selective Service System has strictly enforced standards for

alternate service work for conscientious objectors.“ The

purpose of these standards is self-evident; they were

designed, as was the entire alternate service program, to

recognize the right to conscientious objection while

alle viat(ing) the unfairness which results if conscientious

objectors continue to enjoy the fruits of civilian life while

their fellow citizens are conscripted. United States v.

Boardman, 419 F. 2d 110, 112 (ist Cir. 1969). See also.

Howze v. United States, 272 F. 2d 146 (9th Cir. 1959).

How well Congress has succeeded in preventing con-

scientious objectors from enjoying the fruits of civilian

life is evidenced by the nature of alternate service.

Conscientious objectors have served, and continue to serve,

in peaceful missions throughout the world, performing

service in the national health, safety and interest Some

have served in combat zones or as fire fighters and a few

of these have given their lives to their country. Even those

working in hospitals have everyday risked the contraction

of disease. Every veteran of alternate service has per-

formed his tasks at compensation at or below military

standards, some at the lowest level of subsistence. And out

of that pay, the conscientious objector, unlike his military

counterpart, must provide food, clothing and shelter.

The parallelism between the conscientious objector and

the ordinary draftee does not terminate with a disruptive

assignment to alternate service as approved by the federal

government, at a comparatively low level of compensation.

At one time the National Director of the System followed a policy

of rejecting assignments otherwise in the national interest on the sole

ground that the work did not disrupt in sufficient fashion the con-

scientious objector’s life. This policy was discussed and found invalid

in Hackney v. Tarr, 460 F. 2d 575 (4th Cir. 1972). See also former

Local Board Memorandum No. 64 (1969).

Wan e e nh ibe Silent’ lavelid Olé:

ruption Rules for CO Alternative Service, 3 Col. Survey of Human

Rights Law 136 (1970).

For not only is the conscientious objector subject to pro-

secution under the Selective Service statute for failure to

report for employment, but the regulations provide that

any violation of the reasonable order of a civilian employer

may be considered a violation of the same statute.

32 C. F. R. 51660.8. The conscientious objector thus is in

a position logically not unlike the position of a member

of the Armed Forces subject to prosecution under the

Uniform Code of Military Justice, 10 U.S.C. §801 et seq.,

for failure to perform his assigned duties. In fact, the

draft law imposes heavier penalties.

In sum, we think that the District Court correctly found

that the statutory and regulatory scheme governing the

performance of alternate service ee ah ee

the lives of alternate service performers which

ordinarily as great as that to which active duty sia

have been subjected. 352 F. Supp. at 858.7 We turn now

to a brief examination of the practical effect of the dis-

ruption in the lives of conscientious objectors.

C. The Practical Effects of Disruption

for Alternate Service

As we have noted in our Statement of Interest, the

National Interreligious Service Board for Conscientious

Objectors has viewed on a first-hand basis the disruption

caused by the dislocating effects of alternate service in the

lives of conscientious objectors. The Board has had similar

occasion to observe the attendant hardships resulting from

the failure to provide educational and vocational benefits

for performers of alternate service.

See also the unpublished opinion of Judge Kronenberg in Zannie v.

Liberty National Bank & Trust Co., No. D-78774 (N.Y.S. Ct. Dec. 4,

1972), 6 Selective Service Law Reporter 3080, in which the court

found conscientious objectors entitled to the same deferment of repay-

ment of student loans available to military veterans.

Those registrants who serve as. conscientious objectors

in alternate service are, like their counterparts inducted into

the armed services, young men from all walks of life who

in the main could not be said to have moved very far in

the direction of their ultimate educational and occupational

goals. Whatever progress they have made in this direction,

they are abruptly removed from the civilian educational path

and/or job market for a period of two years to perform

national. service which is totally unrelated to their future

endeavors. To be sure, this is often the same situation

faced by a registrant called to active military duty. But

the military offers a myriad of special educational and

training programs designed to enhance the careers of its

members and makes other efforts to utilize their skills and

training. In contrast, over one-half of the alternate service

performers are assigned to menial tasks in hospitals and

nursing homes, although few, if any, can relate such duties

to their future careers. MSBCO Reporter for Conscience’

Sake (November, 1970) at 3. Furthermore, even if he has

not taken advantage of in-service educational or vocational

training, the returning military veteran enjoys an important

advantage vis-a-vis his conscientious objector contemporary

which is unrelated to the exclusion of benefits at issue in

this proceeding. That is the re-employment right guaranteed

under 50 U.S.C. App. §459(b)-(g). By this statute,

veterans of military service are guaranteed restoration to

their civilian employment at the same rate of compensation

and without having suffered any loss in seniority. See

generally Fishgold v. Sullivan Drydock and Repair Corp.,

328 U.S. 275, 284 (1946). Veterans of alternate service

are not included within the coverage of this statute, and

thus may well return to civilian life bereft of the means to

support themselves or their families.

A 1970 NISBCO survey showed that 96 per cent of those persons

serving alternate service had received a high school diploma. NJSBCO

Reporter for Conscience’ Sake (November, 1970) at 3.

ea a

NISBCO has received literally hundreds of communica-

tions seeking information or assistance with regard to the

possibility of receiving veterans’ benefits for alternate

service. These communications invariably detail the

particular hardships facing the conscientious objector.

We think it worthwhile to summarize a few of these letters,

all of which are on file at NISBCO headquarters.

I hold a janitorial position at (a California

hospital) and I’ve held this position for a little

over 4 months now. Prior to working as a janitor

I was employed as a probation officer with the

hope that it would be an acceptable job toward

fulfilling my 24 months of obligatory service as

a C.O. The job as a probation officer was not

deemed acceptable employment by my draft board

and after I received my second notification from

them that it was not acceptable, I left the proba-

tion dept. and took the first job that came up

which was a job as a janitor.”’

**My job is beyond the shadow of a doubt the

worst I have ever had and consists of shoveling

chicken manure. (Plus the part-time feeding and

saved to continue my education later.

I feel that the I-W program could be and is

(in some cases) a very useful, beneficial thing.

However, I have found it to be otherwise for

of my background and education. of the

sia aa a nee ks es

received $50 per month less than the salary

schedule showed for my job classification. Some

time ago the personnel man assured me that ‘I

was lucky to have the job’ I had—digging

ditches, etc. In summary, I feel that the work

I was doing before all this came along was more

in the national interest than this punishment

presently being received.

he only jobs that I was offered were not jobs

that contribute to public health, or welfare, but

jobs that my local board insisted were created to

place conscientious objectors in boring and un-

necessary work. I recognize my duty to serve my

country, but the compensation is so low that there

is not enough for one person to live on, let alone

a husband and a pregnant wife.

want to work with children and I told the

board this but they were insistent on make-work

in a hospital. I think if we must ‘disrupt’ our

lives for two years, we should get more than a

job that won't support you and have the system

smile and tell you they are doing you a big favor

by letting you be a CO.“

This, then, is the human side of the exclusion from

veterans” benefits; severe hardship and deprivation occuring

as the direct result of a young man following his con-

science and at the same time performing important national

service.

THE VETERANS’ READJUSTMENT BENEFITS ACT

WAS DESIGNED TO COMPENSATE PERSONS SERVING

THEIR COUNTRY FOR THE DISRUPTION IN THEIR LIVES

CAUSED BY TWO YEARS OF COMPULSORY SERVICE

A. The Structure of the Act

Through the years, the Congress has attempted in various

ways to recognize service to the country by forms of

veterans’ benefits legislation. The Act which is at issue

here, the Veterans’ Readjustment Benefits Act of 1966,

38 U.S.C. §§1651-1697, basically represents an attempt

to recognize the importance of national service during the

so-called Cold War period. See 1966 U.S. Code Cong.

Rec. & Admin. News 1888-90. Among the important benefits

it includes for eligible veterans are payments for educational

and vocational training based on the period of service

performed.

Section 1652(a){i) of the Act, 38 U.S.C. §1652(a)(i),

defines an eligible veteran as a person who served on

active duty for a period of at least 180 days subsequent

to January 31, 1955 and was discharged under honorable

conditions. Active duty is defined under 38 U.S.C.

§101 (21), which applies to all veterans’ benefits legislation

in Title 38, and includes full-time duty in the Armed Forces

and certain other types of service, including the Public

Health Service, Oceanographic Survey and study at an

Armed Forces academy. No mention is made of alternate

service here or in any other section of the statute, and it is

this omission upon which the Government has based its

refusal to allow veterans of alternate service to receive

educational benefits. See Exhibits A & B to Plaintiff's

Complaint.

B. The General Legislative Purposes

The legislative history of Section 101 (21) and the 1966

Veterans Benefits Act fails to reveal any clues as to the

Congress itself set forth in the preamble to the 1966

Act four reasons for the legislation: Pe

deserving young persons who might not otherwise

be able to afford such an education; (3) providing

impeded by reason of active duty..., and

(4) aiding such persons in attaining the vocational

and educational status which they might normally

have aspired to and obtained had they not served

their country. (38 U.S.C. §1651).

Commission issued its report, 6,367 young men were performing

alternate service, while 298,559 men were inducted into active military

service. Semi-Annual Report of the Director of Selective Service (Dec.

31, 1972) at 56.

—— ——— — — —¾¼⸗̃u

Leaving the first goal, which was not intended as a primary

purpose, 352 F. Supp. at 863, n. 10, for later discussion,

the remaining three purposes relate to the same theme—that

a young man called upon to serve his country suffers a

vocational goals. This theme is echoed in the Report of the

Senate Committee on Labor and Public Welfare on the bill

that contained substantially the language that appeared in

the final version:

. . Absent the exigencies of the cold war, the

majority of these young people would not enter

military service—normally they would remain in

“*. . today's servicemen drop further and further

behind their civilian contemporaries who generally

pursue educational objectives, or enjoy the higher

wage scales and other economic advantages of

civilian life. In sum, then, irrespective of how

a young man enters military service, harmful con-

sequences will follow from the fact that a sub-

stantial portion of his life, which would ordinarily

be devoted to civilian goals, is consumed in the

performance of active military service. S. Rpt.

No. 269, 89th Cong., Ist Sess., at 6, 10.

While stating that these. benefits should be available

“irrespective of how a young man enters military service

the Senate Committee made specific reference to the com-

pulsory Selective Service System, which required only

certain men to serve:

[for the government to provide benefits] and the

need for this legislation are based upon the con-

tinued existence of the compulsory draft law,

which calls only a select group of men away from

their private lives to perform military service on

behalf of the entire Nation. Id. at 7.

The hardship and disruption suffered by a veteran was

also recognized in the House of Representatives. Repre-

sentative Halpern, testifying before the House Committee

the termination of their service, they find them-

selves at a comparative disadvantage . . .’” House

of Representatives, Hearings before the Com-

mittee on Veterans Affairs, 89th Cong., Ist

Sess., at 3139) .

The House Committee’s Report pointed out that with in-

creasingly higher levels of training necessary to a success-

ful career, the opportunities lost as a result of the two years

spent in service constituted a potential permanent liability

in the lives of these young men. Furthermore, it emphasized

that the purpose of the Committee is not to equalize

educational opportunities for the veteran population, but

rather to provide assistance which would help a veteran to

follow the educational plan that he might have adopted had

he never entered the Armed Forces. H. Rpt. No. 1258,

89th Cong., 2nd Sess., at 5.

In fact, this emphasis on disruption and regaining lost

time differentiates the 1966 Act, and the predecessor

Serviceman’s Readjustment Assistance Act of 1944 and

Veterans’ Readjustment Act of 1952, from pre-World War

II veterans’ legislation. In these later statutes, Congress

simply was recognizing that all veterans, regardless of their

type of service, encounter special problems in re-entering

civilian life because of the interruption of their normal

lives. S. Rpt. No. 269, at 25.

C. The 1966 Act was not Intended to Encourage

In the Act’s preamble, as we noted above, as Caer

mentioned the secondary purpose of enhancing and making

more attractive service in the Armed Forces. As the court

below found, however, the exclusion of conscientious

objectors from benefits could not fairly be said to relate to this

legislative purpose. In their jurisdictional statement, the

appellants apparently intended on appeal to this Court to raise

two additional and related purposes for this legislation, namely,

encouraging enlistments and rewarding service to one’s

country which involves the physical hazards inherent in active

military service. In their brief on the merits, the appellants

have converted these alleged purposes into a congressional

judgment that only the military veteran has been subjected to

the potential for hazardous military duty. Brief for Appel-

lants, at 20. Such a post hoc attempt to support the Act falls

of its own weight. First, the very language of the Act makes no

distinction between either the basis for entry into service

(i.e. voluntary enlistment and compulsory induction) or

between hazardous service and civilian-type duties such as in

the Public Health Service, often in Washington, D.C., in an

oceanographic research laboratory, or in a special services

military unit for entertainers, athletes, etc. And, the Act was

applied retroactively to members who volunteered or were

drafted between 1955 and its effective date. Second, as we

show below, the Department of Defense recognized in 1966,

and has continued to hold to the belief, that the Act has an effect

exactly opposite to the encouraging of enlistments. Finally, as

we note later, in 1966 the Congress expressly rejected the idea

of relating veterans’ benefits to hazardous duties in the military

as a type of bonus for such service or, in appellants’ words,

for the potential for hazardous military duties A

When legislation extending benefits to cold-war veterans

was proposed in 1966, the General Counsel for the Department

ee ane

W Maite tie e Cliches Vene his

the Deputy Assistant Secretary of Defense for Manpower

similarly noted that:

he Department of Defense does not favor legisla-

tion which provides the serviceman with an induce-

ment to leave the military service after accruing

entitlement to educational benefits under such

legislation. House Committee hearings, supra,

at 2959.

The fact that this argument proved unavailing before

Congress in 1966 has not caused the Department to alter

its view that educational benefits lessen the ability of the

services to enlist and retain qualified personnel. During the

1971 hearings on military compensation, for example,

Defense Secretary Laird stated:

The GI Bill . . . does in certain respects have

an adverse impact upon our retention of young

men and women in the military services.

As a member of Congress, I helped sponsor the

GI Bill and other improvement legislation along

that line, but the impact on retention as far as the

GI Bill is quite the reverse of what you might

think. We encourage our young men and women

if they are leaving the service, use the GI Bill

and go forward and take part in those educational

and other benefits, but sometimes the benefits are

so attractive that they are more interested in going

outside the service and receiving these benefits

than they are in staying in the service. Hearings

on Selective Service and Military Compensation,

Senate Committee on Armed Services, 92nd

Cong., ist Sess., at 35.

In a more recent and stronger statement the Assistant

Secretary of Defense for Manpower and Reserve Affairs

recommended the abolition of veterans’ benefits, on the

grounds that It's an entitlement that’s absolutely worthless

as an incentive, and that instead of keeping people in the

service, it drives them out. Army Times, v. 33, no. 52

(August 1, 1973) at 5. Thus, not only is it inaccurate to

suggest that Congress intended the Veterans’ Readjustment

Benefits Act to encourage enlistments in the Armed

Forces, but in practice, as suggested by the Department of

Defense itself, the Act has exactly the reverse effect.

The contention that the 1966 Act, and therefore the

exclusion of alternate service veterans, might be said to

reward only service involving physical hazards simply flies

in the face of the history of the Act. The Veterans

Administrator stated in a letter to the Senate Committee

in 1966 that:

he Veterans Administration has opposed bills

providing peacetime veterans readjustment benefits

(such as education and training) on the ground that

this type of benefit should be limited to situations

where wartime service sharply disrupted career

planning . .. S. Rpt. No. 269, at 21.

This was not the only testimony suggesting that eligibility

for benefits under the Act be limited to persons serving in

hostile areas. Several Senators, however, made it clear

during the hearings on the 1966 Act that they did not desire

the Act to serve as a reward for hazardous duties. Senator

Mondale, for example, pointed out that:

lives were not disrupted by military service. And

that is what this cold war GI Bill is intended to

do. Hearings, Senate Subcommittee on Veterans’

Affairs, 89th Cong., Ist Séss., at 152.

Senator Yarborough added:

We have pointed out over and over what you

have in the closing two paragraphs of your state-

ment—that this is not a bonus bill. . . this is a

readjustment bill. Id. at 153.0

The Senate Committee brushed aside the objection of the

Administration, and a minority of its members, noting in

its Report that:

The proposal . . to limit eligibility under this

bill to those veterans who have served in ‘areas

of hostilities’ as designated by the President was

rejected for several reasons. In the first place, the

philosophy and purpose of the GI Bills is and has

been to give readjustment assistance to the veteran

returning to civilian life after substantial military

service and not to reward him for the risk that he

Senator Yarborough reiterated in testimony before the House

Committee on Veterans’ Affairs his view that the legislation was not

designed as a bonus for hazardous service:

do not wish this bill to be confused with the thoughts

of those who would hold this educational opportunities out

as a reward to those who undergo specially hazardous duty

for their country. I mention this because I do not believe

that there is any room in our American philosophy for the

demand that -our youth earn educational opportunities by

risking their lives.’’ Hearings, House Committee on

Veterans’ Affairs at 2897.

might have been exposed to. S. Rpt. No. 269, at 19

(Emphasis added).

It is evident from what we have shown that the 1966

Veterans’ Readjustment Benefits Act was: (1) not designed

to encourage military enlistments, and in fact discourages

the retention of personnel in the Armed Forces; and (2) that

BENEFITS ACT BEARS NO REASONABLE RELATIONSHIP

TO THE PURPOSES OF THE ACT AND THEREFORE

REPRESENTS AN UNCONSTITUTIONAL CLASSIFICATION

A. The Constitutional Test

Although the Equal Protection Clause of the Fourteenth

S. 618 (1969); Schneider v. Rush, 377 U.S. 163

; v. Sharpe, 347 U.S. 497 (1954). As is the

with state legislation under the Fourteenth Amend-

the federal statute must be tested under one of two

the tradtional test, the classification will

be found to deprive an individual or group of the equal

ee eee

Hit

Independent —— Rodriguez, 411 U.S. 17

(1973); McGowan v. Maryland, 366 U.S. 420 (1961). This

Court has applied a more exacting standard to legislation

which involves either a so-called ‘‘inherently suspect classifi-

cation of a fundamental right or liberty protected by the

Constitution. Such legislation will be upheld only upon a

showing that the government had a compelling interest in

its enactment. See Graham v. Richardson, 403 U.S. 365

(1970).

The Court below adopted the former test in finding the

F ogy wenn rages ed But

the court added:

he multe of e taseiay thc allée sabia

application of the compelling interest analysis, the

court does consider that the undeniable effect of

this legislation is to deny important benefits to a

discrete minority. The nexus of these two factors

may justify a form of heightened, if not strict,

scrutiny into the legislation. 352 F. Supp. at 856.

We submit that it would not be inappropriate for this

Court to apply the compelling interest standard in this case

and affirm the .decision below on the ground that there

was and could not have been a compelling interest of the

federal government in excluding veterans of alternate

service from educational benefits. For whether or not the

right to an education is to be considered a fundamental

right, a question which the Court seems to have answered

in the negative in San Antonio Ind. School District v.

Rodriguez, 411 U.S. 1 (1973), the Act sets up a suspect

classification—a relatively small group of young men who

are prevented by their religious beliefs from participating in

military service and who are compelled to serve a com-

parable period of time in alternate service. The test for

application of the compelling interest standard is couched

in the alternative; either the right affected is a fundamental

right or the classification is ‘‘suspect’’ and therefore sub-

ject to strict judicial scrutiny Whether or not a fundamental

right is impaired,’ Graham v. Richardson, supra, 403 U.S.

at 376; see also San Antonio Ind. School District v.

and amorphous class which did not result in a suspect

We do not dwell upon the reasons for applying the com-

pelling interest standard in affirming the decision of the

District Court. For we think it clear in any event that the

classification does not pass constitutional muster under the

B. The Classification Measured Against the

We have noted earlier the purposes of the 1966 Act as

set forth by Congress in its preamble. To restate them

briefly, the purposes were two-fold: first, and primarily,

to compensate all returning veterans for the disruption in

their schooling and employment opportunities caused by two

years of compulsory service to the country; and second, to

enhance and make more attractive service in the Armed

Forces. Neither purpose is served by the exclusion by

omission of veterans of alternate service.

Examining the primary purpose of the Act, the District

Court concluded that *‘[a]lthough military veterans and

alternate service performers lead different lives, their service

lives have shared one common denominator: the inability

to pursue the educational and economic objectives that

persons not subject to the draft law could pursue.”’ 352

F. Supp. at 859. If anything, this conclusion may be an

understatement; for, as we have noted before, the returning

veteran of alternate service is guaranteed no re-employment

rights and his counterpart in military service may have taken

advantage of certain opportunities unique to the Armed

. tegpnere sania

held under the Constitution, the criterion

treatment must bear some relevance

legislation. Bullock v.

called upon to perform such services,

clusion cannot possibly be said to bear a rational relation-

ship to (the) state objective. Reed v. Reed, 404 U.S.

71,76 (1971). For the Congress simply was attempting to

eliminate the educational gaps between persons who served

their country and those who did not. 352 F. Supp. at

858. To eliminate the gaps for all but those relatively few

young men who were ordered to perform work recognized

by Congress as “‘contributing to the national health, safety,

or interest’’ must be viewed as a capricious, or perhaps

unintentional, action. If intentional, the exclusion was

predicated on criteria wholly unrelated to the objectives

of the statute, Reed v. Reed, supra, 404 U.S. at 76.12

The other basic purpose stated in the Act’s preamble—

i.e. enhancing the attractiveness of military service—bears

no greater relationship to the challenged classification, and

cannot be said to support the exclusion of conscientious

objectors from the Act’s coverage. Here, we find accurate

and well-put the statement of the District Court in rejecting

There are other benefits conferred on military members and denied

to their alternate service counterparts. These include in-service family

allowances and travel discounts, and post-service life insurance, and

mortgage assistance.

in an analogous context, the District Court for the District of

Columbia refused to validate a section of the Dependents’ Medicare

Act which precluded illegitimate dependents from the Act’s coverage

despite the Government’s contentions that the exclusion maintained

high morale and limited the payment of benefits to persons with a true

service connection. Miller v. Laird, 349 F. Supp. 1034 (D.D.C. 1972).

the premise that the exclusion rationally relates to the

government’s interest in making n. service more

attractive:

A ere e

one or two tenuous assumptions. First, it would

assume that if the statute were changed to afford

„C 1P acs rts ecg

service, then many persons who would go into

military service, under the statute as now. written,

would choose alternate service because they would

very much doubts that many persons would make

Another assumption . . would be that some

persons who are conscientious objectors in fact

are willing to join the military so that they can

persons performing military duty . . . [T]he court

that this assumption—that the challenged exclu-

sion will attract into active duty persons who are

in fact conscientious /objectors—is highly specu

lative snd doés sot e

that a rational connection exists between the

exclusion and the goal of ‘enhancing and making

more attractive service in the Armed Forces of the

United States. 352 F. Supp. at 856-57.

The amicus emphatically concurs with the judgment of

the District Court that the exclusion of benefits neither

keeps young citizens not entitled to recognition as con-

Scientious objectors from attempting falsely to claim such

status nor attracts into active duty persons who are legiti-

mate conscientious objectors.

In sum, the exclusion of persons who have performed

alternate service from benefits under the Veterans’ Readjust-

ment Benefits Act of 1966 bears no ‘‘fair and substantial

relation [to],’’ Royster Guano v. Virginia, 253 U.S. 412,

415 (1920), the purposes of compensating returning

veterans for the disruption of their lives or of making

service in the Armed Forces more attractive. All that the

statutory exclusion accomplishes, either by design or over-

sight, is to deny a group of young men who have ably

served their country the same opportunity to resume their

civilian goals that is granted to every other veteran of

compulsory service.

SECTION 211(a) OF TITLE 38 DID NOT BAR THE

DISTRICT COURT FROM REVIEWING THE

CONSTITUTIONALITY OF THE STATUTORY EXCLUSION

FROM VETERANS’ BENEFITS

The Appellants press on this appeal the argument

raised unsuccessfully to the district court that Section

211(a) of Title 38 is a bar to federal court review of

the constitutional attack on the 1966 Act as applied to

rejected this contention, based on the very language of

the rulings of this Court in Braunfeld v. Brown, 366 U.S. 599 (1961),

and Sherbert v. Verner, 374 U.S. 398 (1963). In Braunfeld, the Cour

“accomplish its purpose by means which do not impose such a

burden. 366 U.S. at 607; cf. Wisconsin v. Yoder, 406 U.S. 205

(1972). In the Verner case, the Court made it clear that benefits may

not be conditioned on the recipient’s willingness to violate a tenet

of religious faith.

the Veterans Administrator arising under a statute providing

for veterans’ benefits. The court’s ruling on this point is

consistent with what we view as the evident purpose of

Section 211(a), namely, to prevent discretionary decisions

of the Administrator or his delegatees with respect to

matters well within their expertise and not determined in

an arbitrary fashion, (such as the extent of disability in

a particular case), from burdening the federal courts. To

suggest that the legislation goes further and is, or even

could be, designed to preclude judicial review of an issue

arising under the Constitution—i.e. the congressional

power to discriminate among young men—would raise grave

questions of constitutional balance. Moreover, it would

leave a class of citizens—individuals who have served their

country honorably for at least two years—from ever being

in a position to question the constitutionality of the

actions of the administrative agency which very directly

affects their personal lives. For the Veterans Administra-

tion has no authority itself to determine the constitution-

ality of its powers. Appeal of Peter W. Sly, Board of

Veterans’ Appeals, supra; see also McKart v. United

States, 395 U.S. 185 (1969); Leedom v. Kyne, 358 US.

184 (1959).

In addition to the language and evident purpose of

Section 211(a), we think that the district court’s view

that section is supported by analogy in several i

of this Court with regard to the bar on judicial review of

the operations of the Selective Service System.!“ The

language of that bar states: '

No judicial review shall be made of the classifi-

cation or processing of any registrant by local

See generally Hester v. Melidosian, 261 F. Supp. 659 (M.D. Pa.

1966). :

See also Reynolds v. United States, 292 U.S. 443 (1934); Ng

Fung Ho v. White, 259 U.S. 276 (1921).

The literal scope of Section 10(b)(3) was limited by this

Court in Clark v. Gabriel, 393 U.S. 256 (1968), to situa-

tions where the local draft board has exercised its statutory

discretion to pass on a particular request for classification,

and thus the board action inescapably involved a deter-

mination of the fact and an exercise of judgment. 393

U.S. at 258. In the companion case of Oestereich v.

Local Board No. II. 393 U.S. 233 (1968), this Court

noted that review was not precluded when there (was)

no exercise of discretion by a board in evaluating evidence

and in determining whether a claimed exemption is

observed. 393 U.S. at 238. Mr. Justice Harlan, con-

curring, noted: I do not understand that phrase (‘classifi-

cation or processing’) to prohibit review of a claim

that the very statutes or regulations which the board

administers are facially invalid. He went on to conclude

that because draft boards are not expressly delegated any

authority to pass on the validity of regulations or statutes.

to withhold pre-induction review in this case would

deprive petitioner of his liberty without the prior opportu-

nity to present to any competent forum agency or court

his substantial claim that he was ordered inducted pursuant

to an unlawful procedure. Jd. at 243. See also Breen v.

Local Board No. 16, 393 U.S. 460 (1970), where this

Court upheld review of a claim that the local board had

acted pursuant to a command of the National Director

at variance with the statute and the valid regulations

thereunder, and Fein v. Local Board No. 7,

405 U.S. 365 (1972), where Justice Blackmun reaffirmed

that Section 10(b)(3) applied only where the board,

authoritatively, has used its discretion and judgment in

determining facts and in arriving at a classification for the

registrant. 405 U.S. at 369.

Thus, in an analogous area—the processing of registrants

under the Selective Service System—this Court has refused

to construe a statutory ban on judicial review of agency

action as being all-inclusive and has instead looked to the

purpose served by the bar in light of the administrative

framework under which the agency operates. We submit

that the same result should obtain with respect to the

meaning of Section 211(a), at least insofar as its applica-

bility to constitutional issues raised by the various veterans’

benefits statutes.

CONCLUSION

For the foregoing reasons, the judgment of the District

Court for the District of Massachusetts should be affirmed.

Respectfully submitted,

Donald S. Burris

Suite 1015

5454 Wisconsin Avenue, N.W.

Washington, D.C. 20015

Attorney for Amicus Curiae

— ———

SrtA re

SUPREME COURT, u. S.

In the MICHAEL ROBAK, . i

Supreme Court of the United States

Oorosze Tux, 1973

No. 72-1297

DONALD E. JOHNSON,

Apministzator or VeTERans’ Arvatns, ET .,

APPELLANTS,

WILLIAM ROBERT ROBISON,

Arr.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

Questions Prosested * oo ol. os ees evtie ws

— :. ß

Statement:

1. The Nature of Alternative Service

I. Exclusion of Draftees Who Perform Alternative

Service from Receiving Educational Assistance

under the Act Constitutes an Unreasonable and

Arbitrary Classification and Violates the Equal

Protection Guarantee Embodied in the Fifth

Amendment Due Process Clause ................

A. The Statutory Setting ....................

B. The Exclusion of Alternate Servicemen from

Receiving Educational Assistance is Invalid

under the Traditional Equal Protection

Shandiaeh cin. vcnéh Giles sais titansente cues

1. The Class of Draftees who Perform Alterna-

tive Service and the Class of Draftees who Per-

form Military Service are Similarly Situated

in Terms of the Act’s Purpose of Stimulating

Enlistments Since Providing Educational As-

sistance to Either Class has No Bearing on the

Furtherance of the Enlistment Objective .....

2. Draftees who Perform Alternative Service

for Two Years have Suffered Disruption of

their Educational Plans and, Indeed, their Life-

time Careers to an Extent Equaling or Exceed-

Cass:

ing the Level of Disruption which Qualifies

Service Personnel for Educational Assistance

under the Aetttdduttu

3. The Challenged Exclusion is a Product of the

imate Purposssses „

4. Strict Judicial Scrutiny of the Challenged

Classification Is Mandated in this Case .......

a. The Challenged Classification Interferes

with the Fundamental Constitutional Right to

the Free Exercise of Religion

b. In Singling-Out I-O Conscientious Objectors

As The Only Class of Draftees To Be Ex-

cluded From Receiving Educational Assist-

ance, The Act Embodies and Operates Upon A

Suspect Classification.

c. The Confluence in this Case of Fundamental

Constitutional Rights and Closely Related, Im-

portant Social and Personal Interests Man-

dates Review of the Challenged Classification

at the Highest Degree of Intensity on the

‘Spectrum of Standards

d. The Challenged Classification Serves No

Compelling or, Indeed, Any Other State In-

terest, and the Classification’s Gross Impre-

cision Violates the Least Drastic Means Test

II. The Absolute Denial of Educational Assistance

Imposes an Unjustifiable Burden and Penalty on

the Free Exercise of Religion by 1-0 Conscien-

tious Objectors .....-.------eeeeeer errr eeereee

III. The Federal Courts have Subject-Matter Juris-

diction Over this Case.

Page

A. This Court and the District Court have Sub-

ject-Matter Jurisdiction, Notwithstanding 38

U.S.C § 211(a), to Decide the Act’s Constitution-

OER GP LIES OE IE Sila ORE Se ee 70

B. Section 211(a) Violates Article III of and the

Fifth Amendment to the Constitution to the Ex-

tent that it Precludes Judicial Review of an Act

% QA ˙¹iÜ⁊˙· QA ͤ ¼ SS 3

D oie c cs ci PONSA AS 77

—. ) VßZß)½)]«ù⁰ͥ . EES 80

CITATIONS

Cass:

Abbott Laboratories v. Gardner, 387 U.S. 136. . 71

Atherton v. United States, 176 F. 2d 835 ...... 31

Barlow v. Collins, 397 U.S. 159. 71

Boddie v. Conmecticut, 401 U.S. 371 ............ 62, 73

Bolling v. Sharpe, 347 U.S. 497 ............... 58

Braunfield v. Brown, 366 U.S. 599 .............. 66, 68

Bullock v. Carter, 405 U.S. 1344444. 35

California Comm’n v. United States,

// ( 71

Cantwell v. Connecticut, 310 U.S. 299 54

Chicago Police Dept. v. Mosley, 408 U.S. 92 .... 57

Citizens to Preserve Overton Park v. Volpe, :

GOR SEAN Ge ove ͤ - A 71

Damdrige v. Williams, 397 U.S. 471 ............ 44, 45

De Rudolta v. United States, 461 F. 2d 1240 76

Dingman v. United States, cert. denied

% .... 7«˙«⏑x 32

Dumn v. Blumstein, 405 U.S. 330)0)0))⁸ 52, 57

Eisenstadt v. Baird, 405 U.S. 438, 448. 30, 52, 62

Frontiero v. Richardson, — U.S. —,

Be ee OC BS whe iw ks bos 9.45. 0h pos wod ee aid 58

Gillette v. United States,

401 U.S. 4 12, 20, 56, 59, 65 et seq.

Girouard v. United States, 328 U.S. 61......... 35

Gomez v. Perez, 409 U.S. 53333 ² 46

Hernandez v. Veterans Administration,

%%% •⁰˙¹m ĩ¹»]ẽ˙·¹¹a L 57, 74, 76

Hoff master v. Veterans Administration,

:uß. ⁵ĩðiU Z ßC%ſ.x 74

In re Griffiths, — U.S. —, 93 S. Ct. 25. 58

Jacobson v. Massachusetts, 197 U.S. 11. 54

James v. Strange, 407 U.S. 128 . . . 29, 45, 46, 61, 62, 65

Jefferson v. Hackney, 406 U.S. 535 ee 45

Kendall v. United States, 12 Pet. 522. 77

Kent v. Dulles, 357 U.S. 1100 1 71

Lehnhausen v. Lake Shore Auto Parts Co.,

— US. —, 93 S. Ct. 1001 .................. 45

Lindsey v. Normet, 405 U.S. 56 ............ 30, 45, 62

Louisville, N. A. & Ry. Co. v. Louisville Trust Co.,

f AA.. 79

Page

Loving v. Virginia, 388 U.S. III 58

Lynch v. Household Finance Corp., 405 U.S. 538 75

Lynch v. United States, 292 U.S. 5711 75, 76

McGinnis v. Royster, 410 U.S. 263, 270,

TS De Ce T..... o¥ecees 27, 30

McKart v. United States, 395 U.S. 185 ........ 71

_ Marbury v. Madison, 1 Cranch (5 U.S.) 137 ..... 74, 77

Meyer v. Nebraska, 262 U.S. 390 .............. 54

Morey v. Doud, 354 U.S. 4757 30, 35, 46

Murdock v. Pennsylvania, 319 U.S. 105 ........ 65

New Jersey Welfare Rights Organization v.

Cahill, — U.S. —, 93 S. Ct. 1700 ............ 45

Oestereich v. Selective Service Board

1 TV/ ie i ci 79

Palmore v. United States, — U.S. —,

93 S. Ct. 1670 ......... („HHH *.. 76

Pierce v. Society of Sisters, 268 U.S. 510 5⁴

Police Dept. v. Mosley, 408 U.S. 92 ............ 53, 54

Powell v. McCormack, 395 U.S. 48. 78

Railway Express Agency v. New York,

S06 WB: BOS AAA 8 52

Reed v. Reed, 404 U.S. 71, 75.7 27

Rinaldi v. Yeager, 384 U.S. 3000. 45

Roodenko v. United States, 147 F. 2d 752 31

Royster Guano Co. v. Virginia,

% ² AA erin STA 27, 35

San ee Indep. School Dist. v. Rodrigues,

US, — 98 8 O64. 1978.......... 45, 52, 53, 60, 61

Shapiro v. Thompson, 394 U.S. 618 ............ 57

Sherbert v. Verner, 374 U.S. 398

51, 54, 66, 67, 68 et 25

Smith v. Sperling, 354 U.S. 9111 79

South Carolina v. Katzenbach, 383 U.S. 301, 331 29

Sugarman v. Dougall, — U.S. —, 93 S. Ct. 2842 58

Testa v. Talt, 330 U.S. 3888. 76

United States v. Boardman, 419 F. 2d 110 32

United States v. Burns, 450 F. 2d 44 31, 37

United States v. Carolene Products Co.,

1 A WQGAꝗæm 58

United States v. Hoepker, 223 F. 2d 9211 31

United States v. Macintosh, 283 U.S. 605....... 49, 69

United States v. O’Brien, 391 U.S. 367 ......... 55, 56

United States v. Robel, 389 U.S. 258 .......... 56

United States v. Seeger, 380 U.S. 1688. 12

United States v. Schwimmer, 279 U.S. 644 48

United States v. Thorn, 317 F. Supp. 389 31

United States Department of Agriculture: v.

Moreno, — U.S. —, 93 S. Ct. 2821 29, 45, 46, 51, 52

United States Department of Agriculture v.

Murray, — U.S. —, 93 S. Ct. 283222 73

Vlandis v. Kline, — U.S. —, 93 S. Ct. 2239 . . 61. 62, 73

Weber v. Aetna Casualty d Surety Co.,

/// ̃ ᷣ ĩẽ mD 406

Statutes:

Judiciary Act of 1789, 1 Stat. 72

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sash cuss etn oes aga cas

soo cases shaceuas ioanpusncins

eee, a ees

c eas 2,

SY eR REE IR te 77, 78,

cep cence cieasas oi =

—

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Page

Cee ret he 24, 42

§ BAB 6 „„ 42

%. Ta 42

4% „„ „„ 444 24, 42

466 WWW . . 42

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§§ 1501-1502 2— eee ee tenses 24

I/. 2 7, 24

4 6ũ0%%%%%%õõ . . . . . . . 24

CCC A onennsseees 24

IK W5565656«ͥ4 4 37

ö 24, 42

0 IIo ivinsn connec se csannestueranrmene 42

MOOR chon „% 42

G66 42

C ccanesccsansadssdenseeseneses 42

27 49

39 U.S. C. § 34ů . 42

Ul ee 42

(/ T 50

E ůꝶ eer 50

1 8 50

4 %%%%%õ0?ß́ũ ᷑ ̃ũ ů[i5 50

SS eer eto 50

( 3333 ea 50

50 U.S.C. App. 45m. 3

Page

„ 6 Se 3

74, 77

eo Pre irr

Miscellaneous :

American Civil Liberties Union, Conscience and

the War, A Report on the Treatment of Con-

scientious Objectors in World War II (1943). 4, 20

88 Cong. Rec. 6981 (August 27, 1942.......... 17

89 Cong. Rec. 2846-47 (April 2, 1943).......... 17

Conscientious Objection, Special Monograph No.

11 (Selective Service System 1950). 3, 12, 13, 14 et seq.

Cornell, The Conscience and the State ...... 13, 16, 53

Guide to Alternative Service, 83 (Published by

hh ee er AE te 3, 5

Page

Hart and Wechsler, The Federal Courts and the

Federal System (2d ed. 1973) .............. 70, 77

Hearings before House Committee on Veteran

Affairs, 89th Cong. Ist Sess. (1965) .. 21, 22, 23, 29

Hearings before Senate Military Affairs Com-

seis ccn'Senncaw eh cceess 16, 51

Hearings before the Senate Military Affairs

Committee, 78th Cong., Ist Sess. (2-17-43)... 15, 19

Hearings before the Subcommittee of Veterans’

Affairs of the Senate Committee on Labor and

Public Welfare, Cold War G.I. Bill-1965,

89th Cong., Ist Sess. (1965). .......... 23, et seq.

H. Rep. 82-1943, 82d Cong., Ist Sess. (1952) 40

H. Rep. 89-1258, 89th Cong., Ist Sess (1966)

Oe ee eae sc catia 21, 23, 37, 41

H. Rep. 91-1166, 91st Cong., 2nd Sess. (1970). . 72

Kellogg, The Conscientious Objector (1919) .... 13

Letter dated 6-22-73 from Maj. Fred K. Green,

Ass’t Director, Legislative Selected Policies

D ES ee eer 26

Letter dated 5-17-73 from LTC WAC Nancy K.

J ohnson, Coordinator, Defense Women’s News 25

Local Board Memo. No. 64 isued 3-1-62, rescinded

Z 4, 32

rescinded 2-8-72, 4 S.S.L.R. 2183 .......... 4, 32

NISBCO, Congress Looks at the Conscientious

Z 17

Peterson & Fite, Opponents of War (1957) ....

Russell, Development of C. O. Recognition in the

U.S., 20 G.W.L. Rev. 409 (1952) ............. 12, 59

Schlissel, Conscience in America: A Documentary

History of Conscientious Objection in America

... 13, 15, 48, 54

Selective Service in Peacetime, First Report of

of the Director of Selective Service, 1940-1941

GP fin ccd énes ²ò c 4 ee 32, 59

Sen. Rep. 77-1583, 77th Cong., 2nd Sess. (1942) 17

Sen. Rep. 78-73, 78th Cong., Ist Sess. (1943) .. 17

Sen. Rep. 89-269, 89th Cong., Ist Sess. (1965)

c cata 22, 23, 33, 36 et seq.

Sibley and Jacob, Conscription of Conscience

THP 13, 14, 17, 18

Thomas, The Conscientious Objector in America

. c

A ee

In the

Supreme Court of the United States

3 1973

No. 72-1297

DONALD E. JOHNSON,

ADMINISTRATOR OF VETERANS’ AFFAIRS, ET A.,

APPELLANTS,

WILLIAM ROBERT ROBISON,

APPELLEE.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

BRIEF FOR APPELLEE

Questions Presented

1. Does the Veterans Readjustment Benefits Act of 1966

violate the First Amendment guarantee of religious free-

: dom and the Fifth Amendment guarantees of equal protec-

| tion and due process of law by excluding, from its program

of providing educational assistance in compensation for

lost opportunities and time, conscientious objectors who

have been drafted to perform alternative service?

PPP

2. Is 28 U.S.C. § 211(a) intended to oust all federal

courts, including this Court, from jurisdiction to review

the constitutionality of certain provisions of the Veterans

Readjustment Benefits Act, and, if so, is § 211(a) uncon-

stitutional?

Statutes Involved

The statutory provisions set forth by the Government

should be supplemented as follows: "

38 U.S.C. § 1651. Purpose

The Congress of the United States hereby declares

that the education program created by this chapter is

for the purpose of (1) enhancing and making more

attractive service in the Armed Forces of the United

States, (2) extending the benefits of a higher educa-

tion to qualified and deserving young persons who

might not otherwise be able to afford such an educa-

tion, (3) providing vocational readjustment and re-

storing lost educational opportunities to those service

men and women whose careers have been interrupted

or impeded by reason of active duty after January 31,

1955, and (4) aiding such persons in attaining the

vocational and educational status which they might

normally have aspired to and obtained had they not

served their country.

Statement

1. Tue Nature or ALTERNATIV SERvICcE

This is an action brought on behalf of the class of con-

scientious objectors who were drafted to perform at least

two years of civilian alternative service and who have

satisfactorily completed such service.

Selective Service registrants who establish that they

possess sincere scruples against participating in war and

in non-combatant service receive a I-O classification from

their local boards.“ This classification, like the I-A and

I-A-O classifications, renders the registrant immediately

liable to be drafted in the normal order of call.

Upon being drafted, I-O conscientious objectors are

ordered, in lieu of induction, to report for ‘‘civilian work

contributing to the maintenance of the national health,

safety, or interest’’ (hereinafter ‘‘alternative service’’).

50 U.S.C. App. § 456(j). The duration of alternative service

is equivalent to the duration of military service, two years

unless extended by law. Ibid.*

Since its inception in World War II, it has been express

government policy that alternative service assignments

disrupt the civilian lives of I-O conscientious objectors on

a scale comparable to the disruption experienced by regis-

trants who perform military service. The essence of this

policy was summarized in a Selective Service memorandum

made public in 1943:

See 32 C.F.R. § 1622.14. Registrants whose beliefs permit them

to perform non-combatant service are classified I-A-O. See 32

C.F.R. § 1622.11.

2 See 32 C.F.R. § 1660.4(a). Because of the institution of an

all-volunteer Army, most registrants are no longer subject to the

draft. See 50 U.S.C. App. § 476 (e).

In World War II, I-O conscientious objectors served for the

duration of the War and incurred a 10-year reserve commitment.

Conscientious Objection, Special Monograph No. 11, pp. 96-97

(Selective Service System 1950).

Overseas alternative service assignments in the United Methodist

Service Program are three years in duration, See Guide to Alterna-

tive Service, 83 (Published by National Interreligious Service

Board for Conscientious Objectors, 1970).

From the time an assignee reports to camp until he

is finally released he is under control of the Director

of Selective Service. He ceases to be a free agent and

is accountable for all of his time, in camp and out, 24

hours a day. His movements, actions and conduct are

subject to control and regulation. He ceases to have

certain rights and is granted privileges instead. These

privileges can be restricted or withdrawn without his

approval or consent as punishment, during emergencies

or as a matter of policy. He can be told when and how

to work, what to wear and where to sleep. He can be

required to submit to medical examinations and treat-

ment and to practice rules of health and sanitation. He

may be moved from place to place and from job to job,

even to foreign countries, for the convenience of the

government regardless of his personal feelings or

desires.*

During the period pertinent to this case, the policy was

set forth in internal Selective Service directives. These

directives require local boards to ensure that the path of

the conscientious objector in being processed for and per-

forming civilian work parallels as nearly as possible the

path of the I-A man. The boards are further instructed

to make certain that alternative service assignments ‘‘con-

stitute a disruption of the [I-0] registrant’s normal way of

life somewhat comparable to the disruption of a registrant

who is inducted into the Armed Forees.

* Reprinted in Report by the American Civil Liberties Union,

Conscience and the War, 22-23 (1943).

5 Local Board Memorandum No. 98, issued September 11, 1969,

rescinded February 8, 1972, 4 S. S.L.R. 2200.7.

*Local Board Memorandum No. 64, issued March 1, 1962,

rescinded February 8, 1972, 4 S.S.L.R. 2183.

This policy is implemented by detailed regulations limit-

ing the pay for alternative service work to the pay the

conscientious objector would have received had he entered

the Armed Forces, prohibiting assignments to jobs in the

competitive labor market, and requiring the conscientious

objector to perform service in a location beyond commuting

distance from his residence.’ Moreover, registrants drafted

for alternative service may be ordered to perform assign-

ments in any location within the United States or overseas,

including war zones.* Willful failure to report for or to

satisfy the reasonable requirements of the alternative

service assignment constitutes a felony punishable by up

to five years imprisonment or a $10,000 fine.“

This action challenges the constitutionality of the

Veterans Readjustment Benefits Act of 1966 (hereinafter

„the Act’’). Under this Act, all draftees who serve on ac-

tive duty in the Armed Forces for 180 days are eligible to

receive educational assistance. Those draftees eligible in-

clude the class of I-A-O conscientious objectors who per-

form non-combatant service. I-O conscientious objectors

are excluded from the Act’s education program because

„active duty, as defined by 38 U.S.C. §§ 101(21) and

1652(a)(3) does not include the performance of alternative

service. Appellee charges that this exclusion violates the

First and Fifth Amendments to the Constitution.

See the current Selective Service regulation, 32 C. F. R. 1660.6

which compiles criteria for alternative service assignments

previously set forth in L.B.M.’s and preceding Selective Service

regulations.

See 32 C. F. R. § 1660.6 (5). A listing of alternative service

assignments is provided in Guide to a ge ura Service, supra.

50 U.S.C. App. § 462; 32 C. F. R. § 1660.8.

See

2. Tue Distaicr Covrr’s Orion

The District Court sustained the Fifth Amendment claim

under the ‘‘traditional’’ equal protection standard. Based

on a consideration of each of Congress’ stated purposes for

providing educational assistance, the court concluded that

the challenged exclusion bears no reasonable relation to

any of these purposes. (20a).

While agreeing with the Government that one purpose of

educational assistance is to stimulate enlistment by making

military service more attractive, the court found that this

purpose was not rationally furthered in the case of men

who enter the service only because they are or definitely

will be drafted. For these men, the vast majority of those

who have served in the Armed Forces during the period

pertinent to this case, there was and could be no incentive;

they were determined not to serve unless compelled to do

80.

The Government’s case here, in substantial part rests

on the contention that the district court misapplied the

rational basis test by confining its inquiry to whether pro-

viding alternative servicemen with educational assistance

would disserve the statutory goal of encouraging enlist-

ments. (Gov. Br. pp. 16-17). But the Government’s argu-

ment is based on a critical omission of fact, namely that its

sole position below on the enlistment purpose was that it

was affirmatively served by the challenged exclusion. The

exclusion was, according to the Government, a means of

deterring fraudulent applications for conscientious objector

status, and of enlisting registrants who could qualify as

conscientious objectors, but who would presumably forsake

their religious scruples for educational assistance under the

Act. The district court properly tested these affirmative

10% (a) references are to the district court’s opinion, reprinted

in Appendix A to the Jurisdictional Statement (J. S.).

reasons for the exclusion, but found them wholly wanting

in rationality. (15a-17a). On appeal the Government makes

no claim that the challenged exclusion affirmatively serves

The court viewed the second purpose of the Act’s educa-

tional program as a conglomerate of the latter three

purposes specified in 38 U.S.C. § 1651, ‘‘basically variations

on a single theme’’: to compensate veterans for the inter-

ruption or disruption of their educational and economic

opportunities that results from being drafted and serving

two years in the Armed Forces, while those who avoid the

draft pursue their civilian goals at full pace. (17a). The

court found that the disruption suffered by conscientious

objectors performing alternative service is factually indis-

tinguishable in its causes and severity from the educational

disruption for which the Act provides compensation. As

the court concluded :

‘‘(T]he disruption is equal as between the two

groups. Like military veterans, alternate servicemen

have been exposed to the uncertainties caused by the

draft law. They too were burdened at one time by an

unsatisfied military obligation that adversely affected

their employment potential; were forced, because of

the draft law, to forego immediately entering into

vocational training or higher education; and were

deprived, during the time they performed alternate

service, of the opportunity to obtain educational objec-

tives or pursue more rewarding civilian goals. (19a).

The Government argue below that educational assistance

is a reward or bonus for the hazards or potential hazards

of military service. But the court rejected this contention

as being without support, citing the provisions of the Act

under which every member of the Armed Forces is declared

eligible for benefits regardless of the location or condition

of service so long as he has served for at least 180 days

and the legislative history expressly rejecting the reward

purpose. (18a). On appeal, the Government appears to have

abandoned the reward argument.

The district court also rejected the Government’s claim

that whatever the constitutional deficiencies in the Act,

38 U.S.C. § 211(a) deprives the federal courts, including

this Court, of all jurisdiction over the subject-matter. The

court determined that Congress had no such intention. By

its terms, § 211(a) is inapplicable, the court held, because

the Administrator has neither ‘‘decided’’ the constitutional

questions presented by this case, nor are these questions

of law determinable ‘‘under any law administered by the

Veterans’ Administration . .’’ (7a-8a)."

Summary of Argument

The conscription laws in our history have made various

accommodations for I-O conscientious objectors. These

accommodations reflect Congress’ respect for the religious

beliefs involved, as well as for the tested willingness of

these men to suffer extreme penalties rather than relin-

quish their principles. At the same time, Congress has

commanded that these men fully bear their responsibilities

as citizens. Thus they are subject to the draft and must

serve their country for two or more years.

u A question was also raised below by the Government as to

whether appellee had exhausted administrative remedies since his

application for educational assistance had not been considered by

the Board of Veterans Appeals, The district court concluded that

exhaustion was not required in view of the fact that the Board had

already declared itself without jurisdiction to determine the con-

stitutionality of the Act. (8a),

However, in time of war or crisis I-O conscientious ob-

jectors are the focus of intense public resentment. They

have been branded as slackers and traitors. This public

hatred has been shared in some quarters of Congress and

has pressured the Congress generally to impose harsh and

punitive conditions on I-O conscientious objectors during

these periods. Since World War II, one such condition has

been that the objector receives no compensation for his

service-connected disabilities and no allowances for his

dependents, despite the fact that his disabilities and his

dependents’ needs are as real as those of his counterparts

in the military. The challenged classification that denies

educational assistance only to I-O conscientious objectors

for the educational and career disabilities that result from

their service is a product of the punitive non-compensation

policy and should be assessed in light of its evident

purposes and onerous effects.

II.

The challenged exclusion is void under the . traditional“

equal protection test because it bears no rational relation

to the Act’s purposes, which are explicitly set forth in the

Act itself.

The first purpose of the Act, making military service

more attractive to stimulate enlistments, does not relate to

draftees, since they cannot be enticed to enlist. It cannot be

assmued that Congress provides educational assistance to

draftees for the unreal purpose of encouraging either

draftees or potential enlistees to volunteer. In short, the

class of draftees who perform military service (including

I-A-O conscientious objectors) and the class of draftees

who perform alternative service are similarly situated in

terms of the enlistment purpose of the Act.

Likewise; they are similarly situated in terms of the

major purpose of the Act which is to compensate the edu-

cational and career disabilities that result from service.

The Government acknowledges that I-O conscientious ob-

jectors suffer educational disruption to the same extent as

military personnel, but argues that military service has

some amorphous ‘‘special impact that makes it more

difficult for military personnel to readjust to civilian life.

But, meeting this broader readjustment need, which the

Government concedes has no relation to educational” dis-

ruption, is not the objective of the Act. Essentially the

Government is arguing that educational assistance is a

bonus for the dislocations caused by military service. This

purpose is patently at odds with the terms and history of

the Act. And, even assuming the existence of a ‘‘special

impact, it is clear that thousands if not millions of eligible

veterans experienced no such special impact.“ The Gov-

ernment’s argument that their inclusion under the Act and

the I-O conscientious objectors’ exclusion can be justified

on a theory that Congress is not required to draw mathe-

matically nice lines, is wholly unsupportable.

III.

Indeed, the challenged exclusion serves no legitimate

purpose. The only purpose it serves is the purpose served

by the non-compensation policy generally, and that is to

punish I-O conscientious objectors for their beliefs.

IV.

A fortiori the challenged exclusion cannot survive the

demands of the strict judicial scrutiny test. That level of

scrutiny is required because the challenged exclusion both

‘‘affects’’ the free exercise of religion and embodies a

66 —

suspect classification. Moreover, even under the spectrum

of standards’’ approach strict scrutiny is required. The

challenged classification serves no compelling interest of

any kind, and the Government makes no claim that it does.

Wholly apart from the equal protection guarantee, the

challenged exclusion effects a burden on the free exercise

of religion by I-O conscientious objectors in violation of

the First Amendment. That I-O conscientious objectors

have borne this penalty on their religious beliefs rather

than relinquish their religious principles in no way

diminishes their entitlement constitutional protection under

the Free Exercise Clause. The applicability of the Free

Exercise Clause is not conditioned on the pusillanimity of

the individual.

VI.

The preclusive scope of 38 U.S.C. & 211(a), as the express

of the provision makes clear, is limited solely to

„the decision of the Administrator on any question of law

or fact under any law administered by the Veterans’ Ad-

ministration . .. This case involves a claim of right under

the Constitution, not under any law administered’’ by the

Veterans’ Administration. Nor does this action in any re-

spect contest the Administrator’s decision . . on any

question of law or fact,’’ since the constitutional questions

raised here could not have been and were not decided by

the Administrator. In fact, as the court below notes, the

Administrator has repeatedly disavowed the power to

decide the constitutional questions presented by this case.

Argument

InTRODUCTION

Though they constitute a minute fraction of the total

number of Selective Service registrants and draftees, i-0

conscientious objectors have historically been the focus of

intense public hostility, particularly in periods of mobiliza-

tion for war.” For it is in these periods that the nation has

been forced to resort to conscription of its citizens, over-

riding their personal liberties and interrupting their

civilian pursuits.

Each conscription law enacted by Congress has made

some provision for the conscientious objector, although not

always for the objector to non-combatant service.“ These

accommodations reflect Congressional respect for the

religious freedom involved. Gillette v. United States, 401

U.S. 437, 445. But, conscientious objectors have not been

exempted from the draft and serving their country. Con-

gress, both out of manpower needs and in the interest of

fairness, has directed that conscientious objectors be con-

12 Approximately 10 million men were inducted for military

service between 1955 and the termination of the draft in 1972.

Neither the Selective Service nor the Department of Defense

maintains data on the actual number of those who perform alterna-

tive service. But it is estimated, on the basis of information pro-

vided by the Selective Service and by the National Interreligious

Service Board for Conscientious Objectors (NISBCO), the

organization established in World War II to administer Civilian

Public Service Camps, that since 1955 about 50,000 conscientious

objectors have performed alternative service.

The history of the conscientious objection exemption from

colonial times to the present Selective Service Act is traced in

United States v. Seeger, 380 U.S. 163, 170. See also Brief for

Respondent in United States v. Seeger, supra; Russell, Develop-

ment of Conscientious Objection Recognition in the United States,

20 G. W. L. Rev. 409 (1952); Conscientious Objection, Special

Monograph No. 11, Selective Service System (1950).

scripted like other registrants and be compelled to perform

service in the national defense consistent with their

religious beliefs.“

It is, however, a distinct pattern in our history, that in

the periods of war or crisis, I-0 conscientious objectors

have been the subject of extreme public outrage.“ During

such times these men have been singled out in private and

through public policy for punitive treatment.

Sheer brutality marked the World War I treatment of

conscientious objectors. See Schlissel, supra at 19, 130-131;

Kellogg, The Conscientious Objector, 83-85 (1919) (Euphe-

mizing physical beatings as ‘‘good-natured hazing’’);

Thomas, The Conscientious Objector in America, 128-164

(1923).

And since World War II, I-0 conscientious objectors

have been compelled to perform years of alternative service

without compensation for the disabilities and disruption

‘that this service has caused. The pain of brutal treatment

passes, but the denial of compensation has a lasting,

debilitating impact not only on the conscientious objector,

but on his family as well. See Schlissel, supra at 20, 215-

216; Cornell, The Conscientious Objector and the Law, 108

See Conscientious Objection, Special Monograph No. 11, p. 1,

(Selective Service System 1950).

See Schlissel, Conscience in America: A Documentary History

of Conscientious Objection in America, 1757-1967 (1968) ; Kellogg,

= Conscientious Objector, 1 (1919) (‘‘He [the conscientious

jeetor] has been eulogized by well-meaning persons, who under-

stand neither the conscientious objector himself nor the national

interest in a time of war, and he has, on the other hand, been roundly

abused and reviled by a large part of our citizenry as a coward

and a slacker. Apparently, there is no compromise ground: he is

diabolically black to his critics while to his defenders his raiment

is ag the snows,’’); Peterson and Fite, Opponents of War, 121

(1957) ; Cornell, Conscience and the State, (1944); Sibley and

Jacob, Conscription of Conscience, 110 (1952).

(1943); Conscientious Objection, Special Monograph No.

11, supra at p. 339. Although he performs compulsory

service in the national defense in fulfillment of his obliga-

tion as a citizen, the I-O conscientious objector has consist-

ently been denied compensation provided to military per-

sonnel for like service and service-connected disabilities.

The non-compensation policy was implemented to the

hilt in World War II. Despite the fact that they served in

camps doing hazardous work for the duration of the war,

I-O conscientious objectors received no compensation of any

kind.

„The conscientious objector was compelled to labor

in Civilian Public Service without remuneration. His

dependents had to fend for themselvés without govern-

ment aid or benefits of any kind. He was left financially

unprotected in case of injury or death during his

service, except where he was assigned to work covered

by state workmen’s compensation laws. These three

severe financial penalties were deliberately inflicted on

men who allowed their consciences to direct them into

civilian rather than military service.“ Sibley and

Jacob, Conscription of Conscience, 216-217 (1952).

In testimony before the Senate Military Affairs Com-

mittee in 1943, General Hershey, Director of the Selective

Service, explained the Government’s reasons for requiring

I-O conscientious objectors not only to work without wages,

but to pay for their own upkeep.

Senator Gurney: He [alternate serviceman] does

not get paid now?

Gen. Hershey: None.

The Government furnishes the housing and bedding

[in the Camps] but the feeding, clothing, and so forth,

rn. —

come from religious organizations that put up the

money.

Senator Wallgren: You are treating these fellows

worse than the Japs. 9

Gen. Hershey: Maybe so, but we have, in your state,

groups in two of your hospitals for the insane and

there they get $2.50 per month for personal use.

Senator Wallgren: Do you feel that they should be

paid?

Gen. Hershey: Definitely not.

It would destroy the best public relations. The thing

we have to consider is they have not received any pay

so far, and I think I would be supported by 60 to 70

per cent of the people, who consider that this is one of

the contributions they are making to show that they

are really conscientious objectors and conscientiously

believe what they came to believe, and I know some that

will not accept, under any circumstances, Government

money. I do not believe any of the Mennonite Church

members, by and large, would accept any money.“

1 See Hearings before the Senate Committee on Military Affairs,

78th Cong., Ist Sess. 20-24 (February 17, 1943). Alternative

servicemen in World War II were required to pay $35 a month

for their support. If they or their families were unable to pay this

amount, the objector’s church was obligated to pay it. If neither

the conscientious objector nor his church was able to afford the

support charge, the National Service Board for Religious Objectors

provided the money. Schlissel, supra at 225-226.

Congress several times authorized the Selective Service to pay

and provide allowances to alternative servicemen ‘‘at rates not

in excess of those paid to persons inducted into the AEG: 0”

see e.g. Public Law 630 of June 27, 1942, but, no appropriation

Peet 9 9

N 16

Bilt extend coverage of the Federal Employees’ Com-

pensation Act to I-0 conscientious objectors for service-

connected death or disability were introduced in Congress

of funds for this purpose was requested by the Selective Service

or made by Congress. See also Cornell, The Conscientious Objector

and the Law, 109-111 (1943).

This non-compensation policy for I-O conscientious objectors

contrast with the treatment of I-A-O conscientious objectors :

Senator Johnson: The non-combatant men are paid?

Colonel Kosch: The noncombatant men are paid the. same

as any other soldier. The noncombatant soldier in the army

is assigned to the Medical Department, certain sections of the

Quartermaster Corps, the Engineering Corps, Chemical War-

fare, and Signal Corps, in certain types of work that do not

require a man to be armed, and they receive the same pay and

compensation as any other soldier.

Senator Johnson: But he does not have to bear arms?

Colonel Kosch: He does not have to bear arms in those

sections or be trained in the use of them.

Senator Johnson: The Seventh Day Adventists, you have

those ?

Colonel Kosch: Practically all of those go into the non-

combatant service of the army; very few of those go in the

eonscientious-objector camps.

Senator Bridges: What do you include in noncombatant

service:?

Colonel Kosch: There are certain parts of the Medical

Corps, medical units, base hospitals, and so forth, in the rear

that are not assigned actually to combatant service; certain

sections of the Quartermaster Corps having to do with the

rear area; engineering and construction work, and things like

that, in the rear area not actually with combat troops; the

Signal Corps, the handling of and the construction of com-

munication lines, and so forth, where it is not actually in the

combat area; and also service with the Chemical Warfare,

the handling of transportation of chemicals and things, where

it is not actually in the area of combat, quoted in National

Service Board for Conscientious Objection, Congress Looks at

the Conscientious Objector, 41 (1943).

Hearings before Senate Military Affairs Committee on August

19, 1942, 77th Cong., 2nd Sess.

770 LEME ALOT EEE LL LLN ELLER d LB ELOISE IEE SION AGS SR 1

in 1942 and 1943. See 8.2708, 77th Cong., 2nd Sess.; 8.675,

78th Cong., Ist Sess.“ The hazards of alternative service

were becoming evident from the substantial numbers of

service-connected disabilities incurred; indeed, the overall

disability rate for the war was equivalent for alternative

and military servicemen. Sibley and Jacob, supra at 222,

n. 39. There was complete awareness in Congress, however,

of the public bitterness and antipathy towards I-O con-

scientious objectors, and every effort was made to

rationalize this legislation as protection for the United

States against future tort claims and to disclaim any inten-

tion to benefit the individuals involved.“ Nevertheless,

none of the proposals was enacted. See Sibley and Jacob,

supra at 222-224; National Service Board for Religious

Objectors, Congress Looks at the Conscientious Objector,

50-64 (1943).

Another severe application of the non-compensation

policy involved Congress’ refusal to appropriate funds for

needy dependents of alternative servicemen.

The refusal of Congress to make any provision for

assistance to dependents of drafted c.o.’s exposed the

wives, children, and aged parents of men in C. P. S. to

extreme hardship and insecurity, and put the men

themselves under severe psychological strain as they

helplessly watched their families struggle to survive

without adequate income. A more callous method of

disabling conscience could hardly have been devised,

Each year, the bills were reported favorably by the Senate

Committee on Military Affairs. S.Rep. No. 1583, 77th Cong., 2nd

Sess., August 24; 1942, S.Rep. No. 73, 78th Cong., Ist Sess., March

1, 1943.

1s Hearings before the Senate Military Affairs Committee, 77th

Cong., 2nd Sess., August 8, 1943; see also 88th Cong. Rec. 6981

(August 27, 1942) ; 89th Cong. Rec, 2846-2847 (April 2, 1943).

for in effect it made a c.o.’s dependents victims of his

integrity. The conscientious objector faced the wrack-

ing choice of surrendering his ideals by entering the

armed forces or sacrificing the security of his depend-

ents, when they might not even share his convictions.

Sibley and Jacob, supra at 220.

The House debate on this point is illuminating:

Mr. Thomas: Does the gentleman see any good rea-

son why we should give any consideration to conscien-

tious objectors anyway?

Mr. Sparkman: This bill does not purport to give

consideration to conscientious objectors, but to the

wives and children of conscientious objectors who are

left in a needy condition, many of whom may not even

agree with the views of the conscientious objectors.

Mr. Sparkman: I should like to call the gentlemen’s

attention to the fact that this does not appropriate any

money out of the Treasury, but that this is money

which has been earned by the conscientious objectors

themselves.

Mr. Thomas: Nevertheless, conscientious objectors

should not be given any consideration. That is the

way I feel.

Mr. Sparkman: This money has been placed in a

special deposit in the Treasury of the United States

under an agreement that it is not to be spent for war

purposes.

Mr. Sparkman: Mr. Speaker, I regret that objection

has been made. I believe that one familiar with the

r ecu 8 See Sie 1 —ͤ— 7 a _— . —

facts would agree to the objective sought by this

measure.

This bill is an attempt to correct a situation among

conscientious objectors who have been drafted. I real-

ize these men constitute an unpopular minority, but I

sincerely hope we will not allow the general disfavor

with which this group is regarded to blind us to in-

equities in our treatment of them.

The particular discrepancy at which this bill is di-

rected, however, is the fact that conscientious objectors

do not receive any dependency benefits, despite the

fact that they have exactly the same percentage of

wives and children as men sent to the military service

—about 35 per cent. This means, in effect, that we

are penalizing wives and children because we do not

agree with their husbands and fathers. Let us apply

the restrictions directly to the men, if we will, but we

should not extend the punishment to their families.

90th Cong. Rec. pp. 5329-5330 (June 5, 1944).

The non-compensation policy has been relaxed since World

War II, to the extent that alternative servicemen now re-

The operative principle in dealing with I-O conscientious ob-

jectors was best capsulated by General Hershey : ‘‘the conscientious

objector, by my theory, is best handled if no one hears of him.

Hearings before the Senate Committee on Military Affairs, 78th

Cong., Ist Sess., 23 (Feb. 17, 1943).

Compensation was not the only area where this principle was

applied. At the end of the war the Selective Service proposed to

discharge I-O conscientious objectors on the same basis as men in

the military. The public and the Congress misunderstood this

suggested separation procedure, however, and thought of it as un-

duly favoring the conscientious objector.”” The Operation of Selec-

tive Service, Special Monograph No. 17, p. 132 (Selective Service

System 1955). The proposal was abandoned and time in service

replaced the need for release as the criterion for order of discharge.

ceive wages for their work at a rate that ‘‘will provide a

standard of living to the registrant reasonably comparable

to the standard of living the same man would have enjoyed

had he gone into the service. 32 C.F.R. § 1660.6(3). Yet,

there still is no provision today for any, let alone compar-

able, in-service disability or dependency protection or post-

service assistance of any kind — medical, educational or

employment. After two or more years of compulsory service

the I-O conscientious objector is left to pick up the threads

of his civilian life without any of the assistance provided

all others for just that purpose.

In effect, the non-compensation policy taxes the con-

scientious objector for ‘‘choosing’’ to exercise his religious

beliefs by performing alternative service.” This tax is

levied against his future and his own and his family’s

welfare.” The exclusion of I-O conscientious objectors from

the vital assistance provided by the Act's educational

program is the product of a vindictive and harsh policy

and the Act’s constitutionality should be assessed against

this background.

2° For a sincere objector, it is the hard choice between contra-

vening imperatives of religion and conscience and suffering penal-

ties. Gillette v. United States, 401 U.S. 437, 445.

That the non-compensation policy was designed to force I-O con-

scientious objectors to make such a hard choice is made clear

by General ‘Hershey, who noted the policy of no pay and no dis-

ability and dependency benefits has been a factor in not only

keeping them [I-O conscientious objectors] from going [to the

camps], but once they get there they leave, and take I-A-O in the

Army, when they find out. Testimony quoted in Report, Con-

science and the War, supra at 23-24.

21 Noting the 5,931,632 man-days of labor supplied by alternative

servicemen in World War II, the Selective Service calculated the

enormous financial saving to state and federal governments who

received the fruits of this labor without paying any wages or other

benefits. The Operation of Selective Service, Special Monograph

No. 17, pp. 129-130 (Selective Service System 1955). The slave

labor characteristics of this system cannot be ignored.

22 OTE ELIE ROT GRE —

Excl. usiox or Drarrezes WHo Perrorm ALTERNATIVE SERVICE

FRoM Recetvinc EpucationaL ASSISTANCE UNDER THE ACT

ConstiTuTES Ax UNREASONABLE AND ARBITRARY CLASSIFICA-

TION AND VIOLATES THE Equant Protection GuARANTEE

EMBODIED IN THE Firn AMENDMENT Dux Process

CLausk.

A. The Statutory Setting

The Veterans Readjustment Benefits Act of 1966 dramat-

ically affirmed the wisdom of the World War II and Korean

War G.I. Bills. But, the Act is also a marked departure

from its predecessors in that it provides educational assist-

ance for service in peacetime as well as wartime. The Act

created a permanent program’’ of educational assistance.

H. Rep. No. 1258, 89th Cong., 2nd Sess. p. 7 (Feb. 3, 1966).

Assistance is provided by the Act regardless of the nature

or place of the veteran’s service assignment and uncon-

ditioned by the existence or potential existence of military

conflict.

The Act not only instituted a permanent program for the

future, it also applied retroactively to the termination date

of the Korean War Bill on January 31, 1955; an estimated

3 million peacetime or cold war veterans were thereby

qualified for educational benefits. See Hearings before the

House Committee on Veterans’ Affairs, 89th Cong., Ist

Sess. p. 2922.

Congress was moved to enact this legislation, as its

history makes clear, by one basic consideration: the draft

only calls less than half those who are liable, and while

those who serve have their careers interrupted and lose

educational opportunities, those who do not serve freely

pursue their civilian goals. Given the fact that ‘‘some in-

dividuals have to carry a grossly disproportionate share

of the burdens of citizenship,’’ Congress concluded that

educational assistance was ‘‘vitally needed to help them

catch up with those of their contemporaries who were not

asked to serve but who instead continued the more lucrative

and comfortable pursuits of civil life. Sen. Rep. No. 269,

89th Cong., Ist Sess. pp. 3, 6 (June 1, 1965).”

The costs of an education program of this magnitude were

unhesitatingly accepted by Congress in view of the self:

liquidating’’ history of the prior G.I. bills. It was noted

that the World War II G.I. bill annually repays the 20

billion dollar investment at the rate of one billion dollars

a year. See Hearing before the House Committee on

Veterans’ Affairs, supra at p. 2900, Sen. Rep. 269, supra at

p. 4. In addition, there were repeated references through-

out the Act’s legislative history to the vast contribution

to the labor force of skilled and professional people that

* Senator Yarborough, the chief proponent of the Act in the

Senate and chairman of the Senate Subcommittee on Veteran’s

Affairs, expressed the essence of the Act’s educational purpose :

„Only 40 per cent of our draft-eligible young men ever

serve their country in uniform. While these men are sacri-

ficing two to four years of their lives just at their crucial age

of peak development, the 60 per cent of their counterparts

are utilizing this time to further their career and develop

their futures.

The injustice is magnified, for we take the very men who

must struggle the hardest to get ahead in life and set them

two to four years behind in their competitive position

[They return to civilian life just as they left—unskilled, un-

educated, and largely unem

Here is the place where the Cold War veteran needs help.

He does not need a reward—what he needs is a chance. N

Whatever his military experience, hazardous or not, there is

a need for readjustment assistance to help the Cold War vet-

eran get his ship of success back into the mainstream of op-

Hearing before the House Committee on Veteran’s Affairs,

89th Cong., Ist Sess., p. 2898.

SS erase a

results from such G.L. bills. See Hearings before the House

Committee on Veterans’ Affairs, supra at 2916-2917; Sen.

Rep. No. 269, supra at 45.

The all-inclusive coverage of the proposed legislation,”

stirred intense opposition. The Veterans’ Administration

and the Department of Defense joined by a significant

segment in Congress urged either outright rejection of the

proposed peacetime G.I. bill, or at least that the provi-

sion of educational assistance be confined to periods of war

or military hostilities.* The Act’s opponents noted the

fact that the uncertainties inherent in wartime and clearly

in combat zone service cause actual disruption of a service-

man’s life, but that such conditions were not present in the

peacetime service that was required of most Cold War“

veterans. They also stressed that the proposed legislation

provided full benefits to those who serve in the most

quiescent periods.“ These opponents of the permanent

program’’ concept offered a compromise that limited assist-

ance to veterans who served during the Vietnam War. See

H. Hear., supra at 2929.

But, as the terms of the Act make clear, Congress re-

jected every attempt to-qualify educational assistance on

the basis of potentially or actually hazardous service. In-

deed, the conditions of service are entirely irrelevant.

* There were two chief bills in Congress: 8.9, on which the

Senate Subcommittee on Veterans’ Affairs, of the Committee on

Labor and Public Welfare held hearings during the 89th Cong.,

Ist Sess. in February and March, 1965 (hereinafter “Sen. Hear.“)

and issued a report in favor of passage (hereinafter ‘‘Sen. Rep.

No. 269°’) ; HR. 12410, on which the House Committee on Vet-

See H. Rep. No. 1258, supra at 18; Sen. Rep. No. 269, supra

at 57; H. Hear., supra at 2944-2945, 2934, 2935, 2937.

* H. Rep. supra; Sen. Rep., supra.

Under the Act every person who serves in the military for

180 days or more and receives other than a dishonorable

discharge is entitled to full benefits for the purpose of

restoring his or her lost educational opportunities.”

The Act compensates lost time, during which education

plans have been interrupted or impeded, career oppor-

tunities missed, and those who do not serve get ahead.

Thus, the only variables in the Act’s compensation scale

are duration of service and number of dependents. The Act

takes no account of the conditions or location of service

Other forms of compensation are made available for

service that involves hazard or potential hazards.” Con-

gress ~us obviously aware that hundreds of thousands of

servicemen and women are in reality never even exposed

to the dangers of combat or combat zones. Indeed, this was

the very point made by the opponents of a ‘‘peacetime’’

G.I. bill. Moreover, Congress was aware that many

thousands of servicemen faced the reality of combat duty

* 38 U.S.C. § 1652(a)(1) provides in pertinent part: The

term ‘eligible veteran’ means any veteran who (A) served on active

duty for a period of more than 180 days any part of which occurred

after January 31, 1955, and who was discharged or released there-

from under conditions other than dishonorable. . .’’

**38 U.S.C. § 1661 establishes a flat compensation scale, that

provides equal benefits for equal periods of service. The scale

does not vary in any degree for service that was potentially or

actually hazardous or for service in times of international strife.

See 38 U.S.C. § 1651.

See H. Hear., supra at 2877; see also e.g. 38 U.S.C. §§ 310-315

(Wartime Disability Compensation); 331-336 (Peacetime Dis-

ability Compensation, for veterans and dependents) ; 341 (Peace-

time Death Compensation); § 521 (Non-Service-Connected Dis-

ability Pension, extended to veterans of the Mexican Border

World War I and II, the Korean conflict, and the Vietnam

Era’’); 1501-1502 (Vocational Rehabilitation for Service-Con-

nected Disability) ; 1701 (War Orphans’ and Widows’ Educational

Assistance).

in Vietnam. But the Act provides equal benefits to both

classes. It is evident that Congress sought only to achieve

its stated purpose of restoring lost educational oppor-

tunities, a loss which results from the duration, not the

conditions, of service, and therefore a loss shared in equal

measure by all who serve.

By its terms the Act swépt in eleven years of the past

and all of the future. Four million veterans who served

between 1955 and 1966 were retroactively made eligible

even though the service of an overwhelming number of

them was in the United States during a period of peace.

Moreover the Act entitles all veterans serving after the

date of its passage to full benefits whether they served as

a clerk-typist in Washington, D.C. or a combat soldier in

Vietnam. Service women, who are exempt from duty in

combat areas, are fully eligible for benefits“ and I-A-0

conscientious objectors, assigned to civilian-type duties are

also fully eligible for benefits.“

% See e.g. 10 U.S.C. §4 8549; 6015. We have been advised that

under Defense Department policy women serve in combat areas

only if they volunteer. One service woman was killed and six

wounded in Vietnam. At present there are approximately 45,000

women in military service. Letter dated May 17, 1973, from LTC

WAC Nancy K. Johnson, Coordinator, Defense Women’s News.

31 Non-combatant training and service is defined in E. O. 10028

issued on January 13, 1949:

1. The term noncombatant service shall mean (a) service

in any unit of the armed forces which is unarmed at all times;

(b) service in the medical department of any of the armed

forces, wherever performed; or (c) any other assignment the

primary function of which does not require the use of arms

in combat; provided that such other assignment is acceptable

to the individual concerned and does not require him to bear

arms or to be trained in their use.

(2) The term ‘‘noncombatant training’’ shall mean any

training which is not emcerned with the study, use, or

handling of arms or weapens.

In sum, of all those who perform compulsory service in

fulfillment of their Selective Service obligation, only I-O

conscientious objectors are barred from receiving educa-

tional assistance to close the gap in educational oppor-

tunities created by the draft and two years of service.

B. The Exclusion of Alternate Servicemen from Receiving

Educational Assistance is Invalid under the Traditional

Equal Protection Standard

The district court, applying the familiar principles of

the ‘‘traditional’’ equal protection standard, concluded that

the challenged classification bears no rational relation to

the legitimate objectives of the education assistance pro-

gram enacted by Congress.

We have been unable to find regulations defining the duties of

I-A-O conscientious objectors in more detail. Their deployment in

World War II is discussed in Conscientious Objection, supra, at

105. We have been advised by a representative of the Department

of Defense that since World War II it has been the policy not to

limit assignment of I-A-O’s to medical units. When assigned to

such units they may function as lab technicians, hospital orderlies,

combat medics, stretcher bearers and ambulance personnel and on

administrative and supply details in the medical service field. But,

we have been advised that

la] conscientious objector who prefers to perform a func-

tion unrelated to the medical field, could, at his request, be

utilized in any of a great variety of assignments, the primary

function of which does not require the use of arms in combat.

The range of assignments is practically unlimited and varies

from clerk-typist to aircraft mechanic, boilerman to intelli-.

gence analyst, supply clerk to musician. In such case, the in-

dividual would be exempted from firearms training that might

be required for his unit of assignment.

Letter dated June 22, 1973 from Major Fred K. Green, Assistant

Director, Legislative and Selected Policies, Office of the Assistant

TTT

The traditional“ standard prohibits, as Mr. Chief

Justice Burger emphasized in Reed v. Reed, 404 US. 71,

75-76, ‘‘different treatment [from being] accorded to per-

sons placed by a statute into different classes on the basis

of criteria wholly unrelated to the objective of the statute.’’

Reed reiterated the rule stated in Royster Guano Co. v.

Virginia, 253 U.S. 415, 415, that a classification must rest

upon some ground of difference having a fair and substan-

tial relation to the object of the legislation, so that all per-

sons similarly circumstanced shall be treated alike.“ And

as Mr. Justice Powell stated for the Court, there must be

a legitimate, articulated state purpose, McGinnis v.

Royster, 410 U.S. 263, 270.

The purposes of the Act’s education program are not a

subject for hypothesis or conjecture, since these purposes

are explicitly enumerated by the Act itself. Moreover, the

Government concedes that the first purpose of stimulating

enlistments by making military service more attractive is

not the primary objective of the Act. (J.S. 6). Rather, the

overriding purpose of the Act is, as the district court found,

„to eliminate the education gaps between persons who

serve their country and those who did not.“ The dominance

of this theme is plainly portrayed on the face of § 1651,

which ‘‘declares that the education program created by this

chapter is for the purpose of . . . providing vocational re-

adjustment and restoring lost educational opportunities to

those service men and women whose careers have been in-

terrupted or impeded by reason of active duty . . [and of]

aiding such persons in attaining the vocational and educa-

tional status which they might normally have aspired to

and obtained had they not served their country.“

Nevertheless, the Government’s intimation that the dis-

trict court did not give sufficient consideration to the Act’s

other, albeit tangential, purpose is without support, as is

plainly apparent from the opinion below. See (15a-17a).

The Government urges reversal on two grounds: first,

that providing educational assistance to draftees who per-

form alternative service would not further Congress’ goal

of encouraging enlistments and therefore, the challenged

classification is valid since Congress need do no more than

is necessary to achieve its goals; and second, that while the

educational disruption of draftees for alternative and

military service is equal, Congress can constitutionally

provide educational assistance solely to the latter class of

draftees because of the ‘‘total — effect of military

service. (Gov. Br. 20). *

1. The Class of Draftees who Perform Alternative Service

and the Class of Draftees who Perform Military Service

are Similarly Situated in Terms of the Act’s Purpose of

Stimulating Enlistments Since Providing Educational

Assistance to Either Class has No Bearing on the

Furtherance of the Enlistment Objective

Stimulating enlistments is one purpose of the Act, but

it is a purpose obviously limited to those inclined to enlist.

Draftees, by definition, are not so inclined. They are deter-

mined not to leave civilian life and its liberties unless con-

scripted. It can hardly be assumed that Congress was

oblivious to this reality, and indeed it was not.“ It is

equally inconceivable that Congress decided to provide full

benefits to men who have been drafted as a stimulus for

either their enlistment or the enlistment of prospective

volunteers.

* The information available to Congress demonstrated that a

majority of volunteers were motivated to enlist by the draft. See

Hearings before Special Subcommittee on the Draft of the House

Committee on Armed Services, 91st Cong., 2nd Sess., p. 12638

(1970). It was also clear that a substantial percentage of the

military manpower need was met each fiscal year by inducting

draftees. See id. at 12625.

The vast majority of veterans eligible for educational

assistance were drafted or enlisted under direct compulsion

of the draft. This class of draftees, including I-A-O con-

scientious objectors, cannot be distinguished from the

class of draftees who performed alternative service. For

while it is reasonable to assume that registrants inclined

to volunteer are apt to respond to the incentive provided

by the Act, practical experience“ (South Carolina v.

Katzenbach, 383 U.S. 301, 331) permits no such assumption

as to those who will not serve unless drafted. There are

and always will be thousands of registrants (including

I-A-O conscientious objectors), who will not leave civilian

life unless compelled to do so; and the fact is that all the

enlistment benefits, including educational assistance, can

not and have not induced members of this class of regis-

trants to enlist.

Nothing in the Act’s history indicates Congress contem-

plated that educational assistance would have any real im-

pact on draftees. On the contrary, the legislative record

reflects that the Act’s proponents clearly understood that

the education program would not diminish the need for a

draft to meet half or more of the military’s manpower

requirements. Encouraging enlistments and compensating

lost educational opportunities pose, as one member of the

House Veterans’ Affairs Committee stated, ‘‘two separate

and completely different problems.. H. Hear., supra at

p. 2954; see also p. 2933.

Moreover, the unreality and implausibility of a plan that

holds out educational assistance as an inducement to the

thousands of registrants whose minds are dead set against

military service, and then provides it even when these

registrants must be drafted, is enough to suggest that it

could not have been intended by Congress. See United

States Department of Agriculture v. Moreno, — U.S. — ,

93 S. Ct. 2821, 2827; James v. Strange, 407 U.S. 128. Eisen-

stadt v. Baird, 405 U.S. 438, 448. This Court will not in-

dulge ‘‘illusory’’ objectives to rationalize an otherwise

arbitrary classification. Cf. McGinnis v. Royster, supra,

410 US. at 276.

In sum, the provision of educational assistance to

draftees, who have resisted enticements to enlist, has at

least as little relation to the goal of stimulating enlistments

as does the provision of educational assistance to alterna-

tive servicemen. Draftees for military service and draftees

for alternative service are thus identically situated in rela-

tion to the Act’s enlistment purpose. Under such circum-

stances fundamental concepts of equal protection require

equal treatment. See Morey v. Doud, 354 U.S. 457; Lindsey

v. Normet, 405 U.S. 56, 78-79.

2. Draftees who Perform Alternative Service for Two

Years have Suffered Disruption of their Educational

Plans and, Indeed, their Lifetime Careers to an Extent

Equaling or Exceeding the Level of Disruption which

Qualifies Service Personnel for Educational Assistance

under the Act.

The court below based its decision on a finding that

‘*[a]lthough military veterans and alternative service per-

formers lead different lives, their service lives have shared

one common denominator: the inability to pursue the edu-

cational and economic objectives that persons not subject

to the draft law could pursue.’’ (20a). That draftees for

alternative service suffer disruption of their careers at

least to the degree that renders a draftee for military

service eligible to receive educational assistance is not mere

happenstance, it is, on the contrary, the contemplated re-

sult of a long-standing, express national policy. Two basic

governmental interests require this policy and its vigorous

enforcement.

— ARON SION —

First, there are the manpower needs of the nation during

periods of emergency. I-O conscientious objectors have been

drafted pursuant to the Congressional power to mobilize

manpower for the nation’s defense. Their conscription re-

flects the philosophy of the Selective Service Act that no

citizen is constitutionally entitled to exemption from service

in the national defense that is consistent with his religious

beliefs. See Conscientious Objection, Special Monograph

No. 11, supra at p. 1.“

The second reason that compels the equalization policy

is the sense of Congress that it would be unfair and polit-

ically unwise to allow them [conscientious objectors]

freedom of action.’’ Conscientious Objection, Monograph

No. 11, supra, p. 1. To this end alternative service has been

deliberately designed to disrupt the lives of conscientious

objectors and to prevent them from ‘‘eontinu[ing] to enjoy

33 Indeed, if alternative service were not a vital component of

the defense effort it would be vulnerable to constitutional attack

as an unwarranted deprivation of liberty. But, alternative service

is a justifiable exercise of the Congressional power to raise armies,

and this has been the basis on which such service has consistently

been sustained. See e.g., Roodenko v. United States, 147 F. 2d 752,

754 (10th Cir. 1944). Alternative service assignments are ‘‘caleu-

lated to strengthen the nation in times of emergency . . . [these are

not assignments to] Macy’s basement. United States v. Hoepker,

223 F. 2d 921, 923 (7th Cir. 1956). These assignments bear ‘‘a real

and important relation to the ‘‘objects sought to be attained by the

[Selective Service] Act [which] are national defense and military

preparedness. Atherton v. United States, 176 F. 2d 835 (9th Cir.

1949). Recognizing that ‘‘[p]ractically, the system for con-

scientious objectors does deprive them of full liberty and requires

them to work at a rate of compensation far below what they could

earn ,. . [d] rafting for civilian work was an important aid to the

defense and welfare of the country during the war, and a neces-

sary fulfillment of the powers granted under the Constitution.“

Id. at 841-842. See also Weightman v. United States, 142 F. 2d 188

(ist Cir. 1944); United States v. Burns, 450 F. 2d 44, 46 (10th

Cir. 1971); United States v. Thorn, 317 F. Supp. 389 (E.D. La.

1970).

the fruits of civilian life. United States v. Boardman, 419

F. 2d 110, 112 (ist Cir. 1969).

The equalization policy is long-standing. In his first re-

port to Congress the Director of the Selective Service

stated:

The general rule has been to follow Army policy in

matter of this kind [extension of the term of service]

as closely as possible, not because the assignees were

considered to have military status, but with the idea of

making the conditions of their service comparable

wherever this could be done. It was felt that assignees

should be neither favored, nor punished because of

their beliefs, but as far as the law allowed, they should

undergo the same inconveniences and receive the same

benefits as the men in service.

See Selective Service in Peacetime, 200 (1942), reprinted

at p. 9 of Brief for the United States in Dingman v. United

States, cert. denied, 329 U.S. 730.

The equalization policy has been incorporated in an ex-

plicit Selective Service directive: Always there must be

an effort to see that the path of the conscientious objector

in being processed for and performing civilian work

parallels as nearly as possible the path of the I-A man in

his processing for and performance of military duty.’’ See

Local Board Memorandum No. 98, ‘‘ Determination of Ap-

propriate Work for I-W Service, September 11, 1969.

Therefore, according to a further directive of the Selective

Service, alternative service assignments must be tailored

to ‘‘constitute a disruption of the registrant’s normal

way of life somewhat comparable to the disruption of a

registrant who is inducted into the Armed Forces. See

Local Board Memorandum No. 64.

This policy is implemented by subjecting I-O conscien-

tious objectors to the severe dislocations caused by the

draft, which, as the Senate Committee found, has a ‘‘de-

pressant effect’’ on a registrant’s employment and educa-

tional potential—a factor that was deemed of critical

importance to the decision to create a peacetime education

program. S.Rep. 269 at 8. I-O conscientious objectors, like

I-A and I-A-O registrants, are uprooted when called by the

draft. It is not, as the Government cavalierly states, a

‘*temporary’’ matter (Gov. Br. p. 19), nor are they merely

assigned to another city. I-O conscientious objectors serve

for at least two years, and, according to Selective Service

regulations, they must be assigned outside of their com-

munities, which in many cases involves posts in rural or

remote locations, sometimes in camps, or in some cases,

overseas.“ The conscientious objector’s employer may

transfer him at will. Moreover, an assignment to a city may

have an even greater disruptive effect on those con-

scientious objectors ordered to such assignments since the

ceiling on their earnings permits them a serviceman’s

standard of living, while the city imposes a civilian’s cost

of living. This effect is magnified for those conscientious

objectors who come from rural settings, particularly those

from the historic pacifist sects.

There is, furthermore, no compensation for his or his

family’s health or welfare. The disruption experienced by

conscientious objectors is further increased by the fact that

they, by contrast to military servicemen, are essentially

barred from learning or developing any marketable skills

* During the pertinent period, over 200 conscientious objectors

were assigned annually to camps managed by the California State

Ecology Corps. They performed firefighting and conservation work.

The wage paid them ranged from 25 cents to 60 cents an hour.

Conscientious objectors were assigned to a similar camp system

run by the State of Oregon.

while in the service. Selective Service regulations prohibit

assignments of I-O conscientious objectors to ‘‘jobs in the

competitive labor market, or to any job which is ap-

plied for by other qualified people who are not registrants

in class I-O.“ 32 C.F.R. § 1660.6 (2).

Upon his release from service, the I-O conscientious

objector is out on the streets, with no job secured for him,

in an economic setting that has changed radically over the

two years of his service, where technological advances may

have dated whatever skills he may have possessed before

he entered service, where unemployment rates are high,

particularly in his age group, where those who have not

served have pursued fully all of the educational and career

contacts and opportunities available to them. The educa-

tional and career gap left by two years of alternative

service is as wide and formidable as the gap generally left

by military service.

The Government acknowledges, as the facts and express

government policy make clear it must, that the educational,

economic and general career disruption is equally severe

for all draftees, whether they have performed military or

alternative service. In an attempt to differentiate between

the two classes of draftees, the Government contends, now

for the first time, that military personnel suffer a total

disruptive impact that presumably is different from the

total disruptive impact experienced by those in alterna-

tive service. (Gov. Br. p. 20). The nature of this total dis-

ruption is never explained by the Government. Nor does

the Government make clear in what respects ‘‘total’’ dis-

ruption exceeds or differs from the comparable disrup-

tion’’ mandated by Selective Service regulations and policy

for alternative servicemen. Indeed, there is no demon-

strable difference.

And, it is important to note, the Government makes no

claim that this ‘‘total disruptive impact’’ interrupts or

impedes the educational careers of military servicemen

more or in a different manner than the disruption ex-

perienced by those in alternative service. In fact, the Gov-

ernment makes no attempt to draw a rational relation

between the ‘‘total’’ disruption and the Act’s objective of

providing compensation for educational disruption. As

such the Government clearly fails to meet its burden under

the traditional equal protection test of establishing a

„ground of difference having a fair and substantial rela-

tion to the objective of the legislation.’’ Royster Guano Co.

v. Virginia, supra at 415; see also Bullock v. Carter, 405

U.S. 134, 145; Morey v. Doud, 354 U.S. 457, 465.

Nor is there any factual basis by which the Government

could meet its burden. The sources of the ‘‘total’’ disrup-

tion—potential for hazardous duty, military discipline and

greater day-to-day limitations on personal freedom—do not

in fact have any bearing on the educational disruption

problem, for which Congress created the educational

program.

The mere potential for hazardous duty, even in cases

where it has some reality, does not interrupt or impede the

educational careers of those in service.“ Nor does it seem

Moreover, it is a fact that thousands of servicemen because of

special traits or handicaps,’’ as this Court noted in Girouard v.

United States, 328 U.S. 61, 64, are assigned to duties in the United

States and are not, in reality, likely to perform hazardous duty

even in the event of all-out war. There is in every army a non-

combatant class (not including conscientious objectors) comprised

of thousands troops of the commissariat and intendance, of the

veterinary service, of the pay and accounting department, orderlies,

clerks, and bandsmen. See Conscientious Objection, supra at 112.

Indeed, it was stressed by proponents of the Act that even in

periods of full scale war, a large percentage of the men in each

branch of the Armed Forces never left the United States. See, e. g.,

H. Hear., supra at 2899, 2905.

conceivable that having refused to give special considera-

tion to veterans who have actually served on combat duty,

Congress decided to predicate educational assistance on the

mere potential for such service. Such a decision is more

unlikely still, given the absence in the Act of any means

for distinguishing between those for whom the potential

had reality and those for whom it did not.“

Nor has military discipline been thought to have a dis-

ruptive influence on the capacity for educational achieve-

ment. In fact educators uniformly agreed in their Congres-

sional testimony that the discipline and rigors of military

life make the veteran a more serious, ardent and mature

student than his contemporaries who lack similar ex-

perience.“ Moreover, alternative servicemen are daily

.O conscientious objectors are likewise subject to hazardous

duty assignments, even in combat areas.

While neither the Department of Defense nor the Selective

Service maintains records on the number of conscientious objectors

who performed alternative service in combat areas, the available

information, as least as to Vietnam, indicates that the number is

substantial in relation to the total number of I-O conscientious

objectors in service. We have been advised that a screening

conducted by the Selective Service of some 826 files from the years

1968-1970 indicates that at least 24 I-O conscientious objectors

served in Vietnam. Letter dated August 13, 1973, from Glenn R.

Bowles, Selective Service Operations Officer. The Selective Service

maintains no records of conscientious objectors who have incurred

service-related disabilities. In June, 1973, the Selective Service

first began recording medical, hardship and dependency discharges

from alternative service. According to the Bowles letter, in June,

1973, 8 conscientious objectors were discharged for medical reasons

and 11 for reasons of hardship and dependency. It is also confirmed

in the Bowles letter that one alternative serviceman was killed in

Vietnam, but the full extent of casualties for alternative service-

men in Vietnam is unknown. The Mennonite Central Committee

reports that one conscientious objector attached to its Vietnam

program was captured by the Viet Cong and has not yet been

accounted for.

* See, e.g., S. Rep. 89-269 at 13.

subject to the normal disciplinary code, procedure, and

penalties that exist in employment situations. Beyond this,

of course, is the fact that willful failure to perform any

reasonable requirement of the employer is subject to a

felony prosecution.“

Finally, despite the day-to-day control over service per-

sonnel, a tremendous number have enrolled in college

courses during their off-duty hours. See H. Hear., at pp.

2953, 2982-2983; S. Hear., at pp. 70-71. Moreover the serv-

ices have extensive vocational, technical and educational

programs of their own. See H. Rep. 89-1258 at p. 18;

H. Hear., at pp. 2918, 2953. The Act itself indicates that

service personnel have been assigned to civilian institutions

for civilian course work. See 38 U.S.C. C 1652a(3) ; H. Rep.

89-1258 at p. 8.“ And, in 1970, Congress created ‘“‘PREP’’

(Predischarge Education Program), 38 U.S.C. $4 1695,

et seq., providing assistance for any person who has served

on active duty in the military for more than 180 days to

complete a secondary education or to take preparatory

courses for post-discharge college or vocational education.

This program also provides educational and vocational

guidance.

Essentially, the Government’s argument is that the Act’s

education program is not designed to compensate the edu-

cational disruption caused by service, but to compensate

the ‘‘total’’ disruption experienced by service personnel.

„ 1660.8; see United States v. Burns, 450 F. 2d

44 (10th Cir. 1971).

_™ Appellee in this case attended night school at Boston Univer-

experience and overall opportunities that a sustained, full-time

college education has to offer. It therefore is quite appropriate for

the Act to provide benefits to veterans who have attended school

during their off-duty hours, since their education, like appellee's,

was ‘‘interrupted and impeded by virtue of their service.

The Government’s position is merely a restatement of its

argument, now abandoned, that educational assistance is

compensation or a reward for hazardous or potentially

hazardous duty (see J.S. 6). Both are attempts to add a

substantive purpose for the education program to those

substantive purposes the Act specifies. The present attempt

is no more justifiable than the last.“ It is based on pure

For example, the Senate report expressly rejects any intima-

tion that educational assistance is compensation, bonus or reward

for exposure to the hazards of military service, as being contrary

to the philosophy and purpose of the GI bills [which] is and has

been to give readjustment assistance to the veteran returning to

civilian life after substantial military service and not to reward

him for the risk that he might have been exposed to. S. Rep. 89-

269 at 19.

Indeed the legislative record is replete with statements by the

Act’s proponents that its purpose was solely to provide assistance

for a service-connected disability, educational disruption. As |

epee teen who as a Senator during World War II was |

a leading sponsor of the original G. I. Bill, stated: |

first G. I. bills were not designed as sops for those |

the battle, nor as bounty pay. They were

all those who served, not merely those who

had been shot at. To my knowledge, there is no adequate

way of repaying a man for the risk of his life, or for the gift

of it. There are, however, ways of repaying him for his time

and his services, and the G. I. bills embody such ways.

the cold war vets did not engage in actual combat

as did their predecessors but this legislation is not intended to

be a reward to our young men for risking their lives. The

purposes of the cold war GI bill is to restore lost opportunities

to our servicemen, to give them a fighting chance to catch-up

with the world they left as civilians.

Senator Yarborough also stated, Sen. Hear., at p. 8:

This is not a halfway proposal to reward only those who

see hazardous duty, or some select group of servicemen—for

speculation as to motive, and ignores the best, and, in this

case, conclusive evidence of Congress’ purposes in creating

the education program, namely the terms and operation of

the Act itself.

The lack of textual support for the Government’s posi-

tion is underscored by the fact that its only reference to

the Act is to the word ‘‘readjustment”’ in the title. (Gov.

Br. p. 20, n. 18). On this basis, the Government concludes

that Congress was not merely concerned with the educa-

tional readjustment of veterans, but rather with their re-

adjusting to civilian life’’ in general. But the Act’s title

does not bear any such inference, and the actual terms of

the Act are directly to the contrary.

If Congress intended a broader purpose for its educa-

tion program than restoring lost educational opportunities,

it could easily have said so. Indeed, as the Korean War

G.I. bill (38 U.S.C. $§ 1601 et seq. (1952) repealed by P.L.

89-358, § 4(a), 80 Stat. 23) makes clear, Congress’ edu-

cation program has been and is solely and specifically

for the purpose of compensating educational disruption.

The prior Act's Statement of Policy’’ provides disposi-

tive evidence.“ That statement draws the critical distine-

educational opportunity cannot be used to salve our conscience

for sending men to war. Rather this is the recognition that

there is a segment of our population that suffers from lack

of opportunity, and that is the entire cold war veteran popula-

tion. Their need is not based on the type of military duty

they performed, but on the lack of opportunity to readjust

back to civilian life after having been removed for 2 to 4 years.

“STATEMENT OF POLICY

The Congress of the United States hereby declares that the

veterans’ education and training program created by this Act is

for the purpose of providing vocational readjustment and restoring

lost educational opportunities to those service men and women

whose educational or vocational ambitions have been interrupted

or impeded by reason of active service in the Armed Forces during

tion between the education program’s objective of re-

couping lost educational opportunities and the broad re-

adjustment purpose of ‘‘assisting in the readjustment . . .

{of veterans} from military to civilian life, which was the

specified objective to be served by the farm and business

loan and bonus provisions of that Act. This distinction was

strongly emphasized by the 1952 Act’s authors:

Title I gives as a short title of the bill, the ‘‘ Veterans’

Readjustment Assistance Act of 1952.“ The statement

of policy makes clear that the purpose of this proposal

is to provide vocational readjustment and to restore

lost educational opportunities to those service men and

women whose educational and vocational ambitions

have been interrupted or impeded by reason of service

during the emergency in one of the branches of the

Armed Forces. This is the fundamental philosophy

underlying the educational provisions of the bill, and

it is well to keep this philosophy in mind in the con-

sideration of such provisions. It further emphasizes

that the other programs under the bill are intended to

provide readjustment assistance.

See H. Rep. No. 82-1943, 82nd Cong., Ist Sess., pp. 27-28

(1952).

a period of national emergency and for the purpose of aiding such

persons in attaining the educational and training status which they

might normally have aspired to and obtained had they not served

their country ; and that the home, farm, and business-loan benefits,

the unemployment compensation benefits, the mustering out pay-

ments, and the employment assistance provided for by this Act are

for the purpose of assisting in the readjustment of such persons

from military to civilian life.

42 The Government’s house of cards argument topples when it is

noted that the term readjustment is used in the present statute

solely in relation to the vocational rehabilitation goal. Moreover,

the education program is codified under the title Veterans“ Edu-

cational Assistance.

The 1966 Act creates purely an educational program.

The various non-education assistance programs, such as

farm and business loans, provided in the Korean War bill

for general readjustment were expressly deleted from the

1966 Act. Thus, 8.9 contained general readjustment pro-

grams, although scaled down from their Korean War

models because of the ‘‘peacetime’’ service involved, S.

Rept. 89-269, at 15-17, but none of these programs were

adopted by the House, which substituted the substance of

its bill for that of 8.9. The House bill was, from its incep-

tion, solely an education program, with the purpose, as

emphasized by the Veterans’ Affairs Committee, ‘‘to pro-

vide assistance which would help the veteran to follow the

educational plan that he might have adopted had he never

entered the Armed Forces. H. Rept. 89-1258, at 5.

That the education program was designed to restore lost

educational opportunities, not to compensate for a ‘‘total’’

disruptive effect, is thoroughly borne out by the Act in

practical operation. Since the Act creates a permanent

program, eligibility for which is based solely on time in

service, it necessarily provides compensation to thousands

of servicemen and women who have experienced no more

disruption to their lives or educational careers than is

caused by the mere fact of two years’ service. Thus,

full benefits are available to those who served in periods

of undisputed peacetime or in assignments which involved

no real potential for combat or combat zone duty. Members

of military bands, occupants of safe desk jobs, I-A-O con-

scientious objectors assigned by their preference to em-

ployment, such as clerk-typists in non-medical units, serv-

icewomen who do not volunteer for combat zone duty, are

some of the thousands of veterans who performed civilian-

type duties in the United States, for whom the rigors of

service were far from ‘‘totally disruptive. Moreover, full

benefits are provided without regard to whether the draftee

service were far from ‘‘totally’’ disruptive. Moreover, full

munity and had a nine-to-five job on the military base as a

file or stock clerk. Full benefits are provided even if the

veteran is one of thousands who attend college courses dur-

ing their off-duty hours.“

It must be presumed that Congress understood the

breadth of the Act’s eligibility criteria, and that educational

assistance would be provided not only to those who served

in foreign posts, in combat, or in wartime, but also to thou-

sands whose service involved no risks or hazards: Indeed,

the legislative history demonstrates Congress’ clear aware-

ness of both types of service. It further demonstrates that

the authors of the Act viewed educational assistance not

as compensating for the general rigors of military life, but

as a practical program relevant to all in service because

they all lost the same amount of time—time which could

have been spent in school of on a job and time which was

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