# Amicus Curiae Brief — Johnson v. Robison > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0248%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 415 U.S. 361 ## Text 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 e 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. 3 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 — — — 5 „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. 7 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. 9 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 11 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 12 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. 15 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. rr 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 16 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 17 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. 18 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: 19 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 20 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). 21 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. 22 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 23 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. 25 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 27 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. 29 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 31 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. 33 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 = ö 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 i 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. 35 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 36 . 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). 37 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. IV 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. 39 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 a 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 41 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- 21 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 52 57 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 v 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 . ᷣͤ VVT JJ. dha ckcaenacacs JJ ere errr Oi si T 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 = — f * vn Page Cee ret he 24, 42 § BAB 6 „„ 42 %. Ta 42 4% „„ „„ 444 24, 42 466 WWW . . 42 (%% „6666 ee Oe rx @ §§ 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 5 „ 6 Se 3 49 74, 77 © DORR ncn ...e 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 z= 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 8 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, v. 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? 3 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 3 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. 5 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.). 7 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 L 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 — 11 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. V. 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). 13 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. — 15 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. i 1 1 770 LEME ALOT EEE LL LLN ELLER d LB ELOISE IEE SION AGS SR 1 17 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). 18 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 _— . — 19 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 — 21 I. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0248%3A5. Public record. Not legal advice.