Case Study 1: Shannon Faulkner and the Citadel

[Optional Readings]

[Note: This reading is optional for Group A participants]

Catherine S. Manegold, "In Glory's Shadow."

Interview, December 1, 1999.

By forcing the Citadel to let her in, Shannon Faulkner broke down the doors of one of the toughest all-male clubs in the country. But that was just the beginning of the battle. In her new book, In Glory's Shadow (Knopf), excerpted here, Catherine S. Manegold offers an up close look at Faulkner's historic achievement--and the price she paid for it.

For 157 years the Citadel--the famously rigorous military academy in Charleston, South Carolina--has been associated with austerity, sexism, and cruel hazing rites. In its attempts to produce an elite, loyal fraternity, the academy effectively weeds out "unfit" cadets, who usually drop out within the first few weeks from exhaustion or intimidation--or both. For 153 of those years, only men were allowed to endure these punishing rituals. But in August 1995, against the school's wishes, all that changed: Nineteen-year-old Shannon Faulkner dared to join this exclusive brotherhood, rocking the very foundations of one of the most entrenched good-ol'-boy institutions in America.

After a landmark three-year legal battle, which was ultimately brought before the Supreme Court, Faulkner won the right to attend the Citadel on the grounds that a public institution could not discriminate on the basis of sex. The victory, however, was largely a symbolic one: The school hadn't wanted her in the first place, and she was despised by many of her fellow cadets. Faulkner quit the Citadel after just one week, worn out and defeated.

Still, as a result of her efforts, the doors at the Citadel, as well as other all-male institutions, had been decisively opened to women, and the next year four female cadets enrolled in the academy's freshman class.

Okay, so it was true, he [the Citadel's commandant, Roger Popham] acknowledged, old traditions would survive. The corps would stay all-male for now. He shrugged. That was fine with him. He would pick up Shannon and her family and that woman lawyer who had come down, too, and drive them all off campus. It was a job like any other job. "Of course," he said stiffly, sounding utterly unconvinced, "I'm very pleased the school will stay all-male." He pulled his Jeep in front of the low white infirmary and eased it to a stop. The windshield wipers splashed in a sudden burst of rain. "I think the school should stay the same," he said. "Yes, sure, I am happy about that. But I'm not happy for her." He left the engine running and turned the airconditioning up high, then peered distractedly into a low kaleidoscope of clouds. "I'm sure this must be hard for her. I have daughters of my own."

As Popham spoke, Shannon bolted from the infirmary and headed toward her barracks. Suzanne Coe, bedraggled and in tears, followed in her wake. Stopping underneath a tree for shelter, Shannon's lawyer answered questions in her normal rush. "She has been in this fight for three years," Coe said shakily. "She's not up to this. She's all alone. She doesn't want to stay. She doesn't want to go through life like this. This was a hostile atmosphere."

There was a roar above her. The news was out. The only thing still missing was a quick drive off the campus. From one building to the next cadets began to yell. Coe looked up and wiped a stream of water from her face, then raised her voice above the uproar. "These are the people who testified against her in court," she said, fighting back tears. "She has had death threats and constant harassment. She's upset. She's very tired. Nobody likes what we're doing here today. Nobody is happy. But it's been an emotional roller coaster for three years, and she wanted to step off."

Reporters peered in a side gate in Shannon's barracks, straining for a glimpse. A cadre member saw them and pushed a crowd of knobs [freshmen] up to the gate. He lined them up three deep and kept them huddled in a human wall. "Click," he said. Twenty boys locked into close attention, all eyes upon the corporal.

When Shannon reemerged she planted herself in front of a sodden huddle of reporters, choking back a surge of tears. Ed [Faulkner, Shannon's father] hovered in the background, ready for the end. "It's hard for me to leave," Shannon said with her voice cracking. Tears streamed down her cheeks. Her stomach heaved, her voice choked, a sudden downpour cascaded in thin rivulets down her brown hair and shaking legs. "This is something I have worked toward for so long."

A lot of people thought she should have skipped that sad last act. The Citadel had prepared a car and an easy escape route complete with a police escort. They expected her to slip out a back door, the picture of defeat. But that was never Shannon's style. And that was not her exit. Instead, she stopped out on the wet concrete and faced reporters with her hair in tangles and her cheeks drenched in salty tears and her clothes all soaked with seaside rain and sticky as she thanked a lot of people but haltingly admitted that, no, she could not do it. Three years in court had been too much. The toll of that long fight was more than she could bear. The isolation was too painful. The ordeal had been too long. She could not keep her food down now. She could not face the year alone. She would not break the barrier. The barrier had broken her. Now she was terrified. And she was sick. And she was quitting.

"I'm sorry," she told so many. "All I can say is I have to think about my own health right now."

The cameras clicked and spun.

Suzanne Coe stayed over to one side and cried. It was a bad last day. And it had come up fast. From the outside it looked as though Shannon had marched for barely half a day, then fallen ill and lost her nerve. Three years in court came down to that. Her breakdown was quite obvious. But the pieces of it hardly fit. One day she was laughing and triumphant. The next she was walking weakly toward the school infirmary while cadets snapped and marched at either side. Half a day of marching could hardly have done that. Only a few observers really grasped the choreography. They nodded while they watched the scene play out. The Citadel could break anyone, they said glumly. That was the school's tradition. Indeed, that was its point: order and control. Shannon was a magnet for that fate.

When Shannon finished speaking, Ed helped his daughter into Popham's waiting Jeep. Popham looked about him once to make sure all the doors were closed. Then he turned the wheel and laid his foot hard on the gas pedal.

On the road out near the college gates, three cadets in soaking uniforms danced as the Jeep passed by. "Hey, hey, the witch is dead. The witch is dead, the witch is dead. Hey, hey, the witch is dead...." They raised their legs like showgirls.

Jeremy Wilson, the razor-faced senior who commanded Third Battalion, was staring hard into a camera. "I think it went well," he said above the uproar. "I think the corps of cadets handled it well and so did India Company. Everybody did what they had to do. She was going to receive the same training as the rest of the cadets."

Behind him, a small group of boys marched past, shouting: "God bless the all-male corps of cadets."

Another group ran behind them, following their wet and flapping company flag, slamming their feet against the pavement in loud syncopated steps.

Moments later, the skies cleared. Just as suddenly as the rain had come, the day abruptly brightened. The sun came back out burning and left a veil of steam to rise above black asphalt in a dank perfume. Inside the barracks all at once a roar gathered and gained volume. By the time Popham and his famous cargo had wheeled through the campus gates, that college riot found its wild crescendo. Barracks buildings exploded with noise. Everywhere, cadets hugged and cheered and shouted. Shannon Faulkner was gone. The war was over. Their celebration was spontaneous and mean.

As Popham's Jeep slipped past a grim-faced sentry, young men in matching shorts and T-shirts heaved mattresses from first-floor rooms then ran, sliding, over rain-slicked ground. With awful whoops they threw the plastic bedding out before them and climbed on board, "quad surfing" over wet concrete. All four quadrangles roared with cheers and laughter. Cadets ran and slipped and let out noisy whoops, swinging sodden shirts over their heads. Bare chested, they tore at one another's clothes and then leapt piggyback onto the backs of friends and classmates. Students with their heads shaved nearly clean ripped off their hats and dropped down to their knees to howl with delight. Yeeee-haaaaa! They gulped that unexpected victory and splashed and slapped and punched each other roughly in shared glee. Cadre sophomores doubled over laughing and yowled nonsense syllables in crazy bursts. A lot of the new boys joined in, too, caught up in that mass ecstasy.

The Associated Press, "Former Citadel Cadet Awarded $135,000."

The Herald Rock Hill, November 16, 1999.

Columbia, S.C. (AP) -- A former female cadet at The Citadel has settled her sexual harassment suit against the school, a staff member and two former cadets for more than $135,000, her lawyer says.

"Jeanie Mentavlos lost a year of her life, and while this certainly doesn't totally compensate her, it's a large step in the right direction," Mentavlos' lawyer Dick Harpootlian said Monday.

The formerly all-male military school's Board of Visitors agreed to settle with Mentavlos for $100,000 last month.

The State Budget and Control Board received the court order specifying the amount Monday, spokesman Michael Sponhour said. The settlement will be paid through the state Insurance Reserve Fund, which insures public agencies, he said.

The settlement covers the state-run college and Army ROTC Capt. Richard Ellis, he said. The agreement does not require the school to admit liability.

"We think the settlement represents a reasonable resolution for all parties involved. It saves the state the expense of a costly trial," the school said in a prepared statement earlier this month.

Mentavlos also settled with former cadet Eric Amhaus for $35,000, Harpootlian said. He refused to comment on the reported settlement with former cadet Nicholas Belcher.

Mentavlos, of Charlotte, N.C., sued the school, Ellis and five cadets for sexual harassment, saying she was mistreated in 1996.

Her suit against three cadets is still pending. That case was scheduled to start this week but has been delayed so U.S. District Judge Joseph F. Anderson Jr. can hear arguments Wednesday on whether cadets were acting for the state.

"Jeanie and her family are satisfied (with the settlement), but the matter is not settled yet," Harpootlian said.

Mentavlos claims she was harassed because she is a woman. The cadets admit Mentavlos was harassed, but not because she was a woman and no more than male cadets.

The Citadel remained an all-male school until 1995, when Shannon Faulkner was allowed to enroll as a civilian day student. In 1996, Faulkner dropped out after just a few days as a member of the cadet corps. The next fall, Mentavlos was one of four women enrolled, but she and Kim Messer dropped out after one semester. Messer settled her lawsuit against the school last year for $33,750. Nancy Mace, a classmate of Mentavlos and Messer, became the first woman to graduate from The Citadel in May. The fourth member of the class, Petra Lovetinska, is a senior scheduled to graduate in the spring.

Linda K. Kerber, "Getting the Shaft: Feminist Susan Faludi Explains How American Men Have Been Cheated by Their Culture."

Chicago Tribune, October 10, 1999.

Linda K Kerber is the author of "No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship" She teaches history at the University of Iowa STIFFED: The Betrayal of the American Man By Susan Faludi Morrow, 662 pages, $27.50 Out of her fearless detective work, her searching interviews, her feminist skepticism and her sensitivity to historical change, Susan Faludi has written a compelling interpretation of men's anger as they face the economic and cultural pressures of American society at the end of the 20th Century.

She began, she tells us, observing a domestic-violence therapy group, intending to write a book that would be an obvious continuation into the private sector of the public attacks she had explored in her book "Backlash: The Undeclared War Against American Women," which won the 1992 National Book Critics Circle Award for nonfiction. But the anger of the men she interviewed turned out to be fueled by a wider range of frustrations than she had expected, and, to her credit, Faludi shifted her perspective, traveled widely and listened harder, and changed her mind about where the solutions to anxieties might be found.

Faludi is unflinching. There will be people who will read this book--sometimes I found myself one of them--as voyeurs; she is not afraid to hang out in the underworld of inner-city crime, among the producers of pornographic movies, with men who collect guns. Her inquiries start at the Long Beach Naval Shipyard, south of Los Angeles, and take her to Los Angles suburbs struck by the downsizing of aerospace firms, where teenage boys name themselves the Spur Posse and count sexual encounters like scalps, and demoralized men join the Promise Keepers; and to the Citadel in South Carolina, where Shannon Faulkner's effort to enter a state-supported military academy was met with sexualized violence. Faludi gains the confidence of men who have made the location of the destruction of the Branch Davidians at Waco, Texas, a site of pilgrimage, and of young black men whose lives in gangs "unfolded on the bereft streets of South Central Los Angeles."

As she travels, Faludi maps a landscape marked by competing visions of manliness. A stunning opening chapter on men who have lost their jobs contrasts the skilled workers of the Long Beach dry dock, who have remained psychologically whole, with the demoralized white- collar middle managers of McDonnell Douglas. The demise of traditional local booster clubs, which paternally supported professional athletes at the start of their careers, is contrasted with the pathos of working-class fans who find in the Cleveland Browns something they think they can be part of and are devastated when the franchise abandons them for another city. The gay editors who invent the lively magazine Details are replaced by owners who hope to increase circulation by "heterosexualizing" it.

Faludi's landscape is populated almost completely by men. Except for the gay men--who understand that " 'effeminate' men might not be so hated if the feminine was more respected"--the men rarely talk about women, and when they do it is often with resentment. What counts is men's uneasy sense of their own masculinity, their anxious relations with each other and, over and over, their betrayal by their own fathers. The promise that "father knows best" turned out to be empty, as post-World War II fathers submitted to a consumer culture, themselves becoming pawns in a work force in which appearance trumps production and CEOs who lay off workers gain from instant rises in stock prices.

Readers will have their favorite sections, but for me, the book's most compelling ones are the interlocking chapters in which the tragedies of the Vietnam War linger in men's imaginations. Faludi restores Vietnam--and especially the My Lai massacre--to its place in living memory: It is the "central masculine crisis" of a generation, "a defining event of American masculinity." Vietnam represents a fault line between the fathers who actively sent their sons off to Vietnam and the sons whose hearts and minds were broken; between the fathers who passively permitted the sons to be taken off to war and the sons who hoped against hope that somehow their fathers would rescue them from horror.

The Vietnam stories are full of ironies. The "protestors at home were in some odd sense fighting the last conventional war," their battle lines drawn against the police. Michael Bernhardt, the eyewitness who first dared to break the story of My Lai, began as a volunteer intending an Army career. Instead of recognizing his integrity, the Army did all it could to break his spirit.

Vietnam continues to haunt the male imagination. The Rambo films reclaim the solitary hero for another generation--alone against the enemy, saving POWs, rescuing his own officer. Life imitates a Dickens novel as Faludi traces the intersecting paths of those who built the Rambo image out of their own nightmares and the ghosts of their fathers' absence or--for Sylvester Stallone--their father's violence. At Waco, Faludi finds Vietnam imaginations still at work, as men try "to restage the Vietnam war, this time casting themselves as the virtuous Vietcong guerrillas" and the FBI as the perpetrators of massacre.

"Stiffed" has a good deal in common with Betty Friedan's "The Feminine Mystique." Where Friedan warned of the vision of women as dependent wives, Faludi warns of the strength of the vision of the American man as lone adventurer. Both fear the power of consumer culture. Like Friedan, Faludi is angry about the substitution of ornament for usefulness, celebrity for accomplishment, the displacement of resentment against corporate culture into self- reproach. Thrumming in a steady underbeat is Faludi's bitter "J'Accuse"--against the celebrity money that fouls American culture, against the military-industrial complex named by President Dwight Eisenhower and embodied by Robert McNamara, against the posturings of Ronald Reagan's presidency.

But unlike "The Feminine Mystique," in which Friedan often drew her examples from anonymous respondents to questionnaires, Faludi names virtually all her sources, and she makes compelling stories of their lives.

It may be that Faludi's most immediately useful political insight is into a source of resistance to even moderate gun control--waiting periods, registration, mandatory safety training--by people who are otherwise reasonable and law-abiding. Resisting gun control is less about guns--whether for hunting or for safeguarding the 2nd Amendment- -than it is about needing "the props in what (is) essentially a performance of masculinity." The "self-described 'patriots' " who talk to Faludi are angry at "women who didn't want their protection." Over and over, the men whowere drawn to Waco as to a shrine were still complaining about Jane Fonda in Vietnam: "They were fighting a world transformed by the women's movement." Would gun-control advocates have more success if they looked sympathetically into the eyes of their opponents and asked, "How long have you been feeling this way?"

Throughout her book, Faludi quietly weaves a thoughtful history of feminism in our own time. Sometimes she falls into the easy trap of crediting "The Feminine Mystique" with more than it could possibly have accomplished alone: In the year of its publication, a coalition of women were successfully completing a decade-long campaign for the Equal Pay Act, the President's Commission on the Status of Women was publishing a startling list of the ways men and women were denied equal protection of the law, and a generation of labor-union and civil-rights activists were rebuilding economic and political structures.

And toward the end, numbed perhaps by listening to so many men's complaints, Faludi repeats a simplistic characterization of feminism- -that women have "frame(d) their struggle as a battle against men." But the battle has been less against men than against male privilege embedded in law and social practices. About these privileges Faludi's informants profess themselves to be blissfully innocent.

But the women who Faludi's informants know are taking advantage of feminist change and doing their own part toward making it happen: They are moving out of their hapless marriages into more promising ones, out of dead-end jobs into better ones that would not have been available to them a generation ago. They are increasingly skeptical of the corporate culture that defined them only as consumers. They are claiming more education and, for their daughters, more access to sports.

Alone, however, they cannot change the world. Faludi's message is that men's anger is displaced; they are foolish to demonize feminism. Faludi argues that their enemies are an empty culture of celebrity and a corporate economy that is focused on short-term gain, a culture that still conveys that the successful man has always been a loner. But loners have no chance against a bureaucracy. Faludi offers a better history: Against the story of the loner there was always a competing one that situated the admirable man in a productive community--on the frontier, in battle looking after his men. Faludi concludes that men should not be afraid of nurturing and should get on with the job of challenging those who would undermine the solidarity of men and women across class and across race.

Those who read this book to confirm their suspicion that in the last generation women have improved their status at the expense of men may not easily recognize that Faludi's heroes--the rare men who emerge with a wholesome sense of a masculine self--are the racially diverse community of the unemployed dry dock shipworkers and the gay men who rally to support each other in the face of AIDS. For all Faludi's sympathy, for all the understanding of the frustration that leads to anger, for all the confirmation she offers that their fathers--biological and metaphoric--have done them wrong, men looking for confirmation of their hostilities will find that they have been led to a conclusion that will surprise them by a feminist who understands them better than they understand themselves.

Diana H. Mazur, "A Call to Arms."

Excerpts from 22 Harv. Women's L.J. 39 (1999).

Rostker v. Goldberg [FN97] was likely the high-water mark for the potential of true feminist engagement with the reality of the military in women's lives. Rostker concerned an equal-protection challenge to the Military Selective Service Act, legislation that required young men, but not young women, to register for the military draft. President Carter, an Annapolis graduate and former naval officer, [FN98] had recommended the registration of women as well as men, but Congress declined to amend the Act. [FN99]

The Court found the draft registration system to be constitutional despite its express exclusion of women from the responsibility of military service. Rostker's reasoning relied primarily on a weak factual premise that the only purpose of the draft was to supply the military with additional combat troops. [FN100] Because women were excluded from combat by law and by defense policy, [FN101] women were not similarly situated to men; if not similarly situated, they need not be treated in the same manner. To register women despite their ineligibility for combat would be to "engage in gestures of superficial equality." [FN102]

Legal feminists disagreed strongly with the reasoning of Rostker, particularly the idea that one sex-based form of discrimination (in Rostker, women's exclusion from combat) could be used to justify another (women's exclusion from draft registration). [FN103] If that was all it took to evade constitutional scrutiny, the possibility of equality seemed hopeless. "The majority's acceptance ... of legally created differences as a basis for other sex-based laws seems inconsistent with any serious commitment to eliminating sex discrimination." [FN104] "The unfortunate effect of such an approach is to preserve sex-based statutes providing they are part of an interlocking statutory scheme founded on gender differentiations." [FN105]

Critics, however, were much quicker to reject the symbolism of Rostker than to engage the reality of Rostker. [FN106] They were uniformly dissatisfied with the message that the decision sent about women, one that assigned them to protected roles and at the same time excluded them from benefits in the public sphere. [FN107] For example, one writer argued that "the symbolic significance of imposing on both young women and young men the obligation to be available for military service should not be underestimated." [FN108] Another criticized the Court for failing to "consider that such exclusion might promote other forms of discrimination, such as barring women from political office for lack of military credentials, or that the exclusion itself might foster negative attitudes about women." [FN109] This theme of critique, however, focuses more on the consequences of obligation (or exemption from obligation) than on the obligation itself, as illustrated by the following example of the standard objection that feminist legal scholars lodged against Rostker:

Although the United States Supreme Court has come to condemn explicitly the separate spheres ideology when revealed by gross, stereotypical distinctions, the Court majority has been less sensitive to the effects of more subtle sex- based classifications that affect opportunities for and social views about women. The Court ignored, for example, the implications for women of a male- only draft registration system in reserving combat as a male-only activity. [FN110]

Legal feminists did not like the implications of Rostker, but I believe they would have liked the broader reality of its dissenting opinions even less. If Rostker is "an exercise in diversion," [FN111] then the feminist critique is an exercise in diversion as well, because it fails to directly engage the full spectrum of consequences that arise from responsibility for military service. Had the case been decided differently, all women of the appropriate age would have been required to register for the draft. For the first time, women as a group would have experienced their obligation for military service in at least an immediately concrete, if not immediately consequential, manner. Had there been a national crisis warranting the draft of civilians to military service, [FN112] many more women would have served in the military and many more women would be veterans today. More significantly, women would have served regardless of whether they would have otherwise chosen to volunteer. This is the ultimate reality of Rostker that legal feminists rarely faced: that women should be, and need to be, responsible for military service on the same basis as are men.

Legal feminists were able to disagree with Rostker's result without engaging Rostker's reality because, at the time the case was decided, its consequences were much more abstract than real. It was fairly easy to condemn the opinion, to mouth all the right words about wanting women to have all the equal rights and responsibilities of military service, because the obligation at issue in Rostker was largely hypothetical. During the all-volunteer era, our nation has never considered a draft of civilian men to military service from the rolls generated by the draft-registration process, not even during the Persian Gulf War. [FN113] The political likelihood of doing so in the foreseeable future is nil. [FN114] For legal feminists, the paperwork of registration seemed an acceptable price to pay for a Supreme Court opinion that would talk about women as if they were full and equal citizens.

When the responsibility for military service, whether by legal obligation or by desire to contribute, becomes linked to immediate benefits, consequences, or exclusions, however, the rhetoric changes. When the links between military service and its "implications" are more direct and specific, legal feminists are less likely to call for equal opportunities to serve and instead more likely to look toward alternative opportunities. For example, there is great frustration with the interlocking nature of military service and subsequent veterans' preferences and benefits. In Personnel Administrator v. Feeney, [FN115] the Court upheld a Massachusetts civil-service selection system that granted absolute preferences to military veterans and, as a result, effectively excluded women from state employment in professional positions.

Feeney is an interesting decision, one that was poorly reasoned at the time it was decided but became better reasoned under more modern circumstances. Often it happens the other way around; particularly with respect to the issue of equal protection on the basis of sex, early cases seem hopelessly antiquated. [FN116] But in 1979, Feeney's conclusion that the veterans' employment preference distinguished "between veterans and nonveterans, not between men and women," [FN117] is somewhat disingenuous in the context of the strict numerical ceiling on women's enlistment that had been repealed just twelve years before. Until 1967, the military's accession of women was limited to two percent of enlisted strength; [FN118] the Court should not have been surprised that slightly less than two percent of Massachusetts's veterans were women. [FN119] It should be harder to look past such a disproportionate effect when the qualifying experience is limited by law expressly on the basis of sex. [FN120]

Now that more than thirty years have passed, however, do we ask the wrong question when we ask what justifies treating (mostly male) veterans differently from non-veterans? Many have rightly criticized Feeney, [FN121] but few have asked why women are not better represented in the military and therefore eligible as veterans themselves. [FN122] The fairest answer, particularly today, would probably be that women feel disproportionately little obligation to do so. Legal feminists have supported this sense of exemption from obligation, advocating more traditional (meaning more appropriate) forms of service for women. [FN123]

Whenever the idea of more substantial military participation by women becomes unavoidably real, avoidance is still the order of the day. One scholar expressed the idea that feminists can support the participation of women in the military as a general principle but at the same time discredit any individual feminist who actually does participate: "I am asking why feminists should support the full participation in the armed services from without, not why a sincere liberal of any gender should from within." [FN124] There is an ostrich-like sensibility to most feminist scholarship about the military that seems to hope that the institution will go away if it is just ignored, that it will change if it is just criticized, and that it will become a more feminist place even if feminists do not become a part of it. None of these things is going to happen, at least not without a sense of obligation on the part of women, and on the part of feminists, that they are part of the solution.

Engaging the reality of military obligation for women requires a factually specific and factually accurate understanding of how women are harmed when they separate themselves from the institution. Legal feminists do recognize that women are disadvantaged in a reputational sense when their responsibility for military service is excused; citizens without full obligation are inevitably seen as something less than full citizens. [FN125] Even those with the most animus against the military agree that Rostker "was about the connection between military service and eligibility for personhood." [FN126]

But the consequences for women are much greater than vague aspersions of second-class citizenship. Without participation there is no influence, not in the military and not, for that matter, in any other realm. When feminists separate themselves from the military, it "inevitably translates into disadvantaging women as citizens by depriving them of power they would otherwise share more equally with men." [FN127] The effect is real, it is immediate, and it is specific. The benefits of military service for women need to be discussed in a manner specific enough to demonstrate the debilitating consequences of separatism. The following excerpt provides an example of engagement with military reality that is feminist, factual, and all too rare:

Were women present in the military and in combat positions in proportion to their presence in the population, we probably would treat girls differently. There probably would be less violence against women, because women would be less passive physically and because military training would be less sexist .... Were women and men trained in the same system, they would be more likely to interact as equals elsewhere.


... The exclusion of women from combat means that women have less authority in government than men .... Women within legislative bodies are regarded as having less authority on military matters than their male colleagues because they have not "been there;" they are regarded as less qualified to serve on military oversight committees and as having less authority if on such committees.


It may be that women are more pacifist than men. If so, excluding women from combat disarms women's pacifism. Their resistance means less because it has fewer consequences. [FN128]

My only disagreement is with the author's emphasis on the significance of combat duty over and above military duty in general. The issue of combat eligibility for women is given more weight than it deserves. Men in the military would be quite surprised to hear that over 75% of them serve in what legal feminists would consider marginalized, deadend positions--in other words, military positions that are open to women. [FN129] Non-combatant career fields--aircraft maintenance, transportation, law enforcement, communications, intelligence, medicine, and logistics, among others--offer opportunities for prestige and advancement that men as well as women are eager to obtain. [FN130] Believing that the military is not a reasonable choice for women until women acquire the combat background necessary for selection to the Joint Chiefs of Staff is like believing there is no place for women in the House or in the Senate until the electorate is ready to choose a woman President. Women can still participate--and participate with influence--in the military while continuing to work toward greater opportunities for women.

As a result of the Persian Gulf War, traditional barriers to combat service for women have rapidly eroded. Statutory bans on women's combat service have been repealed; policy limitations on women's combat service have diminished to a significant degree. [FN131] It is reasonable to expect the trend to continue as women gain experience in combat-related assignments and as men gain experience in seeing women in combat-related assignments. Over time, the combat exclusion issue is likely to become less consequential for military women and, more importantly, a less credible reason to believe that women need not or should not serve in the military.

Legal feminists, not surprisingly, focus on women's legal exclusion from combat roles in arguing that military women are by definition set up to fail. "Since combat is defined as the heart of the military mission, when women are excluded from it, their careers within the military are inevitably 'second- class."' [FN132] Feminist critique of the combat exclusion, however, is not as well-informed as it should be. [FN133] It may serve more as an excuse for why women should have no responsibility for the military at all--"if the military doesn't want women, then women shouldn't want the military"--than as any true advocacy for greater integration. This ambivalence between choice and responsibility emerges in the having-it-both-ways suggestion that women should be permitted to volunteer for combat duty, but should not be assigned against their wishes. [FN134]

The deliberate distance that legal feminists have created between women and the military has made it difficult for women of legal influence to speak persuasively about the institution. We will never win the war of narrative between "insider" and "outsider" if feminists always remain on the outside. Insider accounts will always have the credibility of expertise, and it is no answer to simply vow to "offer detailed accounts of the partiality and perpetuation of dominant, straight male perspectives." [FN135] Without participation, it is impossible; legal feminists have not been able to construct factually accurate accounts from a studied distance. Rather than seeking ways to discount the expertise of men, [FN136] we should instead work to increase the expertise of women.

Women do not need to be veterans of hand-to-hand ground warfare to speak knowledgeably about the military; men have proved that point very well. Former Senator Sam Nunn was the individual most responsible for retaining the ban against gay servicemembers during the "Don't Ask, Don't Tell" debate; [FN137] Senator Nunn served for just one year as a seaman in the United States Coast Guard. [FN138] Representative Steven Buyer, who today leads the congressional effort to re-segregate basic training on the basis of sex, [FN139] was an Army Reserve lawyer called to duty during the Persian Gulf War. [FN140] Neither were ground-pounding reincarnations of General George Patton, but both used their military service to enhance the credibility of their advocacy. Feminists as a group lose when they fail to do the same.

* * *

Second Chances: The Missed Opportunity of VMI

The fifteen years that passed between Rostker and VMI brought little insight to feminist legal scholarship on women's military service. In both instances, mistakes were made. Legal feminists demanded opportunities in court that in reality they did not want to receive; they sought inclusion while keeping responsibility at arm's length; they criticized military institutions they did not want to understand; and they undermined, whether by negligence or design, the potential for women's successful participation.

The controversy that ended with the decision in VMI began when women first sought to enroll in the two remaining state-supported, all-male military colleges, Virginia Military Institute and The Citadel, the Military College of South Carolina. In VMI, the United States brought suit on behalf of an unnamed high-school student seeking admission; [FN153] in Faulkner v. Jones, Shannon Faulkner individually challenged the exclusion of women from The Citadel. [FN154] Faulkner was the first to cross the all-male line, even if only briefly. She enrolled in The Citadel under court order in August 1995, but withdrew during the first week of training under the combined stresses of public scrutiny, isolation, summer heat, and poor physical conditioning. [FN155]

The decision in VMI, which also persuaded The Citadel to concede in its resistance to women, [FN156] ultimately centered on the constitutional significance of a new educational program established at Mary Baldwin College, the Virginia Women's Institute for Leadership (VWIL). [FN157] The all-female VWIL was created and funded by the state of Virginia and VMI alumni [FN158] in an effort to avoid integration by means of a candidly "separate but equal" strategy. [FN159] In VMI's view, the two schools could operate side-by-side, one designed for the interests and capabilities of men and one designed for the interests and capabilities of women. All students would obtain similar benefit, but without the need for integration. The Court, however, in an opinion authored by Justice Ginsburg, disagreed. "[G]eneralizations about 'the way women are,' estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description." [FN160]

Although most legal feminists treated VMI as an issue of single-sex education, at least on the surface, much of the same vitriol that followed Rostker re-emerged with respect to VMI's military-style education. The school was reduced to a stereotypical caricature, an institution as irredeemingly evil as the military its graduates are prepared to serve. VMI students learn to "haze, brutalize, and dominate others, yell at and do not listen to others, drive out the different, beat self-esteem out of people, preserve inane and dangerous rituals, resist change and cling to outmoded tradition." [FN161] Its graduates are, in sum, "walking sexual harassment liability nightmares," "potentially abusive intimate partners," or "hated ogre bosses." [FN162] Its methods of adversative training are "gruesome," [FN163] its atmosphere prison-like. [FN164]

Legal feminists, nevertheless, generally provided support for the enrollment of women at VMI and The Citadel, apparently holding their noses while doing so:

This is one of the many reasons why Shannon Faulkner's battle to enter The Citadel put many feminists in an equivocal position analogous to that of some gay rights activists faced with the issue of gays in the military or gay marriage--they felt trapped into having to argue that a member of the group whose rights they were committed to defending should be permitted to do something that down deep they thought should not be done by anyone ever. And they were further forced into arguing, for exigent strategic reasons, that the admission of a member of their group would not change the institution she sought to enter, even though down deep they thought that change was exactly what such an institution needed and what opening it up might help provide. [FN165]

Fundamental change clearly would have been the preferred option. Legal feminists objected so strongly to what they perceived as the unrelenting "masculinity" of military colleges that they would have accepted in their place an educational program completely unsuited to preparation of women for military service. One has to consider that a large part of the motivation underlying feminist critique of VMI and The Citadel is the belief that military service is inappropriate for women, the same motivation often submerged in critiques of the military. Once again, lack of familiarity with the nature and needs of military service resulted in recommendations to throw out the good along with the bad, with "bad" too easily defined as anything traditionally associated with men or with the military. [FN166]

The characteristics of VWIL, the proposed alternative program for women, elicited mixed reaction. Most legal feminists focused, as did the Court, on the clear inferiority of VWIL on almost every objective educational measure: institutional endowment, facilities, faculty quality, course availability, and alumni placement networks. [FN167] What few noticed, however, was that in the rush to strip every vestige of military-style training thought inappropriate for women--or in the view of most, inappropriate for men, too-- VWIL also eliminated every aspect of what is considered sound and effective in military training. [FN168] In essence, VWIL would be a military "finishing school" for women squeamish about the military, a place for women who would find actual military service too dirty, stressful, hazardous, demanding, physical, serious, loud, uncomfortable, or, above all, unfashionable. [FN169] The "Private Benjamin" [FN170] military would prevail at VWIL, the military with "condos" and choices of uniform colors other than green.

Scholars did take note that VWIL's protocol for women responded to hopelessly outdated, essentialist descriptions of what men and women were like. [FN171] VWIL's perspective was sharply divided by sex: men were too confident, women not confident enough; men needed to be broken down, women needed to be built back up. Therefore, VWIL should "gently nurture the individuality and self-esteem of females," [FN172] as they needed "a supportive experience emphasizing positive motivation." [FN173] Its military training of women would be forgiving of error, nonconfrontational, and, well, "nice" in its approach.

As "stereotypically feminized" [FN174] as VWIL fully intended to be, however, feminist legal scholars still considered it a better choice than the traditionally "masculine" military school. In their view, more attention should have been devoted to changing the fundamental character of VMI rather than just opening its doors to women. [FN175] With a more critical analysis of the methods and means of education at VMI, they argued, the Court "would have realized that there was much more involved in challenging VMI than the issue of whether a few 'exceptional,' masculine women should be able to go there." [FN176] "Actually, the VWIL program sounds much better, more humane, and preferable for everyone--men and women alike." [FN177]

The VWIL program is only "better," however, if the goal is to destructively eliminate opportunities for military-style education and not to constructively expand such opportunities for women. It is only "better" if the goal is to produce prospective military women who are superficial and subservient. The charge of "masculinity" sweeps with such an unfortunately broad brush, removing anything in its path that was once associated with men, or with the military. [FN178]

Consider, for example, the following fairly subdued explanation of what is wrong with the educational method at VMI. "Their miserable treatment includes, for example, indoctrination, minute regulation of individual behavior, frequent punishments, rigorous physical education, and military drills." [FN179] Is there anything gratuitously masculine, or gratuitously "military," about these educational methods? Not at all, at least not as stated above. I would never stoop to defend each and every detail of how VMI or The Citadel might choose to implement these general methods, but the fundamental theme of attention to detail under mental and physical stress is an absolutely sound, essential, and gender-free aspect of military training. It is not imposed to be mean, to be malicious, or to be masculine. It is imposed because young people inevitably have a fuzzy sense of the idea that the smallest lapse in behavior or the smallest failure to observe detail can have immediately catastrophic consequences in a military environment.

As law teachers, we see it in the classroom; one might call it the "well ... whatever" syndrome. When we try to remind students of the critically important nature of some seemingly insignificant fact, event, word, or turn of phrase, the weary but incredulous look we sometimes receive in return is one that speaks, "well ... whatever." [FN180] While I am certainly not recommending that law students need any form of adversative "law school boot camp," law students would be better off with enhanced skills of "concentration, attention to detail, and, above all, patience." [FN181] One of the objectives of military training is to scrub from civilians this comfortableness with approximation, and, furthermore, to teach a "Zen-like fetish for minor details" [FN182] that prevails even under conditions of severe physical stress and mental confusion. A training exercise that, to a feminist legal scholar, might appear to be nothing more than sadistic sport about triviality actually has a point, and it has a fair point. [FN183]

Lack of familiarity with the military has disadvantaged legal feminists in their efforts to advance credible, productive arguments about gender issues in military training, but it has also disadvantaged feminist litigation in a more direct and consequential way. The quality of civil-rights representation depends on more than just expertise in civil-rights litigation; the most effective representation also requires an understanding of relevant factual context in the client's community:

An attorney who brings a case that will bind an entire community should have some schooling in and sensitivity to that community's history, structure, and divisions. If she does not, she may lack the competence to advise her client on the "moral, economic, social, and political factors ... relevant to the client's situation." [FN184]

Expertise in civil-rights representation, however, does not necessarily require that the lawyer's contextual understanding come from her own personal experience within the relevant community. Consultation with other experts, whether legal or non-legal, can provide the necessary factual competence. More important is the realization that "a lawyer's area of expertise may exceed the law itself" [FN185] and, as a result, the civil-rights lawyer who distances herself from the client's community may disadvantage both client and community.

With respect to Shannon Faulkner's desire to challenge the exclusionary policy of The Citadel and become a member of its cadet corps, the relevant community may have been defined too narrowly. An expertise grounded in feminist civil-rights litigation was necessary, but significantly incomplete for its purpose. With respect to military women--or at least women in the quasi- military training environment of The Citadel--the relevant community is not only the community of women but also the community of servicewomen. A broader competence on the part of Faulkner's lawyers, therefore, would have included an understanding of military training. More complete advice for their client would have included suggestions for her success from experts retained for their experience in that environment. [FN186] If their client fails to make the most of the opportunity, their effort in litigation loses much of its satisfaction; even more significantly, her failure disadvantages the larger community of servicewomen.

Unfortunately, when the scope of representation exceeds, or in the case of the military, contradicts the narrow bounds of the feminist community, its lawyers may be more likely to misperceive their full obligation of expertise. One of the most disheartening moments in the Citadel litigation was the well-publicized image of Faulkner standing dejected and alone, apart from her excited, chatting classmates, at the beginning of her first day with the corps. [FN187] She was so clearly destined to fail from the first moment, and it was very frustrating to see so much legal effort dissolve unnecessarily. Someone with expertise beyond feminist civil-rights litigation might have given her advice that could have diminished some of the stress and isolation that ultimately forced her to resign. For example:

(1) "If you have an opportunity to interact informally with your fellow new cadets before formal training begins, walk up to classmates, stick your hand out, and introduce yourself. If they initially hesitate, keep at it. At that moment, they're much more worried about themselves than about you. Remember that these men will be your family, your support. Don't isolate yourself from them--they are not The Citadel."

(2) "The first time an upperclassman asks for a volunteer, volunteer. Show them you want to be there. Take the pressure off a classmate who's praying he won't be singled out. He'll appreciate it."

(3) "Refuse any interview or other special attention arising from your 'first woman' notoriety unless you include a classmate in that attention along with you. Deflecting some of the interest in you as an individual to your class as a whole will curb the potential for resentment. They're proud of being at The Citadel too." [FN188]

(4) "Get in good shape before you get there, and not just "jogging" good shape. [FN189] We'll set up a training regimen to develop some agility, strength, and speed, too. Your school life will be extraordinarily physical, an all-day-long expectation that you hustle, hustle, hustle in everything you do." [FN190]

It would be an unfortunate waste if Faulkner's failure to remain part of The Citadel's corps was, even in part, a legacy of the distance that legal feminism has historically strived to maintain between women and the military.

Susan Faludi, "Stiffed."

Another interesting excerpt from Susan Faludiís Stiffed (p. 126) contrasts the idea of the Citadel as a place where men learn the language of violence. This excerpt suggests that the Citadel is a place men come for "tenderness" from each other Ė a refuge from violence? (This ties into Faludiís whole theme about men looking for control in an increasingly uncontrollable world.)

Rembert opened the English class with a facetious tale of a "wound" he sustained in Vietnam (where he had never been), an injury that had "left me chaste, lo these past thirty-five years." The ice thus broken, he turned to the literary work under discussion that day: Beowulf. The narrative, Rember told them, was all about "brotherhood loyalty" and "the bonding of malesÖmuch like the Citadel." Rembert turned to me [author Susan Faludi] with an impish grin: "Women are mentioned, Ms. Faludi, if at all, preparing the food." The he handed back their graded papers on the topic.

"Mr. Rice," Rembert said in mock horror. "You turned in a single-spaced paper." This was a no-no. Rembert instructed him to take a pencil and "pen-e-trate" Ė he drew the syllables out Ė the paper with the point. Rembert shook his head with faux gravity. "What a pansy!" he said. "Canít catch, canít throw, canít write." Another student was chastised, in the same tone, for the use of the passive voice. "Never use the passive voice; it leads to effeminacy and homosexuality," Rembert told the class. "so next time you use the passive voice, Iím going to make you lift up your limp wrist." Rembert took great pride in this teaching "technique." When he first explained it to me, it didnít make sense: how could calling a bunch of insecure young men "pansies" help them to relax in the classroom?

Literary pointers concluded, Rembert floated the subject of Shannon Faulkner. The usual objections to women were raised: they canít hack the physical deprivations of the Spartan campus life; they wonít be able to meet the fitness requirements; they wonít want to get a buzz cut. But then we wandered into more interesting territory, provoked by a cadetís comment that "she would change the relationship between the men here." Just what was the nature of that relationship?

"When weíre in the showers, itís very intimate," a senior cadet said. "Weíre in one mass, naked together, and it makes us closerÖ.Youíre shaved, youíre naked, youíre afraid together. You can cry." Robert Butcher, another cadet, said that the men take care of each classmate. "Theyíll help dress him, tuck in his shirt, shine his shoes."

"You mean, like a mother-child relationship?" I asked.

"That is what it is," a cadet volunteered. "Itís a family. Even the way we eat is family-style." Another added, "Maybe itís a Freudian thing, but males feel more affection with each other when women are not around. Maybe weíre all homosexuals."

The class groaned. "Speak for yourself, buddy," several chorused.

I began to understand Rembertís teaching "technique." Anxiety over societyís judgment soared every time they approached the notion of intimate relationships between men. Cracks about limp-wristed writing provided both a needed screen and an escape valve for such fears and tensions. The rules imposed upon them, rules enforced not just by the Citadel, but by the rest of society, required that, being men, they could not enjoy intimacy without denouncing it at the same time. Private tenderness was allowed only to those who publicly promoted their contempt for homosexual love and who were shielded from the assumedly disapproving gaze of women. As Rembert put it to the class, "With no women, we can hug each other. Thereís nothing so nurturing as an infantry platoon."

The hooded-down cadet, encouraged by Rembertís observation and the nodding agreement with which it was received by its classmates weighed in again. "When I used to wrestle in high school, we had this great tradition. Right before the game, the coach, heíd slap us really hard on the butt."

Rembert smiled. He and his skydiving military buddies did that, too, he said, right before they jumped. "First man out gets a pat right there." There was a feeling of relief in the room that the subject of male intimacy had been so directly breached even as it was bolted down to the safe terrain of the athletic fields and the battlefields.

Afterward, Rembert and I went to lunch in the family-style mess hall, an experience akin to dining in a prison cafeteria run by sadists. Upperclassmen bellowed till they spit at cowering freshmen who had failed to sit properly on the edge of their chairs or square their forkfuls at an exact right angle or adhere to any of a myriad of obscure regulations. Rembert sat happily amid the cacophonous din, taking in the verbal carnage with approval. He returned to the theme of manly nurturance among Citadel men. One of his colleagues, he said, "always kisses me on the cheek. Itís like a true marriage. Thereís an affectionate intimacy that you will find between cadets. With this security, they can, without being defensive, project tenderness to each other."


[Back to Case 1: Faulkner]