Selective Service rules spur claims of discrimination

10/12/2008

First of four parts

PITTSBURGH - If Henry Tucker were a woman, he'd still have a job with the federal government.

In February, he resigned from the Federal Deposit Insurance Corp., ending a 17-year career that started in the mailroom and took him to the post of "financial institution specialist."

The end came because of an oversight dating to his teenage years: Mr. Tucker, now 38, never registered with the Selective Service, the agency that is charged with compiling a list of nearly all men, ages 18 to 25, in the United States in case the country returns to a military draft. Any man who neglects to register before his 26th birthday is not allowed to get federal financial aid for college or to work for the federal government.

Most teenage males learn about Selective Service registration in high school, or they receive information in the mail. But both parents had abandoned Mr. Tucker, a lifelong resident of Washington, by the time he was 16. He lived with friends, and he dropped out of school.

When, at age 20, he found the job with the FDIC, he was determined to turn his life around. But he didn't know about the Selective Service, nor did any FDIC officials check his registration status - until last year.

"I resigned because they were going to let me go anyway," he said. "I was livid. I was stressed out. ... How can it be an issue after a person plants their feet for 17 years. This is how I'm treated?"

Mr. Tucker has joined three other ex-federal employees - Michael Elgin, Aaron Lawson, and Christon Colby - in a lawsuit against the federal government, arguing that the Selective Service System has violated the U.S. Constitution by discriminating against men.

"If Mr. Elgin, Mr. Lawson, Mr. Tucker, and Mr. Colby were women and not men they would have retained their federal employment," says the complaint, filed at the end of last year. "They bring this action on behalf of hundreds of thousands of men fired from or forever barred from federal employment."

The Selective Service System has the names and addresses of more than 15 million men between the ages of 18 and 25. As many as 1.6 million other young men are unregistered, according to the agency's figures.

Harvey Schwartz, a Boston attorney who is representing the four men in the federal lawsuit, said the registration system is out of sync with today's military. About 200,000 women, or 14 percent of the total, serve in the active duty ranks of the Army, Navy, Marine Corps, and Air Force.

Government attorneys counter that women still are prohibited from serving in combat units and that the purpose of the Selective Service is to compile a list of possible troops for "direct combat."

The U.S. Supreme Court backed that argument in 1981, and a federal court in Massachusetts affirmed it in 2003.

Mr. Schwartz, who was involved in the 2003 case, thinks the courts may be ready for a new look at gender-based registration after more than five years of fighting in Iraq and Afghanistan - and the deaths of nearly 100 female military personnel in those conflicts.

He acknowledges that the lawsuit serves a political purpose: "If 18-year-old girls had to register, it would make people more aware of our own military efforts. The narrow focus is to get all these guys their jobs back."

No high-ranking government officials are talking about restoring the military draft, a move that undoubtedly would spark widespread opposition.

"I don't think a draft is politically feasible," said retired Lt. Col. Leonard Wong, a research professor at the U.S. Army War College in Carlisle, Pa. "It's also vehemently opposed by the military. We see the success of the all-volunteer Army."

Yet the volunteer force is clearly feeling the strains of years of fighting on two fronts in Iraq and Afghanistan. Between 2003 and last year, the Army increased its budget for retention bonuses from $85 million to $735 million, said Andrew Krepinevich, executive director of the Center for Strategic and Budgetary Assessments, a military policy organization.

The Army also started taking more high school dropouts. About 82 percent of its recruits in 2007 had high school diplomas, the lowest proportion since 1981, when the Army still was struggling with the aftermath of the Vietnam War. The recruitment age has been raised to 42.

There also have been worrisome gaps in the officer corps; the Army was short about 3,000 officers in 2006, and the National Guard and the Reserve were lacking 7,500 officers.

The Bush Administration has decided to expand the active Army ranks by 65,000 troops, but it could take up to five years to achieve even an increase of 35,000, Mr. Krepinevich told a congressional panel in January.

"Simply stated, we appear to be reaching the size limit on our ground force structure," he said, "unless we are willing to resort to extreme measures such as conscription, or, as some propose, offering citizenship to foreigners who are willing to fight Americans' battles for them."

Colonel Wong doesn't see the Selective Service System's vast database of young males as a way to close the current gap. It's an insurance policy for a much larger military commitment.

"If World War III does break out, then we need it," he said. "The all-volunteer force is based on a standby, effective draft."

William A. Chatfield, the current director of the Selective Service System, calls his agency a "low-cost" form of insurance. It has a $22 million budget, 136 full-time employees, and thousands of volunteers nationwide who serve on local draft boards.

That's in stark contrast with the nation's total defense spending, which is estimated to reach $572 billion this year, according to the Congressional Budget Office.

The United States imposed its first draft during the Civil War, prompting violent riots in New York City. There were also drafts during both world wars.

The government reinstated mandatory military service in 1948, in the early years of the Cold War.

It became a hugely controversial issue when the U.S. committed hundreds of thousands of combat troops to fight in the jungles of South Vietnam in the 1960s. At home, anti-war protesters burned draft cards, and some men fled to Canada.

Critics of the draft pointed to unequal burdens for rich and poor. Many young men avoided military service through college deferments, while others used family connections to win spots in the National Guard, which was never deployed to fight in the war.

More than 1.8 million men were drafted during the Vietnam era. The last draftee received his induction notice on June 30, 1973.

In 1980, the Soviets invaded Afghanistan, prompting President Jimmy Carter to bring back the Selective Service System and draft boards.

This time, however, the president wanted to include women, who already numbered about 150,000 active-duty volunteers but did not serve in combat units. Mr. Carter hoped to have the authority to draft females for noncombat military posts.

"If you believe in equal rights, then you have to believe in equal obligation," Jody Powell, Mr. Carter's press secretary, said in an interview last week.

Congress disagreed. As did the Supreme Court, which, in 1981, ruled 6-3 against a group of men who had filed suit over the male-only registration and called it a gender-based discrimination that violated the Constitution.

Justice William Rehnquist, writing for the majority in the case, Rostker vs. Goldberg, argued that lawmakers had the constitutional authority to raise a fighting force - and only men, not women, could play that role.

"Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them," Justice Rehnquist wrote.

"Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft."

The gender-based registration went forward, and men faced hefty penalties for failing to comply: fines of up to $250,000, a prison sentence of up to five years, or both.

In practice, very few males have been given such hefty punishments. But there are other penalties, including ineligibility for federal student financial aid and job training programs. Immigrants who fail to register can be denied citizenship. (Even illegal immigrants are expected to register with the Selective Service.)

In 1987, Congress enacted the ban on federal employment, with the late Sen. Strom Thurmond (R., S.C.) calling men who failed to register "unpatriotic." Also, 36 states, three territories, and the District of Columbia now tie Selective Service registration to applications for a driver's license.

Jim Kratochvil, 21, a University of Toledo junior from Mentor, Ohio, said he registered so he could qualify for federal aid.

"At the time, I didn't think much about it," he said last week, relaxing in his fraternity house with two friends.

One of those friends, Ted Meltzer, 20, a UT junior from Chicago, said he hadn't thought much about registering for the draft, but he agreed with the idea of mandatory registration.

"If there's a draft, there's got to be an available pool to select from," he said.

Bryan Murphy, 32, a graduate student at UT's college of pharmacy, said he had to get a federal waiver to get federal aid because of his failure to register for the draft when he turned 18.

He said he hadn't meant to avoid registration - he just didn't realize he had to.

"It wasn't something I was trying to dodge," he said.

Mr. Chatfield, the Selective Service director, argued that some type of penalty is necessary to get men to register.

Soon after taking office, President Bill Clinton revisited the gender issue, convening the "Presidential Commission on the Assignment of Women in the Armed Forces." The commission was overwhelmingly against both forced military service for females or placing them in combat units.

"You don't draft anyone unless you need combat replacements," said Elaine Donnelly, a member of the commission and president of the Center for Military Readiness, a nonpartisan group. "Female soldiers in direct ground combat situations would not have an equal opportunity to survive."

She criticizes feminist groups for making "unreasonable" demands on the military.

Yet Ariela Migdal, a staff attorney with the American Civil Liberties Union's Women's Rights Project, said the government's Selective Service laws were discriminatory.

"They're based on outdated sex stereotypes," she said. "They don't recognize what women do in the military every day."

The ACLU has long viewed conscription as a violation of civil liberties, she said. But any registration system should require both men and women to participate.

The issue again is making its way through the courts, this time with the help of Mr. Schwartz, a 60-year-old Boston civil rights lawyer and a member of the generation that "marched on Washington because of Vietnam."

In 2003, during a conversation at the family dinner table, his son, Sam, 18, and daughter, Nicole, 17, agreed that it was unfair that only one was required to register with the Selective Service. "I told them if they do all the legal research, I'll be the lawyer," Mr. Schwartz said.

They agreed, and three other Massachusetts friends joined them in a lawsuit against Lewis Brodsky, the Selective Service director at the time, just months before the United States launched the war in Iraq.

But a federal judge ruled against the group, arguing that the underpinnings of the Supreme Court's 1981 decision were still in place.

"If a deeply rooted military tradition of male-only draft registration is to be ended," wrote U.S. Senior District Judge Edward F. Harrington, "it should be accomplished by that branch of government which has the constitutional power to do so and which best represents the 'consent of the governed' - the Congress of the United States."

In fact, Congress has spoken almost unanimously on this. In 2004, lawmakers in the House of Representatives voted 402-2 against a bill that would have reinstated the draft and compelled women to register.

Even the bill's sponsor, Rep. Charles Rangel (D., N.Y.) voted against it, but he was clear about his political goals.

"I believe that if those calling for war knew that their children were likely to be required to serve - and to be placed in harm's way - there would be more caution and a greater willingness to work with the international community in dealing with Iraq," he wrote on the New York Times' op-ed page in late 2002, after Congress had granted President Bush the power to invade Iraq. "A renewed draft will help bring a greater appreciation of the consequences of decisions to go to war."

Another lawmaker, Rep. George Miller (D., Calif.), is pushing a bill that would allow potentially hundreds of male federal employees to keep their jobs even though they never registered with the Selective Service.

Mr. Miller proposed the bill when one of his constituents, Chris Freking, an immigrant from the Philippines and a biomedical technician for the Veterans Affairs Department, found out that he hadn't registered, putting his 16-year career in jeopardy.

Mr. Miller's legislation passed the House in December. It is sitting in the Senate Homeland Security and Government Affairs Committee.

Meanwhile, Mr. Schwartz has taken on his newest case. The ACLU sent him Mr. Elgin, a Massachusetts man who lost his job with the Internal Revenue Service. Media attention also brought him into contact with Mr. Lawson, Mr. Tucker, and Mr. Colby.

Mr. Schwartz hopes to make the case into a civil action on behalf of all males in similar situations.

Last year, the federal Office of Personnel Management reviewed 238 cases of males who didn't register with the Selective Service, said Dean Scrutton, a spokesman for that agency.

The office's duty is to assess whether the failure to register was "knowing and willful," Mr. Scrutton said.

Mr. Tucker, the former FDIC employee from Washington, said his rough teenage years prevented him from knowing about the registration requirement. He works as an auditor for the District of Columbia government.

Mr. Colby, 33, who lives in a suburb of Detroit, hasn't been as lucky in his job search. He earns a base salary of $25,000 a year as an account manager at a private company. With the IRS, where he worked as an information-technology specialist, he says he was on pace to make $84,000 after six years of service.

But last year, the Office of Personnel Management faulted him for not registering and instructed the IRS to fire him. The order came despite a plea from Mr. Colby's superior.

"Christon is an extremely valuable and integral part of my staff," the supervisor wrote in a letter, according to court documents. "I am requesting a waiver concerning the condition of employment that is now before you."

Mr. Colby moved out of his parent's house at age 18 and missed all notices about the Selective Service. His father is a Vietnam veteran (who also works at the IRS) and he once considered a military career.

"I think justice will prevail here," he said. "Every day, I say my prayers, hoping I can get my job back."

Ms. Donnelly of the Center for Military Readiness has little sympathy for Mr. Colby and Mr. Schwartz's other clients.

"They should have registered," she said. "That's not a good enough reason to go into a federal court and then subject women to registration."

The Block News Alliance consists of The Blade and the Pittsburgh Post-Gazette. Jerome L. Sherman is a staff writer at the Post-Gazette. Blade staff writer Alex M. Parker contributed to this report.

Contact Jerome L. Sherman at:

jsherman@post-gazette.com

or 412-263-1183.