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Lawsuit challenges combat exclusion for women

May. 25, 2012 - 02:15PM   |   Last Updated: May. 25, 2012 - 02:15PM  |  
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A team from the University of Virginia law school is suing the Pentagon for excluding women from combat units on behalf of two female Army reservists who say their careers were stymied by the policy.

Command Sgt. Maj. Jane Baldwin and Col. Ellen Haring both argue in the lawsuit that they have been shut out of promotions and desirable jobs for which they were otherwise well qualified either because they were banned by the exclusion policy from serving in those units, or because the combat exclusion prevented them from getting vital career experience.

The suit, filed in the federal U.S. District Court of Washington, D.C., on Wednesday, is the first of its kind, according to law professor Anne Coughlin, who is spearheading the effort.

"There haven't been any cases challenging the combat exclusion policy directly, and that's astonishing to us as academic lawyers," Coughlin said. "This looked like a lawsuit waiting to happen to me for quite a long time."

The Supreme Court last addressed combat exclusion issues in 1981, when it ruled that sex discrimination in Selective Service registration was constitutional because women were unable to serve in combat units. Coughlin noted that combat has changed dramatically over the past three decades, and even the Defense Department has acknowledged that women today have often been placed in combat situations in Iraq and Afghanistan.

"Everyone seems to agree, including the Pentagon, that the combat exclusion policy needs to be revamped," Coughlin said. "We believe it should be scrapped altogether."

She acknowledged that the lawsuit will have to meet a high bar, given the historic reluctance of federal courts to interfere with military policy. Both racial segregation and the "don't ask, don't tell" law on gays in uniform were ended not by the ruling of a court, but by voluntary changes in military policy through Pentagon leaders and Congress.

However, Coughlin said the courts have at least acknowledged in the past that they have a right to hold military policy up to constitutional standards if they are clearly in violation.

"The federal courts have been very deferential to the military," she admitted. "At the same time, they've taken these cases. They've never said, ‘Hands off'.' "

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