The case is Doe v. Hagenbeck, decided on August 30. The plaintiff was a West Point cadet, training to become a military officer. That means she was enrolled at West Point, which is also a college, albeit one with a military emphasis. If you go to West Point, you are a member of the army. She claims the culture at West Point was misogynistic and male-oriented, with constant sexism not only among the male students but its faculty. The examples of this sexism as set forth in the opinion are not pleasant. One night, Doe was raped by a male student. The health clinic on campus did not properly respond to the sexual assault. She claims that West Point leadership mishandled the incident as well. She sues them under Bivens over the equal protection violations.
Two constitutional principles are at stake here. First, you can sue federal defendants under Bivens (named after a Supreme Court case from 1971), but -- as courts repeatedly tell us -- Bivens claims are far and few in between and almost non-existent these days, though Bivens is not dead yet. The other principle, which we call the Feres doctrine -- named after a Supreme Court case from many years ago -- says the courts should not entertain lawsuits that would challenge military discipline. Constitutional claims, in other words, are quite difficult to bring against places like West Point, which I learned 10 years ago when I represented anti-war protesters who wanted to assemble on the campus. What it all means is that Doe cannot bring this lawsuit. The majority (Livingston and Wesley) states:
This Supreme Court precedent frames our inquiry and leads ineluctably to the conclusion that Doe cannot maintain her Bivens claim. Doe was a member of the military at the time the events giving rise to her claim occurred, and the claim concerns superior officers. Further, her claim calls into question "basic choices about the discipline, supervision, and control" of service personnel and would "require[ ] the civilian court to second-guess military decisions," thus triggering the incident-to-service rule. United States v. Shearer, 473 U.S. 52, 57-58 (1985) (noting that allegations "go[ing] directly to the `management' of the military" that "might impair essential military discipline" lie at the "core" of rule's concerns). In such circumstances, her Bivens claim must be dismissed.In dissent, Judge Chin provides further detail into the sexist culture at West Point. He notes that while West Point is a military facility, "it is quintessentially an educational institution." There are two sides to the Feres and Bivens doctrine, Judge Chin suggests, summarizing his analysis this way:
In my view, the Feres doctrine does not bar Doe's Bivens claim that she was denied her constitutional right to equal access to education, for her injuries did not arise "incident to service." First, as to the activities immediately preceding Doe's rape, her ultimate injury, she was engaged in purely recreational activity: she was out for an evening walk on a college campus, after curfew, with another student who was a friend. Second, as to her broader activities at West Point, she was a student attending college: she was taking classes, participating in extracurricular activities, and learning to grow up and to be a self-sufficient and healthy individual. She was not a soldier on a battlefield or military base. She was not traveling in a military car or boat or plane or pursuant to military orders. She was not being treated by military doctors. She was not on duty or in active service or on active status, and she was not yet obliged to enter into military service. There was "nothing characteristically military" about what she was doing, and her injuries did not arise out of military employment.
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