Constitutional Council Hearing: The Argument is Joined

[![]( "Angelina, Adam, and Varun")](
Angelina Cardona listens to the petitioner's argument with ASSU Solicitor General Adam Adler on right and Varun Sivaram on left. (Photo: Nadiv Rahman)
Tonight was only the second Constitutional Council hearing in the past year and it played out in front of an overflow crowd that was a combination of SSQL supporters, some scattered pro-ROTC supporters, and a broad array that looked like a “who’s who” of student politics figures: President Angelina Cardona, Vice President Michael Cruz, a sizable group of Senators, a few representatives of other interest groups (SOCC, the Review (oh, I guess that’s me too)), etc. Alok Vaid-Menon, the petitioner, was represented by himself, as well as several other members of SSQL, including Janani Balasubramanian. Cardona spoke, but was largely represented by Solicitors General Varun Sivaram and Adam Adler.

So, enough about who was there. How did the case run?

In short, smoothly. Each side’s arguments were largely respectful and cogent and the format of the case (although long) was strong. I hesitate to give a blow-by-blow account of the case simply due to its length, but I’ll provide an outline and some highlights, followed by analysis.

The central set of arguments provided by Vaid-Menon’s side of the case was as follows:

  • Voting on the civil rights of a given group is wrong. ROTC is discriminatory and voting on this question is thus tantamount to voting on the civil rights of transgender students.
  • In fact, the ASSU by-laws, which are subsumed into the Constitution, offer protections for certain groups that make any discriminatory action unconstitutional.
  • Transgender students will suffer psychic trauma as a result of this advisory question being placed on the ballot. They will suffer disparate impact from this poll.
  • The ad hoc committee will use the outcome of the question as a data point, thus making the advisory question no longer “incidental to the expression of the opinion.”

This list of arguments is by no means exhaustive. There were also points related to the fact that the repeal of DADT is not yet fully implemented and that the military is unfriendly to women.

The central set of arguments provided by Cardona’s side of the case was as follows:

  • Posing an advisory question is not discriminatory: it offers every student an equal chance to cast one vote on the issue.
  • This case is not about the legitimacy of ROTC or its discriminatory nature – it is about whether or not it is unconstitutional for the question to be placed on the ballot. Along those same lines, the university non-discrimination policy is not relevant, since it is not binding on the independent body that is the ASSU.
  • The joint by-laws do not take precedence over the Constitution itself, which grants the right to place advisory questions on the ballot; even if it were discriminatory, it would be statutory noncompliance, not unconstitutionality.
  • If we agree that questions are normally allowed to be placed on the ballot, then controlling this question based on its content serves to abridge free speech.
  • Cardona is the wrong target for the suit because she is not the last relevant actor; the last relevant actor is the voter, who is not bound by non-discrimination clauses.

Beyond these initial arguments, there were rebuttals posed by both sides. Largely, these rebuttals returned to the original arguments, so I will not list them here. The highlight was a point made by Cardona’s team that the outcome of the referendum matters: discrimination only occurs if the advisory question is voted “yea” on AND the Faculty Senate then brings back ROTC based on that question. The response to this idea is that there have been studies linking psychic trauma in LGBT communities to even having civil rights on the ballot. A counterpoint to such studies is that they relied on binding laws being on the ballot (e.g. Proposition 8), not non-binding advisory questions.

The witnesses on both sides provided different benefits for each side. The witnesses on SSQL’s side tended to focus on personal stories as to how they viewed the return of ROTC as discriminatory, coming from the perspectives of a transwoman, a transman, a lesbian, and a sufferer of major depression. They also highlighted the broader idea of avoiding the tyranny of the majority over a small minority. In cross-examination, little was actually asked of the witnesses, but evidence was presented showing that SSQL has embraced public opinion polling (see: their petition) and open dialogue (which Cardona’s side has alleged the ballot question to represent) when it suited them. On Cardona’s side, the witnesses were more focused on legal issues around the meaning of an advisory question, although cross-examination raised strong questions about individual witnesses’ views on transgender issues.

The remainder of the case centered on speeches from friends of the court and questions made by the Council to each side. The speeches mirrored the witnesses: Vaid-Menon supporters tended to make personal appeals, while Cardona supporters tended to raise legal questions about Vaid-Menon’s case.

All of this leads up to a short bit of analysis. In my view, the legal case brought by Cardona and her “lawyers,” Adler and Sivaram, was on much stronger legal footing than that brought by Vaid-Menon and his team. That said, SSQL scored a political victory here. Their cause has received more attention and they made the case for transgender rights very effectively. As that is not what this case will ultimately turn on (in the legal sense), it seems very unlikely that they will win (they need at least three of the four remaining Constitutional Council members to support them – a tie will go to Cardona). Instead, they will need to mobilize support to actually get a sufficient number of “no” votes in the general election. Here, an interesting controversy arises. In his remarks, Vaid-Menon claimed the support of the Queer Students’ Association, the Women’s Coalition, and, the big daddy of them all…SOCC, the Students of Color Coalition. However, a conversation with a leader in SOCC revealed that, in fact, this endorsement is by no means official. There are certainly some, if not many, members of the SOCC community who support SSQL, but it does not actually have the official weight of SOCC behind it. It remains to be seen if it will receive that push – it may be crucial if SSQL is to stand a chance of “winning” the advisory question in April.

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