SSQL Launches Constitutional Council Case (Legal Analysis)

Constitutional Council asked to weigh in on the ROTC-transgender debate.
Stanford Students for Queer Liberation president Alok Vaid-Menon has filed a case with the Constitutional Council against ASSU President Angelina Cardona for asking the Senate to place a [non-binding advisory measure]( about the return of ROTC on the ballot. The case, W2011-1, makes the following complaint:

The bill in question is “EXEC-W2011-2: Bill to place an advisory question on ROTC on the general election ballot.” By placing an advisory question on the elections ballot, the Undergraduate Senate is essentially placing the rights of a population of students up for popular vote. To do so constitutes a violation of Section 5 of the Joint Bylaws of the ASSU, which states, in part, that “in undertaking any authority granted to it by the Constitution […] the Undergraduate Senate […] shall not discriminate against any individual […] on account of […] gender”. As ROTC discriminates on the basis of gender identity, it is contrary to the purpose of the ASSU to pass a bill that places students into a situation where their protection under the non-discrimination clauses of both the ASSU Constitution and of Stanford University itself is put under question.

Where does this action leave us?

From my reading, Vaid-Menon’s complaint is on shaky legal grounds. Cardona’s proposed non-binding advisory referendum is filed under Article VI, Section 2(A), which says that “for resolutions, ‘advisory referenda,’ or other initiatives whose only purpose is to express an opinion or to take such symbolic action as may be incidental to the expression of that opinion” the resolution can be placed on the ballot by the legislative bodies (Senate and GSC). Given that the bill is clearly advisory and has no direct impact, it seems as though Vaid-Menon’s claim that the rights of students are being put “up for a vote” is not correct. The question isn’t even framed directly as a “I support ROTC – yes/no” question, so it’s difficult to imply that this effort is direct support for ROTC. The Executive, Senate, and GSC would all be within their rights to put the bill on the ballot.

The main grounds for Vaid-Menon’s case lie in the interpretation of “incidental to the expression of that opinion:” if he could prove that the Faculty Senate is likely to take this referendum strongly into account when it makes a decision, then the argument could be that this referendum is no longer incidental. However, the response to that argument is that the first clause is “whose only purpose is to express an opinion” still applies and this freedom of expression is what is important here – the later interpretation of the results by the ad hoc committee is no different than the ad hoc committee reading letters from the community, which are also expressing an opinion. In addition, to invalidate the measure, there would still need to be proof of material damage to Vaid-Menon from the addition of an organization whose classes and facilities would be open to all students.

Finally, the onus will be on Vaid-Menon to prove that “gender” and “gender identity” should be equated. That may or may not be a hard case to make, but it’s essential to his legal theory.

The next post will look at the political implications of this case.

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