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COOK v. BABBITT

March 17, 1993

LAUREN COOK, Plaintiff
v.
BRUCE BABBITT, SECRETARY OF THE INTERIOR, Defendant.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This cause comes before the Court on cross motions for summary judgment. The defendant is the Secretary of the Interior. As such, he is responsible for the actions of National Park Service (NPS) officials. See 16 U.S.C. sec. 1 (1988). The plaintiff, Lauren Cook, is a member of the 21st Georgia Volunteer Infantry, one of the private groups of Civil War history enthusiasts who, outfitted in meticulously reproduced period clothing and accoutrements, take to the field for simulated maneuver and combat in NPS-sponsored events held at national battlefield parks. *fn1" February 14, 1991, she filed a complaint alleging that the administrators of Antietam and certain other parks *fn2" did not allow her to portray a male soldier in certain NPS events because she is a woman, thus denying her equal protection of the laws in contravention of the Fifth Amendment's Due Process Clause. Plaintiff prayed for declaratory and injunctive relief, as well as attorney's fees. *fn3" In particular, plaintiff asked the Court to order the Secretary of the Interior to amend the governing regulations to forbid NPS officials service-wide from using gender as a ground for discrimination in casting the dramatic roles called for by the scenarios they conceive. Plaintiff also seeks to have defendant officially reprimand the officials involved, and to have this Court enjoin the officials directly from retaliating against the 21st Georgia.

 Because plaintiff's claim arises under the Federal Constitution, this Court has jurisdiction over the subject matter of this case. See 28 U.S.C. sec. 1331 (1988). The fact that defendant is an officer of the United States poses no obstacle to the exercise of this jurisdiction here, for in addition to nonstatutory theories of review, the Administrative Procedure Act, 5 U.S.C. secs. 702, 706(2)(B) (1988), waives the defense of sovereign immunity and empowers this Court to pass on the constitutionality of the agency action and provide the requested declaratory and injunctive relief.

 Defendant flatly denies plaintiff's allegation of gender-based discrimination, arguing that the ground for any discrimination in deciding who is allowed to participate in the events is not gender, but historical accuracy. That is to say, the NPS officials did what they did not because of the immutable fact that plaintiff is a woman. They did so because plaintiff's costume was inaccurate in several respects, one of which was that she failed to disguise her gender effectively. Defendant maintains that anyone who meets the gender-neutral accuracy standards of NPS-6, as implemented by the administrators at each park, can play whatever role they want irrespective of gender. Defendant makes no effort to justify, under Craig v. Boren, 429 U.S. 190, 197, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976), the use of gender as a proxy for an important aspect of historical authenticity in casting dramatic roles in public education programs. Rather, this case presents the question of whether the officials in fact used gender as a proxy.

 On February 3, 1992, after extensive discovery, plaintiff moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The government responded with a summary judgment motion of its own on February 18, 1992. The Court has examined the briefs and underlying materials put forward by the parties. After careful consideration, the Court has decided to deny defendant's motion and to grant plaintiff's motion.

 I.

 A.

 The Volunteer in the Parks Act of 1969 (VPA), 16 U.S.C. sec. 18g (1988), authorizes the Secretary of the Interior to enlist "the services of [private] individuals without compensation as volunteers for E interpretive functions E in E areas administered by the Secretary through the National Park Service." Pursuant to this authority, the Park Service promulgated the Interpretation Guideline, NPS Regulation 6, Release 3 (NPS-6) to govern interpretive programs throughout the national park system. Generally speaking, the regulation directs park administrators to achieve the greatest degree of historical accuracy that is reasonably practicable. Because the regulation applies service-wide, it must encompass as many historical themes as there are parks. Accordingly, NPS-6 is a general guideline and vests the officials in the field with discretion in designing the interpretive program that is most appropriate for their park. This includes setting the precise degree of verisimilitude in appearance, clothing, and accoutrements that they will require.

 B.

 There are three types of interpretive presentations outlined in NPS-6. Exactly what constitutes "acceptable 'accuracy'" depends on which type of interpretive presentation is employed. NPS-6, supra, ch. 4, at 3. The first type of presentation is the Cultural Demonstration, which typically involves persons in traditional dress demonstrating the customs of some cultural group. Id. at 4. Examples would include a tribal dance performed by Native Americans. NPS-6 states a preference for the use actual members of the cultural group in question, characterizing their presence as "a strong interpretive asset in promoting a sense of believability." Id. at 5. *fn4"

 The second type of interpretive presentation is the Costumed Interpretation. The interpreter's function is simply to display the clothing of the day while lecturing to visitors about the history of the park and answering any questions they might have. Because the Costumed Interpreter is not pretending to be the person like whom he or she is dressed, concern for accuracy generally is limited to the clothing and the information conveyed to the visitors. Nevertheless, "care must be exercised not to mislead the public or create historical inaccuracies in their minds." Id. So NPS-6 directs interpreters who are manifestly inaccurate in other respects--for example, a Caucasian dressed as Frederick Douglass or a generic Sioux warrior--to "clearly point [the inaccuracy] out to the public." Id.

 Unlike Costumed Interpreters, Living History interpreters whose impressions are inaccurate in some respect cannot caution visitors not to draw a false inference about the past without compromising the integrity of their performance and undermining the visitors' willing suspension of disbelief. Accordingly, in Living History demonstrations, the requisite historical "accuracy includes not only the knowledge base [of the interpreter], the reproduced clothing and objects involved but also the clearly identifiable physical characteristics (i.e., identifiable after costuming, makeup, etc.)" of the participant. Id. (emphasis added).

 By way of illustration, NPS-6 would permit a burly, bearded male ranger leading a tour at the Women's Rights National Historical Monument to do a Costumed Interpretation of a suffragette if "staffing realities" so required, as long as he explained to the visitors that suffragettes were in fact women and that he was merely displaying the clothing of the day. But if the NPS sponsored a volunteer Living History presentation of a suffragette march, a person with the same physical characteristics would meet the accuracy requirements of NPS-6 only if he had a very clever disguise indeed.

 II.

 A.

 This case concerns Living History events held at Antietam and other national battlefield parks (NBPs). *fn5" The plaintiff, Lauren Cook, has portrayed a male soldier or fifer in fifteen such events between July 1989, when she took up this avocation, until sometime after November 1990, when she responded to defendant's first set of interrogatories. She is a devoted amateur and takes historical accuracy seriously. In putting together her outfit, she consulted military historians, conducted research on her own, and bore the expense of custom tailoring. Because women were not permitted in military ranks in mid-nineteenth century America, *fn6" plaintiff tries to disguise her gender using various costuming techniques. She concedes that it is legitimate for NPS officials to require volunteers to mask inaccurate physical characteristics, including gender, at the events they sponsor. Her complaint is that the officials at Antietam categorically bar women from military roles regardless of how well an individual woman can do the impression. Their response-- citing the fact that these events transpired when plaintiff had been doing Living History for only two months--was that plaintiff's impression was manifestly inaccurate in several respects, and that was what motivated their actions.

 Seven of the fifteen events plaintiff attended were NPS-sponsored--two at Petersburg NBP, two at Gettysburg NBP, one at Appomattox Court House National History Park (NHP), a parade in Washington, D.C., and one, a Revolutionary War-era event, in St. Augustine, Florida. Pl's Resps. to Def's First Set of Interrogs. at 10-14. The remainder apparently were either purely private affairs or held under color of state law. While plaintiff has participated in seven NPS Living History events, she asserts that on four other occasions, NPS officials did not allow her to portray a male soldier: The August 19-20, 1989 and 1990 "Aftermath of the Battle" events at Antietam; the September 18, 1989 "Torchlight Tour" event at Antietam; and the October 20, 1989 Anniversary Living History of the Federal Garrison at Harper's Ferry. Id. at 15-17. It is the 1989 Antietam events, however, that are the principal subject of plaintiff's complaint.

 B.

 The relevant agency actors at Antietam are these: Richard Rambur is the superintendent of the park. He is responsible for the overall administration of the park and oversees the implementation of the interpretive program. Below him is Ed Nasser, the chief ranger. The interpretive program is run by Rangers Paul Chiles and Ted Alexander. Chiles has been the interpretive specialist and park historian at Antietam since May 1981. He has a bachelor's degree in U.S. history and has been doing Living History for some twenty years. Alexander is the volunteer coordinator at the park. He has a master's degree in history, and he has authored, co-authored, or edited three books and more than forty articles in that field. He also taught history at the high school level before joining the Park Service. In formulating the specific uniform requirements for Antietam, Alexander has done extensive research, including visits to the Museum of the Confederacy and other large collections.

 One of the Living History scenarios that Alexander and Chiles devised is the "Aftermath of the Battle," a multi-unit event that calls for thirty-five to forty volunteer participants. The theme is Civil War medicine and treatment of the wounded. In casting the scenario for 1989, Alexander entered into an agreement with the 21st Georgia. See Event Agreement Between Antietam National Battlefield Park and the 21st Georgia for the Aftermath of the Battle, August 19-20, 1989 (introduced as Alexander Depo. ex. 7). The agreement instructed the 21st to provide at least "10 members" to portray wounded Confederate soldiers and prisoners in a field hospital scene with a surgeon and some visiting civilians. Id. The agreement emphasized that Aftermath was not a firing event, and the 21st was not to bring firearms *fn7" --only props for medical demonstrations. With respect to the civilian roles, the agreement provides that the 21st could have "six female members" do the following impressions: "2 local farm women of Unionist sympathies; 2 visiting Northern ladies seeking loved ones in the Army of the Potomac; and 2 ladies of Southern sympathies from Jefferson County, Virginia seeking loved ones in Virginia regiments." Id. (emphasis added).

 As for the main incident that gave rise to this suit, the following facts are not in dispute. On the morning of August 19, 1989, the first day of the two day event, Alexander and Chiles held a meeting with the group leaders in the Visitor Center. The leader of the 21st Georgia, David Pridgeon, was not present, apparently not having arrived at the park yet. Alexander considered Pridgeon's absence conspicuous, because the 21st Georgia had a "long history of being a problem unit." Out of twenty-five units enrolled at the park, more than half of the counseling letters had been directed at the 21st Georgia. Indeed, the unit was on probation and in danger of being dropped from the roster because of substandard uniforms and other problems.

 After the meeting ended at about 10:00, Alexander and Chiles walked out into the lobby of the Visitor Center and over to the information desk to relieve the seasonal ranger manning that post. At that point, several volunteers and rangers pointed out a woman dressed in a Confederate uniform standing outside in the parking lot. Alexander and Chiles looked out the window, turned to each other and said, "That's a woman in uniform, isn't it?" They contend that even from this vantage point, they also could tell that her musician's uniform was not very accurate and did not meet the park's standards. While Chiles took over at the information desk, Alexander headed out to the parking lot to have a talk with the woman.

 As it turned out, the woman was Lauren Cook. She told Alexander that she was with the 21st Georgia and that she had come to participate in the Aftermath of the Battle. Alexander claims that he was surprised because of what he considered to be the poor quality of her impression. In particular, he claims that her uniform was not the proper cut, the material was of the wrong weave, and it looked, unrealistically, brand new. Her cap and some of the facings *fn8" also were questionable, and the way she wore the equipment and the uniform was wrong. With respect to "identifiable physical characteristics," Alexander also thought she was deficient insofar as she appeared to be female. Her hair, her figure, and traces of make-up around her eyes gave her away. *fn9"

 C.

 As for what happened next, there is some conflict between the version of events told by the NPS officials and that told by Ms. Cook and her associates. According to Alexander, he told Cook that her impression was "inappropriate" for the scenario they contemplated. It did not call for an unwounded musician--much less one who appeared to be female. Cook asked if she could keep wearing the uniform and simply tour the park as a visitor. Alexander says that while he discouraged her from doing so because of the confusion it could engender in the minds of the visitors--and tried to appeal to her esprit de corps by saying that it would reflect poorly on the 21st Georgia--he did not tell her that she could not.

 Alexander says he concluded by telling Cook that he would be happy to discuss the matter further with her unit leader when he arrived, and that she could attend the meeting if she desired. Alexander claims that throughout the encounter, he was polite and non-confrontational, and that he repeatedly apologized for any inconvenience to her. Chiles also claims that judging from Alexander's body language, which he saw through the window, Alexander appeared to be acting politely.

 About a half hour later, Alexander says that Cook and Burgess approached him outside the visitor's center, loudly protested the perceived violation of her rights, and demanded answers right then and there. Alexander told them that he was not going to air the issue outside in front of other visitors but would convene a meeting with all concerned in the superintendent's office.

 Present at that meeting were Alexander, Chiles, Cook, Burgess, Pridgeon, and Rambur. Alexander and Chiles claim that Cook and Burgess were "agitated," "belligerent and sarcastic" as they tried to explain their accuracy policy and the reasons for it. At one point, for example, she allegedly said something like "When did God die and leave you in charge?" She also allegedly proclaimed that she would not abide by their interpretation policy because she considered it too strict.

 Plaintiff further asserts that during the meeting held in the Superintendent's office, Alexander and Chiles "made it clear" to her that "women were not allowed to portray military roles because they wanted to portray the typical . . . and they classified a woman in a military role, regardless of her impression, as atypical." Burgess and Pridgeon corroborate her story, agreeing that the NPS officials frankly stated that they do not permit women to portray soldiers. Cook and Burgess also claim that while the NPS officials discussed their uniform policies in general, they never cited any deficiencies in Ms. Cook's uniform and did not phrase their objections to her impression in gender-neutral, accuracy-based terms. They focused exclusively on the fact that she was a female. Alexander said that the presence of a woman in uniform would mislead the public about the composition of Confederate ranks and the role of women in the mid-nineteenth century America. He mentioned their concern about the confusion and inaccurate impressions created in the visitors' minds when "yahoos" who dress up in crude attempts at Civil War uniforms tour the park on days when Living History events are scheduled. Plaintiff considered it an insult to be equated with these "yahoos." After the meeting, Cook and Burgess left Antietam and went to Harper's Ferry for a while. She returned to sleep overnight at the 21st Georgia's encampment, and the next day, she participated in the second day of the Aftermath event in a female civilian role.

 D.

 Shortly after this correspondence, there was another incident that plaintiff cites in support of her claim of unconstitutional discrimination in the implementation of NPS-6 at Antietam. Alexander and Chiles had scheduled a "Torchlight Tour" event for September 16, 1989 and entered into an event agreement with the 21st Georgia to participate. The agreement specified that the 21st was to furnish a "Maximum of six female members, 2 to portray local Unionist ladies helping with the wounded, 2 Unionist ladies searching for dead loved ones, and 2 ladies to assist [the] Frederick Ladies Relief Society as assigned." On September 16, plaintiff followed up her letter to Mazzer with a phone call to the park superintendent, Richard Rambur. When she asked if she would be allowed to participate in the Torchlight Tour, she claims that he said that Antietam "made a distinction between military and civilian roles by gender," and that "under no circumstances would [she] be allowed to participate in any Antietam living history event in a military role because of her gender." Rambur flatly denies that he said any such thing.

 Several months later, Rambur wrote an admonitory letter to Pridgeon. In the letter, which was dated March 7, 1990, Rambur expressed his concern about "a pattern of less than satisfactory performance," including "things like showing up on the wrong weekend for an event and then not fulfilling your commitment for the scheduled event, showing up several hours late for training, failure to turn paperwork in on time, dirty weapons at inspections and failure to upgrade uniform impression to meet our standards." Letter from Richard Rambur to David Pridgeon (Mar. 7, 1990) (introduced as Alexander Depo. ex. 8). He also cited the August 19, 1989 incident as the one example of a deficiency that happened after Pridgeon became the leader of the group. He noted that the event agreement called for "ten members to portray infantrymen and several of your females to do an impression of local women," but that he had brought "extra personnel . . . such as children and one female who wanted to do a fifer impression." Rambur also stated that he "would like to see [the] civilian impression of the women of the 21st improved. Individuals have been noticed manifesting anachronisms such as makeup, improper hairstyles and clothing." Rambur closed by saying that because the 21st "had the potential to be a good living history group," they would be given "another chance."

 III.

 A.

 Rule 56(c) of the Federal Rules of Civil Procedure commands that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." "Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 It is insufficient, to avoid summary judgment, that some factual disputes remain in the case. An issue must be both genuine and material to preclude the entry of summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). An issue is genuine if, considering the record as a whole, there is enough evidence to support a rational finding either way. In making this determination, the non-movant's evidence "is to be believed, and all justifiable inferences are to be drawn in [their] favor." Anderson, 477 U.S. at 255. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . Id. *fn11" To determine whether an issue is material, the case must be looked at through the prism of the governing substantive law. "Only disputes of facts that might affect the outcome of the suit . . . will properly preclude the entry of summary judgment." Id. at 248. It is the "substantive law's identification of which facts are critical and which facts are irrelevant that governs." Id. Accordingly, the next inquiry must be into the elements of an equal protection claim and the allocation of the burdens of persuasion and production.

 B.

 The equal protection component of the Due Process Clause of the Fifth Amendment places the same limits on the exercise of federal power that the Equal Protection Clause of the Fourteenth Amendment places on the exercise of state power. Bolling v. Sharpe, 347 U.S. 497, 500, 98 L. Ed. 884, 74 S. Ct. 693 (1954); see also Vance v. Bradley, 440 U.S. 93, 94 & n.1, 59 L. Ed. 2d 171, 99 S. Ct. 939 (1979). In essence, the guarantee of "equal protection of the laws" requires that similarly situated persons be treated similarly. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). To the extent that there are meaningful, socially relevant differences between individuals, however, those individuals are not similarly situated for equal protection purposes. Government not only may, but often must classify and treat such individuals differently in order to achieve what it considers to be the just distribution of benefits and burdens in society. See id. at 441 (construing Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976) (classifications are valid if based on "distinguishing characteristics relevant to interests the State has the authority to implement")); see, e.g., Allied Stores v. Bowers, 358 U.S. 522, 526-27, 3 L. Ed. 2d 480, 79 S. Ct. 437 (1959) (differential taxation). Indeed, "most laws classify, and many affect certain groups unevenly . . . . When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern." Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979) (upholding Massachusetts law that favored veterans over non-veterans notwithstanding a 98% correlation between that characteristic and gender); see also Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976) (disparate impact renders a facially-neutral law invalid only if traced to a discriminatory purpose).

 For these reasons, legislative and regulatory classifications enjoy a strong presumption of validity. To rebut this presumption, a challenger must demonstrate that the classification has not have any conceivable "rational relationship" to a "legitimate state end." McDonald v. Board of Election, 394 U.S. 802, 809, 22 L. Ed. 2d 739, 89 S. Ct. 1404 (1969). This highly deferential standard of review reflects the difference in the respective roles of courts and legislatures in a representative democracy with a constitutional separation of powers. Courts do not sit as super legislatures to judge the wisdom of policy. The constitutional framework gives the elected branches wide latitude to formulate policy, and necessarily tolerates even improvident exercises of that discretion. Mathematical exactitude in the fit between means and ends cannot be expected and is not required. New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976); Vance v. Bradley, 440 U.S. at 97, 108; Williamson v. Lee Optical Co., 348 U.S. 483, 488-89, 99 L. Ed. 563, 75 S. Ct. 461 (1955). Thus, the general rule of judicial review is that a classification will be sustained unless it is based on a distinction between persons that no legislator or executive officer acting rationally and in good faith could have believed made a legitimate difference. See Vance v. Bradley, 440 U.S. at 97; McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961) ("A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.") *fn12"

 Some distinguishing characteristics-such as race, alienage, and national origin--"are so seldom relevant to the achievement of any legitimate state interest" that classifications expressly drawn along those lines "are deemed to reflect prejudice and antipathy--a view that those in the burdened class are not as worthy or deserving as others." Cleburne, 473 U.S. at 440. Because it is, to say the least, far less likely that such classifications are rationally based than it is that they are based on precisely the sort of prejudiced, oppressive, and invidious sentiments that the Civil War amendments forever banished from our law, a classification of this sort is suspect and presumed to be invalid. It is subject to, as variously stated, the most "exacting," "rigid," and "strict" judicial scrutiny. If such scrutiny is invoked, the burden rests heavily on the government to show that the classification is "necessary" to the achievement of a "compelling state interest," see In re Griffiths, 413 U.S. 717, 721-22, 37 L. Ed. 2d 910, 93 S. Ct. 2851 & nn. 9-10 (1973) (collecting cases), i.e., that there are no other, more narrowly tailored means to achieve that interest. See University of California Bd. of Regents v. Bakke, 438 U.S. 265, 299, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978). *fn13"

 Classifications based on gender, not unlike those based on race, are also suspect, because gender "generally provides no sensible ground for differential treatment. 'What differentiates sex from such nonsuspect statuses as intelligence or physical disability . . . is that the sex characteristic frequently bears no relation to ability to perform or contribute to society."' Cleburne, 432 U.S. at 440-41 (quoting Frontiero v. Richardson, 411 U.S. 677, 686, 36 L. Ed. 2d 583, 93 S. Ct. 1764 (1973) (plurality opinion)). Such classifications are too often based on "archaic and overbroad" generalizations, Schlesinger v. Ballard, 419 U.S. 498, 508, 42 L. Ed. 2d 610, 95 S. Ct. 572 (1975), or "stereotypic notions" concerning the roles of men and women in society. Frontiero, 411 U.S. at 684-85, 688-89 & n.23 (generalization that most wives are dependent on husbands but not vice versa); see also Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 43 L. Ed. 2d 514, 95 S. Ct. 1225 (1975) (similar generalization about the financial status of women); see also Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-26, 73 L. Ed. 2d 1090, 102 S. Ct. 3331 (1982) (stereotypical conception of nursing as a female occupation).

 Because they are so likely to be irrational, gender classifications, like racial classifications, are presumed invalid. But because gender is a potentially more meaningful difference between individuals than skin color is, gender classifications are somewhat more likely to be rationally based. Accordingly, they are subject to an intermediate level of scrutiny--one that is "heightened" but not "strict." A gender classification can be sustained only if the government makes "an exceedingly persuasive" showing that the classification is "substantially related" to the achievement of "important governmental objectives," Craig v. Boren, 429 U.S. 190, ...


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