In Doe v. Hagenbeck et al., No. 13 CIV. 2802 AKH, 2015 WL 1611153 (S.D.N.Y. Apr. 13, 2015), the Southern District of New York held that plaintiff, a West Point cadet, sufficiently alleged gender discrimination under the Equal Protection Clause of the Fifth Amendment to the U.S. Constitution.
The court cited numerous instances of inappropriate sexual conduct at West Point, including that the “administration and faculty openly joked with male cadets about having sex with female cadets, lamenting the lack of ‘sexual opportunities’ at West Point, and advising male cadets to ‘seize any chance to have sex’.”
It also described a chant, sang by male cadets, that contained the following “aggressive, violent language”:
I wish that all the ladies / were bricks in a pile / and I was a mason / I’d lay them all in style.I wish that all the ladies were holes in the road / and I was a dump truck / I’d fill ‘em with my load.I wish that all the ladies / were statues of Venus / and I was a sculptor / I’d break ‘em with my penis.
In upholding plaintiff’s Equal Protection claim, the court explained:
Doe’s complaint alleges rampant hostility manifested against females in numerous aspects of life at West Point, depriving women of equal opportunity to receive and benefit from a West Point education. Only female cadets were required to be tested for STDs, and were told that it was their responsibility to prevent the spread of STDs. Women were taught self-defense and discouraged from reporting rapes, as if it was they who were responsible for male transgressions, and to bear such events as mild mishaps if they were not successful in warding them off. The marching chants of cadets degraded women while they amused or motivated men. And, as the complaint alleges, defendants [Lt. Gen. Franklin Lee] Hagenbeck and [Brig. Gen. William E.] Rapp were indifferent to their constitutional and statutory obligations to foster equal conditions and equal protection between male and female cadets.
The court, however, dismissed plaintiff’s claims under the Due Process Clause, the Federal Tort Claims Act, and the Little Tucker Act (for breach of an “educational services contract”).