Discriminatory Military Policy Cuts Separation Pay in Half for Honorably Discharged Gay and Lesbian Service Members
NEW YORK – The American Civil Liberties Union and the ACLU of New Mexico filed a class action lawsuit today challenging the Defense Department’s discriminatory policy of cutting in half the separation pay of service members who have been honorably discharged for being gay. The separation pay policy is not part of the "Don't Ask, Don't Tell" statute, and can be changed without congressional approval.
“By denying servicemen and women full separation pay, the military is needlessly compounding the discrimination perpetuated by ‘Don’t Ask, Don’t Tell,’” said Joshua Block, staff attorney with the ACLU Lesbian, Gay, Bisexual and Transgender Project. “The Obama administration has repeatedly said the ‘Don’t Ask, Don’t Tell’ statute is wrong, but that it needs to work with Congress to repeal the law. But the separation pay issue is entirely within the administration’s control. The administration can at least take a preliminary step toward backing up its rhetoric with action by addressing this issue promptly and protecting gay and lesbian service members from needless additional discrimination.”
Federal law entitles service members to separation pay if they have been involuntarily discharged from the military after completing at least six years of service. But in 1991, the Defense Department adopted an internal policy that automatically cuts a former service member’s separation pay in half if the service member is discharged because of “homosexuality.” The separation pay policy was adopted two years before Congress enacted the “Don’t Ask, Don’t Tell” statute. The ACLU and the Servicemembers Legal Defense Network contacted the Defense Department in November 2009 to request that the separation pay policy be revised to eliminate the discrimination against gay and lesbian service members, but the department has refused to do so.
Today’s class action lawsuit was filed in the U.S. Court of Federal Claims. The lawsuit was brought on behalf of all service members involuntarily discharged in the past six years who received honorable discharges and were otherwise eligible for full separation pay but had that pay cut in half because of “homosexuality.” The ACLU estimates that over 100 former service members will qualify as part of the class of plaintiffs.
The lead plaintiff in the case is Richard Collins, a former staff sergeant in the Air Force who served for nine years until he was discharged under “Don’t Ask, Don’t Tell.”  Collins was stationed at Cannon air Force Base near Clovis, New Mexico when two civilian co-workers observed him exchange a kiss with his civilian boyfriend and reported it to his supervisors. The kiss occurred while Collins and his boyfriend were in a car stopped at an intersection 10 miles off base and while Collins was off duty and out of uniform. Collins received an honorable discharge from the Air Force but discovered after the discharge had been completed that his separation pay had been cut in half on the grounds of “homosexuality.”
“After nine years of honorable service, it's not fair that I should be deprived of the same benefits given to other dedicated service members who are adjusting to civilian life,” said Collins. “I hope that the Defense Department will adjust its policy and show some justice to anyone who has been discharged from the military under ‘Don’t Ask, Don’t Tell.’”
“Mr. Collins’s case is a perfect example of how discrimination on the basis of sexual orientation is unfair and unconstitutional,” said Laura Ives, a staff attorney for the ACLU of New Mexico. “Mr. Collins’s sexual orientation did not prevent him from serving his country ably and honorably. The least the government can do is provide him with the same separation pay it provides other honorably discharged service members.”
Attorneys on the case, Collins v. United States, include Ives and Matt Garcia of the ACLU of New Mexico; Block and Leslie Cooper of the ACLU LGBT Project; George Bach, cooperating attorney with the ACLU of New Mexico and Sara Berger of Freedman Boyd Hollander Goldberg Ives and Duncan, PA.
CONTACT: Micah McCoy, ACLU of New Mexico, (505) 266-5915; [email protected]

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Welcome news this morning: Albuquerque Public Schools have affirmed the 2006 policy banning immigration officials from its campuses:
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Hailey Heinz of the ABQ Journal writes:

The ban on immigration officials was laid out in a policy adopted in 2006 but has been inconsistent in the district's written rules.
The policy was adopted during APS's negotiations with lawyers for three Del Norte High School students from Chihuahua, Mexico, who were detained by the U.S. Border Patrol outside the school in March 2004.
That incident prompted a policy that banned school employees from investigating students' immigration status or offering any information about a student to immigration officials. The same rule also said school employees must initially deny immigration agents access to students on campus.
The 2006 policy directs school employees to ask administrators whether any request for information about or access to students by immigration officials is lawful before providing it.
The policy, which deals with keeping students safe on campus, currently requires "close monitoring" of all campus visitors, including law enforcement, social services and immigration officials. The proposed revision would strike that language and add a sentence that explicitly says, "Immigration officials shall not be permitted on school campus at any time."
Board member Lorenzo Garcia, who often speaks about the rights of immigrant students, said strengthening the language is a positive move. "The important thing is to keep children safe," he said, adding that schools should establish an environment where students and parents feel secure.
Read the rest of the story here.

The ACLU of New Mexico wholeheartedly applauds the formalizing of this policy. No child, regardless of immigration status, should be afraid of attending school. Publicly and affirmatively stating that our schools are safe places for learning and growth will make children from undocumented families less likely to drop out of school—a significant risk factor for delinquency and an enormous impediment to future economic stability.
Education is a public good. The more educated our population is, the more prosperous, safe and culturally vibrant our communities become. It is heartening that, even in this time of high anti-immigrant sentiment, Albuquerque remains committed to providing educational opportunities for all burqueños, regardless of immigration status.
Other communities in New Mexico would do well to follow Albuquerque’s lead in making their public schools safe zones for all young people to learn. The ACLU of New Mexico has received troubling reports from communities in the southern part of the state. Elena Araiza, Director of Programs with the Women’s Intercultural Center in Anthony, NM, reported that sometimes U.S. Border Patrol vehicles will park outside of public schools. Not surprisingly, this has a negative effect on attendance among children in the immigrant community. The ACLU of New Mexico has also received reports that the U.S. Border Patrol frequently stakes out schools and bus stops in Mesquite, NM, ten miles to the North.
Emily Carey, Program Coordinator for the ACLU-NM Regional Center for Border Rights, says a particular incident stands out in her mind from a recent visit to Chaparral, NM. After learning about the ACLU’s work, an eleven-year-old student approached her at a community meeting and said that many of her peers stay home from school when the local sheriff’s department visits the school for safety presentations.
Some children in New Mexico are afraid to go to school. Why? Because of the presence of the very people who they are supposed to trust to protect them. Our state constitution proclaims that a “uniform system of free public schools sufficient for the education of and open to all children of school age in the state shall be established and maintained.” How can we be faithful to New Mexico's founding document if we create an educational environment in which only some children are comfortable?
We face enough challenges in our education system in this state; why create more? APS should be commended for exercising common sense by banning immigration enforcement from where it doesn’t belong. Hopefully, other communities around New Mexico will follow their example.
By Micah McCoy
Communications Specialist

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