Log Cabin Republicans v. United States of America et al

Filing 150

DECLARATION of Robert MacCoun in Support of Opposition to MOTION for Summary Judgment as to Plaintiff's First Amended Complaint #136 filed by Plaintiff Log Cabin Republicans. (Woods, Daniel)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAN WOODS (SBN: 78638) PATRICK HUNNIUS (SBN: 174633) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Email: dwoods@whitecase.com Email: phunnius@whitecase.com Attorneys for Plaintiff Log Cabin Republicans UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, v. UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE, in his official capacity, Defendants. Case No. CV 04-8425 VAP (Ex) DECLARATION OF ROBERT MACCOUN IN SUPPORT OF LOG CABIN REPUBLICANS' OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Date: April 26, 2010 Time: 2:00 p.m. Courtroom: 2 LOSANGELES 858920 (2K) 1 PECLARATION . ROBERT MACCOUN . . OF -1, Robert MacCoun, declare that: 1. I am a Professor of Law, Professor of Public Policy, and Affiliated Professor of Psychology at the University of Califomi a at Berkeley. I was a coauthor of the 1993 National Defen.se Research Institute report entitled «(Sexual Orientation and U.S. Military Personnel Policy: Options and Assessm.ent." 2, I have been retained by Plaintiff Log Cabin Republicans to testifY as an expert witness in this case. 3. Attached as Exhibit A is a true and correct copy ofth.e expert report that I prepared in this matter. 4. It is an accurate statement of my expert opinion in this matter and sets -_ 2 3 4 5 6 7 8 9 10 11 12 13 forth both my qualifications and the factual basis for my opinion. Tdec1ate under penalty ofpetjury under the laws of the United States that the foregoing is true and correct, and that this declaration was executed on April ~ 2010 in Berkeley, California 1.4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit A Jan 19 10 lO:2Sa p.2 Ending Th~ "Don't Aq)c, Don't Tell" PO.Iic..'Y Is Unlikely to Impair Unit Cobesion Or Milita.ry Pcrformantt .R.ob~rt J. Ma.eColln, Pb ..D. l)rofessor of Law, Professor of Public Policy, and Affiliated Professor of Psychology University of California at Berkeley Webpag~: htrp:/lconiultl.org/-maccoun Email: maccDun@berkclcy.edu BACKGROUND President Clint()n's memorandum of January 29, 1993 directed then Secretar.y of Defense Les Aspin to draft a.n ExecutiVe order that would end discrimination 01) the basis of sexual orientation io the military "in a manner that is practical, rca.1isti~. and consistel1t with the high standards of combat effecti'Venes~ and unit cohesion our Armed Forces must maintain." The Seetetary of Defense c()mmissioned two studies of the issue, one prepared by members of [he Department of De:fense) .and a second r;tudy prepared by the National Defense Research Institutt; a federally-funded research, a.nd development center at RAND, a private non··profit public policy research o~a..'iza.tion. In a brief memorandum, the DoD group recommended the "Don. 't Ask. Don't Tell" (DAD!) approach. that was ultil'l'lAtely adopted by the President, and later codified as law by Cl'lf.lgrc..."il. F~H'Cvicwcd n:port Sexual &"ricntatwn. A..rSt!s.t:mRI1.! (1993); in brief: The RAND group's very different conc.Jusions were documcntc.o i11 the 51 R-pagc arid Military Personnel Policy: Options and u:s. Only one policy oprjon was (ouno to 00 ('.on~i~ent Wi.rll the tif.l.djl'lg~ of thi~ researth ano dlC ¢tiferia ()fme Presidential memorandum, and to be logically an.d internally COl'I,c:;i:;tlZoilt. That policy Wuuld c.onsider seXlIRi o~&-;l:annn, hy h.::;df) :lS :;=0;: gcrrn.m1c to determining who rnay scrvf; in t:he milit.ary. The policy wouJr\ e~t.ab!i!th clCAr ~h!;:.d~.ro5 1)f :.:nndt;.ct f'Or aH mili~W-:-" ~rsQrmd, tn he eqm::!!y a,1d stt.i<:tly ("l1fOfCCa, it: order to maintain the military discipline ncce.<Isary for cffecti,'c operutions. 1 was 3 coauthor of the 1993 RAND repon~ I \.\.~th primary responsihility for the .:malysi:; dtlle link bel.wecl'lunit cohc.~ion and p~fonnat.t.c. and ooc~nd()ry responsihiIity fot i.h,- "X"tmir"·,--.~.J .....f'·"c cf:&~.~", ,. f",,, i-Ai",_, .".1".......... , ,1'\:-'l... ..., ... , .............." .· p,}.... _ .... ~ ·.. ~ f·:n,.. ...· W. .- < ···· ~I ..," ... ..... ··· .,1 ... r-,..;"""· .. "Ti"" ..... _ il"" j" '"''''''''''';''''''' rlil"''' l!I1.-4 f,,.,, oopartmQK\ts, My review of the cohesion Hternture included 198 bihlio~raphic citations to aca.demi.c and military rl\l'l~ro.h Te!,,,rts. 1)Qth pubHsbe<1 Md unp,.1blished. 1nl!'tO interviewed 1 The testimony in (hi!C rep<>n reflects my own vie\'~ Mid !:oollld nol be crmS£nJoo to ,.......pre!:en~ (he '/iews of' !t.A,NI)'$ I1".aCl~.gemetlf. Ibndern, or c'l'lSt'<lrch ~:)(f. Jan 19 10 10:26a 10.3 M.,.cCoun - ? 14 nationally recognized experts on militaty cohesion and/or smaU-group conflict and perfunnance, 1conducted field visits to various military barracks and naval craft, and I interviewed many active and retired service personnel, including officers, enlisted personnel, and milita(y chaplains, and both QVowed heterosexuals and closeted gays and lesbians. r am a. research psychologist with over 100 publications (including articles in Science.' Psychologicol.Review. American Psychologist, PsychoJogicm Science, and theAnnull1 Review ofPsychology), including a great. mllOyempirical studies on small group behavior and on the behavioral responses ofciti?ens to public policy infeJVentions. For] 5 years 1 have taught a tn~or graduate cotln>e at UC Berkeley on survey research and program evaluation methods. I have also published a number of examinations of the problem of political bias in the interpretation of reseamh evidence on conttoversial topiCS. l~ this briefrepon, I wilJ draw heavily on the folJowing previous pUblications: optlt)t1S ond asstsll1lMl. Santa MOllica, CA: RANO. (Collective authorship; to the Secretary of DefMtlc.) Nationa.l Def('l)S(: Research Inatitute (1993). S(!)(ua/ orient",Ic" Q11d u.s. mlll/Dty psr.(t)N,,~1 policy: PDlicy RAND working group'''' repot1; MacCoun, .R.. J. (1993). Whi\t is known about unit cohesion and military performance. In National Defense Research Institute, Sl!XJl4J orienlal/on DJttl military personnel policy: Policy options unti assessment (pp. 283-331). Santa Monica, CA: RAND. u.s. MacCoutl, R. J. «(996). Sexual orientation and mi1l~ry C(Ih~lon: A critical review ofthc evidence. In Q. M. Hcrek, I. B. lobe, &; R. Came)' (.I::ds.), Out in/O.,.CIl.' Saulll oritmlnliOfJ rmd the tflililflry. Chicago: Unive~it)' or Chimgo Pres..~. MacCoun. Kier, E., & ·Belkin. A. (2006). Ooes social cohesion determine motivation in combar? An old que.~jon with an old ans\Yer, A,.",ed Fon::es 111ft! Societ.J', 32, 646-6S4. MacCoun, R. (1998). Blaw in the interpretatiol'l And IISC ofrwean:h resuIL~. AnmJD! Rhimc: of Pspr.h."Jog):. 49,25'9·287. n... Because: the above sources have ex.r~nsivc bib1iographies, I will limit new citations to new empirical research whioh bas appeared since those publications and wbich directly pertains to my arguments. PROPOSJTIONS 1. TIII~re is no syste",atic evlde"c~ (direct or indirect) /01' tI~ claim thll/ openly gay or leslJitl.l'I p~r.romll!l wt),dd impair tnilua,y "",it cohesion or Mit effectJveness. The J993 DOD task force did not int('oduce any systematic empirical evidence establishing tha.t allowing 8ay~ and lesbians to serve openly would impair either cohesion or pe1'fonnance. Since 1993, no new evidence sllpporting that argument has been introduced, and new evidence from military settings (discussed below in Proposition 7) refutes the claim. TIle argument that ending the ban would impair cohesion and unit pcrfonnance is based 011 faulty Jan 1S 10 lO:2Sa ".4 MacCou:'\ 3 premises due to a misrepresentation ofwhat is actually known. about unit cohesion and its relationsbip to performance. ). 17l1m~ is no single pheHome.nolt cfllkd "unit co/t~ifm": ills important to distiJtguis/. "sodal cnl,e,.fitm "/Tom "Iask CO/lesion. " Elsewhere (MacCoun, 1993, 1996) r review considemble evidence for that there are at least two empirically and psychologically distinct types of group cohesion: lYk cohesion refers to the 8harcd commitment among members to achieving a goal thllt require~ the colJective efforts of the group. A group with high ta.t;k cohesion is oomposed of members who share a common goal and who are motivSlt~ to coordinate their efforts as a team to achieve that goal (MacCoun, 1993, 1996). ' Social cohe.~n refers to the nature and quality of the emotional bonds offriendshjp. liking. caring, and closeness among group mernbeIs. A group is socially cohesive to the ex.tent that its members like each other, ptefer to spend their social time together, cqjoy each other's company, and feel emotionally close to one another (MacCoun, 1993, J996). Converging evidence for rhe task \'S. socia] distinction is provided by independent research teams working if) many different domains (military, sports, organi7.ation~ etc.) using standard psychomctric methods to examine the reliability and.validity of various instruments for assessing cohesion. More recent reviews (Carless & DePaol~ 2000; Carron and Brawley, 2000; Dion, 2000) provide additional support for the validity and usefulness of the task-social distinction. This distinction is important for the DADT debate beollU$e no one has seriously argued that 8~YS and lesbians are in.iletently Jess committed tn the military's mission; thus, only a team's social cohesiol1- the notion that unit members have to like each other aud be like each other in dimensions other than task commitment _. is plausibly linked to the open sexual orientation of its members. An influential definition of military cohesion was offered by Colonel Wm. DarryJ Henderson in his 1985 book, Cohesion: The Human Element: .....cohesion exists in a unit when the day-to.day goals of the individual soldier, ofthe small group with which he identifies, and of unit leaders, arc congruent--with each giving his primary loyalty to the group SO thaI it trains and fights as a unit with all members willing to risk. death and oohicve a common objective" (HendetsOll. ] 98S~ p.4); . Nothing in this definition implies that gays and lesbians might be a threat to unit cohesion unless of course they failed to show loyalty to the group or the military's mission. This definition is a good representation ofwbat contemporary cohesion researchers call "task cohesion. It Curiously, in his J993 prepared statement to the Senntc Anned Services CommH1ee, Hendet'$on adapted this defini.tion. replacing the phrase "day-to-day goals" with "prhna.ry vaJtle..~ an~ day·to-day goals. II This might be taken to imply that sexual Jan IS 10 lO:?Ga p.5 M~C:Coun - <1 orientation - . f i t constitutes a Ifpritnary vAlue" - could bear on unit morale. But by modifying his operational definition fur the Senate hearings, Henderson confiated the two forms of cohosion. . J, Tille ~J)idence tlta' COII~/olI Pf'OlHotl!.t I~am pet/ol'wumce i.f ",ixed Mud, o/tlie oppore"l benefit OfCb/,esion it due to Ilu ~ffecls O/III...f;/t cohesion rlllhe, Ihn" socill./ cO/lesion. And various lines oftw;t!encc show that /, igh social co/taion can. somt!limes impair performance. An early meta·analysis of the cohcsioo"perforrnancc link (Mullen & Copper, 1994) found that the a.~$OCiation is strung~t for sports teams (.r;;;; .54)2, significantly weaker for military units (r::= .23) and other real work groups (r I : .20), and weakest for artificially com.posed laboratory groups (r "'" -16). They also reported only task cohesion was independently associated with performance; social cohesion and group pride were not correlated with perfonnance after statistioally controlling for task cohesion. Two newer meta-analyses (Beal et 01., 2ClD3; Cruocchio &: Essiembre, 2009) using different statistica' techniques replicate the t.ask cohE'.sion-perrorrnancA! link and but .also report a reliabltl sociaJ GOhe.sion aud perfonnance association. Both authors argue that the assoeiation varies as a function of task characteristics, but this also suggcsts an important caveat v.:ith tespect to the preselu report o f the 10 estimates that Mullen and Copper took from. military $tudies~ only 6 were included in the .Beal et aI. (2003) dataset, and Chiocchio and Essiembre (2009) chopped all the military estimates. Thus, there remains little evidence for of any robust link between social cohesion and performance fur military groups. Moreover, th~ are many sepa.rate lines of theory and evidence (discussed in MacCoun, 1993, 1996) that suggest that high social cohesion can produce a kind of "clubbiness" Of "grouptrunk" that is deleterious to effective group perfonnance. For more rocent evidcl).ce, see Hoigaard et a1. (2006)~ Nemeth a.nd Nemeth-Brown (2003), and Rovio ct aJ. (2009). 4. EflilNl1es of I1I.e Cf)/,es;on-peif()rtn.tI"~e IIfS()ciation lire partly Illtfi!JUlllhie It) tI,e effeel ofper/ormlllfct on col,esi~n mtl,er Ihtlll lire reJ1erse. GI'(JUPS f/ltli Pl!I'fD"H~ snccessfully hecomft mt>re colJesiIJe; groups IllQt pe!fD"'" poorly "«ome le$.'i co"~jve. Mullen and Copper (1994) usod cross-lagged meta-analysjs to show that ''while cohesiveness may indeed Jead the group to perform better, the tendency fur the group to experience greater cohesiveness after successful performance ma.y be even stronger." TIus implies that estimates of II positive cOI:telation between cohesion and performance cannot establish that high (low) cohesion causes good (bad) pcrfonnance; the correlation may be ~uri()usly high due to the reverse effect of performance on cohesion. The mDfe recent cohesion" perfonnanoe mcta-analyse..'l fail to address this causal misspecification problem. 21n this repon I report weighted. avem~e metl1.·"oalytic c:oeffwients (P's) but for simpllclt;y "lIbel them Hr" becau..c;~ they can be Interpreted IIlee pear!on product-moment coefficieftts; I.e .· they range I'i-om -I for a perfect negative ASsOciation h) of I for n perfect positive a~~ociBtion. Jan 1S 10 10:26a p.6 M.aCCoun - 5 S. R~enl melo.-llltl1(yscs On tire. effects oftelUtl luterDge"eily 811GGest little or no effect (In ~j(I'1!r co/~esi(JJI. or on peifonnonCl!. There is little research directly assessing mixed sex:ual orientation in work groups, but ill recent years many !itUdies ha.ve examined the effect~ of diversity due to gendcr~ ethnicity, ability, and othE:r member traits. Three recent meta-analyses and a natrative review have examincd the effects of heterogeneous team membership on team cohesion and team petfonnance. .Bowers et aI. (2000) meta-analyzed 51 estimates from 13 studies. reporting lIa . small and insignificant overall effect of ream composition on perfonnance in favor of heterogeneolls groUps." They concluded that "building teams homogeneously or heterogeneously based on any of the attributes [ability, attitude. gender or personality) ... will not result in significant gains in team performance. In a meta-analysis of 45 correlations from 24 studies# Webber and Donahue (200 J) found that nejther "less job-related di"~ity" (e.g., demographics) nor "h.igllly joh-re.111.ted divers.i.ty" infitlenced group oohesion (r"'" -.03 and +. J0 for lessjob-l'elated vs. highlyjob-reJa.ted diversity). They also failed to :find any efiect of either type of diversitY on team perfonnanee (r"'" ·,07 and +.02 for less job-related vs. highly job..related diversity). A more recent and more comprehensive metA-analysis of 78 correlations from 35 studies by HONiitz and Horwit2 (.2007) found that task-related diversity had a modest positive effect on team performance (r"" .13). but that "bi(Hiemographic diversity e:xhibited virtualfy no relationship with the quality of team pctformance" (r""'· .006). The recent report of the Diversity Research Network (Kochan et aI., 2003) reached a similar oonclusion using a traditional narrative reviow of various organization case studies: "Th~ wetc few direct effects of diversity on ped'onnance---cither positive or negative," but that "there appear to be some conditions under which diversity. jf managed well, may even enhance .peri'onnance." 6. Mllny/actors in ",i1itllty .Mtlmgs wm proHlote collt'!Slon, mgftl'(/Jt$t ,,/ lhe personal QIJ,ihfIJes ofteom ~mht,.s. As argued in greater detail in M~Coun (1993, 1996), cohesion l'C$eate:hers have long known that many mctors influence a team's cohesion. Examples of such factor,s include mere propinquity (being in the same place: at the same time), shared goals and outcomes, rituals and ingroup markers (uniforms, ~Iogans, etc.)~ a common outside threat, and effective leadership. I~ unusual organi,..ationaI structure and traditions eqUip the military to pt:'omote cohesion in many ways that would be more difficult to achieve in civilian organizations. In his early writings on the Vietnam War (quoted in Marlowe. 1979), CharlC9 Moskos. the "father" of the DADT policy, recognized the fluid way in which combat conditions promote cohesion, suggesting (some years before hiR 1993 Senate testimony) that the bonding among soldiers is often Itjn~rumen1al aud $elf~seJ.Ving," a temporary and situational adaptation to danger. wrote that "jn most cases, nothing more is heard from a soldier after he leaves the unit. ... Tho rupture of communication is mutual despite protMtations oflifelollg friendship during the ~hared combat period." This observation does not discredit cohesion) it simply underscores that it is a situational adaptation. He p.? MacCoun - 6 7. Snll/feTs' abst,act tlt/Jlude,s tOWtlrd homosauality, anti dleir speculntioltS ohnut hypolltetiCilI SilltlltiohS) are likely Ii> be pODI' pfeJictol'S l?flheir IIctlJlll 'espOJf.f~~ wh!!" SI!MJillg wuh a goy or labia,. colleague.. Iltfactl new evidt!lIcefl'()tIJ tI,e US milil~ry from foreign miJilarit!$, lindpOIn mlt/linlluOhlllforces fails to .flu,,,, tin)' sJglliflCn.nt tklde,.ilJus impact hfopeJl gllp 0' I~sb;ans on u/l11 cO/le.rlon or pl!.iformtUlce. In the 1993 Congressional hearings, various service personnel testified that they did not feel they could work and Jive cooperateJy with avowed gays or lesbhl.lls, and much w.QS made of survey evidence showing that a. moJority of enlisted personnel were opposed to li~ing tbe ban. But of course. the .military does not routinely adopt policies based on their popularity among active personnel, and Social scientists have Ions known that abstract attitudes about race, gender, and other cbaracteristics are very .poor predictors of how people actually beha.ve in intergroup settings (see MacCoun, J993 for a review). When ~plc cotlsider JlOw they might behave in hypothetical situations, they typically fail to consider the many situational factors that will constrain their behavior. This point is well iI1ustrated by actUAl. military eXperiences in recenr years. Thorough. research on the experiences of the Australian, canadian, Israeli, and British militaries has failed to turn up any evidence that openJy,gay and lesbian personnel impair unit effectiveness, in peacetime or in com.bat (see the 1993 RAND Report, and Belkin's 2003 revjew of newer research). Bateman and Dalvi (2004) examined five ease studies in which Amtlncan service members served with openly gay non-AmerIcan service members in multitlationaI task forces; they found that "no one consulted for this study could think of an jnstance in which an openly gay or lesbian service member undermined a unit's ability to complete its mission, " and they did not find 1lI1Y docutnent8l)' evidence indicating any problems. Finally, Ii 2006 Zogby International Poll ofS45 Americans who served in the US military in either Iraq or Afhani$tan since 1001 (Rodgers, 2006). Among those who did not suspect that they had served with gays or lesbians, 58% believed that such colleagues would have impaired. thcit unit's effectiveness . .But among those who reported actually serving with an open gay Ot lesbian, 64% felt that there was no impact on their unit's morale. 8ibliog~phy of New Sources Since MatCoUIi (l99J, 1996) Bea~ D. J. et al. (2003). Cohesion and performance in groups: A meta-enalytic clarJfication of C()l1ftruct relations.. J. Applle.d P$JIt!h.· dB, 989·1004, BellOn, A. (2003). Don'r ask, don't t.e/l~ Is tile gay btln based OIl military necessity? Parol1lelert. Sutnmer 2M3, '011·119. Bowers, Pharmer, It. SAlas (2000). When membllr homog~jty is needed in wock teams: A meta-analysis. Small G,.oup ke..t~Q"ch. J I, 305-327. O1r'~'1, S. A., & de PRoia, C. (2000), The mealil.Jl'l;f1lent Mcohcsi()fl in work teams. 8mbll Group R~q!arch, JI,71-88. Carron, A. V., &. Brawtey. 1-. R. (2000). Cohesion: Conceptual and me~lJrement issues. SmD/1 Group Rt!.,rtlorch, 31, 89~106. Chioccf1io. F., & Essiembrc. H. (2009). Cohesion and performance: A meta-analytic review of disparities betWecll project teams, prodootion te;!ms. and service teams. Smtlll Group Rttearch, 40. 382-420. Diol\, K. L. (2000). Group cohesiol1: From 'fiold of fOrces' to multidimensional. construot. Group D)'I1Q",ics, "', 1-26. Hoigaatd,lt, el al. (2006). The rel.atll)nship betweon group (".()be.o;ion, group norms, and perceived $ocial IOl\fing io soccer te3lllS. Shun} Group RU62rch. J 7, 211.232. p.e MacCoun 7 Horwitz, S. K.., &: Horwitz,. I. B.. (2007). The cfrecta oC team diversity on team ootcome$: A meta-Bnalylic rcvj~ ofteam demogrl\phy. '/ortr/lll/ oj'M(I)1agemet1t. JJ, 987-1015. Kocllan, T., et al. (2003). The effects of diversity otl bllSines~ performance: Repon of the Di~iry Re.<:earch N~twork.. Human ResoUYCI;! Monogemel1t, 42, )-2.1. Nemeth. C. J'J & Nemeth-Brown, a. (2003). Better than individuals? The potential benefits of dissent II.I1d dillcrn/ty for group creativity. In P. B. Paulus & B. A. Nijslad (Eds). Group Cr~QJl\llty (pp. 63-84). NY; Oxford Univmity Press. Rodgel'5, S. (2006, December). Opinions ofmil/laY)' pemlt/"e1 on ,tf!rUQI minorilie.r In the milifary. Zogby rllfemAtiOAAI. Rovio, E., 01 aI. (2009). Can high group cohesIon be han'l\fuJ? A casc study ofajllnior Ice-hocky teem. Smo/l Group Research, ~o, 42) -435. Webber, S. S., &. Donahue, L. M. (200}). Impact of highly and less job-related diversity on work gr01.1P cohe.qion and performance: A meta-ann Iysl$. Jourlfh[ 0/Monagf!mt!nJ, 27, 141-162. STATEMENT 1. J have not testified in any court ease in the past fOUf years. 2. I have agreed to sctve as an expert witness on apro bono basis for the Log Cabin Republicans and White & Case LLP so long as they reimburse eny travel expeJlses.

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