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The Supreme Court won’t allow racial preferences at service academies, either

By Michael Ormsbee, professor of constitutional law topics and space law at the U.S. Air Force Academy

The Supreme Court ruled earlier this year in Students for Fair Admissions v. Harvard that race-based college admissions are unconstitutional, overruling its precedent in Grutter v. Bollinger that upheld affirmative action in higher education admissions.

Although the SFFA decision binds virtually all institutions of higher education, footnote four of the decision expressly excludes military service academies from the ruling, at least for now.

One of the dissenting opinions in SFFA, as well as some commenters, have argued that this footnote is a “powerful exception” from the majority’s reasoning because “distinct interests” exist in such military academies.

But Chief Justice John Roberts did not say there were legitimate reasons to treat the military population differently; he merely said that there might be such reasons.

The dissents panned the majority for this caveat that permits “diversity in the bunker but not in the boardroom,” but this matter was not decided: rather, it was merely left to another day.

In anticipation of that day, the military should prepare for a ruling that affirmative action is also unconstitutional in the military context.

And that day may arrive sooner than expected with the recent filing of a lawsuit in New York against the U.S. Military Academy at West Point and a lawsuit in Maryland against the U.S. Naval Academy.

The service academies do not have “distinct interests” sufficient to justify race-based categories in admissions (or in the military more broadly).

The reasoning of the majority opinion in SFFA foreshadows that race-based admissions practices at our military academies are unconstitutional and unlawfully disadvantage similarly situated applicants based on race.

The majority in SFFA ruled that race-based considerations in higher education admissions are unconstitutional, and that there are very few exceptions where race-based distinctions are still lawful today.

These exceptions — such as the separation of racial groups in prison to preserve inmate safety — are extremely rare. The carve-outs for acceptable use of race are exceptionally narrow and specifically historic; they have no application in military academy admissions.  

On that basis, military academies must demonstrate “distinct interests” separate from civilian higher education institutions if they are to justify race-based practices for admissions.

What would supporters of affirmative action in military academy admissions argue are “distinct interests”?

So far, those interests appear to be the same as those raised in SFFA: the important but unquantifiable value of diversity in the classroom and in officer makeup overall.

Proponents argue that in the military context, unit cohesion, obedience to officers and “heightened cultural awareness” may wither if the officer corps were less racially diverse than the enlisted ranks.

This seems to be the most cogent reason from affirmative action proponents: The authority of officers over the enlisted is unique to the military.

But this misses that such racial differences already exist, and without any appreciable or quantifiable impact on the efficacy of the military writ large.

SFFA’s majority was most concerned that the respondents could not point “to any concrete and quantifiable educational benefits of racial diversity.”

The total officer corps, according to one study in 2018, is approximately 75 to 80 percent white and 5 to 10 percent Black, whereas the enlisted corps is 65 to 70 percent white and 15 to 20 percent Black.

In the five years since the study, these statistics do not appear to have shifted drastically.

This, along with the lack of discussions about racial diversity deteriorating military discipline, would seem to undermine the argument that distrust among the ranks would stem from current or future race disparities.

Further, efforts to use race in service academy admissions are vastly under-inclusive, if the purported goal of race-based admissions is to bring greater diversity to the officer ranks.

For instance, approximately 60 percent of newly commissioned officers come from the Reserve Officers’ Training Corps (ROTC), 15 to 20 percent from the five U.S. Service Academies and 20 to 25 percent from direct commissioning sources.

Thus, even if the Supreme Court ruled that race-based admissions in military academy admissions are constitutional, this would not square with the overall commissioning scheme, whereby ROTC and direct commissioning (the vast majority of new officer commissions) are not able to use race as a factor in university admissions or entrance to commissioning avenues.

To this point, the Department of Defense would presumably be precluded from awarding ROTC scholarships using race as a factor.

And the use of race to consider some but not all sources of military commissioning would present an inherent paradox.

Of equal concern is the logical extension of affirmative action from service academy admissions to officer performance briefs if the military academies can use race per se in admissions decisions.

Particularly, if race is a permissible factor in admissions decisions, why wouldn’t it be an admissible factor in military awards considerations? Or in coveted assignments that pave the way to promotion?

If the military values diversity enough to elevate race as a potentially decisive factor for admissions to the U.S. Air Force Academy, for example, it is only natural to conclude that diversity would be an equally compelling interest at all levels of the Air Force.

And if that were the case, then race would have to permeate virtually every personnel action within the military.

I anticipate that race-based admissions policies for military service academies will be declared as unconstitutional as they are for non-military educational institutions.

Diversity is unquestionably a worthwhile goal, but there is no justification for race-based service academy admissions that the Supreme Court would accept as legally justifiable under the formidable rigor of strict scrutiny.

Service academy applicants must be assessed by their merit and achievement alone.

This means service academies should consider only the challenges applicants have overcome and the skills and lessons they have acquired in life.

Fortunately, this coincides perfectly with the mission of the service academies: developing the best-qualified leaders of character, regardless of race.


Matthew Ormsbee teaches constitutional law topics and space law at the U.S. Air Force Academy. His views do not necessarily reflect the official policy or position of the U.S. Air Force Academy, the Air Force, the Department of Defense, or the U.S. government.

First published on The Hill

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