By Michael Rose, USAFA ’69 and STARRS General Counsel
and Richard Epstein
The military academies present positive images of themselves on websites and in the media. But they minimize critical scrutiny and accountability by making it difficult or impossible for the public, and even Congress, to see how they are forcing Marxist ideology into their curricula and onto our soldiers.
For example, in October 2020, a Freedom of Information Act request was filed seeking from the Air Force Academy (AFA) documents regarding “systemic racism,” “discrimination,” and “racial bias” alleged to exist there.
Only a lawsuit filed by Judicial Watch in September 2022 resulted in the AFA declassifying and providing its “Internal Racial Disparity Review Final Report” and other documents that existed before they were requested.
Similarly, Stand Together Against Racism and Radicalism in the Services, Inc. ( STARRS.US ) filed more than 30 FOIA requests with West Point, the Naval Academy, and the Air Force Academy for documents about leftist ideologies in their curricula with little or no response and repeated stonewalling.
This pattern of not providing documents about academy operations dates back to the early days of the FOIA, when federal courts required the Air Force Academy to provide to the public documents about retention and the operation of the AFA’s Honor System.
The Biden administration exponentially increased the lack of transparency and accountability regarding leftist ideological indoctrination at the academies by taking three actions to neuter the Board of Visitors (BOVs) of West Point, the Naval Academy, and the Air Force Academy:
First, on Jan. 30, 2021, the secretary of defense suspended the operations of the BOVs;
second, on Sept. 8, 2021, the president fired all Trump appointees on these Boards of Visitors; and
third, on Sept. 17, 2021, the secretary of defense authorized the service secretaries to create BOV “subcommittees” staffed by appointees, including non-members of the BOVs, selected at the sole discretion of the secretary of defense or the deputy secretary of defense.
All these actions were flatly illegal, and we are challenging them today in court on statutory and constitutional grounds.
Congress created the BOVs as independent oversight boards to investigate, oversee, and make recommendations about the academies to the secretary of defense, the United States House Armed Services Committee, the United States Senate Armed Services Committee, and/or the president of the United States.
Each board contains representatives appointed for one-year terms by the speaker of the House and the president pro tempore of the Senate. The president of the United States has the power to appoint each year two members to that body for three-year terms.
Under their respective charters, these BOVs “shall provide independent advice and recommendations.”
Each board “member, based upon his or her individual experiences, exercises his or her own best judgment concerning matters before the committee, does not represent any particular point of view, and discusses and deliberates in a manner that is free from conflicts of interest.”
Implementing regulations require that the BOVs have “[b]alanced membership.” Specifically, each of the BOVs “must be fairly balanced in its membership in terms of the points of view represented and the functions to be performed.”
In addition, the secretary of defense must “[d]evelop procedures to assure that the advice or recommendations of advisory committees will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.”
Moreover, DoD policy requires that “committee membership, as a whole, shall be balanced in terms of points of view and the functions to be performed.”
In flat violation of the statute, Biden fired all four Trump appointees because they did not share the president’s values, eliminating an important check on the DEI movements inside the military academies.
We challenged Biden’s attempt to suspend the BOVs altogether, forcing the secretary of defense to reinstate the BOVs.
However, the fired Trump appointees have been replaced entirely by Biden appointees, thereby likely ensuring uniformity and unbalanced viewpoints, contrary to the balanced BOV structure intended by Congress.
Indeed, Biden’s presidential actions are wholly unprecedented, for no president ever has sought fit to fire independent BOV members in the half-century of the boards’ existence.
The case law makes it clear, moreover, that these deposed BOV members are wholly unlike district attorneys who fall within the executive branch, which the president has wrongly claimed.
The Supreme Court stressed in Wiener v. United States (1958) that the law draws “a sharp line” between officials in “the executive establishment,” and those, such as the BOV members who must exercise their judgment without leave or hindrance.”
Biden’s unilateral actions also violate the principle of separation of powers that prohibits the appointment to any executive branch agency under Buckley v. Valeo (1976) by either the president pro tempore of the Senate or the speaker of the House.
A district court disregarded all these established principles in a recent decision regarding the president’s firing of Trump appointees, which is now on appeal.
We know that we are right on the law and seek a speedy reversal of that decision. But by the same token, Congress should take matters into its own hands to stop the evisceration of all future BOVs by executive branch overreach that undermines the essential oversight supplied by these independent boards.
Regardless of whether courts invalidate these unprecedented BOV actions as yet another executive branch overreach, these interferences with the BOVs obviously have the intent and the effect of minimizing congressional and public oversight of the academies, thereby enabling them to promote left-wing ideologies with less transparency and accountability.
That is good for the spread of Marxist ideology, but not for the United States of America or its military.
Michael T. Rose is a former South Carolina state Senator, an attorney, an Air Force Academy graduate and general counsel and executive vice president of Stand Together Against Racism and Radicalism in the Services, Inc. ( STARRS.US ). He is co-counsel for the plaintiffs in Stirrup v. Biden, along with Richard A. Epstein, a professor of law at NYU Law School, a senior fellow at the Hoover Institution and a senior lecturer and emeritus professor at the University of Chicago Law School.