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The Supreme Court Should Apply Its Affirmative Action Ruling to Military Academies

The Supreme Court Should Apply Its Affirmative Action Ruling to Military Academies

The result in “Students for Fair Admissions v. Harvard” was a key equal protection victory in education; it’s even more critical that the same result apply to the service academies

As we reported, late last month the United States Supreme Court ruled that universities cannot use “affirmative action,” or considerations of race, in their admissions policies: Supreme Court: Harvard and UNC Affirmative Action “invalidated under the Equal Protection Clause of the Fourteenth Amendment”

The U.S. Supreme Court has dealt a blow to race-based affirmative action in college admissions and by implication elsewhere, putting to an end a narrow carve-out for higher education that had permitted colleges and universities to engage in otherwise unlawful conduct in the name of promoting diversity.

As Chief Justice Roberts stated:

But we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.


For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.

We also reported on the aftermath of the decision, including universities’ expected attempts to “end-around” the opinion:

But what we haven’t yet reported on is an innocuous footnote near the beginning of the Court’s opinion, stating that the opinion does not apply to the military academies:

The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.

Procedurally, of course, the Court is completely correct that the opinion cannot, and must not, apply to the military academies, because none of the parties briefed the Court on the unique status of the military academies as educational, and more importantly, national defense institutions. And federal courts, at any level, must only address the issues between the parties in the case, and are not authorized to issue “advisory opinions.” “[J]udicial power, as we have seen, is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.” Muskrat v. United States, 219 U.S. 346, 361 (1911).

Substantively, however, it is clear that the Court’s opinion must apply with even more force, or a fortiori, as lawyers say, to the military academies. This is because the use of race in admissions is equally “odious” in the case of civilian or military institutions of higher education, but has far-reaching extremely negative national security implications in the case of the service academies. Because of that, we can expect future litigation over the use of affirmative action at the academies.

The Daily Caller reports: Pentagon Can Expect Legal Challenges To Race-Based Admissions Policies After Supreme Court Ruling, Experts Say

Military academies will likely face legal challenges for their use of affirmative action following Thursday’s landmark Supreme Court ruling that barred universities from considering an applicant’s race in admission decisions, experts told the Daily Caller News Foundation…

Importantly, the Supreme Court did not affirm service academies’ race-preferential admissions policies or say that the Equal Protection Clause does not apply to the military, experts told the DCNF. Rather, because the DOD was not included in the litigation, the court could not decide whether the military actually has distinct interests that meet the strict requirements for an exemption.

“The question is not whether the Equal Protection Clause applies to admissions policies at the SAs (service academies), but how do the uniquely military interests involved influence the application of the [Equal Protection] Clause in that setting?” retired law professor and Army Col. William Woodruff explained to the DCNF. “Constitutional rights apply in the military.”

And there is no question that the service academies use race as a factor in admissions, as the New York Times has reported.

So, why should the Supreme Court’s Affirmative Action opinion apply to the service academies? The answer lies in an amicus curiae, or “friend of the court,” brief file by an organization called “Veterans for Fairness and Merit,” which “is a 501(c)(19) veteran’s organization with over 600 members, most of whom served in combat, including 21 recipients of the Medal of Honor and recipients of over 900 other combat valor awards, 45 former POWs, and 121 retired general officers.” From the brief, which is available here:

[O]ur nation’s military culture was built on the principle of “selfless service” as part of an enlightened warrior ethos. Civilians, to become effective warriors, must acquire more than just the knowledge and technical training necessary to become effective warfighters on a lethal and unforgiving battlefield. Equally essential is that they undergo a significant and unnatural cultural transformation—one that includes a conscious, disciplined subordination of self, including of sub-group identities such as heritage, ethnicity and race—and assimilation to the norms of the organization. Subordination is not to be confused with abandonment. The warfighter must develop the capacity to put, sometimes for extended periods, self-interest completely out of mind. He/she must be able to trust every teammate as fully sharing that selfless culture, unreservedly committed to the organization and its mission, and to serving others without being concerned with self. Anything less is corrosive to the unit cohesion that, on the battlefield, can make the difference between life and death and mission success or failure.

This culture requires that each warfighter see fellow warfighters as totally committed teammates, where race, ethnicity and heritage, while respected, do not matter. Some refer to that element of the culture as being “colorblind,” an imprecise term, but one that is often heard in military circles.

This selfless-servant, “colorblind” culture is a national security imperative that is seriously weakened by racial preferences. As Sun Tzu said two thousand years ago, “he will win whose army is animated by the same spirit throughout all its ranks.” Our warfighters are thus expected to ignore racial and other differences to be maximally effective on the battlefield. When bullets are flying and mortar shells landing, warfighters cannot and do not care about the race of their buddy or of their leaders. They must be (and are) willing to risk their lives for another warfighter, regardless of skin color.

I could not have said it better myself.

I would also emphasize a point Justice Clarence Thomas made in his excellent concurrence to the Supreme Court’s Affirmative Action opinion. In it, Justice Thomas wrote:

I have long believed that large racial preferences in college admissions stamp blacks and Hispanics with a badge of inferiority. They thus taint the accomplishments of all those who are admitted as a result of racial discrimination as well as all those who are the same race as those admitted as a result of racial discrimination because no one can distinguish those students from the ones whose race played a role in their admission. Consequently, when blacks and, now, Hispanics take positions in the highest places of government, industry, or academia, it is an open question whether their skin color played a part in their advancement. The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed “otherwise unqualified,” or it did not, in which case asking the question itself unfairly marks those who would succeed without discrimination. [citations omitted]

In other words, if you are promoted, did the promotion occur because of your skin color? If so, your subordinates will be concerned about your qualifications for the job, perhaps rightly so. If the promotion did not occur because of your skin color, but was based on your merit only, your subordinates will assume this is not the case based on the prevalence of racial preferences. Either way the minority leader is unfairly handicapped, and military battlefield effectiveness is hampered, by racial preferences.

Two final points, somewhat ironic in nature.

First, as the Daily Caller article explains:

The government has dug itself into a bit of a hole,…because it often tries to achieve contradictory objectives in the name of national security.

On the one hand, it claims that diversity is a compelling national security (governmental) interest, thus race-based admissions are necessary to maintain diversity in the military. But on the other hand, it often argues in religious liberty cases that it cannot allow individual religious expression, such as the wearing of Sikh, Jewish, or Muslim articles of faith, because uniformity in the military is a compelling national security interest.

Second, the Supreme Court’s Affirmative Action opinion now creates a split in the military’s officer corps; graduates of the service academies will now have the “benefit” of racial preferences in the admissions process, but graduates of ROTC in civilian colleges will not:

In addition, the court applied the ruling to universities that host Reserve Officer Training Corps (ROTC) programs, which routinely commission officers into the military.

That is an implicit rejection of DOD’s claim [that affirmative action is necessary for military effectiveness]….

The fact that [the court] did not even blink at the military justification for racial preferences in the ROTC context, which is the largest source of officers, is pretty telling that the Court will not just roll over in a future lawsuit challenging the [service academy] racial preferences.

In any case, it seems inevitable that there will be follow-on litigation regarding affirmative action at the service academies — the sooner the better.


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The courts ruling provides no safe haven to any organization under the purview of the court.

The Affirmative Action ruling should be applied to nominating justices to the Supreme Court.

How could the ruling not apply to military academies?

    GWB in reply to MarkS. | July 12, 2023 at 9:29 am

    The problem is the service academies are not solely “educational institutions.”
    They are primarily a training program for officers, with an educational institution layered over the top (because you have to have a degree to gain a commission). The criteria used for entry to an academy is more than academic*, centered on the potential to become a valuable career officer.

    (* Most “institutions of higher learning” now use a more comprehensive test to evaluate applicants. But the academies have been doing it for… well, since at least the 50s. And I think a lot longer than that.)

      Edward in reply to GWB. | July 12, 2023 at 11:30 am

      A degree is not required to be commissioned as an officer in the military services. Obtaining a degree (either ROTC or service academy) is the usual route to a commission, but not the only route.

        GWB in reply to Edward. | July 12, 2023 at 3:09 pm

        In most cases it IS required. To enter the 90-day wonder program (Officer Candidate School) you generally need a degree. And you attend ROTC or an academy in order to obtain the degree AND get commissioned.

        The only place (excepting Warrant Officers – who are NOT full officers) I see where you might enter without a degree is a direct commission, which states it “appoints civilians with professional experience” – which I’m going to guess are all in fields that require a degree to obtain that “professional experience.”

        If you know of a way to otherwise become a commissioned officer without a degree, please point it out to me.

          markm in reply to GWB. | July 14, 2023 at 12:12 am

          There’s Audie Murphy’s way to a commission: Repeated heroism in battle until the brass decided he ought to be commanding a larger group of men, even though he only completed 5th grade in school.

        Gosport in reply to Edward. | July 12, 2023 at 9:01 pm

        As a rule, one cannot be commissioned without a 4 year degree.

        Exceptions to that rule do occur in wartime when some standards may be relaxed to fill manning requirements and Reserve officers might be commissioned via Officer Candidate School (OCS) programs.

        The cold war era NAVCAD program was a good example where applicants with 2 years of college were accepted to OCS programs but they were required to eventually meet the 4 year degree requirement in order to be promoted beyond a certain point or obtain a Regular commission rather than a Reserve one.

    Edward in reply to MarkS. | July 12, 2023 at 11:27 am

    The service academies are not standard academic institutions and, as a separate category, were not parties to the litigation.

    It is worth noting that standard academic institutions will do their damnedest to institute race based admissions through subterfuge and obfuscation. Hence ROTC graduates will not be totally prevented from being involved in race based admissions.

Those with standing had better get their cases before the courts quickly. I’m no lawyer so I don’t know if an AA case involving the Service Academies can be brought directly to the SC or must the case(s) go through the lower courts first. The clock is ticking..

Interesting to note that none of the cases before the Court challenging race based policies set a definition of how a person’s race is determined with respect to the law. How does a university determine your race? If you check a box and then you “appear different” when you show up in person, are you committing fraud?

Point is: if gender is fluid enough to an individual’s perception as to be deemed ‘fluid’, then why not race?

Military is already promoting based on race. Wrong color gets you passed over.

West Point has quotas for females… seems like just as big of an issue as race IMO.

For military academies, you typically need to be Nominated by the US Congressman that represents your District or one of the two US Senators from your State.

I’m still amused by the fact that my Nomination to the Naval Academy was signed by Barney Frank.


The “process” is entirely subjective. They can nominate whomever they like, for whatever reason they please, and don’t need to document anything about how they go about their selection process.

    GWB in reply to Aarradin. | July 13, 2023 at 9:50 am

    My Congressman at the time actually had a panel of academy graduates who interviewed applicants. They rank-ordered them by their assessment, without any name attached to the rank-ordering. It was a great example of “whole person” assessment in the case of this panel, IMO.

    He was surprised at the ceremony (to announce the appointees) to find out my connection (through Mom to her employer) to someone influential.

Diversity coupled with the push for Cultural Marxism is the real problem,
Irresistible Revolution is a eye opening read.