The Supreme Court, affirmative action, and the military: some observations

Can military academies have admissions policies that, if utilized by civilian educational institutions, would be considered unconstitutional? 

On June 29th the Supreme Court decided an important case about affirmative action admission policies that indirectly raised–but did not resolve–such a question.  Today’s post examines how the case might impact the service academies, and the military more generally.

The case 

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions, Inc. v. University of North Carolina, the Supreme Court found race-based university admissions policies violate the equal protection clause of the 14th Amendment. 

The Court said universities “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin” and concluded that “[o]ur constitutional history does not tolerate that choice.”

Most Americans support the decision 

The Court’s decision has drawn wide approval.  An ABC News/Ipsos poll conducted shortly after the decision found that 52% of Americans (including 58% of Asians who were disadvantaged under the Harvard and UNC policies) approved of the decision and just 32% disapproved (the rest responded  “don’t know”).

This tracks with a March 2022 poll by the Pew Research Center, which found that “nearly three-quarters of Americans or more say gender, race or ethnicity, or whether a relative attended the school should not factor into admissions decisions.”

Perhaps more surprising were the results of a YouGov poll conducted for the Economist and reported by Brookings.  Not only did it show that Hispanics support the decision 45% to 30%, it also found that:

“Black Americans, on whose behalf affirmative action was begun more than half a century ago and who might have been expected to support it — were at most ambivalent, as a recent Economist/YouGov survey reveals. To the surprise of many observers, they supported the Court by 44% to 36%, and the share who strongly approved of the decision exceeded those who strongly opposed it.”

Additionally, Brookings said “young adults ages 18 to 29, who are more diverse and more liberal than the electorate as a whole and who have had the most recent experience with college admissions…backed the Court by almost 2 to 1 (49%-26%).”

Consequently, Brookings concluded:

“In sum, the country’s half-century experiment with affirmative action failed to persuade a majority of Americans — or even a majority of those whom the policy was intended to benefit — that it was effective and appropriate.” 

The footnote 

A national security-related issue made a brief appearance in the majority decision.  In a footnote the Court said:

“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.”  (Emphasis added).

In her dissent, Justice Sotomayor construed the footnote to mean that the “majority recognizes the compelling need for diversity in the military and the national security implications at stake.”  The plain reading of the Court’s words does not appear to justify her claim.  The Court simply–and clearly–said it “does not address the issue” in the context of the service academies and merely notes that a military institution may present “distinct interests.”

In short, the majority indicated that service academy policies are an issue for another day.

Even assuming the service academies have admissions policies that mirror the objectionable aspects of Harvard’s and UNC’s, the Court was correct in withholding a decision without a full analysis of what “distinct” national security “interests,” if any, might be involved.

And, yes, the Court could well find “distinct interests” it would need to examine in detail.  After all, the Court said in Parker v Levy, it “has long recognized that the military is, by necessity, a specialized society separate from civilian society…We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history.”

The Levy Court also recognized why there are “differences between the military and civilian communities” as the primary responsibility of the military––unlike that of any civilian university—is “to fight or be ready to fight wars should the occasion arise.”  How service academies admission polices might impact warfighting and other key matters of national security can involve important interests separate from those relevant to civilian educational institutions.

National security as a “distinct interest” 

In fact, national security has long presented a “distinct interest” in constitutional law jurisprudence.  In the 1981 case of Haig v. Agee the Court maintained that “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”

Indeed, this is why military personnel sacrifice constitutional rights that civilians take for granted.  In Burns v, Wilson, the Supreme Court pointed out that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty.”

In Goldman v, Weinberger, the Court readily acknowledged that by necessity, “the military must foster instinctive obedience, unity, commitment, and esprit de corps,” and that responsibility implies that policies which would not and should not be tolerated in the civilian community may nevertheless be acceptable in the military setting.

In short, because warfighting competency is of such compelling and paramount importance to the nation, the Court rarely supplants its judgement for that of military leaders and especially, the elected branches of government. With respect to Congress, its power is extensive.  Specifically:

“Under Article I, Section 8, Congress has the power to declare war, raise and support Armies, provide and maintain a Navy, and organize, arm, discipline, and call forth a militia. This power gives Congress quite broad authority to undertake any measures that Congress considers necessary for providing for the national defense in both peacetime and wartime.” (Emphasis added.)

Deference to the elected branches of government

The Court’s deference to Congress in military matters is amply illustrated in Gilligan v. Morgan. In that case, the plaintiffs—in the aftermath of a shooting by National Guardsmen on the Kent State campus during a period of civilian disorder—sought injunctive relief that would require “initial judicial review and continuing judicial surveillance over the training, weaponry, and standing orders of the National Guard.”

In declining to grant the injunctive relief, the Court observed that it would “be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible–as the Judicial Branch is not–to the electoral process.”

The Court elaborated:

“Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.” (Emphasis added.)

Equal protection

The Court also displayed its deference to the elected branches of government in the 1981 case of Rostker v. Goldberg.  Like the Students for Fair Admissions case, the plaintiffs in Rostker argued that the principle of equal protection was directly implicated.

Specifically, it was alleged that the male-only draft registration process created by Congress violated the Fifth Amendment due process clause (which, the Court noted “prohibits the Federal Government from engaging in discrimination that is ‘so unjustifiable as to be violative of due process’).

In its opinion rejecting the claim, the Court immediately noted the deference accorded Congress in military affairs:

“This is not…merely a case involving the customary deference accorded congressional decisions.  The case arises in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference.” (Emphasis added.)

After citing several precedents, the Court cautioned: “[n]one of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs.” It said:

“Congress remains subject to the limitations of the Due Process, but the tests and limitations to be applied may differ because of the military context. We, of course, do not abdicate our ultimate responsibility to decide the constitutional question, but simply recognize that the Constitution itself requires such deference to congressional choice.” (Citations omitted; emphasis added)

Yet the Court concluded that it could not “say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment.”  It found that in exempting women from draft registration “Congress did not act ‘unthinkingly’ or ‘reflexively and not for any considered reason,’” and that the “decision to exempt women from registration was not the ‘accidental byproduct of a traditional way of thinking about females.’”

The Court said that the “Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.” Furthermore, it found women were not similarly situated because the purpose of the draft was to provide combat troops, and at that time, women were not legally allowed to serve in combat. Notably, the Court emphasized:

“The Senate Report evaluating the testimony before the Committee, recognized that “[t]he argument for registration and induction of women . . . is not based on military necessity, but on considerations of equity.” Congress was certainly entitled, in the exercise of its constitutional powers to raise and regulate armies and navies, to focus on the question of military need rather than ‘equity.’ (Citations omitted; emphasis added).

Accordingly, the male-only draft registration policy was upheld.  However, fast forward to 2021: because the combat exclusion for women was removed in 2015, there has been an effort to revisit the holding in Rostker.

In 2021, the Court declined to hear the issue in National Coalition for Men, et a. v. Selective Service System, et al. In a statement denying the appeal, Justice Sotomayor, joined by Justices Breyer and Kavanaugh, said in part:

It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act. But at least for now, the Court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue. I agree with the Court’s decision to deny the petition for a writ of certiorari.  (Emphasis added).

Thus, the Court’s historic deference to Congress on “matters of national defense and military affairs” was reiterated.  At the same time, recall that in Rostker, the Court emphasized that “deference does not mean abdication.”

Not a blank check

The Court has, in fact, involved itself in military matters.  For example, in Hamdi v Rumsfeld, Justice O’Connor, writing for the majority, reminded everyone that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”  The Court found that American citizens detained as enemy combatants were entitled to basic due process and status adjudication before a neutral decision-maker.

In making this decision, the Court said “the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.”

Although the Court will intervene from time to time in military matters notwithstanding its traditional deference to the elected branches of government, it remains unclear whether the Court would do so when the issue involves the organization and training of military forces.

Future litigation? 

If the admissions policies of the service academies include processes akin to those of Harvard and UNC that the Court found constitutionally unacceptable, it is inevitable that litigation will arise challenging them.  However, even if the policies were similar, it is still unclear whether the Court’s would decide the same way.

Notwithstanding the holding in Students for Fair Admissions, so long as Congress doesn’t act (as Rostker cautions) “‘unthinkingly’ or ‘reflexively and not for any considered reason,’” it seems the Court—leaning on its precedents–could find constitutional a Congressional decision that national security would be best served by service academies considering race in their admissions policies–even if the approach used was akin to that found unlawful at Harvard and UNC. 

In other words, it is possible that the Court—given its history of deference to the elected branches of government particularly as to matters of military training and organization––would not disturb such a policy made by those branches.

But would the military really want to emulate Harvard’s and UNC’s process that had the schools, the Court found, “intentionally treat[ing] some applicants worse than others because of their race”?

Consider this example: the Court in Students for Fair Admissions was told that “many colleges consider ‘Asians’ to be ‘overrepresented’ in their admission pools.”  Whatever concerns civilian academia may have about “overrepresentation” of Asians in their institutional “pools,” that is not the case for the armed forces. 

Defense360 reports that although Asians “represent 7 percent of eligible U.S. citizens” they “comprise only 5.2 percent of officers, and at senior levels, the gap widens further with Asians representing only 1.8 percent of General Officers or Flag Officers.”

The Court’s suggested path

Importantly, the military appears well suited to follow the suggestion of the Court’s majority as to how race might lawfully be included in an admission decision by civilian or military institutions.  Specifically, the majority stresses that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

From a military perspective, the experience of an applicant who overcame barriers—including those related to race––could be a useful background for a military leader who may be called upon to overcome obstacles in all kinds of situations, including combat.  Experience in dealing with adversity can certainly be a valuable leadership asset.

There are, of course, others who overcame significant barriers other than those related to race.  They too may have learned valuable life lessons in the process and gained experience that could likewise serve the military’s interest in leadership development.

This is a process aimed at finding people with demonstrated determination and grit.  Obviously, it is a mistake to assume everyone has had such the adversity to overcome, so making assumptions based solely on race can frustrate a process aimed at identifying experiences that indicate leadership potential.

For example, former Harvard University president Laurence Summers says that there had been “admission policies that substantially favor[ed] the prep-school-attending minority children of wealthy parents with Ivy League degrees over poor kids from disadvantaged backgrounds with access only to substandard public schools.”  That may work for Harvard, but not for the military.

In the military setting, a “poor kid” from a “disadvantaged background” who nevertheless overcame such impediments comparatively brings a distinct experience instilled with leadership skills and lessons learned from her inherent struggles.

One need not consider race in these cases, but such circumstances may exist in the personal history of many minority applicants—and there is nothing objectionable about seeking them out.  This is not a matter of advancing some notion of equity but rather a hard-nosed effort to find individuals shaped by experiences useful to an organization seeking to develop superior leaders.

A caution: just because particular teenagers have yet to need to overcome significant hardships doesn’t mean they don’t have the inner fortitude to do so when necessary.  Obviously, we don’t want to miss out on exceptionally talented applicants simply because they have yet to surmount same kind of hurdles some others may have cleared.  Such applicants may have highly sought-after qualities and skills that others lack. 

Judging individuals on their abilities, accomplishments, and overall character is essential so that all the characteristics and aptitudes that indicate likely success at the academies and later in the officer corps receive due consideration. 

Concluding observations

Again, in light of the Court’s precedents it is not implausible that it would defer to Congress as to service academy admissions policies.  It could find that the Constitution allows Congress, in the exercise of its broad authority to structure the military, to permit or even mandate an admissions process for the service academies that, if applied outside of the military context, would be unlawful. 

In sum, Students for Fair Admissions may not be dispositive in the military setting.

This is not to say that the military should employ race-based admissions policies like those found unconstitutional in Students for Fair Admissions.  Indeed, even if it could, decisionmakers need to ask themselves whether doing so would really serve the interests of the armed forces.

Consider this question from a civil-military relations perspective: In the all-volunteer force of a democratic society that aspires to egalitarianism, would it really be helpful to embrace a process that was not only found to be illegal for civilian institutions, but which is also opposed by a “majority of Americans [to include] a majority of those whom the policy was intended to benefit”?

What most people can agree upon is that the military can–and should–seek cognitive diversity.  Cognitive diversity is not a matter of skin color, per se, but can be influenced by one’s experiences because of race.  (But keep in mind that other experiences not related to race can also impact and contribute to cognitive diversity.)

Thus, as discussed above, the military can, consistent with the Court’s decision, have a discussion with a minority applicant as to “how race affected his or her life, be it through discrimination, inspiration, or otherwise.”  Such discussions can reveal a candidate with the kind of cognitive diversity the military needs.

Let’s redouble our efforts to broaden the applicant pool so that there are many such discussions.  The goal should be to ensure everyone–regardless of skin color–has the opportunity to demonstrate they have what it takes cognitively to tackle the diverse challenges of the 21st century security environment. 

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

You may also like...