When the Supreme Court gutted affirmative action programs in college admissions in June, many advocates of diversity in education searched for hope among the wreckage. They found it in two gaps in the Court’s decision. The Court, the logic went, had exempted the military academies (West Point, Annapolis, and the U.S. Air Force Academy in Colorado Springs) from the ukase that schools must throw out their existing programs that (following what had been the law for 40-plus years before 2023) used “race as a plus” in a “holistic” admissions program aimed at providing racial diversity in their student bodies.
I thought then and now that they were just whistling past the graveyard. And someone more influential than I am agrees—Edward Blum, the millionaire activist who funds litigation to eliminate all racial preferences in government, higher education, and corporate hiring and promotion.
On Tuesday, Blum dropped the other shoe with a lawsuit in the Southern District of New York that asks a federal judge to apply the holding of last June (Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina) to the United States Military Academy at West Point, N.Y.
SFFA is asking the Court to bar the Academy from “considering or knowing applicants’ race when making admissions decisions.” That would obviously require that applicants be forbidden from mentioning or discussing race in their application materials. It goes beyond the Harvard and UNC cases. Chief Justice Roberts’s opinion allowed students to mention their race in their application essays as long as the discussion is tied to “that student’s unique ability to contribute to the university.”
In my opinion, there’s every reason to expect Blum and his organization will win at least most of what they are asking for. That’s because the reprieve that the Court’s majority gave to the service academies wasn’t a reprieve at all. It was a promise to deal with the issue later. But it did so in language that belied any intention of considering an exemption, with a logic that made clear that the national security rationale for affirmative action in the military strikes the six justices as of no importance.
Here’s the footnote that hopeful advocates of affirmative action seized on:
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.
Students of the Court’s supermajority may be reminded of another excursus in the opinion in Dobbs v. Jackson Women’s Health Organization intended to reassure the nervous that only the right to choose abortion was on the line:
And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
This sentence did not soothe many worries, especially coupled with the explanation given by Justice Clarence Thomas in his concurrence: “I agree that ‘[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.’” But he helpfully added, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” which he called “demonstrably erroneous.” Those are the cases establishing a right to purchase birth control and the right to same-sex marriage.
In other words, a reprieve for this Court is actually a Vito Corleone-style threat. We aren’t coming for you … today.
But the fact is that the Court has already considered the national security interests that will be at play in the lawsuit against West Point—and rejected them as unworthy of discussion. That’s because the government interest in a service academy case is the need for an officer corps that reflects the diversity of the services’ enlisted population. The military was badly burned by the experience in Vietnam, where an overwhelmingly white officer corps—only 2 percent were Black—commanded an enlisted force that was 11 percent or more Black (the percentage of Black combat troops was as high as 23 percent). Eventually, racial tension between officers and enlistees led to outright racial violence, including fighting and riots at military prisons.
The military was and is determined to avoid a plantation military. When the Supreme Court reconsidered affirmative action in the 2003 Grutter cases, retired military leaders filed an amicus brief defending the military’s use of race to ensure a diverse officer corps. In her opinion approving affirmative action programs in higher education, Justice Sandra Day O’Connor quoted the brief: “high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle mission to provide national security.’” That was because, she wrote, “The primary sources for the Nation’s officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. At present, ‘the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.’”
The key words are “and the ROTC.” The services maintain the Reserve Officer Training Corps, which provides scholarships at civilian colleges, where participants get training and go on to serve in one of the branches. Service academy graduates obviously enter the service well-trained and highly motivated. But the academies do not graduate close to the number of officers America’s huge military forces require. Army figures for 2019, for example, show that a whopping 70 percent of each year’s officer intake comes from ROTC.
That means that as diversity numbers fall at colleges, they will necessarily fall at ROTC. How much or how little is hard to estimate. But it is clear that this Court has considered the issue and simply dismissed it. Though no service academy was a party to Students for Fair Admissions, the U.S. government was. And it reiterated the national security argument. In 2,000 words in its amicus brief, bristling with facts and figures, the United States laid out the painful history of the Vietnam experience. It explained that, in the words of Defense Secretary Lloyd Austin, “[b]uilding a talented workforce that reflects our nation is a national security imperative.”
In addition, a group of retired military officers filed an amicus brief; its members included “four Chairmen of the Joint Chiefs of Staff; Chiefs of Staff of the Army and the Air Force; Chief of Naval Operations of the Navy; Commandant of the Marine Corps; [and] Medal of Honor recipients.” The brief explained in detail the need for a diverse intake of students at four-year colleges to maintain an officer corps that can handle a diverse enlisted population. “History,” the retired officers brief said, “has shown that placing a diverse Armed Forces under the command of homogenous leadership is a recipe for internal resentment, discord, and violence.”
There is no evidence that the SFFA majority gave the slightest heed to this national security argument. Aside from the tightlipped footnote, the concept of national security gets no attention; the term “ROTC” does not appear in the majority opinion at all. The dissent by Justice Sonia Sotomayor lays out the national security argument for military diversity, but the majority cannot be bothered even to respond. Tell it to the Marines, they seem to be saying.
What genuine possibility is there that this Court majority will be any more mindful of these military imperatives if this case comes before it? Will lower court judges feel that the logic of the SFFA case strongly suggests that this question has already been answered between the lines?
The truth is that John Roberts has been a mortal enemy of affirmative action programs, an advocate of the “colorblind Constitution,” since he arrived in Washington, D.C., as a shavetail in Ronald Reagan’s conservative army. He nearly persuaded Reagan to do away with it across the board; now, he is achieving his goal, and nothing will stand in the way. In his concurrence in Dobbs, the abortion case, Roberts accused both the majority and the dissent of “a relentless freedom from doubt on the legal issue that I cannot share.” But in this area, at least, his pose as a tortured moderate, a concerned institutionalist, will not fly. Now, it is his relentless certainty that has steered the Court on a dangerous course for our colleges, for our military, for our country.
