Students for Fair Admissions (SFFA) has sued the U.S. Military Academy for discriminating on the basis of race in admissions. The complaint, filed in U.S. District Court, Southern District of New York, is here.
SFFA is the same organization that successfully sued Harvard and the University of North Carolina for discriminatory admissions. The Harvard and UNC cases establish that seeking racial diversity on campus is not a compelling interest that justifies preferring one racial group over another for admission to college. However, in a footnote, the Court left open the question of the constitutionality of race-based admissions at service academies.
The Court noted that no military academies were a party to the Harvard and UNC lawsuits. It added that courts have not addressed the propriety of race-based admissions systems in that context. Now, some courts will have to address it.
The Supreme Court’s footnote was a response to the argument of the U.S. government that it is “a critical national security imperative to attain diversity within the officer corps” and that “at present, it’s not possible to achieve that diversity without race-conscious admissions. . .at the nation’s service academies.” Declining to address service academy preferences enabled the Court to avoid scrutinizing the government’s claim.
That claim is dubious. As SFFA states in the introduction to its complaint, “America’s enemies do not fight differently based on the race of the commanding officer opposing them, soldiers must follow orders without regard to the skin color of those giving them, and battlefield realities apply equally to all soldiers regardless of race, ethnicity, or national origin.”
Indeed, it’s unlikely that service academies favor less qualified applicants who are black and Hispanic over better qualified white and Asian-American applicants because they believe doing so enhances our national security. More likely, the service academies prefer minority applicants based on race for the same reason non-military colleges do and for the same reason the military used to discriminate against blacks — because, in the prevailing cultural-political milieu it’s considered the thing to do.
As far as I’m aware, the “national security” rationale for race discrimination by service academies isn’t based on any hard, reliable data showing that our military operates better if a certain percentage of officers are black and Hispanic. Rather, it is based on the say-so of members of our politicized top military brass.
Their say-so is contradicted by that of some retired officers who have commanded troops. I suspect that where a given commander or ex-commander stands on the question is driven mostly by (1) ideology and (2) the need to curry favor, or the lack of such need.
Because racial discrimination is odious, it should take more than disputed opinion testimony to demonstrate the kind of compelling interest necessary to justify such discrimination. Service academies should have to prove empirically that, for example, reducing the percentage of blacks in entering classes at West Point from the current level of around 14 percent to whatever percentage race-blind admissions would generate (presumably much lower than 14 percent) would make the Army less able to defend America.
I very much doubt this showing can be made. (SFFA’s response to attempts to justify discrimination in service academy admissions on national security grounds can be found in the complaint at pages 12-17.)
Nonetheless, I assume that judges (including a majority of Supreme Court Justices) will be reluctant to question the assertions of America’s military leaders. For conservative jurists, doing so would run counter to both judicial modesty and respect for the military brass. Liberal jurists have no qualms about second-guessing the military when it serves their aims. But in this case, the aims of our politicized top brass are in harmony with those of liberal jurists.
Therefore, it may be that SFFA will be fighting an uphill battle in this litigation.
But one of the great things about SFFA and its leader Edward Blum is that they don’t mind fighting uphill. If West Point is basing admissions decisions on race (as I believe the complaint in this case demonstrates), it should be sued. And barring a sound empirically-based national security justification for the race-based decisionmaking, SFFA should prevail.
Right on. The resort to racial preferences to build an officer corps in the military academies has not produced a better fighting force, and the disproof of the pudding is in the eating. The mindset that uses reverse discrimination to select officers has produced a woke command structure better equipped to fight cultural wars than foreign foes. Jim Dueholm