With a conservative majority on the bench, the recent Supreme Court ruling to strike down affirmative action was widely expected. One unexpected twist, however, was an inconspicuous footnote exempting military academies from the drastic change.
In his majority opinion, Chief Justice John G. Roberts Jr. briefly singled out military academies as the sole class of institutions allowed to maintain race-conscious admissions practices. This unexplained double standard illuminates the flaws in the court’s decision in Students for Fair Admissions v. Harvard. It may also doom more minority students to the discrimination that exists within the ranks of our nation’s military.
The military academies are among the elite schools that drive much of the affirmative action debate. The Army and naval academies, West Point and Annapolis, often rank in the top liberal arts colleges nationwide. All five federal service academies — also including the Air Force Academy, Coast Guard Academy and Merchant Marine Academy — have acceptance rates under 17%, with some beating out institutions such as Cornell and Georgetown in selectivity.
Buried in a footnote, Roberts declared that the decision “does not address” the admissions practices of military academies. He did not clarify the reasons for the exemption, nor whether the footnote applies solely to federal service academies, excluding ROTC programs. Instead, he offered only that military academies were not parties to the lawsuit and that they have “potentially distinct interests” from other institutions.
Though the footnote fails to acknowledge it, military academies have been prominent in affirmative action jurisprudence, most notably in the Supreme Court’s 2003 ruling in Grutter v. Bollinger. That decision upheld affirmative action at the University of Michigan Law School and largely created the modern framework for race-conscious admissions practices.
When the Supreme Court heard the Grutter case, a group of retired military officials wrote an amicus brief urging the court to rule in favor of affirmative action. The majority opinion in Grutter quoted directly from the generals’ brief, stating that a “highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.” Former military leaders filed a similar amicus brief in Students for Fair Admissions v. Harvard, defending the continued use of race-conscious policies at both military academies and civilian universities. The retired military officials who advocated for affirmative action understood that it provides an effective route to diversity, and that diversity allows institutions and individuals to thrive.
Roberts’ footnote fails to offer evidence that diversity in higher education, and opportunities for underrepresented minorities, matter only at military academies. In reality, diversity is valuable to the academies because it is valuable to every institution. Furthermore, as Justice Sonia Sotomayor noted in her dissent, national security interests cannot explain the exemption, because those “interests are also implicated at civilian universities.”
Sotomayor is correct. Military academies and the armed forces make up only a fraction of our national security infrastructure. Many of our top engineers, diplomats and Pentagon officials attended private and public civilian universities, where affirmative action created opportunities for students from underrepresented backgrounds.
Perhaps even more perversely, in permitting race-based admissions policies at military academies alone, the court seems to invite minority candidates to pursue an education and career in the military, where discriminatory policies and attitudes can stifle success.
As a West Point graduate, I love my alma mater and care deeply about the Army, but our military must do more to ensure that every service member is treated with dignity and respect. Currently, Black service members face an up to 71% greater likelihood of punishment across the military, and nearly 53% of minority service members have personally witnessed white nationalism or racist ideologies in their units. Additionally, when members of the armed forces experience discrimination, they cannot always seek legal remedies in ways that civilians can, and they may encounter challenges to reporting internally. Around one in three Black service members hesitate to report discrimination internally for fear of retribution.
When I was a senior at West Point, I led the academy’s cadet diversity, equity and inclusion program. Even under a Democratic administration, making way for DEI at a military academy was a challenge. Incremental progress has fortunately been made in the years since I graduated, and the military has implemented some of the changes that it resisted when I was a cadet. The Department of Defense issued guidance in 2020 “rejecting divisive symbols” and providing a list of flags authorized at military installations that excluded the Confederate flag. This year, West Point is set to rename cadet barracks and other areas that bear the name of Confederate Gen. Robert E. Lee. These moves are good for the institution, and the military should continue to push forward.
The Supreme Court’s decision limits options for promising students. In this new era, Congress and Biden administration officials must continue to improve the military’s practices to enable members from all backgrounds to succeed within our ranks, and policymakers must seek to open new pathways to higher education.
____
ABOUT THE WRITER
Zoe Kreitenberg, a 2016 West Point graduate and former Army captain, is a student at Yale Law School.
