June 15, 2003

June 15, 2003 | Commentary on Legal Issues

Nation Secure If UM Loses Cases

In April, the Supreme Court heard arguments in the racial preference cases pitting the University of Michigan against white applicants to the undergraduate and law schools. But the most prominent schools discussed by the justices weren't in the university -- they were West Point and the other military academies.

 

Before the arguments, more than two dozen former senior military leaders filed a friend-of-the-court brief, arguing that a racially diverse officer corps was necessary to lead the nation's military forces and that, without race-conscious recruiting and admissions policies, the military academies would not be able to provide the officer corps required to ensure that the military was effective.

 

There are any number of reasons to doubt the fundamentally racist premise of this argument - that minority enlisted troops won't follow white officers and that the absence of minority officers would critically undermine the cohesiveness essential to military effectiveness.

 

For one thing, it's the indistinguishable mirror image of the argument that segregationists used in the 1940s to oppose integration of the armed forces -- that white enlisted troops wouldn't follow minority officers. For another, it's based on the empirically unfounded supposition that racial animosity so animates our military that the absence of racial diversity would, in effect, foster mutiny.

 

In addition, this argument ignores the fact that racial preferences play a far smaller role at the military academies than at the university: An African-American is twice as likely to be admitted to West Point as a similarly situated white applicant; at Michigan the comparable figure is 174 times more likely.

 

But let's assume for the moment the retired generals and admirals are right (and current military leaders in the Pentagon disagree strongly with their retired colleagues). Let's stipulate that our military will be rendered ineffective if a racially diverse officer corps isn't provided. If one holds that to be true, then that would provide an arguable justification for the use of race-based preferences in creating an officer corps.

 

As the Supreme Court has said, "It is obvious and unarguable that no governmental interest is more compelling than the security of the nation." If the absence of minority officers threatened the government's ability to fulfill that mission then no one would doubt that racial preferences were an unfortunate necessity. In short, if the choice is between racial preferences and losing a war, the country should choose the former.

 

Contrast that interest with the diversity interest advanced by Michigan. Michigan justifies its efforts to seek a diverse student population because, in its view, the consideration of race offsets disadvantages in societal effects on student learning; all students learn better in a diverse school; and graduates of a diverse school are better prepared to become active participants in a pluralistic, democratic society.

 

The question presented to the Supreme Court then is whether such policy justifications are enough. In the language of the law, the question is whether Michigan's admissions policy is "narrowly tailored" (i.e., uses the least intrusive method) to serve a "compelling governmental interest" (i.e., a vital societal goal).

 

Surely the contrast between these two interests is instructive in ways that are not helpful to Michigan's system of racial quasi-quotas. No matter how highly one values the sociological benefits of student participation in a diverse school population, they pale to a wan shade of gray when contrasted with the interest in national security. The mission of West Point is much different from the mission of Michigan. As Peter Kirsanow of the U.S. Commission on Civil Rights has observed, a well-rounded communications major is a laudable goal, but it's hardly on the same level as producing an effective military.

 

The university's interest pales even further if, as Professor Stanley Rothman recently demonstrated in a study for the International Journal of Public Opinion, a diverse student body does not actually improve students' perceptions of educational quality or ease racial tensions on campus. If the means does not even achieve the end that justifies it, then the means are hardly worth supporting.

 

Many have come to doubt whether achieving a diverse student body is a sufficiently compelling policy justification for explicitly taking race into account. If "in order to get beyond race we must first take account of race," the cure may be worse than the disease. As Justice Antonia Scalia has written, "The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is the tendency -- fatal to a nation such as ours -- to classify and judge men and women on the basis of their country of origin or the color of their skin."

 

Or, as the late legal history professor Alexander Bickel once wrote, "The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: Discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong and destructive of democratic society."

 

More than 100 years ago, the court in one of its most tragic decisions approved the concept of "separate but equal" public accommodations for different races. In dissent, Justice John Harlan stated a truism: "Our Constitution is color-blind and neither knows nor tolerates classes among citizens." It takes a powerful, compelling reason to ignore that lesson. Even if the military academies' needs are compelling, Michigan's, by comparison, are not.

 

Paul Rosenzweig is senior legal research fellow in the Center for Legal and Judicial Studies at The Heritage Foundation and adjunct professor of law at George Mason University.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies

Reprinted with permission of The Ann Arbor (Mich.) News