In a recent Washington Post op-ed, Harvard Law School professor Noah Feldman wrote that the U.S. Supreme Court could except military academies, like West Point, from the anti-discrimination rule that the Supreme Court adopted for most other universities last term in Students for Fair Admissions v. Harvard College. According to Feldman, the Court has long accepted “the idea that individual constitutional rights, even fundamental ones, operate differently for people serving the military.” That’s true, but Feldman and others who agree with him are wrong, as we explain in a soon-to-be-published article showing why the rule adopted in Fair Admissions should also apply to the service academies.
Professor Feldman is right that the Supreme Court has recognized that the Constitution applies differently to service members and civilians. The president and military commanders can burden soldiers, sailors, and airmen with tasks that cannot be demanded of civilians. Service members can be ordered to risk life and limb in circumstances where it is certain that some, perhaps even most or all, will not survive. But the deference that the Supreme Court gives to judgments of military necessity does not trump the anti-discrimination requirement set forth in the Fair Admissions case, for several reasons.
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Virtually every victim and beneficiary of a race-based admissions policy at service academies is a civilian; they’re not “in the service,” in the professor’s words. Save for a few enlisted personnel who apply to an academy, all applicants are civilian high-school seniors. Accordingly, the leeway that the Constitution affords the military to restrain the rights of soldiers, sailors, and airmen does not apply to civilian applicants to the academies. For that reason, Feldman is therefore not correct when he states that the Supreme Court could “plausibly find” that the equal-protection rights of applicants “are weakened.” Nor can that fact be fudged on the ground that, since accepted cadets and service-academy graduates can be subjected to restraints on their liberty, we need to elide the status of applicants to ensure that the outcome is a diverse officer corps. Ignoring the facts is no more legitimate than is ignoring the law in pursuit of any goal.
An applicant’s rights cannot be subordinated to the overall interest in having a diverse officer corps. In Fair Admissions, the Supreme Court rejected for several reasons (such as its uncertain boundaries and eternal nature) the generic concept of racial “diversity” as a legitimate goal of college admissions. More specifically, the Court also rejected the government’s argument that race-based admissions are necessary at civilian colleges whose graduates become officers via Reserve Officers’ Training Corps (ROTC) direct-commissioning programs. Harvard and every other private and state university must comply with the decision in Fair Admissions, yet the ROTC programs at those schools supply more than 80 percent of all military officers. If so, there is no good reason to exempt the service academies.
Professor Feldman argues that the Supreme Court can “sidestep the morally and politically fraught debate”—stemming from “the specter of racial tension between enlisted men and officers in Vietnam”—by deferring to the military on “whether the military can function effectively if it has too few officers of color.” But this is 2023, not 1970. The reference to racial incidents, or studies of more than 50 years ago during the Vietnam War, when service members were largely drafted rather than voluntarily enlisted, is not a legitimate justification for race-based decisions today.
The government has not maintained, for understandable reasons, that there is any correlation between an officer’s or enlisted person’s race and his or her ability to perform, lead, or follow orders. Nor has the government taken the position that subordinate officers and enlisted personnel would refuse to take and follow orders from superior officers of a different race. Unless the government can prove—not just allege—both propositions, what might or might not have been true a half-century ago is immaterial to what is true now.
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Feldman points to the 1986 Supreme Court decision in Goldman v. Weinberger. There, the Court held, over a First Amendment free-exercise-clause objection, that the Air Force could bar Goldman from wearing a yarmulka even though his faith required it. Professor Feldman maintains that the Court can similarly allow West Point and its sister academies to use race-based admissions policies if the military forces believe that having a racially mixed officer corps is necessary for it to function effectively.
Yet, as we explain in our article, more on point than Goldman is the Court’s 2005 decision in Johnson v. California, which rejected the argument that the state should be free to make housing decisions based on a prisoner’s race unless necessary to save lives, and even then for only a limited time. Johnson is directly relevant to this issue. Like prison officials addressing a race riot by making race-based cell assignments, the military has a compelling interest in making race-based assignments when there is a mission-specific battlefield need to do so—such as intelligence gathering in a particular ethnic community. Service academies do not make those decisions, however, and the decisions they do make lack the same urgency.
Finally, there are viable alternatives to allowing the academies to make race-based admission decisions if the goal is to encourage minorities to apply, such as outreach and preparatory programs. Such programs are noble, lofty, and legal.
In Fair Admissions, the Supreme Court left this issue open only because the academies were not parties. The Court did not decide that a different set of equal protection principles would apply to the military. The principles adopted in Fair Admissions dictate that the nation’s colleges must apply the doctrine of race neutrality to the four-fifths of our future commanders those schools will graduate. There is no good reason why the academies should be freed from that principle when they select the remaining one-fifth.
