The Supreme Court stopped short of ending affirmative action in military service academies in a historic decision Thursday that otherwise banned the practice in universities.
The justices writing for the 6-3 conservative majority noted the federal government had written a friend-of-the court brief urging them to protect the use of race as a factor in admissions decisions — often called affirmative action — in part to ensure racial diversity in service academies.
Chief Justice John Roberts wrote in a footnote in the majority opinion, “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.”
The petitioners, anti-affirmative-action organization Students for Fair Admissions, had argued in a pair of related cases that affirmative-action practices at Harvard University and the University of North Carolina amounted to racial discrimination, especially against Asian American applicants.
The Supreme Court’s majority agreed, writing that affirmative action violates the clause of the 14th Amendment that ensures “equal protection of the laws” regardless of race.
“Eliminating racial discrimination means eliminating all of it,” Roberts wrote for the majority.
Supporters of affirmative action have maintained that universities have a compelling interest in enrolling a racially diverse student body. And that goal, they insisted, would be next to impossible to achieve without race-conscious admissions.
In August 2022, 35 former top military leaders — including four former chairmen of the Joint Chiefs of Staff, among them retired Marine Gen. General Joseph Dunford and retired Navy Adm. Michael Mullen, and eight former service academy superintendents — filed a friend-of-the-court brief arguing that affirmative action was necessary for national security.
The retired leaders emphasized that the officer corps already is significantly less racially diverse than the enlisted troops. Increasing that gap, they warned, could diminish the military’s legitimacy in the eyes of some Americans, hinder engagement with foreign countries and threaten internal morale.
Many veterans have dismissed claims that affirmative action is necessary for national security.
A group of more than 600 veterans — among them 21 Medal of Honor recipients and some former leaders of service academies — in May 2022 filed a friend-of-the-court brief asking the Supreme Court to ban the practice.
Far from boosting morale, this group maintained, affirmative action “can only foster a culture of arbitrary advancement, disunity, and frustration.”
The retirees in favor of affirmative action argued that, as a matter of military diversity, affirmative action isn’t important just at service academies. They maintained it was also important at civilian colleges and universities, where the majority of new officers receive their degrees, and where many receive commissions through ROTC programs.
Justice Sonia Sotomayor echoed that point in her dissent.
“To the extent the Court suggests national security interests are ‘distinct,’ those interests cannot explain the Court’s narrow exemption, as national security interests are also implicated at civilian universities,” Sotomayor wrote in the dissent, which was joined by the two other most liberal justices, Justices Elena Kagan and Ketanji Brown Jackson.
The Supreme Court had been widely expected to decide affirmative action was unconstitutional in most universities. But at an oral argument in October 2022, Roberts raised the possibility of not deciding on service academies as part of the cases.
It is common for courts to grant heightened deference to the military’s interest in national security. The military’s desire for racial diversity among officers was one of the stated reasons the Supreme Court upheld affirmative action in higher education in the 2003 case Grutter v. Bollinger.
Lawrence Friedman, a professor at New England Law Boston and an expert on constitutional and national security law, said in a statement to Military Times on Thursday, “At some point, it seems likely that any use of race-conscious admissions policies at the nation’s military academies will be challenged.”
“But, by that time, it may be that the academies have modified their admissions policies, as all competitive public and private colleges and universities now must, to ensure diversity through means that do not rely upon race as a factor.”
Irene Loewenson is a staff reporter for Marine Corps Times. She joined Military Times as an editorial fellow in August 2022. She is a graduate of Williams College, where she was the editor-in-chief of the student newspaper.