Biden’s DOJ Digs Up New Justifications For Racial Discrimination In Military School Admissions
As anyone who hasn’t been living under a rock for the last 18 months knows, the Supreme Court declared racial preferences in college admissions unconstitutional in SFFA v. Harvard and UNC in June 2023. Yet last month, a district court judge upheld discriminatory racial preferences in military school admissions based on similarly specious arguments.
In the well-known Harvard case, the court found that the alleged educational benefits of a racially diverse student body, Harvard and UNC’s justification for using racial preferences, could not justify racial discrimination in admissions. Those “benefits,” the court held, were unmeasurable and too vague to survive strict scrutiny.
Biden Admin Urged the Court to Permit Racial Preferences
What may be less well known about that 2023 case is that the United States, represented by Biden Solicitor General Elizabeth Prelogar, filed an amicus brief and participated in oral argument before the court.
Prelogar told the court that the United States has “long recognized” that the “educational benefits” of a diverse student body are the same at the service academies as they are at civilian universities that host Reserve Officers’ Training Corps (ROTC) programs. She argued that if colleges hosting ROTC programs and the service academies cannot use race as a factor in determining who is admitted, the “nation’s military strength and readiness” will be compromised.
The solicitor general then doubled down on the “educational benefits of diversity” justification for racial discrimination in admissions, saying those benefits “are essential to our nation’s security and other vital national interests.”
The United States’ brief told the court that the racial tensions and race-related violence marking the Vietnam era demanded that future officers receive an education in a racially diverse student body to effectively lead a diverse military force. During oral argument, Prelogar argued that “a diverse officer corps is a national security imperative” and warned that a ruling denying the use of racial preferences in admissions “would cause racial diversity to plummet … [and] all students at these schools would be denied the benefits of learning in a diverse educational environment.”
SCOTUS Rejected Biden Admin’s Justification
The court rejected the United States’ argument out of hand. Writing for the majority, Chief Justice John Roberts noted that the educational benefits of a racially diverse student body cannot be measured, reviewed, or otherwise evaluated to ensure compliance with constitutional demands for equal treatment. Racial discrimination is unconstitutional when the benefits “are inescapably imponderable.”
The court also rejected the argument because there was not a “meaningful connection between the means they employ and the goals they pursue.” Neither the parties nor the United States was able to explain how assigning students to racial categories the court characterized as “imprecise,” “arbitrary or undefined,” and “incoherent,” and “making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.”
The admissions programs of the military service academies were not litigated in the lower courts, and SCOTUS did not decide whether the use of race in their programs passed constitutional muster. However, in striking down the admissions programs of Harvard and UNC, the court summarily rejected the solicitor general’s argument that national security would be imperiled if colleges hosting ROTC programs, the largest source of commissioned officers for the armed forces, were not allowed to use race in admissions decisions.
No Support for Racial Preferences at the Naval Academy
This brings us to the constitutionality of the Naval Academy’s use of racial preferences, which was litigated in SFFA v. USNA in the U.S. District Court for the District of Maryland. Defending the Naval Academy’s use of race in admissions created a dilemma for the Department of Justice lawyers. They couldn’t use the same argument they used in Harvard. The court flat-out rejected it. They had to come up with something new.
Instead of training future officers in a diverse student body to prepare them to lead a diverse military, the new justification was that racial preferences in admissions helped to create a diverse officer corps, which enhances unit cohesion and combat lethality, aids in recruiting and retention, and increases both the domestic and international legitimacy of the American armed forces.
The new justification, just like the old justification, referred to the racial tensions, unrest, and disruptions before and during the Vietnam era to justify racial discrimination today. These tired, half-century-old arguments were now redeployed to support the brand-new justification for racially discriminatory admissions practices.
Once the new legal strategy was created, the lawyers passed it along to the admirals and DOD civilian leadership who dutifully repeated it in court.
This new theory was lawyer-talk that disguised reality with rhetoric. The admirals and generals did not tell the service academies to use race in admissions because it made the military more lethal in combat, improved recruiting and retention, and enhanced the legitimacy of the military in the eyes of both foreigners and American citizens. The admirals and generals told the academies to use racial preferences to increase minority representation because that was the policy preference of their political superiors.
Creative Lawyering Should Not Prevail Over Constitutional Principles
Yet in SFFA v. USNA, Judge Richard Bennett swallowed the rhetoric hook, line, and sinker. Instead of strictly scrutinizing the DOJ’s new justification for racial discrimination and examining whether a certain mix of white, black, and Hispanic officers really increased the combat lethality of Navy ships and planes, the judge accepted it because the admirals said so. Clever lawyering repackaged and presented as professional military judgment carried the day.
It is a sad day when lawyers can so easily manipulate constitutional equal protection principles. Perhaps the case will be reversed on appeal. Perhaps the incoming Trump administration will order the service academies to stop using racial preferences. If the president orders the service academies to stop discriminating based on race, the case will become moot, Judge Bennett’s judgment will be vacated, and the cases pending against West Point and the Air Force Academy will be dismissed as well.
Congress could put an exclamation point on it in next year’s National Defense Authorization Act by codifying a prohibition against granting racial preferences. If that occurs, creative lawyering that manipulates constitutional principles and misleads courts and the public to further ideological goals will be rejected, and the rule of law and equal protection guarantees will be vindicated.
William Woodruff is a professor of law emeritus and a retired Army lawyer. As an Army lawyer, he served as chief of the litigation division and was responsible for defending the Army’s interests in civil litigation involving Army policies, programs, and operations.
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