Supreme Court Hears Race-Conscious Admissions Cases that Could Change the Face of the Military

Activists demonstrate at the Supreme Court.
Activists demonstrate as the Supreme Court hears oral arguments on a pair of cases that could decide the future of affirmative action in college admissions, in Washington, Monday, Oct. 31, 2022. (AP Photo/J. Scott Applewhite)

The Supreme Court heard arguments over the practice of race-based admissions in the United States on Monday, with military and national security experts waiting for a decision that could alter the demographics of who wears the uniform.

The nation's top court listened to oral arguments for two cases that are challenging the admissions practices at both Harvard and the University of North Carolina -- schools that consider an applicant's race, among a variety of other factors, as part of their admissions process.

Elizabeth Prelogar, the United States Solicitor General, described race-conscious admissions as "vitally important to our nation's military," pointing to the need to have a diverse group of students in ROTC programs and the nation's service academies in order to develop diverse military leadership.

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    "The individuals who are entering college today ... are the closed universe of individuals who are going to be eligible for leadership in the military in 20 and 30 years' time," she argued.

    Prelogar was arguing on behalf of the two schools, saying that "when students of all races and backgrounds come to college and live together and learn together, they become better colleagues, better citizens and better leaders."

    Opponents of race-conscious admissions have argued in court briefings that the racial composition of military leadership should not be a priority, saying that efforts to improve diversity were "diluting the quality of military officer leadership."

    The two cases were filed by a group run by conservative activist Edward Blum. Blum, who is not a lawyer himself, has a long history of filing cases challenging affirmative action, as well as the Voting Rights Act of 1965.

    The arguments the Supreme Court heard on Monday center on whether the two schools discriminated against white and Asian-American applicants.

    Sarah Hinger, a lawyer for the Racial Justice Program at the American Civil Liberties Union, called these latest cases filed by Blum a "cynical attempt to use members of the Asian-American community" that "seeks to pit people of color against one another."

    Meanwhile, Blum, writing in a piece published by the conservative think tank American Enterprise Institute, called Harvard's policies of considering race a matter of "invidious discrimination against Asian-Americans."

    The concern among those affiliated with the military is that if the court, with its six conservative justices, ends the practice of considering race for universities, it would leave the service branches with a pool of officers that is disproportionately white to lead enlisted service members who are far more diverse, a problem military leaders have pointed to for years as creating tensions in the ranks.

    According to the latest statistics released by the Department of Defense, almost 76% of officers across all four services were white in 2020 compared to a 67% white population of active-duty enlisted. The data for general or flag-grade officers is even more stark. Only 10.5% of military leaders with one star or more identify as being non-white.

    Some branches, like the Air Force, have been setting goals to try and shift those numbers. But, if the Supreme Court strikes down the ability to use race in university admissions, Prelogar and others who support the practice worry the pipeline to make those changes happen will be seriously harmed as officers must have a four-year college degree.

    "It's ROTC -- that's about 70% of the equation," Joe Reeder, a lawyer and lead author of a brief to the court in favor of upholding racial considerations in college admissions, told in a phone call about the cases Friday. "If the universities aren't bringing in a fair and diverse number at the entry level of ROTC, when it later comes time to promote to senior command, for example, to Army or Air Force colonel, or a captain in the Navy, and later to admiral or general, the pool to select from is extremely limited."

    Reeder is also a graduate of West Point and served as the under secretary of the Army for four years.

    The brief Reeder helped write was filed on behalf of "35 top former military leaders," including four chairmen of the Joint Chiefs of Staff, as well as former service chiefs from the Army, Navy, Marine Corps and Air Force. In the filing, the group argued that, "given the military's vital role in complex global affairs, officer corps diversity is far more than a laudable goal -- it is a strategic imperative."

    The brief noted that the military has a tough history with inequity and that, throughout the 1960s and 1970s, there were "widespread instances of racial tensions, disruptions, and violence."

    "This was '[o]ne of the darkest chapters in the recent history of the U.S. military,' caused in significant part by 'a complete breakdown in understanding between minority enlisted servicemembers and the white officers who led them,'" the brief argued, citing a legal journal article by Robert Knowles.

    If the officer corps shifts back in the direction of being even more majority-white, the fear is that some of these tensions may return. Students at the nation's military academies reported routine racism and discrimination recently as December 2021. has previously reported that Maj. Gen. Ed Thomas, commander of the Air Force Recruiting Service, told reporters last year that "there's no doubt ... the data shows us that the racial division in our nation has done damage to our recruiting efforts."

    Reeder, however, explained it more directly: "If a young black soldier can't look up in the hierarchy and see, from time to time, a Colin Powell ... he's not gonna fight. I wouldn't either.

    "He's not going to do that counterintuitive thing and follow someone up a hill with a rain of machine gun-fire coming down unless he feels he is a part of a team in which he is an equal, and has an equal opportunity to excel," he added.

    However, briefs have also been filed in opposition advocating for ending race-conscious admissions, citing national security concerns.

    The Pentagon's "use of racial preferences ... are diluting the quality of military officer leadership," Veterans for Fairness and Merit, a group that, according to its press release, "includes 21 Medal of Honor recipients, 45 former POWs, and 122 retired generals and admirals," wrote in its brief.

    Its filing with the court argued that sufficient racial diversity already exists, and "regardless, officer racial diversity above some allegedly necessary level is neither 'critical' to the military's ability to defend the Nation nor 'indispensable to' national security."

    The filing goes on to argue that racial "preferences are antithetical to the 'selfless servant,' colorblind culture necessary for our military to prevail on the battlefield."

    Arguments made before the Supreme Court on Monday by lawyers for both the University of North Carolina and Harvard pushed back on the assertion that either school was engaging in absolute preference of one race or another in their admissions.

    Ryan Park, the solicitor general of North Carolina, told the court that UNC achieves its diversity goals "by looking at the individual applicant."

    "For example, we don't say we want to have 10% of our class be military veterans -- we say we value this diversity interest and we're going to look at each individual applicant on that basis," Park explained.

    The Associated Press has reported that a decision in the pair of cases "is not expected before late spring."

    -- Konstantin Toropin can be reached at Follow him on Twitter @ktoropin.

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