Race-based affirmative action is unconstitutional at public and private universities in the United States, the United States Supreme Court decided in a ruling issued Thursday. But that ruling won’t affect military service academies — at least, not yet.
In a 6-3 decision along ideological lines favoring conservative justices, the Supreme Court rejected the long-held premise that race could be used as a consideration during the college admissions process. Race-based policies, collectively often called “affirmative action,” have been in place in some form since the 1960s. The majority opinion argued that the policies violated key components of the constitution, including the 14th Amendment that outlines “equal protection” under the law.
However, the Court specifically exempted the military academies from its decision on race-based affirmative action. The majority opinion, written by Chief Justice John Roberts, said in a footnote that this policy would not impact how military service academies approached admissions, citing “distinct interests” those institutions have.
“The special nature of military academies and their interests was addressed in an important amicus brief filed in Grutter v. Bollinger almost 20 years ago,” said Lawrence Friedman, JD, professor of law at New England Law Boston. “The Supreme Court’s decision tacitly acknowledges that.”
The Supreme Court’s decision allows the academies to continue race-conscious admissions policies that have historically been justified by the need for a diverse officer corps. As of 2022 the Department of Defense’s Office of Diversity, Equity, and Inclusion assessed that while 19% of the military’s enlisted personnel were Black, only 8% of its officers were Black.
“The military knows that if you don’t get a diverse set of student leaders into commissioning sources, you don’t get diverse officer leadership,” said Daniel Walker, an Air Force Academy alum and former F-22 pilot. Currently a JD candidate at Harvard Law School, and a member of the Black Veterans Project, Walker said he believed that less diversity in leadership led to a weaker overall force.
Despite the service academy carve-out, the court’s decision will still likely impact the officer corps: Military academies are not the only source for commissioning officers. The Reserve Officers’ Training Corps (ROTC) commissions over half of the military’s officers in a particular year, according to a recent Government Accountability Office report. Additionally, another quarter of the nation’s officers commission via Officer Candidate School (OCS) — some of whom have no prior qualification beyond a bachelor’s degree from an accredited college.
Because both means of entry into the officer ranks depend on the existing pool of college students, restricting efforts to diversify that pool could have a secondary impact of limiting the diversity of incoming officers.
“You have to recruit a diverse student body if you want a diverse officer corps,” Walker said.
Walker pointed out students from racial minority groups and women often do not think of themselves as suitable candidates for officer leadership. “The service academies take affirmative actions in the technical, not legal sense, of going out of their way to recruit the diverse leadership the military needs,” he said. “Becoming an officer is very difficult. Handicapping colleges isn’t going to make it any easier, even if you’ve left the service academies out of it.”
Of the four service academies contacted by Military.com, only one provided a comment on the Supreme Court’s decision.
“Today’s decision does not apply to military academies. However, the U.S. Coast Guard Academy will continue to ensure that our processes fully comply with the Constitution and the Law,” wrote the Coast Guard Academy’s public affairs team in an email.
Adrian Bonenberger, an Army veteran and graduate of the Columbia University Graduate School of Journalism, reports for Military.com. He can be reached at [email protected].
