Some Thoughts on the Supreme Court’s Affirmative Action Case
On June 29, the SCOTUS handed down a decision in Students For Fair Admissions, Inc. v. President and Fellows of Harvard College (I’ll call it “FAIR” for the sake of brevity).
First, let’s look at a brief recap of the facts of the case. Without going into great detail, here’s what this case was about (according to The Oyez Project (an unofficial online multimedia archive website for the Supreme Court of the United States.,
Petitioner Students for Fair Admissions (SFFA) sued Harvard College over its admissions process, alleging that the process violates Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants in favor of white applicants. Harvard admits that it uses race as one of many factors in its admissions process but argues that its process adheres to the requirements for race-based admissions outlined in the Supreme Court’s decision in Grutter v. Bollinger.
I’m not going to write today about everything that’s involved in this complex opinion. I want to focus on one part of it – the exception noted by Chief Justice John Roberts in his opinion, stating that, because the military academies were essential for national security, they could continue to use race as one factor in admission. Writing in an amicus curiae brief, 35 former military leaders said that diversity in the officer corps, the graduates of the academies, was necessary because the forces they would be leading are diverse. Their brief noted the following:
"History has shown that placing a diverse Armed Forces under the command of homogenous leadership is a recipe for internal resentment, discord, and violence.
"By contrast, units that are diverse across all levels are more cohesive, collaborative, and effective.
"Prohibiting educational institutions from using modest, race-conscious admissions policies would impair the military's ability to maintain diverse leadership, and thereby seriously undermine its institutional legitimacy and operational effectiveness."
So here’s what strikes me about this exception: apparently military service is REALLY REALLY REALLY important because, as the opinion notes, national security interests are ‘distinct.’ In her dissent, Justice Sotomayor notes that national security interests are also implicated at civilian universities, whose graduates work in national security fields, including the civilian employees of the military services. In 2022, there were almost a million civilians working for DOD; active-duty military personnel amount to about twice that number.
Military officers also come from college programs like ROTC.
It’s important to note in their amicus brief the officers didn’t ask for an exemption for the service academies; rather, they claimed that the lack of diversity across higher education would harm national security. Nonetheless, the Supremes were apparently okay with providing an exemption only to the service academies. It’s hard not to think they were speaking directly to the Republican party, whose performative “patriotism” and idolization of “the military” are at odds with their actual votes to cut pay and benefits for soldiers.
So where does this leave us? They’re apparently saying that it’s okay to send young Black men (and women – a different story) to go fight our wars, but we certainly don’t want them to graduate from our elite university law schools, med schools, or programs in science and technology. They’re fine with Black people (and women) being in positions of servitude, but let’s not encourage them to think they should run for office or assume civilian positions of leadership. Right?
The newest justice, Ketanji Brown Jackson, raised this point in her sharp dissenting opinion, saying at one point that “The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.” Ouch.
The bottom line is – there’s nothing new here. The American Civil War has been described as “a rich man’s war but a poor man’s fight.” The history of military service in the United States is replete with policies that privilege educated elites (historically well-off whites) over others. Think about draft exemptions during the Vietnam War era: men in college were draft exempt while others were subject to inscription. In previous wars, men with resources could “buy” a surrogate to go fight in his place.
This decision is simply a continuation of America’s historic pattern of discrimination. Don’t let anyone fool you that this is about anything else.