As the Supreme Court’s justices were sparring with each other last month over use of racial preferences in school admissions policies, the Biden administration’s top litigator kept coming back to one point: Think of the troops.
Solicitor General Elizabeth Prelogar said if schools can’t enroll a diverse student body, the nation’s military won’t have the kind of leaders it needs to field, train and take into combat the world’s best fighting force.
“It is a critical national security imperative to attain diversity within the officer corps,” she told the justices. “And, at present, it’s not possible to achieve that diversity without race-conscious admissions, including at the nation’s service academies.”
That matters not just the academies, she said, but other schools with officer candidate training programs: Taking away affirmative action in academics means a less safe country.
The cases before the justices involved the admissions policies at Harvard University and the University of North Carolina which ask about race on their applications, and admit they use the answers to try to boost numbers of Black, Latino and Native American students.
A majority on the court appeared to be skeptical about preferences.
But Ms. Prelogar’s military argument gave them pause.
Justice Samuel A. Alito Jr. called it “something that we have to take very seriously.”
“You represent the entire executive branch, including the military, and we have to presume that you are reflecting the views of the military,” he told the solicitor general.
The argument over diversity and the military stretches back decades, with the services working to make themselves more inclusive to reflect the general civilian population.
A 2020 Department of Defense report found that the representation of Hispanic and Black service members was higher in the military than it was in the civilian population. But those minorities still weren’t well-represented within leadership and officer roles, according to the data.
Ms. Prelogar told the justices that the academies have tried ways to attract qualified minority students. That includes more outreach, allowing more nominations from certain congressional districts, and using other proxies like socioeconomics.
“West Point discovered that that would actually increase the number of White men at the academy,” she said. “And other race-neutral alternatives just don’t work in this context for the service academies.”
Chief Justice John G. Roberts Jr. asked Ms. Prelogar if there should be a special policy for the academies.
“I would have thought that you might want to distinguish yourself in order to preserve arguments that are particularly applicable, if there are such arguments, to the service academies, rather than take the position here, which is you’re going to be bound by whatever we say with respect to the other universities,” he said.
The solicitor general did not take his invitation, saying that the national security argument for affirmative action goes beyond the academies.
She said more officers come from ROTC programs at regular schools than the academies, so they need diversity too.
Court watchers said Chief Justice Roberts may have been trying to signal a potential middle ground, and said there’s legal justification for that.
“There is precedent for a more relaxed standard — a more pro-governmental standard — when you’re dealing with national security matters and governmental affairs,” said Rod Smolla, president of Vermont Law and Graduate School. “There is this danger of this kind of two class military.”
Adam Feldman, a Supreme Court expert and creator of the Empirical SCOTUS blog, said Chief Justice Roberts seemed more open to a “restrained approach” than some of the other justices on the bench.
“There is a legitimate possibility that the Court will leave affirmative action in place for military academies while overturning it for other institutions. There appears to be a different diversity argument for those institutions,” he said.
Whether the military argument can save affirmative action more broadly remains to be seen.
But it was part of the justification in 2003, when the late Justice Sandra Day O’Connor delivered the court’s current framework for what’s allowed in racial preferences.
In upholding use of race as a potential plus factor in admissions, she quoted from a brief filed by former military officers who said the military “cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.”
Those officers went even further, saying a strong military needed not only diverse recruitment, but they must be able to learn in a “racially diverse educational setting.”
This time around, a different group of former troops have stepped forward to argue the opposite.
Veterans for Fairness and Merit, a group of more than 600 former service members from various branches, said the officer corps is already diverse “to a substantial degree,” and continuing to recruit based on race is “antithetical to the ‘selfless servant,’ colorblind culture necessary for our military to prevail on the battlefield.”
“In short, officer racial preferences reduce combat effectiveness and weaken, rather than enhance, national security,” the former troops wrote.
The Supreme Court is expected to issue rulings in the cases by the end of June.