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The front lines for the fight over affirmative action have shifted to military academies after the Supreme Court banned the practice at most universities by 2023.
Advocates of ending race-conscious admissions lean toward military schools, but there’s reason to think their efforts will be challenged for many different reasons.
One factor is the unique role the military plays in American life and the need for an officer corps that reflects the country. President-elect Trump may also be a factor.
“It’s very difficult to figure out what the outcome will be” for the new affirmative action cases “because people treat the military differently,” said Marybeth Gasman, executive director of the Center for Minority-Serving Institutions in the Rutgers University.
“I think the Supreme Court is really in favor of what Trump thinks is necessary, and he’s trying to present himself as a very pro-military person, so that could play a factor,” he added.
Students for Fair Admissions (SFFA), the group that succeeded in eliminating affirmative action at all public and private universities by 2023, has set its sights on military academies. He is applying to both the Naval Academy and the Air Force Academy, but is facing roadblocks in the lower courts.
Richard Bennett, United States Superior District Judgeruled in Marylandthis month that the Naval Academy could keep its admissions race-conscious, saying the school has a “compelling national security interest in a diverse officer corps.”
“Specifically, the Academy has linked its use of race to the realization of an officer corps that represents the country it protects and the people it leads,” Bennett wrote. “The Academy has demonstrated that this national security interest is indeed measurable and that its admissions program is closely tailored to meet that interest.”
SFFA has already appealed the ruling and launched another lawsuit against the Colorado Air Force Academy.
It is likely that more of these lawsuits could emerge against other military schools such as West Point.
Bennett found that affirmative action in military school is “informed by the military-specific history of racial discrimination and racial tensions within the military, as well as how that streak affected military performance,” said Michaele Turnage Young, senior advisor and co-manager of the Equality Protection Initiative at the Legal Defense Fund.
“So the court was very deferential to the military’s judgment that if they couldn’t assemble a diverse officer corps, it could lead to mission failure and it could also lead to loss of life,” he said.
“So I imagine people would understand that the issues in the case of the military are rising in different contexts, because now you’re talking about a service academy and not a civilian university. You’re talking about an institution that is charged with preparing our armed forces to be effective, and so there are different considerations at play.”
The Supreme Court justices decided not to intervene in affirmative action at military institutions in 2023 because it was not the issue before them in a case involving Harvard University.
In striking down affirmative action in civil institutions, Chief Justice John Roberts said that school admissions processes “lack sufficiently focused and measurable goals to warrant the use of race, inevitably use race in a negative way, they involve racial stereotypes and have no meaningful endpoints.”
The legal standard that develops different rules for military institutions and other universities is infuriating advocates, along with liberal justices on the court.
In her dissenting opinion, Justice Ketanji Brown Jackson, the only liberal African-American on the high court, criticized her conservative colleagues for splitting the decision between military and civilian schools.
“The Court has relied on the substantive conclusion that racial diversity in higher education is potentially worth preserving only to the extent necessary to prepare black Americans and other underrepresented minorities to succeed in the bunker, not in the boardroom (a particularly awkward place to land, in light of the history most choose to ignore), he wrote.
As court cases move forward, some fear a return trip to the Supreme Court could end affirmative action permanently.
“I think right now the Supreme Court is against affirmative action, and if Trump is able to appoint more judges, I think affirmative action will probably die. I don’t want it to die in these military academies, but I think , in general, will probably die,” Gasman said.
