SFFA v. Harvard: Should our nation’s service academies be exempt from this landmark ruling?

In 1954 and 1955, the United States Supreme Court reached a unanimous decision in several consolidated cases, “declaring the fundamental principle that racial discrimination in public education is unconstitutional . . .”  (Brown v. Bd. of Educ., 347 U.S. 483 (1954); and Brown v. Bd. of Educ., 349 U.S. 294, 298 (1955) (“Brown II”)). In what is among the most important decisions ever reached by our nation’s highest court, the justices countenanced no exceptions: “All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle.”¹

Fast forward six years after Brown II. The phrase “affirmative action” first appears in an executive order issued by a freshly inaugurated president. The context in which the phrase was invoked was not in the least ambiguous:

WHEREAS discrimination because of race, creed, color, or national origin is contrary to the Constitutional principles and policies of the United States; . . . the [federal] contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. (Presidential Executive Order 10925, signed by President John F. Kennedy on March 6, 1961) (emphasis added).

It was a clear directive that race be removed—not added—as a factor in federal government employment.

Notwithstanding the convergent intentions of Brown and President Kennedy’s executive order, the phrase “affirmative action” became politically redefined over several succeeding presidential administrations by those who—admittedly, at times in good faith—practiced a form of raw racial politics. In 2003, over forty years after the phrase made its first appearance, this group included five justices sitting on our nation’s highest court. Tragically, Justice Sandra Day O’Connor’s opinion in Grutter v. Bollinger, 539 U.S.306 (2003), entirely ignored (and effectively overruled) Brown’s fundamental principle. With O’Connor’s blessing, “affirmative action” became synonymous with programs that practiced blatant racial discrimination against thousands of innocent applicants seeking admission to our nation’s most elite educational institutions.

On June 29, 2023, our Supreme Court signaled that this discrimination must end. And while it nowhere explicitly heralds a return to Brown’s fundamental principle, it came close:

Eliminating racial discrimination means eliminating all of it. Accordingly, the Court has held that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality”— it is “universal in [its] application” [cite omitted] . . . [f]or “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 289–290.

Students For Fair Admissions, Inc. v President and Fellows of Harvard College (“SFFA”), 600 U.S. ___ (Slip Opinion at 15) (emphasis added).

However, embedded within the majority opinion is a brief footnote (footnote 4). It touches on the question—left unanswered by the Court—of whether the prohibition on the use of race in admissions applies to our nation’s service academies. It reads:

4. The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present (emphasis added).

This raises two questions: First, how do we, as a nation, go forward in our collective effort to “eliminat[e] all [racial discrimination]”? And second, can there be any justification for exempting our nation’s military academies from SFFA’s prohibition on using race in admissions decisions?

[Related: “The Beginning of the End for Racial Preferences”]

To guide us in answering these questions, we have the language of

(a) the Fourteenth Amendment’s Equal Protection Clause;

(b) the fundamental principle prohibiting racial discrimination in public education, as unanimously declared in Brown;

(c) the language in Title VI of the Civil Rights Act of 1964, which clearly prohibits racial discrimination in our public institutions; and, now,

(d) the decision in SFFA.

Included in Chief Justice Roberts’ majority opinion is this observation: “[r]acial discrimination is invidious in all contexts.” SFFA, Slip Op. at 22, citing Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991). Our nation’s all-volunteer military is no exception. Indeed, taken together, the above-cited constitutional, judicial, and legislative sources reinforce the importance that our political and military leaders faithfully adhere to policies that do not condone racial discrimination against any person, including, especially, members of our U.S. military.

As for a solution to the broader question, the answer may be as simple as a return to the original meaning of the phrase “affirmative action.” Doing so would require little more than acknowledging that every individual, irrespective of his race, is a unique human being who contributes to our nation’s unparalleled diversity, and against whom no racial discrimination shall be tolerated.

An excellent reflection of this sentiment with specific application to our military can be found in the Department of Defense 2014 Human Goals Charter. This document, signed by each member of President Barack Obama’s DOD leadership team in 2014, including his Secretary of Defense, each Service Secretary, and all the members of the Joint Chiefs of Staff, reads in pertinent part:

OUR Nation was founded on the principle that the individual has infinite dignity and worth. The Department of Defense, which exists to keep the Nation secure and at peace, must always be guided by this principle . . . (emphasis added).

The goals of this DOD-endorsed charter included:

TO make military service . . . a model of equal opportunity for all regardless of race, color, sex, religion, sexual orientation, or national origin (emphasis added).

Adhering to the stated principle and pursuing this goal requires very little of our political and military leaders. It simply imposes a duty on them to be guided by the fundamental principle first adopted in Brown, and to act in accordance with President Kennedy’s “affirmative action” mandate.

Decades after President Kennedy issued his executive order, his definition of “affirmative action” was echoed by the late Secretary of State and former Chairman of the Joint Chiefs of Staff, Colin Powell. As he observed in his 1995 autobiography:

The debate over affirmative action has a lot to do with definitions. If affirmative action means programs that provide equal opportunity, then I am all for it. If it leads to preferential treatment . . . I am opposed. . . . Affirmative action in the best sense promotes equal consideration, not . . . discrimination. Discrimination “for” one group means, inevitably, discrimination “against” another; and all discrimination is offensive. (Colin Powell, “My American Journey,” at 591-592) (emphasis added).

Returning to SFFA’s footnote 4, it is all but impossible to make the case that there are “potentially distinct interests” that would justify the use of race in admissions to our nation’s service academies. Quite the opposite is true, and for quite obvious reasons. In addition to General Powell’s unambiguous views of the harms presented by racial preferences, consider the following.

[Related: “Racial Discrimination Has No Place in Our Military”]

First, from Justice Clarence Thomas:

The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Grutter v. Bollinger, 539 U.S. 306, 353 (2003) (Justice Thomas, concurring in part and dissenting in part) (citations and internal quotes omitted) (emphasis added).

Once upon a time, retired Justice Sandra Day O’Connor agreed:

Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (emphasis added).

So, too, did retired Justice Anthony Kennedy:

One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. *** Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. Rice v. Cayetano, 528 U.S. 495, 517 (2000) (citations and internal quotes omitted) (emphasis added).

Three years after Rice, Justice Kennedy added these words:

Preferment by race . . . can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and the idea of equality. Grutter, 539 U.S. at 388 (Kennedy, J., dissenting) (emphasis added).

The three Supreme Court justices quoted above, each of whom played prominent (if sometimes conflicting) roles in past cases involving race preference admissions policies, issued clear and unmistakable warnings that should be heeded, especially when it comes to our military.

As previously argued in these pages, the men and women who today enter our service academies and federally funded ROTC programs at institutions such as Harvard and UNC, or who otherwise volunteer to serve our country in uniform, have a right to expect that their treatment will at all times be based on Brown’s unconditional color-blind principle, as legislatively adopted in Title VI of the Civil Rights Act of 1964, and, at long last, reestablished in 2023 in SFFA.

The unity and cohesion of our military forces require nothing less. The future peace and security of our Nation depend on it.

Image: Brian D. Bell, Wikimedia Commons, Creative Commons Attribution-Share Alike 3.0 Unported license