Military Leaders Urge Supreme Court to Embrace Diversity, Leave University’s Admissions Policy Alone

September 28, 2012

by Jeremy Leaming

A slew of organizations are weighing in on the constitutionality of the University of Texas at Austin's race-conscious admissions policy and if you have all the time in the world you can read those groups' arguments by checking out SCOTUSblog.

As the U.S. Supreme Court opens its 2012-2013 term on Oct.1 one of the more compelling and pressing cases on its docket concerns a white woman’s challenge to the university’s admission policy, which takes a number of factors, including race, into account when building its student body. In a 2003 case, Grutter v. Bollinger, the high court majority led by Justice Sandra Day O’Connor found the University of Michigan Law School’s use of race in its admission policy supported a compelling educational interest and did not violate the Constitution’s Equal Protection Clause.

The case, Fisher v. University of Texas at Austin, will give a significantly more conservative high court the chance to gut Grutter, taking down or greatly hobbling race-conscious admission policies that many rightists, including libertarians, have been gunning for.

Civil liberties groups, educational groups, labor organizations, such as SEIU have come to the defense of the university’s admission policy. This blog has noted some of those group’s contributions, such as here and here and here.

But an impressive group of former senior officers and civilian leaders of the U.S. military is also weighing in with support of an admissions policy that allows a university to build a diverse student body. The reasoning of military amicus that lodged a friend-of-the-court brief in Grutter remains “true today and amici embrace them: Based on decades of experience, the modern United States military regards a highly qualified and racially and ethnically diverse officer corps as vital to military effectiveness.”

The military group, including Gen. Colin L. Powell, Gen. Henry H. Shelton and Gen. Anthony C. Zinni, is represented by Philippa Scarlett, a partner at Kirkland & Ellis LLP and an ACS Board member.

The military group’s brief argues in favor of the admissions policy’s constitutionality, but also explains why such policies are so vital to the military. The Fisher case centers mostly on the university’s needs and a student’s claim that it is unconstitutional, the military group’s brief, however, notes that the case’s “impact dramatically transcends academia.”

For instance, the military group argues:

Unlike many other institutions, the military operates on a closed personnel system with its top leaders chosen not from outside, but rather, promoted from the lower ranks. As a consequence, the demographic composition of initial officers accessions is critical to the achievement of a diverse military officer corps.

The Reserve Officers’ Training Corps (“ROTC”), which is comprised of students already admitted to participating civilian colleges and universities, and the service academies operated by each of the military branches, continue to serve as the primary sources for the Nation’s military officers. To achieve diversity in military leadership, both the service academies and ROTC engage in extensive minority outreach and recruiting as well as limited consideration of race as a part of their individualized, whole-person review of admissions applicants. As was the case when Grutter was decided, these race-conscious policies are vital to increasing and maintaining the pool of highly qualified minority military officers.

If a high court majority were to invalidate the University of Texas’s “modest race-conscious admissions policy,” then it would “seriously disrupt the military’s efforts to maintain military cohesion and effectiveness,” the group argues. This is partly due, the group continues, because of the structure of ROTC, which relies heavily on the ability of colleges and universities to create diverse student bodies.

Regarding the constitutionality of the university’s race-conscious admissions policy, the military group’s brief charges that the high court should leave precedent alone, noting that in Grutter, a majority of the justices “recognized that racial and ethnic diversity is a compelling state interest of public colleges and universities,” and “upheld its tradition of giving a degree of deference to universities’ academic decisions, within constitutionally prescribed limits, finding that a university’s ‘educational judgment that such diversity is essential to its education mission is on to which we defer.’”

The children of the nation’s superrich don’t fight the country’s wars, so the military must be able to count on a diverse group of people, which of course the tiny superrich in this country does not offer up, and it wouldn’t matter if it did anyway. The military group’s brief makes a compelling case for the Supreme Court to back off and give deference to the University of Texas. If the Court’s rightwing stays beholden to ideology it may very well trash precedent, which in this instance will not only harm the missions of universities from coast to coast, but also undermine the military’s effectiveness.