In June, the Supreme Court handed down its landmark decision declaring race-based college admissions unconstitutional. Nestled within the majority’s legal reasoning lay a powerful exception, however: The fourth footnote exempts the military academies from the larger holding because of “potential distinct interests [they] may present.”
The dissents capitalized on the note’s brevity, arguing that it undercut the majority’s reasoning. Justice Jackson notes the awkward, if not troubling, outcome of Footnote 4 if “military academies” encompasses the military at-large, acknowledging the benefits of racial diversity only “in the bunker, not the boardroom.”
Considering the valorous history of Black servicemembers and the subsequent erasure of that history, hers is a particularly grave interpretation. The exception makes no such distinction, though.
Despite their polarity, the two positions share something: both misunderstand military structure in a way that undermines their end goal — one in terms of deference to military judgment and the other in preservation of meaningful diversity.
The main opinion fails to define “military academies.” If read to include only the five federal service academies sanctioned by Congress, then it excludes 75 percent of military commissioning sources. Not only does this put service academies in an awkward position (should they overhaul their racial diversity to meet the needs of the entire Army?), it lends itself to a misunderstanding of why this exception is prudent in the context of the larger opinion.
So, what is it that makes the military special? Why should its academies and commissioning sources get to consider race when developing its talent pool?
We will use our alma mater as an example. West Point is a well-known and proven leadership factory, having produced many of military history’s “greats,” from George S. Patton to Benjamin O. Davis. It has trained and educated two U.S. presidents. And its program translates to the private sector as well: in the most recent Stanley Cup, both teams were owned by West Point graduates.
Service academy graduates are significantly overrepresented among senior military leaders. With such a strong pipeline from the Academy to the senior ranks of the military, West Point’s legacy leaves a higher headquarters, a boardroom, if you will, of service academy graduates. These graduates overwhelmingly come from higher-class backgrounds than other servicemembers and tend to have impressive exit opportunities.
It is no wonder, then, that West Point and the other service academies would be uniquely interested in maintaining the ability to develop a diverse officer corps vis-à-vis admissions to their universities, whose prestige is akin to that of UNC and Harvard.
Once graduates enter the service, the distinctions between the military and civilian professions become more consequential. The nature of military service requires an inextricable relationship between work and life. It is not simply a “job.” Commanders can recall their soldiers at most any hour, restrict them to their rooms for misconduct, and hold adjudicative authority over their formations. The power that military leaders wield far exceeds that of any civilian boss.
Even more, those leaders are given that power through a rigid rank structure drawn from historic class distinctions. The officer corps was historically drawn from wealthier families, whereas the enlisted corps — the vast majority of servicemembers — were drawn from working-class communities.
Today, the parallel remains. Officers earn higher salaries and better housing when they join the military with an undergraduate degree, or otherwise earn one as part of their entry. Enlisted personnel, in contrast, are not required to hold a college degree (though many do). They start their careers confined to old barracks rooms and make significantly less money. In fact, the base pay for the highest-ranking non-commissioned officer (an enlisted position) is lower than that of an entry-level officer.
This itself is unique to the military: in no other professional organization does a hierarchy remain intact even where credentials converge. The rank structure thus creates an officer corps with exceptional power, including choices that could mean life or death for servicemembers. In a force where officers are overwhelmingly white and the enlisted corps overrepresents people of color, this dynamic can lend itself to systemic racism more easily and more powerfully than in other contexts.
Historically, such severe ethnic and class distinctions within a military force correlate with failure.
Should the military find a dearth of leaders to grant such sweeping responsibility, it has few options. There are no lateral hiring opportunities in the military. It cannot craft a battalion commander out of a CEO. Rather, the entry-level population will determine the fabric of the institution for many years to come.
So, to say that the footnote 4 exception allows for diversity only insofar as it lends itself to sending people to die is a mischaracterization of the role military officers play. Officership bestows decision-making power over the lives of young Americans, a heavy burden which, we would argue, is certainly a “distinct interest” much greater than an interest in diverse classrooms.
Setting aside the question of whether affirmative action is the right method to yield that diversity, the military warrants more latitude and discretion than its civilian counterparts because of its unique mission: to develop leaders of character who will lead our service members in peacetime and in war.
Chandler Cole and Johanna Crisman are West Point graduates and law students at Duke University. Both led majority-minority platoons (approximately 30 personnel) during overseas postings. The opinions expressed in this piece do not necessarily reflect those of the U.S. Army or any federal government agency.