The Supreme Court’s Thursday decision to end race-based affirmative action in higher education except at military academies comes as debates over diversity within the armed forces are raging in Congress.
The striking exception made by the conservative majority court in a 6-3 decision was quickly lambasted by those on the left, with Rep. Jason Crow (D-Colo.), a former Army Ranger, calling the Supreme Court’s ruling “outright grotesque.”
“The court is saying diversity shouldn’t matter, EXCEPT when deciding who can fight and die for our country—reinforcing the notion that these communities can sacrifice for America but not be full participants in every other way,” Crow wrote on Twitter.
But those on the right quickly moved to try to strip the affirmative action carve out as part of a larger effort by GOP lawmakers to end diversity, equity and inclusion (DEI) programs in the armed forces — a key goal for Republicans in negotiations on the Defense Department’s annual policy bill. The push comes even as military leaders have fought to keep the exception in place.
Senate Armed Services Committee Roger Wicker (R-Miss.) announced Thursday his intention to do away with affirmative action at military academies via the National Defense Authorization Act (NDAA).
Wicker said he will offer his legislation — known as the Military Merit, Fairness, and Equality (MERIT) Act and first revealed last month — as an amendment to the NDAA during floor debates in July to bring back “fairness” to the military.
The initiative seeks to “further prohibit our military service academies from engaging in race-based affirmative action,” Wicker said Thursday on Twitter.
And on Friday, Rep. Tom Tiffany (R-Wisc.) brought forward a similar measure as an amendment to the House’s draft NDAA. Tiffany’s initiative sought to stop the Pentagon from “granting preferential treatment to any person or group based in whole or in part on race.”
The Supreme Court’s ruling did not include military academies as they were not part of the cases put forth before the justices, according to Chief Justice John Roberts.
Roberts also wrote that the military schools had “potentially distinct interests” in using race as a factor in admissions to the academies.
Yet Justice Sonia Sotomayor, in her dissent on the ruling, said the conservative judges did not exempt other institutions from the ruling that were not part of the cases, including religious colleges.
Justice Ketanji Brown Jackson wrote in her dissent that the court “has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.”
Sharp criticisms also quickly came from lawmakers and law experts on the left, who called the exception baffling.
“Die for us, but don’t enroll in our schools,” activist and Georgetown Law adjunct professor Arjun Sethi tweeted of the ruling, calling the military academy immunity “the most disturbing part.”
Rep. Jamaal Bowman (D-N.Y.) said the ruling shows “it’s fine to explicitly and intentionally send our Black and brown kids off to die, but not explicitly and intentionally give them access to education.”
Meanwhile, House Armed Services Committee member Elissa Slotkin (D-Mich.) tweeted that the majority on the court “does in fact recognize the inherent importance of a diverse military and that diversity makes our country not only more fair, but more stable and secure — but they refuse to allow our colleges and universities to hold the same values. It’s shocking.”
Studies have broadly shown that affirmative action policies have helped students from historically marginalized groups get accepted in higher numbers at colleges and universities, with supporters arguing they help institutions better reflect the U.S. population.
Former top military leaders have also argued in favor of it, with 35 such individuals last year — as part of the affirmative action case that was then pending before the Supreme Court — filing an amicus brief asserting that the policy was needed at the military academies for national security.
“History has shown that placing a diverse Armed Forces under the command of a homogeneous leadership is a recipe of internal resentment, discord, and violence,” the former defense officials, which included two former chairmen of the Joint Chiefs of Staff and eight former service academy superintendents, wrote in the August 2022 brief. “By contrast, units that are diverse across all levels are more cohesive, collaborative, and effective.”
The retired leaders also emphasized that the group of officers across the military services is far less racially diverse than the pool of enlisted troops. Should that gap grow, it could harm internal morale and engagement with allies and partners, they stated.
Rodney Smolla, the president of Vermont Law and Graduate School, said military leaders have had major sway in keeping affirmative action alive within the military in the past.
He pointed to the Supreme Court case upholding affirmative action at the University of Michigan in 2003, known as Grutter v. Bollinger, which found that the use of affirmative action in the institution’s law school admissions practices was constitutional.
As with the most recent court case, retired military officials filed a brief with the 2003 case, referenced in an opinion, that argued in favor of affirmative action.
“The lore has always been that a military brief — a brief by many distinguished retired military leaders — had a major impact on the court and may have been one of the reasons that affirmative action survived in that case,” Smolla told The Hill.
“The Supreme Court has always — in both liberal and conservative epochs — been very deferential to the executive branch and the military and has often permitted things in the national security context that it wouldn’t necessarily permit in other contexts,” he added.
Whether the military will be able to keep affirmative action alive at military academies is still to be seen. The carve out will be challenged by GOP lawmakers via the NDAA when the House and the Senate return from their current recess on July 10 and pick up debate on the bill.
Republican members of both chambers are also looking to wipe out numerous other DEI programs within the Pentagon, a hot-button issue this year.
The House’s draft version of the bill includes several amendments that would eliminate the Defense Department’s chief diversity officer, cut off funding for DEI programs and enforce a review of DEI initiatives.
Republicans have argued that DEI efforts are a distraction to the Pentagon, taking away attention from military readiness, hurting recruitment efforts and spreading divisions within the ranks.
Also up in the air is whether the Republican measures in the House and Senate will be successful.
Wicker’s MERIT Act is unlikely to be kept in the Senate’s draft of the NDAA as the chamber is narrowly controlled by Democrats.
Tiffany’s measure, meanwhile, could be successfully added to the Republican-controlled House’s defense bill, but later striped out in negotiations with the Senate.