Anyone who hasn’t spent the past 18 months living underground will be aware that in SFFA v. Harvard and UNC in June 2023, the Supreme Court declared racial interests in university admissions unlawful. A district court judge upheld unfair cultural preferences in military college admissions last month on the ground that is also false.
In the well-known Harvard circumstance, the court determined that racial discrimination in admissions could not be justified by Harvard and UNC’s claims of the alleged educational benefits of a culturally diverse student body and Harvard and UNC’s justification for using cultural preferences. Those “benefits”, the jury held, were incalculable and too vague to endure stringent scrutiny.
Biden Admin Urged the Court to Force Cultural Choices
What may not be well known about the 2023 scenario is that Biden Solicitor General Elizabeth Prelogar, the defendant, filed an amicus short and participated in dental debate before the court.
Prelogar told the court that the United States “has long recognized” that a diverse student body’s “educational benefits” are comparable to those of civilian universities that offer Reserve Officers ‘ Training Corps ( ROTC ) programs. She argued that if institutions opening ROTC applications and the company schools cannot use race as a factor in determining who is admitted, the “nation’s defense power and readiness” may become compromised.  ,
The lawyer general next rebuffed the “educational benefits of variety” justification for admissions, claiming that racial discrimination “is necessary to our nation’s protection and other critical national interests.”
In order to effectively lead a different military power, the United States ‘ small told the judge that the cultural conflicts and racial-related violence that characterized the Vietnam era demanded that future officials receive an education in a racially diverse student body. Prelogar argued during oral argument that” a diverse officer corps is a national security imperative” and that a decision denying the use of racial preferences in admissions “would cause racial diversity to fall… [and ] that all students at these schools would be denied the benefits of learning in a diverse educational environment.
SCOTUS Rejected Biden Admin’s Rationale
The court completely rejected the United States ‘ explanation. In order to ensure compliance with the constitution’s requirements for similar treatment, Chief Justice John Roberts wrote for the majority. When benefits “are indisputably imponderable,” racial bias is constitutional.
The judge also rejected the claim that there wasn’t a “meaningful relationship between the means they use and the objectives they pursue” Making admissions decisions based on cultural categories, which the parties and the United States disputed, “accomplishes the educational benefits that the universities claim to seek,” was not able to be explained by the parties nor the United States.
The military support academy enrollment applications were no litigated in the lower courts, and the Supreme Court of Justice did not decide whether the use of competition in those programs was constitutionally required. The lawyer general’s claim that national security may be threatened if colleges opening ROTC programs, the largest cause of commissioned officers for the armed forces, were not allowed to use race in admissions decisions was quickly rejected by the court in its decision to reject Harvard and UNC’s rejection of the lawyer general’s discussion.  ,
No Support for Racial Preferences at the Naval Academy ,
This brings us to the constitutionality of the Naval Academy’s use of racial preferences, which was litigated in SFFA v. USNA in the U. S. District Court for the District of Maryland. The Department of Justice attorneys had a difficult time defending the Naval Academy’s use of race in admissions. They couldn’t use the same argument they used in Harvard. The court flat-out rejected it. They had to create something novel.
The new justification was that racial preferences in admissions helped create a diverse officer corps, which improves unit cohesion and combat lethality, aids in recruiting and retention, and increases both the domestic and international legitimacy of the American armed forces.
The new justification, just like the old justification, referred to the racial tensions, unrest, and disruptions before and during the Vietnam era to justify racial discrimination today. These tired, half-century-old arguments were now redeployed to support the brand-new justification for racially discriminatory admissions practices.  ,
Once the new legal strategy was developed, the attorneys passed it along to the admirals and the DOD civilian leadership, who humbly repeated it in court.  ,
This new theory was lawyer-talk that disguised reality with rhetoric. The admirals and generals did not advise the service academies to include race in admissions because it made the military more combatable in the open, improved recruiting and retention, and increased the military’s legitimacy in the eyes of both American citizens and foreigners. Because that was the policy preference of their political superiors, the admirals and generals instructed the academy to use racial preferences to increase minority representation.
Creative Legal Practices Should Avoid Applying Constitutional Principles
Yet in SFFA v. USNA, Judge Richard Bennett swallowed the rhetoric hook, line, and sinker. The judge accepted it because the admirals said so, rather than strictly scrutinizing the DOJ’s new justification for racial discrimination and examining whether a certain group of white, black, and Hispanic officers actually increased the combat lethality of Navy ships and planes. The day was repackaged and presented with professional military judgment by lawyering.
When lawyers can so easily evade constitutional equal protection principles, it is sad day. Possibly, the case will be reversed on appeal. The incoming Trump administration might mandate that the service academies refrain from using racial preferences. The case will become moot, Judge Bennett’s decision will be voided, and the cases pending against West Point and the Air Force Academy will also be dismissed if the president orders the service academies to stop discriminating against race.
By codifying the rule prohibiting the grant of racial preferences, Congress could add an exclamation point to the National Defense Authorization Act of the upcoming year. If that occurs, the rule of law and equal protection guarantees will be upheld, and creative legal practice that manipulates constitutional principles and misleads courts and the public will be disregarded.  ,
William Woodruff is a retired Army lawyer and professor of law emeritus. As an Army lawyer, he served as chief of the litigation division and was responsible for defending the Army’s interests in civil litigation involving Army policies, programs, and operations.
