Noah Feldman: Supreme Court can let West Point keep affirmative action

Noah Feldman, Bloomberg Opinion on

Published in Op Eds

It’s rare for a lawsuit to be invited by the Supreme Court. But that’s the background to the case brought by Students for Fair Admissions against the U.S. Military Academy at West Point over the school’s pursuit of racial diversity.

In last June’s decision on affirmative action in university admissions, Chief Justice John Roberts included a footnote specifically excluding the service academies from the ruling due to the “potentially distinct interests that military academies may present.” Roberts was alluding to the argument made by the Department of Justice (and by a group of retired military officers in an important 2003 affirmative action case) that military morale requires an officer corps racially similar to that of the enlisted force. The new SFFA suit against West Point is the logical result of Roberts’s carve-out.

On the surface, it might seem strange to think that the equal protection clause of the Constitution applies differently to a particular set of public institutions. However, the courts have historically been open to the idea that individual constitutional rights, even fundamental ones, operate differently for people serving the military.

A leading case in which the Supreme Court treated basic rights differently in a military context is Goldman v. Weinberger. The 1986 decision involved an Orthodox Jewish clinical psychologist in the Air Force who wanted to wear a yarmulke indoors, in violation of the military regulation that required uniformed personnel to be bareheaded while inside.

Under then-prevailing standards of First Amendment law, Goldman would almost certainly have gotten an exemption from such a regulation had he been a civilian. Indeed, the military later changed its regulations, allowing yarmulkes and, today, Sikh turbans.

Yet the Supreme Court, in an opinion by Justice William Rehnquist, refused Goldman the exemption he sought. Rehnquist wrote that it was appropriate for the court to defer to the “professional judgment of military authorities” with respect to “the relative importance of a particular military interest.” He noted that the military needs to “foster instinctive obedience, unity, commitment, and esprit de corps.”

In essence, Rehnquist was pointing out that people in the military don’t have the same basic rights as civilians. When you’re in the service, you don’t have the same free speech rights as an ordinary citizen. The very fact that the government can draft you against your will shows that you don’t have the usual constitutional liberty rights when it comes to military service.

Given this conceptual backdrop, when the case eventually makes its way up to the Supreme Court, the justices could plausibly find that the equal protection rights of an applicant to the service academies are weakened compared to those of someone applying to a civilian university — allowing affirmative action practices to continue.


The court would not even have to take a clear position on whether today’s military still requires affirmative action to produce a diverse officer corps. It could sidestep the morally and politically fraught debate on whether the military can function effectively if it has too few officers of color, a debate that recalls the specter of racial tension between enlisted men and officers in Vietnam. The justices could simply say they believe it appropriate to defer to the expert judgment of military authorities on what it takes to create a well-functioning military.

It's likely to be a close call, but consider: If there had been five firm votes on the court for striking down the military’s use of affirmative action, there would have been no need for Roberts to exclude the academies from June’s decision. The court’s three liberals, who dissented in that case, can be expected to vote to uphold the use of racial diversity in the academies. The court’s most conservative members, Justices Clarence Thomas and Samuel Alito, will almost certainly vote to treat the academies the same as public universities. That leaves Roberts and the three Trump appointees to the court, Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. If any two of these four think there are strong reasons to allow the military to recruit a racially diverse group of elite future officers, the academies will be permitted to keep doing what they’ve now done for years.

For the court’s swing conservatives, the case will ultimately require some balance between deferring to the military on questions of national security and insisting that the equal protection clause applies equally in every context. Striking that balance won’t be easy for them. But unless civilian universities show they can maintain racially diverse admissions without considering race, it’s a decision the justices will have to make — and soon.



Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

©2023 Bloomberg L.P. Visit bloomberg.com/opinion. Distributed by Tribune Content Agency, LLC.


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