Military Necessity and Racial Discrimination
PAUL J. LARKIN*, CHARLES D. STIMSON**, AND THOMAS W. SPOEHR***
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548
I. THE MILITARY SERVICE ACADEMIES’ ADMISSIONS POLICIES . . . . . 552
A. The Federal Service Academies. . . . . . . . . . . . . . . . . . . . . . . 552
B. Oversight and Admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . 555
C. Nominations and Appointments to Military Academies . . . . . . 556
D. Admission to the USCGA and USMMA . . . . . . . . . . . . . . . . . 559
E. Additional Rules Requiring Race as a Consideration . . . . . . . 560
II. THE SUPREME COURT’S FAIR ADMISSIONS DECISION . . . . . . . . . . . . 561
A. The Content of Equal Protection Law . . . . . . . . . . . . . . . . . . 561
B. The Pre-Fair Admissions Case Law Governing Post-
secondary School Admissions . . . . . . . . . . . . . . . . . . . . . . . . 562
C. The Fair Admissions Decision . . . . . . . . . . . . . . . . . . . . . . . . 563
1. The Harvard and UNC Race-Based Admissions
Programs Were Not Susceptible to Judicial Review . . . . . 564
2. The Harvard and UNC Race-Based Admissions
Programs Used an Applicant’s Race as a Negative Factor
and Operated as a Stereotype .. ....................... 566
3. The Harvard and UNC Race-Based Admissions
Programs Had No Logical Stopping Point ............. 567
* John, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation; M.P.
P. George Washington University, 2010; J.D. Stanford Law School, 1980; B.A. Washington & Lee
University, 1977.
** U.S. Navy, Capt. (ret.); Deputy Director of the Edwin Meese III Center for Legal & Judicial
Studies and Senior Legal Fellow, The Heritage Foundation; J.D. George Mason University School of
Law (now Antonin Scalia Law School), 1992; B.A. Kenyon College, 1986.
*** U.S. Army, Lt. Gen’l (ret.); M.P.A. Webster University, 1994; M.A. U.S. Army War College,
1990; B.S. College of William & Mary, 1980.
The authors thank Steven G. Bradbury, GianCarlo Canaparo, Mike Gonzales, and John G. Malcolm
for valuable comments on an earlier draft of this Article. Any mistakes are ours. The views expressed in
this Article are our own and should not be construed as representing any official position of The
Heritage Foundation. © 2024, Paul J. Larkin, Charles D. Stimson & Thomas W. Spoehr.
547
.............
4. The Arguments Made in the Dissents in Favor of the
Harvard and UNC Race-Based Admissions Programs
Conflicted with Supreme Court Precedent 568
III. THE APPLICATION OF FAIR ADMISSIONS TO THE U.S. SERVICE
ACADEMIES’ ADMISSIONS DECISIONS . . . . . . . . . . . . . . . . . . . . . . . 569
A. The Exchange in Fair Admissions Between the Majority and
Justice Sotomayor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 569
B. Foundational Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571
IV. MAY THE MILITARY EVER CONSIDER RACE IN ITS DECISIONS? . . . . 573
A. Selection Decisions for Particular Military Tasks . . . . . . . . . 573
B. The Service Academies’ Admissions Decisions . . . . . . . . . . . . 577
1. The Federal Government’s Argument in the Fair
Admissions Case ................................... 577
2. The Federal Government’s Argument in the West Point
and Annapolis Cases .. .............................. 579
C. The Unique Nature and Needs of the Military . . . . . . . . . . . . 585
D. The Military Service Academies’ Admissions Decisions . . . . . 589
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 594
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595
INTRODUCTION
Americans celebrate July 4th with beach outings, baseball, hot dogs, and fire-
works. Yet it is the last of those items that most signifies the importance of the
day. The nation might have declared its independence via publication of a docu-
ment signed by various political leaders at Independence Hall in Philadelphia,
Pennsylvania, but America truly became independent only by force of arms that
were carried and used by Americans willing to place their lives at risk for their
families, for their friends, and for the prospect of what Thomas Jefferson’s mem-
orable words called “Life, Liberty, and the pursuit of Happiness.”
1
Only because
there are Americans still willing to go in harm’s way does our native tongue
remain English rather than German, Japanese, Russian, or Chinese, and the liber-
ties declared in the Declaration and guaranteed by the Constitution remain avail-
able to all.
1. Declaration of Independence ¶ 2 (July 4, 1776).
548 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 22:547
One of those liberties, as Martin Luther King so poetically said in 1963, is the
right of Americans “not [to] be judged by the color of their skin but by the content
of their character.”
2
Yet for more than a century, the nation failed to make that
dream a reality. Slavery, and its bastard child Jim Crow, kept black Americans
from realizing the benefits that the law should provide to all.
3
Beginning in 1954,
however, the nation started to turn the ship around. In Brown v. Board of
Education, the Supreme Court of the United States held that, based solely on their
race, black school-age children cannot be denied access to the same free public-
elementary education offered to white students.
4
The Court then began a march
through other features of American law that discriminated against blacks, ulti-
mately holding that all state institutions should be open to people of all races
without restriction.
5
The Court recently reaffirmed that rule in Students for Fair
Admissions v. Harvard College, saying, “The conclusion reached by the Brown
Court was thus unmistakably clear: the right to a public education ‘must be made
available to all on equal terms.’”
6
At issue in the Fair Admission case was the legality of the undergraduate
admissions policies used by Harvard College (Harvard) and the University of
North Carolina (UNC). Each school favored black applicants at the expense of
applicants of other races.
7
Different lower federal courts upheld the constitution-
ality of each school’s admission process.
8
The Supreme Court reversed, ruling
that neither institution had justified its use of race as a legitimate consideration in
filling out its entering class.
9
As the Court pointedly noted in its concluding sec-
tion, “Both programs lack sufficiently focused and measurable objectives war-
ranting the use of race, unavoidably employ race in a negative manner, involve
racial stereotyping, and lack meaningful end points.” It added that, “We have
never permitted admissions programs to work in that way, and we will not do so
today.”
10
2. Martin Luther King Jr., Speech at the Lincoln Memorial: I Have a Dream (Aug. 28, 1963).
3. See, e.g., ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863-1877
(Updated ed. 2014); KENNETH M. STAMP, THE PECULIAR INSTITUTION (1989); C. VANN WOODWARD,
THE STRANGE CAREER OF JIM CROW (2001).
5. See, e.g., Gayle v. Browder, 352 U.S. 903 (1956) (busing); Mayor and City Council of Baltimore
v. Dawson, 350 U.S. 877 (1955) (public beaches and bathhouses); Loving v. Virginia, 388 U.S. 1 (1967)
(marriage).
6. 600 U.S. 181, 204 (2023) (quoting Brown, 347 U.S. at 493).
7. See id. at at 190–95 (describing how Harvard’s admissions officers consider an applicant’s race),
195 (“In the Harvard admissions process, race is a determinative tip for a significant percentage of all
admitted African American and Hispanic applicants.”) (citation and punctuation omitted); id. at 195–97
(describing how UNC’s admissions officers consider an applicant’s race).
8. For the Harvard case, see Students for Fair Admissions v. Harvard College, 397 F. Supp. 3d 126
(D. Mass. 2019), aff’d, 980 F.3d 157 (1st Cir. 2020) (both upholding the legality of the Harvard
admissions process). For the UNC Case, see 567 F. Supp. 3d 580 (M.D.N.C. 2021) (upholding the
constitutionality of the UNC admissions process).
9. Students for Fair Admissions, 600 U.S. at 201–30.
10. Id. at 230.
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