Why did the Supreme Court Exempt Military Academies?

Hispanic Community December 2023 PREMIUM

The Supreme Court’s decision barring the use of race in college admissions triggered a nationwide decline in minority enrollments. However, a footnote exempts military academies, citing “potentially distinct interests” crucial for national security. The Department of Defense has argued that diversity is vital for a strong, effective military, although critics question the exemption’s rationale.

We all know the Supreme Court barred the use of race in college admissions. Before that significant decision, nine states had already prohibited any consideration of race in admissions to their public colleges and universities. Even Liberal California had done so. As expected, there was a steep drop in minority enrollments. Now, we are likely to see the same result nationwide. 

Although the SC ruling was expected, it is certainly a new day, indeed a new era.

The majority of Americans polled think it was a good decision. Most think it is now forbidden for all of higher education to consider race in admissions. But that’s not accurate.

There is an amazing footnote on page 22 of the lengthy opinion. It is starkly different from the majority opinion. A three-sentence footnote allows the nation’s military academies to continue to consider race in admissions because of “potentially distinct interests.”

Why the Exception?

A bit of background. The case was appealed to the SC by Asians who felt Harvard had consistently discriminated against them. Harvard is the nation’s oldest private university. The case was paired with the nation’s oldest state university, the University of North Carolina. How did the military academies get involved? The military was not a plaintiff. They didn’t even ask for an exception.

What happened was that the Department of Defense presented a friend-of-the-court brief supporting affirmative action at the academies and at civilian colleges because it helped create a diverse military leadership cohort.

Around 3,500 students graduate from the five military academies every year. They receive a Bachelor’s degree and are commissioned as military officers. They comprise around 20 percent of all military officers. The vast majority of officers attend regular universities.

The racial demographics of officers who come from a service academy largely mirror those of all active officers – about 79 percent are white, 6 percent black, and 7 percent Hispanic.

Further, the disparity in the racial makeup of officers and enlisted personnel is revealing. Approximately 34 percent of the enlisted corps  are racial minorities compared to 24 percent of the officer corps.  

Many worry this disparity sends the wrong message about where blacks and Latinos belong. 

Those who support the military academies exemption say it is justified and necessary to correct these disparities. 

Dissenting justices wrote that the exemption was inconsistent with the majority’s position of abolishing affirmative action. 

The Rationale

In the brief footnote in the 237-page opinion, Chief Justice John Roberts said the Court’s decision does not apply to military academies. He cited two reasons: first, that the academies were not parties in the cases, and second, that there were “potentially distinct interests” involved.

Though Roberts did not elaborate on what those “distinct interests” are, the friend-of-the-court brief filed by thirty-five former military leaders, including four former Joint Chiefs of Staff chairmen, argued that affirmative action in higher education was essential for national security. 

They asked the Supreme Court to consider how reversing the longstanding admissions policy would affect the military’s ability “to serve our nation’s security interests.” 

In particular, they argued that diversity in the officer corps was necessary because the forces they would be leading are diverse.

“The importance of maintaining a diverse, highly qualified officer corps has been beyond legitimate dispute for decades. History has shown that placing a diverse Armed Forces under the command of homogenous leadership is a recipe for internal resentment, discord, and violence.”

“Prohibiting educational institutions from using modest, race-conscious admissions policies would impair the military’s ability to maintain diverse leadership, and thereby seriously undermine its institutional legitimacy and operational effectiveness.” 

Dissenting Voices 

Justice Sonia Sotomayor questioned the majority’s exemption and asked why religious institutions of higher learning, which also weren’t a party to the case, weren’t granted a similar exemption. 

“To the extent the Court suggests national security interests are ‘distinct,’ those interests cannot explain the Court’s narrow exemption, as national security interests are also implicated at civilian universities,” Sotomayor wrote. 

Many legal experts agree with Sotomayor’s assessment that Roberts’ justification for the carveout is flawed, since many students who attend public and private institutions end up working in national security fields. 

Justice Ketanji Brown Jackson wrote, “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.” 

Thomas A. Saenz, president of the Mexican American Legal Defense Fund, said, “as wars become more technology-driven, jobs inside the military are less different than those outside the military. The theory behind exceptionalism and the tolerance of it go away,” thus making the Supreme Court’s exception even more puzzling.  

A Military Perspective

Joe Reeder, a former undersecretary in the Army and a signatory of the brief, noted that only about 25 percent of the country’s officers attended military academies. The vast majority of officers attended ROTC programs, or other training programs.

Reeder stated that the officer corps should reflect the diversity of the soldiers in their ranks. When he graduated from West Point and joined the 82nd Airborne Division, 24 percent of the soldiers were black, but there wasn’t a single black officer. 

After the SC decision, Reeder called it “myopic” because the nation needs healthy diversity, “and affirmative action helps us get there.” 

Bottom Line 

Boy, what a difference a footnote makes. 

The decision to preserve race-conscious admissions in military academies is inconsistent with the Supreme Court’s decision to end them at all other colleges and universities.

As noted, many non-military graduates also wind up working in national security positions. Meeting the needs of underrepresented groups can best be met by providing more educational opportunities to those groups. 

I suspect the Supreme Court’s decision is not likely to be the end of affirmative action cases; it’s possible that the military academies will be a party in a future case. 

After decades of successes and failures, Affirmative Action should be studied and reformed where necessary —not abolished.



CBS News, “Affirmative action in college admissions and why military academies were exempted by the Supreme Court”, at:


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