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The United States Supreme Court
The University of Michigan Admissions Lawsuits

Gratz v. Bollinger and Grutter v. Bollinger
THE BRIEFS

Supporting the University, Lt. Gen. Julius Becton, Jr. et al. as amici curiae, (pp 10-30): In the 1960s and '70s, the armed forces found that a racially diverse enlisted corps commanded by an overwhelmingly white officer corps was a dangerous and destructive combination. The government’s compelling national security interest in a diverse officer corps requires race-conscious policies in the preparation, recruitment and promotion of officers by the military, and in their education by the universities. (The complete brief is online here.)

Comments by Curtis Crawford,* indented in italics.


ARGUMENT

THE GOVERNMENT’S COMPELLING NATIONAL SECURITY INTEREST
IN A DIVERSE OFFICER CORPS
REQUIRES RACE-CONSCIOUS ADMISSIONS POLICIES
FOR OFFICER TRAINING PROGRAMS.

The United States armed forces were ordered to desegregate more than 50 years ago. Today the enlisted ranks are fully integrated, and the military has confronted the absolute imperative of integrating its officer corps in furtherance of the compelling national security interest in an effective military. To that end, the services have *programs that consider race* both in selecting participants who broaden the pool of qualified individuals for the service academies and the ROTC and in admission to the service academies and ROTC scholarship programs. Currently, no alternative means to field a fully qualified, diverse officer corps exists. This limited use of race in furtherance of the compelling governmental interest it serves is, accordingly, constitutional.

 * That is, "programs that give preferential treatment based on race."

1. Integration of the Military. African-Americans have fought for the United States in every war. F.M. Higginbotham, Soldiers for Justice: The Role of the Tuskegee Airmen in the Desegregation of the American Armed Forces, 8 Wm. & Mary Bill Rts. J. 273, 277 (2000). During peacetime, however, *the United States once excluded or limited the number of African-Americans in the military. With the urgent need for manpower occasioned by war, numerical restrictions were lifted, but African-Americans were relegated to racially-segregated units and often to manual labor positions.* Id. at 279; see also C. Moskos & J. Butler, All That We Can Be: Black Leadership and Racial [-11-] Integration the Army Way 16-29 (1996); M. MacGregor, Jr., Integration of the Armed Forces 1940-1965, at 412 (1980).

 * These are some historical examples of the US military's inclination to "consider race."

This situation began to change during World War II, when President Roosevelt revised racial policies for the armed services. Higgenbotham, supra, at 286-88. It was, however, President Truman’s Executive Order 9981, signed on July 26, 1948, that set the United States military on its path to integration. See 13 Fed. Reg. 4313 (1948). On October 30, 1954, the armed forces announced that the last segregated unit had been abolished. Higgenbotham, supra, at 317. Early on, President Truman’s Committee on *Equality of Treatment and Opportunity* in the Armed Services had made the case that integration was a military necessity and that it would ensure efficiency and combat readiness. See MacGregor, supra, at 351-52, 355. "[S]ince maximum military efficiency demanded that all servicemen be given an "equal opportunity" to discover and exploit their talents, an indivisible link existed between military efficiency and equal opportunity." Id. at 355. Indeed, the history of the integration of the armed services demonstrates that integration was driven by the urgent need to recruit and effectively utilize military manpower.

 * "Equality of Treatment and Opportunity in the Armed Services" has never meant equality of treatment despite differences in ability and performance, but it has rightly been upheld as equality of treatment despite differences in race. This mandate is violated when preferential treatment is given based on race.

The Army initially resisted President Truman’s command to integrate, until heavy casualties and slow troop replacement during the Korean War required that African-American soldiers be assigned to fight with undermanned white units. Moskos & Butler, supra, at 30; MacGregor, supra, at 433-34. The Marines simultaneously integrated based on the same imperative. MacGregor, supra, at 460. The Air Force saw significant gains in efficiency with integration, because "problems of procurement, training, and assignment always associated with racially designated units [were] reduced by an appreciable degree or eliminated entirely." Id. at 409. With the move to the All Volunteer Force in 1973, the military necessity of "includ[ing] all Americans in the pool of potential recruits took on added [-12-] urgency." Dep’t of Justice, Review of Federal Affirmative Action Programs, Report to the President § 7.5.1 (1995) ("President’s Report").

Today, the military is one of the most integrated institutions in America. See, e.g., Maraniss, supra, at A01. The modern military judgment is that *full integration* and other *policies combating discrimination* are essential to good order, combat readiness, and military effectiveness. DoD Directive 1350 requires the military to formulate, maintain and review *affirmative action plans* with established objectives and milestones. Dep’t of Def., Directive 1350.2 § 4.4 (Aug. 18, 1995). Instruction 1350.2 describes such programs as a "military necessity," critical to "combat readiness and mission accomplishment." Each service, accordingly, has its own regulations and instructions implementing the DoD mandate, and each service has goals for officer accessions. See Career Progression at 19. 3

 * What do amici mean by "full integration"? That all applicants are equally welcome regardless of their race? Or, that the proportions of certain races and ethnicities in the military (or in the officer corps) should be similar to their proportions in the general population (or in the enlisted corps)? The first definition is consistent with equal treatment regardless of race, and with "policies combating discrimination" based on race. The second definition requires goals and unequal treatment based on race, since racial and ethnic groups differ in the degree of their ability and/or desire for soldiering. Another important term not defined by amici is "affirmative action." At the University of Michigan, whose admissions policies are supported by this brief, "affirmative action" means a strong racial preference. For black and Hispanic students, the probability of admission ranges up to twenty times that of whites and Asians with similar academic credentials. Is such a preference what amici believe the armed forces must have?

As of March 2002, of the 1.1 million enlisted in the active duty forces, 61.7% were white, 21.7% African-American, 9.6% Hispanic, 1.2% Native American, 4.0% Asian American, and 1.8% were classified as "other." DoD Report at 4. In 1990, 24% of those who fought in Desert Shield/Desert Storm were African-American, and 30% of Army troops were African-American. Moskos & Butler, supra, at 35. Plainly, the missions of the United States [-13-] military services cannot be accomplished without the minority men and women who constitute almost 40% of the active duty armed forces. Moreover:

 The current leadership views complete racial integration as a military necessity – that is, as a prerequisite to a cohesive, and therefore effective, fighting force. In short, success with the challenges of diversity is critical to national security. Experience during the 1960s and 1970s with racial conflict in the ranks was an effective lesson in the importance of inclusion and equal opportunity. As a senior Pentagon official told us, "Doing affirmative action the right way is deadly serious for us – people’s lives depend on it." [President’s Report § 7.1 (emphasis supplied).]

2. Integration of the Officer Corps. Fully integrated enlisted ranks made integration of the officer corps essential to the effective operation of our military. But, the military did not learn this lesson without first experiencing the dangerous and destructive environment of a racially diverse enlisted corps commanded by an overwhelmingly white officer corps. As a direct result of the lessons learned in the 1960s and 1970s, the military is now fully committed to officer corps integration. And while the armed forces have made remarkable strides in achieving racial integration, the military cannot lose ground. It must continue actively to foster representation of minorities in the officer corps by recruiting the most promising members of minority communities so that the service academies and the ROTC programs can train and educate officers who fulfill our national security requirements.

(a) The Lesson of History. Almost as soon as President Truman ordered the integration of the armed forces, some in the military recognized the importance of integrating the [-14-] officer corps. 4 After integration, however, the armed forces did not produce a substantial number of minority officers for more than a generation. Both lingering discrimination and *the formal educational qualifications for officers precluded quick racial integration of the officer corps.* As a result, over time, the armed forces became a racial mix of diverse enlisted ranks commanded by an overwhelmingly white officer corps. In 1962, a mere 1.6% of all commissioned military officers were African-American. Nalty, supra, at 313.

 * Another important barrier has been racial disparities in performance on the Armed Forces Qualification Test, an aptitude test widely used in choosing promising candidates for specialized training.

The chasm between the racial composition of the officer corps and the enlisted personnel undermined military effectiveness in a variety of ways. For example, military effectiveness depends heavily upon unit cohesion. In turn, group cohesiveness depends on a shared sense of mission and the unimpeded flow of information through the chain of command. African-Americans experienced discriminatory treatment in the military, even during integration, but the concerns and perceptions of African-American personnel were often unknown, unaddressed or both, in part because the lines of authority, from the military police to the officer corps, were almost exclusively white. Id. at 228-29; MacGregor, supra, at 579-80. Indeed, "communication between the largely white officer corps and black enlisted men could be so tenuous that a commander might remain blissfully unaware of patterns of racial discrimination that black servicemen found infuriating." Nalty, supra, at 282.

[-15-] The military’s pre-Vietnam racial problems generally were suppressed during battle (e.g., in Korea). During peacetime, violent incidents were met with attempts to improve military life for African-Americans, but minority representation in the officer corps remained static. For example, in 1963, a special committee appointed by President Kennedy recommended that every military organization appoint an officer with authority to address issues raised by African-American servicemen. President’s Comm. on Equal Opportunity in the Armed Forces, Equality of Treatment and Opportunity for Negro Military Personnel Stationed Within the United States 27-32 (June 13, 1963) (Initial Report), reprinted in 13 Blacks in the United States Armed Forces: Basic Documents, item 10 (M. MacGregor, Jr. & B. Nalty eds., 1977) ("Basic Documents"). This recommendation proved woefully inadequate. Nalty, supra, at 291, 329; Report by House Special Subcomm. on Disciplinary Problems in the U.S. Navy, H.A.S.C. Rep. No. 92-81, at 17,671, 17,690 (1973) ("Special Subcommittee Report"). During the 1960s and 1970s, the military experienced a demoralizing and destabilizing period of internal racial strife.

Hundreds of race-related incidents occurred. For example, in the 1960s, racial violence among the Marines at Camp Lejeune was not uncommon. White officers were simply unaware of intense African-American dissatisfaction with job assignments and the perceived lack of respect from the Marine Corps. Nalty, supra, at 306-07. In the early 1970s, the Navy endured similar racial violence on board the Constellation, the Kitty Hawk and the Hassayampa. See generally Special Subcommittee Report at 17,674-79; Adm. E. Zumwalt, Jr., On Watch 217-32 (1976). In each case, the officer corps was caught off guard, unable to bring the situation under control, due to the absence of trust and communication between the predominantly white officer corps and frustrated African-American enlisted men.

[-16-] Throughout the armed forces, the overwhelmingly white officer corps faced racial tension and unrest. "Fights between black and white soldiers were endemic in the 1970s, an era now remembered as the ‘time of troubles.’" Moskos & Butler, supra, at 33. "In Vietnam, racial tensions reached a point where there was an inability to fight." Maraniss, supra, at A01 (quoting Lt. Gen. Frank Peterson, Jr.). *African-American troops, who rarely saw members of their own race in command positions, lost confidence in the military as an institution. Mason, supra, at 2-3. And, African-American servicemen concluded that the command structure had no regard for whether African-Americans would succeed in military careers.* 1 Dep’t of Def., Report of the Task Force on the Administration of Military Justice in the Armed Forces 38-48, 59-66 (Nov. 30, 1972), reprinted in 13 Basic Documents, item 66. 5

 * Why did black soldiers feel this way? Because they were discriminated against based on their race, or because they expected to be favored based on their race, or both? Racial bias is a virulent disease, in America especially strong between black and white. Including both races on equal terms in the armed forces was a monumental challenge. Racial nondiscrimination in giving and in obeying orders needed to be inculcated and required. The decision that servicemen need to be commanded by officers of their own race indicates a substantial failure to create a racially nondiscriminating community.

Making matters worse, many white officers had no idea how serious the problem was. "Violence and even death proved necessary to drive home the realization that the various assistant secretaries, special assistants, and even commanding officers had only the faintest idea what the black man and woman in the service were thinking." Nalty, supra, at 317. Ultimately, "[t]he military of the 1970s recognized that its race problem was so critical that it was on the verge of self-destruction." Moskos & Butler, supra, at 142.

[-17-] The painful lesson slowly learned was that our diverse enlisted ranks rendered integration of the officer corps a military necessity. M. Neiberg, Making Citizen-Soldiers: ROTC and the Ideology of American Military Service 166 (2000) ("[t]he military came … to understand that having African American noncommissioned officers … and regular officers was critical to both the operational efficiency of the military and to the creation of the more just and equal environment that military leaders … wanted to create"); Nalty, supra, at 338 ("[b]y the time the draft ended … the services had realized that discipline had to be maintained and that councils and committees, although helpful in easing racial tensions and otherwise promoting harmony within a unit, could not shoulder the responsibilities that rightly devolved upon the commander"). "Racial conflict within the military during the Vietnam era was a blaring wakeup call to the fact that *equal opportunity is absolutely indispensable to unit cohesion,* and therefore critical to military effectiveness and our national security." President’s Report § 7.5.1.

 * Apparently what is meant here is not "equal opportunity" for individuals to be selected, though different in race, but "equal opportunity" for races to be selected, though different in individual qualifications. If, in dealing with racial conflict, racial nondiscrimination is inadequate and must be supplemented with racial preference, why insist on clothing the preferential policies in the language of equal treatment?

(b) Current Commitment To Racial Diversity In The Officer Corps. Spurred by the lessons of the 1960s and 1970s, the armed forces have steadily integrated the officer corps since the end of the Vietnam conflict. In 1973, when the nation instituted its all-volunteer force, 2.8% of military officers were African-American. Career Progression at v. By March 2002, 8.8% of officers were African-American. DoD Report at 4. The representation of other minorities – Hispanics, Asian Americans and Native Americans – increased at an even faster rate over the same period. Minorities now comprise roughly 19% of all officers. Id.

The modern American military candidly acknowledges the critical link between minority officers and military readiness and effectiveness. "[T]he current leadership views complete racial integration as a military necessity – that is, as a prerequisite to a cohesive, and therefore effective, fighting force. In short, success with the challenge of diversity is [-18-] critical to national security." President’s Report § 7.1. The military’s continuing, race-conscious efforts to increase the percentage of minority officers have achieved some results, but this progress must continue. See Dep’t of Def., Population Representation in the Military Services 4-8 (Nov. 1998). Accordingly, the armed forces strive to identify and train the best qualified minority candidates to serve as officers. Infra at 18-27. As we show, these efforts include *race-conscious recruiting, preparatory, and admissions policies* at the service academies and in ROTC programs – efforts that underscore the military’s resolve to do what is necessary and effective to integrate the officer corps.

 * As used here, "race-conscious" is apparently a euphemism. Though ignorance would be better, consciousness or knowledge of the race of candidates for recruitment, preparatory training and admissions is not unconstitutional. The University of Michigan is not in the dock for knowing the race of its applicants, but for preferring some over others based on their race. If the military does not employ racial preference, why are its policies being used by amici as arguments for Michigan's policies? If the military does employ racial preference, why not say so and way why? A policy whose nature is concealed cannot be justified by rational argument.

3. Race-Conscious Admissions Programs For Officer Education And Training. Our armed forces therefore have focused their efforts on expanding the pool of qualified minority applicants for the academies and the ROTC – the primary sources for officers. Increases in minority enrollment in these institutions obviously will increase the numbers of highly qualified, minority officers. Career Progression at 31. The service academies and ROTC employ limited, race-conscious admission programs and policies, both to expand the pool of minority applicants and to increase the number of minority participants. Moreover, increased minority representation in the officer corps enhances our ability to recruit highly qualified minorities into the enlisted ranks.

(a) Army. In 1973, testimony by Army leaders before the House Appropriations Subcommittee confirms that integration of the officer corps was essential to address the Army’s race-related turmoil. The witnesses identified "[i]ncreasing the number of minority cadets at [West Point] and in the ROTC program" as a critical component of improving the Army’s race relations. DoD Appropriations of 1974: Military Personnel: Hearing Before the Subcomm. on the Dep’t of Def. of the House Comm. on Appropriations, 93d Cong., 308-09 (1974). The first program that succeeded in increasing minority representation was at West Point. In [-19-] 1968, there were 30 African-American cadets at the Academy; by 1971, there were almost 100. T. Crackel, West Point: A Bicentennial History 238 (2002). The Army’s successful integration of West Point continues. In 1993, minorities made up 16.5% of cadets, and the Class of 2005 is 25% minority, including 8% African-American (100 cadets) and 6% Hispanic (70 cadets). USMA Admissions Office, Academy Getting Ready For Influx of New Cadets (June 2001), at http://www.USNA.edu/PublicAffairs
/R//010629/ influx.html. Today, there are more than 300 African-American and 150 Hispanic cadets.

In order to integrate itself, and hence the Army officer corps, the U.S. Military Academy has self-consciously attempted "to balance the Corps" and therefore has "develop[ed] goals for each class for desired percentages of scholars, leaders, athletes, women, blacks, Hispanics and other minorities." U.S. GAO, GAO/NSIAD-94-95, Military Academy: Gender and Race Disparities 13 (Mar. 17, 1994) ("USMA GAO Report"). West Point’s Superintendent sets yearly targets for minority admissions. Career Progression at 20. As Director of Admissions Colonel Michael L. Jones stated, "‘We like to represent the society we come from in terms of the student body’s undergraduate experiences. [H]aving a diverse student body allows personal growth in areas where people may not have gotten it otherwise. We want people to understand the society they will defend.’" A. Clymer, Service Academies Defend Use of Race in Their Admissions Policies, N.Y. Times, Jan. 28, 2003.

The Academy’s specific percentage goals for minorities are based upon their "representation in the national population and in the national pool of college bound people, and their representation in the Army." USMA GAO Report at 13. See also Col. M. Jones, Dir. of Admissions, USMA Admissions: The Corp Starts Here, at http://www.USMA.edu/ PublicAffairs/ClubConference02./wppcpres0402.ppt (USMA seeking 20-25% minorities). In pursuit of these goals, [-20-] *"minorities [are] consistently offered admission [to West Point] at higher rates than whites [despite] lower academic predictor scores and lower academic, physical education, and military grades." * USMA GAO Report at 2. This reflects the Academy’s need to extend a greater number of offers to qualified minority candidates to achieve diversity. Id. In so doing, the Academy ensures that **each minority candidate is highly qualified** and has the potential to be an outstanding officer in the Army based on a broad range of factors.

 

* At last, after ten pages of their Argument, amici imply the use of racial preference in the policies they approve. However, the word, preference, remains unspoken.

** Perhaps so, but if they had been as highly qualified as the non-minority candidates, no racial preference would have been necessary.

(b) Navy. Like West Point, the U.S. Naval Academy aggressively recruits minority applicants and employs a limited race-conscious admissions policy. The instructions implementing the Navy Affirmative Action Plan directed the Navy to achieve "a minority officer inventory of six percent Blacks by end of FY2000, [and] three percent Hispanics by end of FY99." Navy Affirmative Action Plan at 10. They set a Significant Action Step of monitoring the "United States Naval Academy (USNA) actions to commission at least seven percent Black Navy officers annually starting with USNA Class of 1994" and ensuring "continued commissioning of at least four percent Hispanic Navy officers annually." Id. Additional Instructions issued in 1996 specifically stated that the "Naval Academy admissions procedures must support the primary objectives of selecting candidates who ... [r]epresent women and minorities in appropriate numbers in support of the Equal Opportunity Program of the Department of the Navy." Dep’t of the Navy, SECNAVINST 1531.2A, U.S. Naval Academy Curriculum & Admissions Policy 1-2 (Feb. 2, 1996). As Naval Academy Dean of Admissions David Vetter stated, "‘We want to build an officer corps that reflects the military services of which we are a part.’" Clymer, supra.

Substantial human and financial resources are devoted to recruiting and admitting minority students to the Academy. The Naval Academy Information Program Handbook 23-25 (2000) (internal working document) guides Academy-affiliated individuals who recruit high-school students, [-21-] making clear that minority recruitment is a high priority. See id. at 23-25. Each recruiting region and the admissions office itself has a minority recruitment specialist. Critically, a GAO Report, U.S. GAO, GAO/NSIAD-93-54, Naval Academy: Gender and Racial Disparities 8 (Apr. 1993) ("Naval Academy GAO Report"), stated:

 The Academy also considers desired class composition of minorities and women in its selection of applicants. The Academy uses the "Chief of Naval Operations’ goals" as a basis for establishing targets. Its targets for Blacks are 7 percent and 4 percent for Hispanics, which are the same as for the fleet.... The Academy accepts a greater percentage of women and minorities to allow for attrition and still achieve the Chief of Naval Operations’ accession goals.

The Naval Academy GAO Report further found that "a higher percentage of minorities who did qualify were admitted to the Academy than their white counterparts" and that "[a]verage success predictor scores were significantly higher for whites than for minorities." Id. at 37. The Report therefore concluded that "[b]ecause of the lower qualification rate of minorities, the Academy makes offers of appointment to the majority of qualified minorities to achieve the Chief of Naval Operations’ commissioning goals for minorities." Id. at 38 (emphasis supplied).6

 Although this section on the Navy begins with the label of "race-conscious," it ends with the implication of racial preference, without using the word. There is no indication of the depth of preference necessary to achieve the goals. Presumably preference also occurs in the recruiting of candidates.

[-22-] (c) Air Force. Like other services, the Air Force has adopted a Policy Directive, instructing that "the Air Force will develop affirmative action programs which represent minorities, women, and persons with disabilities at all grade levels, in every employment category and in every major organizational element." Air Force Policy Directive 36-2, paragraph 2 (Oct. 1, 1996). See also Air Force Instruction 36-2706 § 1.1., at 7 (Dec. 1, 1996) (Air Force Equal Opportunity and Treatment Program improves mission effectiveness by combating discrimination and allowing "Air Force members [to] ris[e] to the highest level of responsibility possible").

The admissions policy of the Air Force Academy is set out in its catalog and in U.S. GAO, GAO/NSIAD-93-244, Air Force Academy: Gender and Racial Disparities (Sept. 1993) ("Air Force GAO Report"). The Academy compiles a list of candidates who meet minimum admission standards and then determines which eligible candidates will receive an offer. See U.S. Air Force Acad., 2001-2002 Catalog 14 (2001). The Air Force GAO Report, at 33, states that "[o]n average, minorities had comparable physical fitness scores but lower academic admissions scores." From 1991-1995, 18% of minority applicants were deemed qualified for admission, compared with 28% of white applicants; but 76% of qualified minority candidates received offers, compared with 51% of white applicants. Id. at 35-36. Clearly, then, the Academy has an admissions policy that takes some limited account of race. See id. at 37-38 fig. 3.4 (admission score for minority students roughly 3000 points and for white students roughly 3200 points); Clymer, supra (quoting associate dean of [-23-] admissions Rollie Stoneman, "‘[race] certainly [is] one of any number of factors we consider’").

 Here amici have provided some information on the depth of racial preference.

For 2000, 18% of enrolled students were members of a minority group. U.S. Air Force Acad., Information Sheet (2000) (unpublished) (on file with author).

(d) Service Academy Preparatory Schools. The service academy preparatory schools demonstrate both the importance the services place on integrating their officer corps and the race-conscious measures they employ to achieve that urgent need. Each service academy is associated with a federally-funded preparatory academy that is the single most significant source of minority candidates for that academy. See Career Progression at 35, 37; Moskos & Butler, supra, at 86; U.S. GAO, GAO/NSIAD-92-57, DoD Service Academies: Academy Preparatory Schools Need A Clearer Mission and Better Oversight 11 (Mar. 1992) ("Academy Preparatory Schools GAO Report"). For example, the Military Academy Preparatory School accounts for 20-40% of African-American students and 20-30% of Hispanic students at West Point, and these students are highly successful after admission. Career Progression at 37. 7 See also R. Worth, Beyond Racial Preferences, Washington Monthly, Mar. 1998, at 28 ("[b]ecause blacks score on average almost 200 points lower on the SAT than whites, [the Army preparatory school] has become an indispensable pipeline for bringing [blacks] into the officer corps"). Similarly, "[a]bout one-third of the minority midshipmen came from [the Naval Academy Preparatory School]." Career Progression at 38. See also B. Brubaker, Prepping to Play Football for Navy, Seattle Times, Apr. 21, 1996, at D3.

[-24-] "Almost all Coast Guard students at [the Navy’s preparatory school] are minorities." Am. Council on Educ., Service Academy Preparatory Schools Project, Final Report 89 (June 15, 1993) ("Am. Council on Educ. Report"). Fully one-third of minority cadets at the Air Force Academy attend its preparatory school. P. Grier, The Case for Academics, Air Force Mag., July 1993, at 60.

The current mission of the preparatory schools is to prepare minorities, as well as enlisted men, women, and athletes, for the service academies. Academy Preparatory Schools GAO Report at 3 (the preparatory schools are important "because they prepare minorities and women for academy admission, and therefore promote diversity in the officer corps"); H.R. Rep. No. 103-357, at 676 (1993) (same). Each preparatory academy uses a race-conscious admission policy.

The Army preparatory school sets specific numeric goals. See Am. Council on Educ. Report at 41. Both the Navy and Air Force preparatory schools enroll about 40% minority students. See Brubaker, supra, at D3 (quoting J. Renard, Naval Academy Dean of Admission, calling the preparatory school "‘truly an affirmative action success story’" because "[w]ithout [the prep school] he could not possibly meet Navy goals to boost minority representation at the academy to 29 percent"); Am. Council on Educ. Report at 28-29 (the Air Force Preparatory school is roughly 40% minority and is providing 30-50% of minority students at the Academy). The Coast Guard, too, sends students to the Navy’s preparatory school to "expand the pool of minorities applying to the Coast Guard Academy." U.S. GAO, GAO/RCED-94-131, Coast Guard: Cost for Naval Academy Preparatory School and Profile of Minority Enrollment (Apr. 12, 1994) (the preparatory school has "improved the minority profile" at the Coast Guard Academy which is its "primary purpose").

[-25-] (e) ROTC Scholarships. The ROTC produced 48% of active duty officers as of 2000. 8 Like the service academies, it is considered a prime pathway for a career as a military officer. Career Progression at 15, 17. Because Academy classes are small, the armed services initially saw the ROTC as the "obvious solution" to the problems created by the lack of minority representation in the officer corps. Neiberg, supra, at 167 (quoting Ben Cassiday, Report to the AFROTC Advisory Panel (Sept. 18, 1972)). For minorities, the ROTC continues to be a particularly significant vehicle for increasing representation in the officer ranks. Moskos & Butler, supra, at 84.

Like the service academies, *the ROTC employs an aggressive race-conscious admissions program.* Each service’s ROTC program is tasked to meet its service’s minority goals for commissioning officers. As a result, the ROTC’s recruiting programs and strategies are overtly race conscious. For example, the Air Force "Gold Bar" program uses newly commissioned, minority ROTC graduates full time in an effort to recruit minorities for its ROTC. Career Progression at 42. The Navy ROTC tripled the number of African-Americans applying for a scholarship after the Secretary of the Navy set specific goals for minority officer accession in 1993. Id. In addition to their targeted recruiting efforts, the ROTC "administer[s] compensatory programs in an attempt to broaden the pool of minority candidates." Id. at 31. For example, the Junior ROTC purposefully targets inner city high schools and provides a program to address the special needs of this population as a way to increase the pool of minority officer candidates. Id. at 39-40. See also L.M. [-26-] Hanser & A.E. Robyn, Implementing High School JROTC Career Academies (2000).

 *By this time we know that "aggressive race-conscious admissions program" should be translated as "aggressive racial preference admissions program." Ironically, some (many?) colleges have barred ROTC on campus, because the armed forces discriminate based on sexual orientation. But no such protest has resulted from the military's racial discrimination acknowledged in this brief.

To obtain an ROTC scholarship, a candidate must be admitted to the hosting college or university. The pool of minority candidates at any given ROTC member institution is thus limited to the number of minority students admitted. In addition, the military services issue regulations that determine the number of scholarships allotted to each school (although there are a certain number of scholarship recipients not included in any school’s allocation). See L. Morris, U.S. Army, CBSP Fact Sheet 02, paragraph 2 (Sept. 26, 2002), at http://www.rotc monroe.army. mil/scholarship__HPD/Scholarship% 20information%20TOC/ fact%20sheets.htm. To increase the number of minority ROTC participants, the ROTC makes substantial numbers of scholarships available at historically African-American colleges and universities ("HBCUs") and at institutions with high Hispanic enrollment ("HMIs"). Career Progression at 34, 94. This allocation, by itself, ensures that a certain percentage of ROTC scholarships will be awarded to minority college students.

The program’s limited race-conscious policies are also reflected in the gap between the SAT scores of minority scholarship recipients and average scholarship recipients. For example, *the mean SAT score of recipients in 2001 was 1236 with an average high school GPA of 3.6, compared to the mean SAT score for HBCU scholarship recipients of 920 and average high school GPA of 2.9.* See Cadet Command Head-quarters, U.S. Army, Scholarship Fact Sheets: 2001 Profiles, figs. 1-2, at http://www.rotc.monroe.army.mil/scholarship_ HPD/Scholarhip %20information%20TOC/ fact%20sheets.htm (last updated Oct. 2, 2002). See also Moskos & Butler, supra, at 84.

 * This is the most striking indication so far of the depth of racial preference the military employs in its "limited race-conscious policies."

The U.S. military’s collective judgment is perhaps best summed up by General Colin Powell, in confirming his strong support for affirmative action: "In the military, we .... used Affirmative Action to reach out to those who were qualified, [-27-] but who were often overlooked or ignored as a result of indifference or inertia." Commencement Address, Bowie State University (1996), reprinted in 142 Cong. Rec. S9311, S9312 (daily ed., July 31, 1996).

4. Race Conscious Admissions Are Constitutional. The race-conscious admissions policies at the service academies and in the ROTC program serve compelling governmental purposes and are narrowly tailored to serve those purposes. Limited race-conscious admissions policies at civilian universities are constitutional for the same reason.

 * Finally, late in the argument, amici address the question in this case: Are "race-conscious admissions" lawful at "civilian universities?" Even if the military has "compelling governmental purposes" for racial preference, it would not follow that universities have the same purposes.

This Court and others have recognized that in certain contexts, race-conscious action that furthers compelling, non-remedial government interests is constitutional. *The government’s interest in racial diversity in higher education is compelling and supports the use of racial considerations in furthering that interest. Wygant, 476 U.S. at 286 (O’Connor, J., concurring in part); Metro Broad., Inc., 497 U.S. at 568 (same) (citing Bakke).* ** Because racial diversity in higher education also is necessary to integrate the officer corps and to train and educate white and minority officers, it is essential to ensuring an effective, battle-ready fighting force. This is indisputably a compelling government interest.** "It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation." Haig, 453 U.S. at 307 (internal quotations omitted).

 

* In the first passage cited, Justice O'Connor misstates Justice's Powell's dictum in Bakke, by inserting "racial" in front of "diversity." In his view, the "compelling interest" was viewpoint diversity, which can be increased by occasional racial preference. O'Connor's mistake is corrected in the second citation. Taken together, the two citations provide no support for amici's statement that "[t]he government's interest in racial diversity in higher education is compelling." [Emphasis added.]

O'Connor's two statements follow: [1] "Additionally, although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently "compelling," at least in the context of higher education, to support the use of racial considerations in furthering that interest." [2] "Just as a "diverse student body" contributing to a "`robust exchange of ideas'" is a "constitutionally permissible goal" on which a race-conscious university admissions program may be predicated, Regents of University of California v. Bakke, 438 U.S. 265, 311-313 (1978) (opinion of Powell, J.), the diversity of views and information on the airwaves serves important First Amendment values."

** No one would deny that "ensuring an effective, battle-ready fighting force" is a "compelling governmental interest." But amici's argument needs two more steps. It must show that:
(1) An effective fighting force requires an officer corps with higher proportions of blacks and Latinos than can be recruited and promoted without racial preference.
(2) Obtaining enough educated blacks and Latinos for recruitment and promotion as military officers requires racial preference in university admissions.

Concerning (1), amici have described serious racial conflict in the armed forces during the 1960s and 70s, and the attempt to solve this problem by substantially increasing the proportion of blacks and Latinos in the officer corps via racial preference. They have not canvassed possible solutions that would not have required racial preference. For example, they have not considered whether an insistence by the armed forces on the duty of racial nondiscrimination by officers and men, by white, black, Latino and Asian Americans, would have solved the problem. Under the Equal Protection Clause, even when serving a compelling interest, government is permitted to discriminate based on race only when no feasible race-neutral option exists.

Concerning (2), see the next paragraphs.

As noted, the service academies and the ROTC are the primary sources of our officer corps, including those in the highest ranks. Entry through these avenues gives an officer a relative advantage for promotion and assignment. Career Progression at 25; id. at 62-63 *("minorities from selective colleges have significantly higher performance ratings" on officer reviews than their cohorts from less selective colleges).* **History has proven that these institutions must provide substantial numbers of minority officers for the services to field the diverse corps that is essential to military efficiency and effectiveness.** Indeed, just as compelling [-28-] public safety and penological benefits justify consideration of race in the selection of police and correctional officers, even more compelling considerations of national security and military mission justify consideration of race in selecting military officers. Cf. Wittmer, 87 F.3d at 920.

 

* How true is this when comparing candidates who perform equally well on a cognitive aptitude test, like the Armed Forces Qualification Test?

** What proportion of "minority officers" have attended the most selective colleges, the ones that would suffer the largest cuts in their black and Latino enrollments with the end of racial preference? William Bowen and Derek Bok, in The Shape of the River, their celebrated book supporting "race-sensitive" college admissions, divided selective schools into three categories, according to their students' SAT scores. The top group enrolls only 5% of the students who attend selective schools; the authors estimate that, absent racial preference, it would lose three/fourths of its black enrollment. The bottom group enrolls 82% of selective school students; its estimated loss of black enrollment would be 30%. That would leave a great many blacks (and Latinos), who attend selective colleges and universities, and are possible candidates for the officer corps.

Moreover, Bowen and Bok estimate that about 80% of American colleges are not selective. Many students, including many blacks and Latinos, receive a decent education at these colleges, which should help them to compete, on a race-neutral basis, for recruitment and promotion as officers.

Integration of the service academies and the ROTC also provides white and minority officers with the training and educational experience necessary to lead enlisted ranks that are 40% minority. In this connection, ROTC officer candidates are selected from those already admitted to host colleges and universities. These institutions must have sufficient minority enrollment so that their ROTC programs can, in turn, train and educate substantial numbers of qualified minority officers and provide officer candidates with a racially diverse educational experience. The military employs ROTC programs at HBCUs and HMIs to recruit high quality minority applicants in sufficient numbers, but preparing officer candidates for service, let alone command, in our racially diverse military is extraordinarily difficult in a racially homogenous educational setting. To paraphrase Sweatt, a future officer’s most effective training and education cannot take place at an institution "in isolation from the individuals and institutions" that he or she will command. 339 U.S. at 634. "[T]he ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples." Bakke, 438 U.S. at 312-13 (Powell, J., concurring) (quoting Keyishan v. Board of Regents, 385 U.S. 589, 603 (1967)).

 Amici here urge that, to solve a problem of officer preparation, our selective colleges should continue to practice racial discrimination, with all its attendant evils and dangers. If extensive life experience with members of others races, in one's home community, public school, college, work or play, helps to make a good officer, by all means make it a qualification that counts in recruitment and promotion. When people who wish to be military officers become aware of this qualification, they can act accordingly.

The crisis that resulted in integration of the officer corps is but a magnified reflection of circumstances in our nation’s highly diverse society. In the 1960s and 1970s, the stark disparity between the racial composition of the rank and file and that of the officer corps fueled a breakdown of order that endangered the military’s ability to fulfill its mission. That threat was so dangerous and unacceptable that it resulted in immediate and dramatic changes intended to restore minority [-29-] enlisted ranks’ *confidence in the fairness and integrity of the institution.* In a highly diverse society, the public, including minority citizens, must have confidence in the integrity of public institutions, particularly those educational institutions that provide the training, education and status necessary to achieve prosperity and power in America.

 * With this language, amici have moved the goal posts, making the success of their argument even more difficult. It is one thing to plead, as a matter of military necessity, that the only way to prevent fierce racial conflict in the ranks is to favor blacks and Latinos in recruitment and promotion. Necessity sometimes compels hard and ugly choices. But it is another thing to claim that "fairness and integrity" are established by practicing racial discrimination and refusing to call it such.

There is presently no workable alternative to limited, race-conscious programs to increase the pool of qualified minority officer candidates and establish diverse educational settings for officer candidates. Plainly, as respondents’ briefs show, the alternative proposed by the United States – admission of students who achieve a specified class rank – is no alternative for private universities and colleges or for graduate schools or for any public institution with a national student body.

Equally to the point, the armed services must have racially diverse officer candidates who also satisfy the rigorous academic, physical, and personal prerequisites for officer training and future leadership. It is no answer to tell selective institutions, such as the service academies or the ROTC, automatically to admit students with a specified class rank, even if such a system were administratively workable. This lone criterion mandates the admission of students unable to satisfy the academic, physical, and character-related demands of the service academies or the officer training curriculum. Moreover, even if the pool of minority ROTC candidates remains quantitatively stable, such a policy will reduce the number of high quality minority candidates for ROTC scholarships. Minority candidates are not fungible in the way the government’s proposed alternative suggests.

In the interest of national security, the military must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse educational setting. It requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective. Like our military [-30-] security, our economic security and international competitiveness depend upon it. An alternative that does not preserve both diversity and selectivity is no alternative at all.

Nor does telling the military to work harder to recruit high quality minority candidates make sense. Each service already has numerous aggressive minority recruiting programs and expends significant funds and human resources on service preparatory academies and other programs in efforts to increase the pool of qualified minority candidates. As the growing percentage of minority officers reveals, the military services are making substantial progress toward diverse, highly qualified leadership – progress envied by other institutions in our society. That progress must be protected and must continue. The admissions policies of the service academies and the ROTC reflect a collective military judgment – that the carefully tailored consideration of race in the admission and training of officer candidates is essential to an integrated officer corps and hence to our fighting force. Today, there is no race-neutral alternative that will fulfill the military’s and the nation’s compelling need for a diverse officer corps of the highest quality to serve the country.

Notes

3. See also, e.g., Dep’t of the Navy, Navy Affirmative Action Plan (1991) ("Navy Affirmative Action Plan"), enclosed in Dep’t of the Navy, OPNAV Instruction 5354.3D (Aug. 29, 1991) (setting goals for minority officer population and accessions); Dep’t of the Navy, OPNAVINST 5354.1E, Equal Opportunity Policy § 4(a) (Jan. 22, 2001) (discrimination "adversely affect[s] good order and discipline, mission readiness, and prevent[s] our Navy from attaining the highest level of operational readiness"); Air Force Instruction 36-2706, at 1 (Dec. 1, 1996) (implementing DoD Instruction 1350.3); Dep’t of the Army, Pamphlet 600-26, Army Affirmative Action Plan § 2-3 (May 23, 1990) (setting goals for officer accessions based on DoD 1350.3). [return to text]

4. For example, in its final report to President Truman, the committee charged with overseeing integration expressed "dissatisf[action] with the small number of [black] officers in the [N]avy," and urged the Navy to increase minority participation in the ROTC and to recruit aggressively in minority communities. President’s Comm. on Equality of Treatment & Opportunity in the Armed Servs., Freedom to Serve: Equality of Treatment and Opportunity in the Armed Services (1950), reprinted in Blacks in the Military: Essential Documents 275-76 (B. Nalty & M. MacGregor, Jr. eds., 1981). [return to text]

5. African-American servicemen were looking for African-American officers both for support and as a visible indication that the military recognized African-Americans as valuable contributors. Hearings By the House Special Subcomm. on Disciplinary Problems in the U.S. Navy, H.A.S.C. No. 93-13, at 595 (1972) (testimony of Commander B. W. Cloud); J. Foner, Blacks and the Military in American History: A New Perspective 211 (1974) ("[t]he scarcity of black officers intensified black grievances."); id. at 223 ("[b]lack servicemen told the [NAACP] … that if black officers were placed in command positions with white junior officers accountable to them, it would be a major step toward overcoming racial discrimination in the army"); Moskos & Butler, supra, at 33 (asking "[w]here was the black officer corps" of the late 1960s and early 1970s). [return to text]

6. The Coast Guard has numerous programs to recruit minority applicants, including the Minority Introduction to Engineering Program (a free week-long program for minority students interested in engineering and otherwise eligible for the Academy). U.S. Coast Guard Acad., MITE: Minority Introduction to Engineering, at http://www.cga.edu/admissions/ summerprogramforjuniors/mite.htm (last visited Feb. 4, 2003). Minorities represent 18% of the Academy’s class of 2004. See U.S. Coast Guard Acad., Diversity & Retention (Oct. 2001) at http://www.members. aol.com/_ht_a/lyndahaley/academy/statistics.htm. In addition, the Coast Guard operates the College Student Pre-Commissioning Initiative, which provides training, tuition and stipends to college students enrolled in historically African-American colleges and universities, Hispanic Association of Colleges and Universities schools, and other approved institutions. See U.S. Coast Guard, College Student Pre-Commissioning Initiative (CSPI), at http://www.uscg.mil/jobs/cspi.html (last visited Feb. 4, 2003). The program is designed to increase minority junior officers in the Guard. See L. Healy, Learning to Lead, Military News, June 18, 2001. As of March 2002, minority officers constituted 13.7% of the Coast Guard officer corps. See DoD Report at 4.
[return to text]

7. Army preparatory school graduates "leave West Point with somewhat lower than average GPAs, but with better ratings on various other leadership measures that military academies prize. And 78 percent of [preparatory school] alumni graduated from West Point in four years, a half-percentage point higher than average." D. Dickerson, How To Keep Elite Colleges Diverse, U.S. News & World Rep., Jan. 5, 1998, at 15. [return to text]

8. See Office of the Assistant Sec’y of Def., Population Representation in the Military Servs., tbl. 4.3 (Nov. 2001), available at http://www. dod.mil/prhome/poprep
2000/html/chapter4/chapter4_3.htm. This number excludes so-called direct appointments for professionals (medical and legal professionals and clergy). [return to text]