In the recent oral argument in Fisher v. University of Texas, and in his amicus brief on behalf of the United States, Solicitor General Donald Verrilli emphasized the military rationale for affirmative action. Without racial preferences in college admissions, we will not have an adequate supply of minority officers in the armed forces, which would undermine military efficiency. As the brief puts it:
Military leaders have concluded that an officer corps that is markedly less diverse than the enlisted ranks, and that is unattuned to the diverse perspectives of those they must lead, can undermine the military’s combat readiness. Fostering a pipeline of well-prepared and diverse officer candidates is therefore an urgent military priority. That military policy judgment reflects the lessons of actual battlefield experience during the Vietnam War when the disparity between the overwhelmingly white officer corps and the highly diverse enlisted ranks “threatened the integrity and performance” of the military.
The same argument played an important role in Justice Sandra Day O’Connor’s majority opinion in Grutter v. Bollinger, which ruled that racial preferences can be used to promote diversity in college admissions:
[H]igh-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.” Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation’s officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., at 5. At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.” Ibid. (emphasis in original). To fulfill its mission, 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 setting.” Id., at 29 (emphasis in original). We agree that “[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.” Ibid.
This argument has an important kernel of truth. A nearly all-white officer corps commanding enlisted personnel who include a high percentage of racial minorities could easily lead to racial tensions that undermine military efficiency. This could potentially justify racial preferences in the military service academies, and for students at other institutions who plan to take part in ROTC. Minority officers admitted under such preferences might suffer a degree of stigma. But perhaps the tradeoff is worth it, at least if race-neutral admissions really would lead to a racially homogenous officer corps that could not relate to the ranks.
I’m not offering any definitive opinion on the issue of whether racial preferences in the military academies and ROTC programs are constitutional. But the case for them is at least serious and plausible.
Yet I don’t see how that argument justifies racial preferences in admissions to civilian institutions, where only a small fraction of the graduates will go on to become military officers. The Supreme Court in Grutter concluded that moving from preferences at military academies and ROTC programs to preferences at all “selective institutions” is just a “small step.” But it sure seems like a pretty big step to me.
Maybe the size of the step doesn’t matter if we are simply going to let universities decide for themselves which racial preferences are justified. But Grutter repeatedly emphasized that racial preferences adopted by state institutions must be subject to strict scrutiny, which includes a requirement of “narrow tailoring” to the “compelling state interest” the preferences are supposed to address. Even the liberal justices who argue that affirmative action programs should get less scrutiny than traditional discrimination against minorities still assert that it should be subject to “intermediate scrutiny” similar to that required of gender classifications. Intermediate scrutiny still requires a fairly close relationship between the size of the preference and the goal it serves. As Justice Ruth Bader Ginsburg explains:
The mere assertion of a laudable governmental purpose, of course, should not immunize a race-conscious measure from careful judicial inspection…. Close review is needed “to ferret out classifications in reality malign, but masquerading as benign,” Adarand, 515 U.S., at 275 (Ginsburg, J., dissenting), and to “ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups,” id., at 276.
And the military rationale for affirmative action simply can’t pass any kind of “close judicial inspection” if it is used to justify affirmative action in civilian institutions where only a small fraction of graduates will ever become military officers. At least not when schools have the obvious alternative of limiting such preferences to applicants who commit to joining an ROTC program.
In sum, I might well buy the military rationale for the University of Texas affirmative action program if UT were a military academy or if the vast majority of UT students were going to join ROTC programs. But for a civilian institution, it seems like a big stretch.