By Scott McQuarrie, USMA ’72, Attorney

If you are not aware of this recent social media post by the USMA Deputy Commandant, you should be.

Apparently, what some might say is the “spirit” of the 1/29/25 SecDef memo has not yet been fully absorbed by USMA leadership.

• • SECDEF Pete Hegseth’s Guidance on Restoring America’s Fighting Force (1/29/25)
  • OPM Further Guidance Regarding Ending DEIA Offices, Programs and Initiatives (guidance on identity/affinity groups)
  • Identity Months Dead at DoD (SECDEF memo)
  • More Good News at USMA: Identity Clubs Disbanded (West Point memo)
  • Narrative Alert: Legacy media coordinating to oppose removal of identity-based clubs at West Point

Are we going to foster a true “colorblind” culture in the military or are we going to continue allowing “affinity” groups based upon race, ethnicity, or national origin in our military?

Are those two things consistent with each other?

Where is the line drawn between warrior ethos purity (total selflessness; complete, reciprocal trust in each team member regardless of race, ethnicity or national origin) and permitting official, sanctioned-by-the-military, race-based affinity/SIG groups?

What is the real purpose of having a race-based SIG, and how is that purpose consistent with having a colorblind culture where we are supposed to “see” each other as “all blue” or “all green” and have no doubt about our teammates’ total commitment (trust) to not just the mission but also to each other – to the point that we would risk our lives for each other – independent of race, ethnicity or national origin?

And is that purpose wholly consistent with the concerns SCOTUS expressed in SFFA v. Harvard?

Re-read SCOTUS’ rationale in SFFA v. Harvard, some of which is included below, then consider whether, in the military, where true “colorblindness” is especially important at all levels in order to optimize selflessness and reciprocal trust as part of the warrior ethos, race-based affinity groups in the military are consistent with “colorblindness” and “selflessness” as cultural imperatives.

From SFFA v. Harvard:

Equal protection of the law requires that citizen’s legal standing in all of society be “colorblind” in recognition of the fundamental principle that no person is of greater or lesser dignity or worth by reason of his or her race, and governments must scrupulously adhere to that principle in how they treat their citizens.

The Court said:

—The “core purpose of the Equal Protection Clause” is “do[ing] away with all governmentally imposed discrimination based on race.” (600 U.S. at 206)

—“Eliminating racial discrimination means eliminating all of it.” (600 U.S. at 206)

—“… Equal Protection … applies ‘without regard to any differences of race, of color or of nationality’ – it is ‘universal in [its] application.” (600 U.S. at 206)

—“[T]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. [cit. omitted) If both are not accorded the same protection, then it is not equal.” (600 U.S. at 206)

—“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” (600 U.S. at 208)

—“[r]acial discrimination is invidious in all contexts” (600 U.S. at 214)

—“[R]ace may never be used as a ‘negative’” (600 U.S. at 218)

—“race … may not operate as a stereotype.” (600 U.S. at 218)

—“One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” (600 U.S. at 220)

—Rejecting legitimacy of “proportional representation” argument, “’[O]utright racial balancing’ is ‘patently unconstitutional …. That is so … because ‘[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.’” (600 U.S. at 223)

—Rejecting the legitimacy of using racial classifications to achieve racial demographic balance, because otherwise “’race will always be relevant … the ultimate goal of eliminating race as a criterion will never be achieved.’” (600 U.S. at 224)

How would having a “Black Engineer’s Club” NOT perpetuate stereotyping?

If the answer is that continued existence of race-based SIG groups sponsored at US military installations, by and for US military personnel would not be consistent with the spirit of the SecDef’s 1/29/25 memo (upon rereading it, I think it is sufficiently vague on that point as to permit any desired legal interpretation), another memo is going to be required.

And it would need to be written in such a way as to clearly state that a completely “colorblind” culture is a “national security imperative” in the military so as to defeat claims of 1st Amendment freedom of association concerns that will be expressed in an effort to challenge the constitutionality of any such directive.

The same argument DoD has made since 2003 favoring racial preferences – a “national security imperative” (a “compelling national interest” under the judicial doctrine of “strict scrutiny” of allegedly unconstitutional regulations) that requires a slight curtailment of constitutional rights for people in the military – can work in reverse.

And there is a large body of case law that says courts should defer to the judgments of military leadership on what is necessary to field a combat effective force.

We’re still in the early rounds.

https://starrs.us/further-guidance-regarding-ending-deia-offices-programs-and-initiatives/

https://macarthursociety.org/identity-months-dead-at-dod/

https://macarthursociety.org/more-good-news-at-usma/

https://starrs.us/military-service-academy-affinity-culture-clubs/