By Scott McQuarrie, USMA ’72
President, Veterans for Fairness and Merit

SCOTUS’ ruling yesterday was, given the state of the court’s record (meaning the evidence that exists in the SFFA v. USMA case court’s file), arguably the right ruling. It was worded in such a way as not to harm SFFA’s position in the case and its ability to move forward.

The record is (as the court’s order said) “underdeveloped” on some of the issues SCOTUS wants to hear about, most notably those listed in subparas C and D, below.

Much, but not all, of the evidence re B is now in the record (but there is critically important evidence relevant to B that is not yet in the record). Still, some justices at SCOTUS are most interested in C and D.

First, here are DoD’s claims:

1—Army officer racial diversity (degree undefined, but argued to be parity with enlisted racial diversity percentages and/or national population demographics, i.e., racial demographic parity), and the methods necessary to achieve it, are “critical to the military’s ability to defend our nation,” “critical to combat effectiveness and unit cohesion,” i.e., a “compelling national security interest,” and thus a “compelling governmental interest.”

2—Army officer racial diversity “is vital to national security because it (1) fosters cohesion and lethality, (2) aids in recruitment of top talent, (3) increases retention, and (4) bolsters the Army’s legitimacy in the eyes of the nation and the world.”

3—Army officer racial diversity cannot be achieved without considering race in USMA admission decisions.

4—USMA’s consideration of race in admissions decisions is both limited and “narrowly tailored.”

5—USMA’s interests in achieving a [sufficiently] racially diverse and inclusive, high quality officer corps are distinctly different from the interests surrounding the use of admissions racial preferences by Harvard, UNC, and other civilian colleges who have senior ROTC programs that graduate and commission officers into the Army.

6—Because of that “compelling governmental interest,” and its distinct nature compared to the interest of civilian colleges, USMA’s practice of considering race in admissions decisions should be exempt from enforcement of constitutional equal protection (5th Amendment, Due Process Clause).

7—Because the “compelling governmental interest” and its “distinct nature” questions exist in the military context, courts should defer to DoD’s “professional military judgment” rather than rigorously apply “strict scrutiny” when adjudicating USMA’s defensive claims.

Here are the principal fact and legal issues resulting from those claims:

A. The stated purpose of USMA’s use of racial preferences in admissions decisions is to facilitate the Army’s achievement of some greater level of Army officer racial diversity than that which would occur without use of racial preferences, i.e., for lack of a better term, officer-enlisted racial demographic parity and/or officer racial demographic parity with national population demographics. Is that purpose constitutionally permissible?

B. Are USMA’s admissions decision practices for achieving that purpose both limited and narrowly tailored (i.e., necessary) to achieve the stated purpose?

C. Is the achievement of sufficient officer racial diversity (claimed by defendants to be demographic parity with enlisted members) “critical to combat effectiveness and unit cohesion” and thus a “national security imperative” and a “compelling governmental interest”?

D. Regarding A-C, do defendants USMA and DoD have “distinctly different interests” surrounding their admission decisions compared to the interests of civilian colleges having ROTC programs regarding the use of racial preferences in admissions decisions?

E. Should courts defer to the defendants’ judgment when determining the above questions, or should the courts rigorously apply strict scrutiny and require clear proof of each element?

No discovery (document production, depositions) has occurred yet in the case. That will commence shortly.

Based, however, on what I know and believe (the basis of which includes knowledge of evidence not yet in the court’s record), here are the answers to those questions:

A. The stated purpose of USMA’s use of racial preferences in admissions decisions is to facilitate the Army’s achievement of some greater level of Army officer racial diversity than that which would occur without use of racial preferences, i.e., for lack of a better term, officer-enlisted racial demographic parity and/or officer racial demographic parity with national population demographics. Is that purpose constitutionally permissible?

A. No. The purpose of USMA’s race-based practices, by its own written directive’s express wording, and as implemented, is “racial balancing.”

SCOTUS has never recognized racial balancing to be constitutionally permissible and instead has repeatedly found it “patently unconstitutional” (and incurable by use of the “diversity” label).

Racial balancing to achieve a force that has leaders who “look like” (in SECDEF Austin’s words) (i.e., skin color) the warfighters whom they lead, in demographic proportion, inherently involves racial and ethnic stereotyping.

Even if racial balancing were constitutionally permissible, achieving the level of Army officer racial diversity needed to reach parity with enlisted percentages (2022: AA-21%, H-18%) would require drastic reduction in rigor of USMA’s academic curriculum and further reduction in minimum admissions standards for minorities.

Those changes would result in further widening of the differences in performance among racial groups at USMA; even then, parity may be impossible to achieve for so long as military service is voluntary.

Moreover, accomplishing USMA’s and the Army’s purpose would require that there be no endpoint for the consideration of race.

There is no evidence of when, if ever, using racial preferences to achieve and maintain that theoretical level of officer racial diversity would end.

Indefinite exemption from constitutional compliance has never been constitutionally acceptable.

B. Are USMA’s admissions decision practices for achieving that purpose both limited and narrowly tailored (i.e., necessary) to achieve the stated purpose?

B. No. USMA’s admissions decision methods are neither limited nor narrowly tailored. They include broadly applied, race-based practices specifically designed to advantage minority applicants and to disadvantage white applicants, including

(1) restricting early admission eligibility by race, advantaging applicants of some races and disadvantaging some white and Asian applicants in competing for nominations and incentivizing those disadvantaged applicants to accept time-limited, early admission offers from other schools,

(2) reserving an appointment category for certain minorities and recruited athletes,

(3) selecting minorities out of composite score rank order in two appointment categories that, combined, are used to fill ~ 25% of each class, and

(4) using composite score thresholds that differ by race when deciding whether to admit or reject applicants in some appointment categories.

These decision practices are broadly applied to hundreds of applicants. They are used to exclude, because of skin color, hundreds of better qualified (higher WCS) applicants and to permit race to become a determinative factor both for exclusion and selection.

They also are not necessary – diversity would exist without them.

C. Is the achievement of sufficient officer racial diversity (claimed by defendants to be demographic parity with enlisted members) “critical to combat effectiveness and unit cohesion” and thus a “national security imperative” and a “compelling governmental interest”?

C. No. Achievement of officer racial diversity in parity to enlisted demographics is not “critically necessary to combat effectiveness” or to “unit cohesion.” It is not “mission critical.”

Army officer racial diversity is irrelevant to combat effectiveness and unit cohesion in combat because warfighters’ teammates’ and leaders’ race is inconsequential to them.

Use of racial preferences to achieve a greater degree of racial diversity beyond what minority recruiting and use of undiluted merit would achieve reduces leader quality, creates resentment, undermines unit cohesion and lowers combat effectiveness.

Warfighters need and must be provided the best-qualified leaders, especially in combat, where incremental differences in leader quality can mean the difference between mission success or failure and life or death.

America can be defended without USMA having to engage in race discrimination in admissions.

D. Regarding A-C, do defendants USMA and DoD have “distinctly different interests” surrounding their admission decisions compared to the interests of civilian colleges having ROTC programs regarding the use of racial preferences in admissions decisions?

D. No. USMA’s Army officer commissioning interests are, in the context of the alleged need to achieve some greater degree of officer racial diversity, not materially different from the interests involved in ROTC commissioning programs at civilian colleges.

The interests for the Army in officer racial diversity (whether valid or not) are the same for USMA as they are for ROTC programs at civilian colleges. The vast majority of commissioned officers, in fact, are ROTC program graduates.

E. Should courts defer to the defendants’ judgment when determining the above questions, or should the courts rigorously apply strict scrutiny and require clear proof of each element?

E. No. Courts should not defer to DoD when adjudicating whether

(1) USMA’s use of racial preferences in admissions decisions is for a constitutionally permissible purpose,

(2) USMA’s admissions decision practices are limited and narrowly tailored,

(3) USMA’s use of race in its admissions decision practices is necessary to achieve officer racial diversity, and

(4) a greater level of officer racial diversity is “critical to combat effectiveness and unit cohesion” and thus a national security imperative and a compelling national interest. Courts, to fulfill their constitutional duty to protect against fundamental constitutional violations, should instead rigorously apply strict scrutiny. If they do so here, they will conclude that USMA/DoD have not carried their burden of proof.

In time, the evidence will come out.

If the SFFA case is pursued to conclusion, I believe we will get the right result. And the SFFA case is so far performing an essential function by helping to expose the “facts on the ground.”

A better solution, however, would be legislation that expressly bans consideration of race in academy admissions decisions. If such a law were enacted, the lawsuit would be moot and would likely be dismissed.

Legislation requires political will, which in turn requires exposure (to Congress and the American people) of the “facts on the ground.”

DoD has succeeded in concealing those facts for 40 years. That concealment is coming to an end (because of the lawsuit and other events that I cannot publicly disclose).

I am doing my best to ensure the process of exposure continues until the facts (and DoD’s concealment) are fully exposed.

What happens next (on the legislative front) will be up to Congress.