An advocacy organization for Black women in the military has voiced support for service academies’ affirmative action policies, which federal lawsuits have called discriminatory and have sought to end.

The National Association of Black Military Women and left-leaning legal organizations have weighed in on the lawsuits against the U.S. Military Academy and the Naval Academy, filing briefs in defense of the academies’ use of race as a factor in admissions decisions, often known as affirmative action.

In June, the Supreme Court decided 6-3 that affirmative action in higher education violated the clause of the Constitution guaranteeing equal protection under the law. But Chief Justice John Roberts wrote in a footnote that the decision didn’t apply to the military’s service academies, which presented “potentially distinct interests.”

The footnote left the door open for litigation seeking to ban affirmative action in those military institutions.

A group opposed to affirmative action has walked through that door, suing two service academies for considering race as an admissions factor, arguing the policy is unfair and illegal. The National Association of Black Military Women’s recent briefs defend the policy, making the case that racism still exists in the military and racially diverse leaders can ameliorate it.

“For people to think that there is no racism in the military, that’s a false narrative,” retired Army Col. Irma Cooper, the association’s vice president for operations, said on Friday.

In the fall, Students for Fair Admissions, the same anti-affirmative-action advocacy group that successfully challenged affirmative action in civilian universities, turned its attention to the service academies. It filed lawsuits against the Army’s U.S. Military Academy in West Point, New York, and the Naval Academy in Annapolis, Maryland, for what it characterized as unlawful racial discrimination.

The National Association of Black Military Women, the American Civil Liberties Union, the New York Civil Liberties Union and the NAACP Legal Defense Fund argued in a friend-of-the court brief filed Nov. 29 that affirmative action at the U.S. Military Academy, which educates future Army officers, was “critical to the success of Black women in the military and to the military’s success.”

Friend-of-the-court briefs, also known as amicus briefs, are filed by entities that aren’t directly involved in a case but share their insight or expertise.

Nearly the same set of groups, with the difference being the addition of the ACLU Foundation of Maryland and the subtraction of the New York Civil Liberties Union, on Dec. 6 filed a similar brief in the case against the Naval Academy. That academy educates future officers for the Navy and Marine Corps.

The use of race in admissions

In arguing that affirmative action is necessary, the amicus briefs point to the low number of Black and Hispanic officers relative to Black and Hispanic enlisted troops.

Black troops made up 19% of enlisted active-duty service members in 2022 but only 9% of officers, according to data from the Pentagon.

The briefs quote service members of color recounting instances of racism they say they experienced, including offensive language and apparently disparate treatment in the military justice system.

Retired Army Col. Annette Tucker Osborne, president of the National Association of Black Military Women, says in the briefs that when her new commander on a deployment to Kuwait met her for the first time, he looked at her and back at her resume, over and over and over. In Tucker Osborne’s view, the commander was “unable to equate a Black woman with the well-polished and extremely qualified person on paper.”

“I was asked three times, ‘Did you complete Army War College?” she said in a Friday interview with Military Times. “I told you the first time. You didn’t have to ask me three times in front of the whole group of military personnel.”

On that six-month deployment, young white soldiers often wouldn’t salute Tucker Osborne, a full-bird colonel, she said.

Founded in 1976, the National Association of Black Military Women is an organization “dedicated to giving voice to Black military women across the nation.”

The association’s briefs argue racially diverse leaders can foster a better culture for more junior service members of color.

The U.S. Military Academy maintained in a court filing that affirmative action, by increasing racial diversity in the officer corps, also prevents internal racial tensions, boosts recruitment and retention, and builds the military’s legitimacy in the eyes of the nation and the globe.

Students for Fair Admissions has argued the opposite: that considering race in admissions undermines the internal and external trust in the military and amounts to racial stereotyping.

“America’s enemies do not fight differently based on the race of the commanding officer opposing them, soldiers must follow orders without regard to the skin color of those giving them, and battlefield realities apply equally to all soldiers regardless of race, ethnicity, or national origin,” the group wrote in a September filing.

And because race helps some applicants, race necessarily hurts other applicants, Students for Fair Admissions argued.

“That’s illegal,” the group wrote.

The service academies’ admissions officers insisted in court filings that race isn’t the determinative factor in deciding whether to admit or deny students.

To get accepted to the academies, applicants must not only meet the academic and physical standards but also receive official nominations, often from members of Congress.

Race can help students get letters of assurance, early conditional acceptances for “outstanding” applicants, according to the admissions officers. It could play a role in the academy’s decision to provide its handful of direct nominations, though those are typically reserved for standout athletes. And it can be a “plus factor” in final admissions decisions.

Students for Fair Admissions wrote that the academies should pursue race-neutral alternatives to affirmative action. The group described affirmative action as “racial box-checking” and “racial pseudoscience” because it relies on broad racial classifications like “Hispanic” and “Asian” that encompass a huge variety of ethnic backgrounds.

Nearly 19% of the military’s active duty officers are service academy grads, but that percentage falls to approximately 13% for Black officers, according to Pentagon data from 2019. ROTC programs at civilian universities are the leading source of officers’ commissions overall.

Next steps

Students for Fair Admissions is seeking preliminary injunctions that would order the Army’s and Navy’s service academies to cease using race as a factor in admissions immediately.

For that to happen, Judge Philip Halpern in New York and Judge Richard Bennett in Maryland would have to decide that Students for Fair Admissions’ arguments should win on the merits, and that waiting for the typical legal process to run its course would create harm that couldn’t be repaired.

Students for Fair Admissions, which is representing two anonymous white high schoolers who would like to apply to West Point, has said the judges need to act now. One of those students is applying in this admissions cycle and might miss out on a spot that he would have gotten if he weren’t white, the group argued in the complaint.

“Unless West Point is ordered to stop using race as a factor in admissions, [his] race will prevent him from competing for admission on an equal footing,” Students for Fair Admissions wrote.

Lawyers for Students for Fair Admissions didn’t respond to a Military Times request for an interview.

The U.S. Attorney’s Office for the Southern District of New York and the Justice Department’s Civil Division are representing the academies. Nicholas Biase, a spokesman for the New York office, declined to comment. The Civil Division didn’t respond by time of publication to a Military Times request for comment.

Whether or not the judges decide to end affirmative action in the academies immediately, it’s likely those decisions will get appealed, Sarah Hinger, an ACLU attorney who worked on the amicus briefs, told Military Times on Thursday.

The cases likely will one day end up before the Supreme Court, in Hinger’s view.

Although six of the nine Supreme Court justices voted in June to scrap affirmative action in civilian universities, the service academy cases would force them to balance a desire to enforce equal protection consistently with the norm of courts deferring to the military, Noah Feldman, a Harvard Law School professor, wrote in Bloomberg in September.

“It’s likely to be a close call, but consider: If there had been five firm votes on the court for striking down the military’s use of affirmative action, there would have been no need for Roberts to exclude the academies from June’s decision,” Feldman wrote.

The case in the Southern District of New York is Students for Fair Admissions v. United States Military Academy at West Point et al (7:23-cv-08262).

The case in the District of Maryland is Students for Fair Admissions v. The United States Naval Academy et al (1:23-cv-02699).

Irene Loewenson is a staff reporter for Marine Corps Times. She joined Military Times as an editorial fellow in August 2022. She is a graduate of Williams College, where she was the editor-in-chief of the student newspaper.

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