Military Necessity and Racial Discrimination

51 Pages Posted: 17 Oct 2023 Last revised: 1 May 2024

See all articles by Paul J. Larkin

Paul J. Larkin

The Heritage Foundation

Charles D. Stimson

The Heritage Foundation

Thomas W. Spoehr

U.S. Army

Date Written: April 30, 2024

Abstract

Congress has chartered the U.S. service academies to graduate officers capable of serving in leadership roles to protect the nation and its citizens against anyone who would visit harm on us. But neither those institutions, their superintendents, nor the President is above the law. The Supreme Court held in Fair Admissions that it meant what it said in Brown v. Board of Education that no one should be denied equal educational opportunity due to his or her skin color. Only in extraordinarily rare circumstances—where the government must achieve or protect a compelling interest, such as remedying illegality or saving life; where the government tailors its use of race to achieve only that goal; where there is a clear basis for judicial review of the government’s asserted need for discrimination; and where there is a clear temporal and physical limitation on the government’s use of race—may the government deny a person a benefit offered to someone else because of race or ethnicity. Just as the civilian law enforcement and intelligence communities can consider race when making undercover assignments, so, too, the military can justify race- or ethnicity-based operational field assignments for personnel tasked in an intelligence-gathering capacity.

What does that mean for the U.S. service academies? The academies cannot make a persuasive case for a race-based admissions policy. There is no legally or factually significant difference between those institutions and the public and private institutions that must comply with the Supreme Court’s Fair Admissions decision. Accordingly, the academies cannot lawfully discriminate on the basis of race when making admission decisions.

Keywords: Fourteenth Amendment, Fifth Amendment, Equal Protection Clause, Affirmative Action, Racial Quotas, Race-Biased Admissions, Judicial Review

Suggested Citation

Larkin, Paul J. and Stimson, Charles D. and Spoehr, Thomas W., Military Necessity and Racial Discrimination (April 30, 2024). Georgetown Journal of Law & Public Policy, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4577628 or http://dx.doi.org/10.2139/ssrn.4577628

Paul J. Larkin (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)

Charles D. Stimson

The Heritage Foundation

Thomas W. Spoehr

U.S. Army

United States

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