By Matthew Ormsbee, an active-duty military officer and assistant professor of law at the U.S. Air Force Academy writing in the Harvard Law Review:

Last month, Judge Richard Bennett of the District of Maryland ruled that the U.S. Naval Academy can continue using race in its admissions decisions.  This ruling creates an unjustified exception from the Supreme Court’s landmark decision in 2023 barring race-conscious college admissions.

While Judge Bennett found that the Naval Academy’s practices serve “compelling national security interests,” his reasoning raises serious constitutional questions.  As I have previously argued, the military service academies do not warrant a special carveout from equal protection law.

The ruling stems from the Supreme Court’s joint decisions in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina et al., which held last year that race-based admissions practices violate the Equal Protection Clause unless they satisfy the strict scrutiny standard, requiring narrowly tailored means to achieve compelling governmental interests.

Though footnote four of the decision left open whether military academies present “potentially distinct interests,” there is no legal justification for a service academy exemption.

The Naval Academy’s defense is shaky, achieving through the back door what the Supreme Court prohibited through the front door.

Annapolis asserts its racial preferences serve national security, but its arguments merely repackage the same discredited arguments about diversity from Harvard College and the University of North Carolina.

At the heart of the Naval Academy’s argument is that racial preferences enhance military readiness by creating a diverse “officer corps that represents the country it protects and the people it leads.”

However, this is achieved by what the Supreme Court has previously called “patently unconstitutional” racial balancing.

Consider the evidence: The Naval Academy not only sets explicit racial composition “goals” for each class but also tracks compliance in what effectively operates as a quota system in camouflage.

The government has the burden of proof in this case, yet the Naval Academy’s national security argument faces several challenges typical of strict scrutiny.

First, the claim that racial diversity improves military effectiveness lacks empirical evidence.

The Naval Academy cannot point to a single study showing that racially diverse units perform quantifiably better in combat than less diverse units.

When pushed on this assertion, the military academies may be hard-pressed to produce empirical data in support.

Second, suggesting that minority officers are uniquely capable of leading minority enlisted personnel contradicts core military principles of colorblind unit cohesion and command.  This is the first of many instances in which Judge Bennett leverages military principles when convenient but ignores them when inconvenient.

Third, the suggestion that international allies will question our military’s legitimacy without proportional racial representation is speculative and unlikely.

Beyond these concerns, the ruling is disconnected from military realities.  The argument that racial diversity enhances unit cohesion and combat effectiveness relies on questionable stereotypes and assumptions about how servicemembers of different races relate to one another.

Many veterans might take issue with this view.  In military units, we succeed or fail as one team, not as a collection of racial groups.

The suggestion that minority servicemembers need officers of the same race to lead them effectively undermines the very principles of merit and unity that make our military most effective.

While Annapolis argued that racial preferences help the officer corps “reflect” the enlisted ranks, this overlooks the voluntary nature of military service.

Moreover, the Naval Academy’s own data shows that minority officers from non-race-conscious commissioning sources perform just as well as those admitted under racial preferences.  This guts any claim that such preferences are “necessary” for military effectiveness.

Even if the courts accept national security as a compelling government interest, the Naval Academy’s use of race doesn’t meet legal requirements.

Judge Bennett’s analysis here is particularly weak: He waves away the requirement that racial classifications be “necessary” to achieve their aims, despite clear Supreme Court guidance demanding precisely such proof.

Consider this: The Naval Academy’s race-conscious policies affect only a fraction of officers—less than 20%—who commission through Annapolis.  This makes it unlikely that these policies could significantly impact overall officer demographics.

Another problem emerges: The Naval Academy hasn’t seriously tried race-neutral alternatives.

For example, the Coast Guard Academy achieved similar diversity levels without expressly using race.  Expanded recruiting, enhanced preparatory programs, and increased outreach to underserved communities could accomplish the Naval Academy’s diversity goals without using racial classifications.  Judge Bennett accepted the Naval Academy’s cursory dismissal of these alternatives without the rigorous examination required under the law.

The policy also lacks what the Supreme Court calls a “logical end point”—another fatal flaw.

Judge Bennett’s ruling effectively gives the Naval Academy a permanent license to use race in admissions.

This contradicts the Supreme Court’s longstanding requirement in SFFA v. Harvard that racial preferences must be temporary measures with clear stopping points.

Supporters of the Naval Academy ruling cite the judiciary’s occasional deference to military judgment.  Yet, this repackages Harvard’s primary response to criticisms before SFFA v. Harvard: “trust us,” which the Court unequivocally rejected.

The doctrine of judicial deference to military decisions has its limits.  Pivotal deference cases like Rostker v. Goldberg and Goldman v. Weinberger are distinguishable because they concern congressional powers over military affairs or policies on personnel and discipline, which are more central to military operations than admissions policies.  These seminal cases on military deference did not involve racial classifications, which would have triggered the highest level of scrutiny.

As the Court emphasized in SFFA v. Harvard, “any retreat from the most searching judicial inquiry can only increase the risk of another such error occurring in the future.”

History provides a sobering reminder: Military necessity was also the claimed justification in Korematsu v. United States—the Japanese internment case.  Our past wrongful acts remind us that courts must be the most vigilant when national security is invoked to justify racial discrimination.

The military has made tremendous progress since the days of segregated units, demonstrating that excellence and opportunity arise from treating each servicemember as an individual, not a racial statistic.

The race-based admissions policy at Annapolis risks undermining this core principle and sowing division where unity is essential. 

Similar cases challenging West Point’s and the Air Force Academy’s race-conscious admissions are now pending in New York and Colorado.  Those courts should follow the SFFA v. Harvard opinion more closely and reject the military academies’ policies.

National security is not a blank check to evade constitutional constraints.

The Air Force Academy may put forth a unique argument: Its use of applicant pool targets differs from the Naval Academy’s admissions targets.  Yet, this is a distinction without a meaningful difference.

Moving racial classifications earlier in the process cannot evade strict scrutiny.  The Court’s unequivocal rejection of racial balancing in SFFA v. Harvard extends to any government program that seeks to achieve predetermined demographic outcomes, regardless of timing or method.

The Air Force Academy’s pool targets operate as a cynical workaround—an attempt to accomplish through recruitment metrics and guardrails what SFFA v. Harvard forbids through admissions metrics.

Even at the recruitment stage, classifying and targeting applicants by race to meet demographic goals constitutes precisely the kind of racial balancing forbidden in SFFA v. Harvard and Parents Involved in Community Schools v. Seattle School District No. 1, which held “that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.”

Ultimately, the Naval Academy’s position collapses under its own contradictions.

It claims race-conscious admissions are essential for military effectiveness, yet most officers commission through ROTC and OCS programs that can’t consider race after SFFA v. Harvard.

It insists racial diversity improves unit cohesion while simultaneously suggesting minority enlisted personnel won’t trust non-minority officers.

It demands deference to military judgment while ignoring the limits of judicial deference and the military’s own studies showing that leadership ability has little or nothing to do with race.

While packaged in the language of national security, the Naval Academy’s racial preferences reflect the same stereotypes and racial balancing that the Supreme Court has consistently rejected.

This case may be mooted by the incoming presidential administration.  But if not, it will likely reach the Supreme Court.  When it does, expect a reversal.

The Justices who rejected Harvard’s sophisticated defense of racial preferences are unlikely to accept the military academies’ arguments.

National security requires a strong military.  But true strength comes from unity, merit, and equal treatment under the law.

Diversity is a goal worth fighting for—but not at the expense of the Equal Protection Clause.

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Matthew Ormsbee is an active-duty military officer and assistant professor of law at the U.S. Air Force Academy (USAFA).  In accordance with its academic freedom policy, USAFA supports and encourages its faculty members to engage in open, independent scholarship, allowing them to express their individual scholarly views on topics within their academic discipline.  The views in this article are those of the author and do not necessarily reflect the official policy or position of USAFA, the Air Force, the Department of Defense, or the U.S. Government.

First published in the Harvard Law Review