No, The Supreme Court Did Not Carve Out A Military Exception In Race-Based Admissions

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No, The Supreme Court Did Not Carve Out A Military Exception In Race-Based Admissions

Contra some accounts, the court did not hold that equal protection principles do not apply to the military academies’ admissions practices.

BY: WILLIAM A. WOODRUFF
JULY 06, 2023

Last week, the Supreme Court of the United States issued its long-awaited decision in Students for Fair Admissions v. Harvard and the University of North Carlina.

A 6-3 majority held that granting racial preferences in admissions to both private and public colleges and universities violated Title VI of the Civil Rights Act of 1964 and the equal protection clause of the 14th Amendment, respectively. Despite what you might read in some news reports or commentaries, the court did not hold that equal protection principles do not apply to the military service academies’ admissions practices. Nor did the court carve out an exception to the principle that race-based college admissions policies violate the Constitution.

Though not a party to the lawsuit, the solicitor general of the United States filed an amicus brief on behalf of the United States in support of Harvard and UNC. The solicitor general argued that a racially diverse officer corps, whether commissioned through Reserve Officers’ Training Corps (ROTC) at civilian colleges or the service academies, was a compelling national security interest.

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Issues Not Presented Should Not Be Decided
It is not surprising that Chief Justice John Roberts’ majority opinion recognized a fundamental principle: Issues not presented should not be decided. Speaking for the court in footnote four of the opinion, the chief justice said, “The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”

In her dissent, however, Justice Sonia Sotomayor twisted this clear and well-accepted principle by claiming the majority had “carved out” an exemption to equal protection principles for the service academies. The chief justice responded in the majority opinion with another fundamental principle: “A dissent­ing opinion is generally not the best source of legal advice on how to comply with the majority opinion.”

The ‘Carve Out’ Narrative Is Bunk
That truism has been lost on some journalists, pundits, and politicians. Some rushed to spread the misinformation that the court’s opinion created a “carve out” for the service academies and exempted those institutions from constitutional requirements.

It is well-settled that the Constitution protects soldiers and civilians. The real question is how it applies and how legitimate military concerns influence the precise application of the Constitution in the military setting. That question was not presented, developed, or decided by the Court in SFFA v. Harvard and UNC.

Footnote four of the court’s opinion merely recognized this principle and stated that without a fully developed record examining military-specific interests, the court will not address — much less uphold, affirm, reject, or condemn — whatever policies the service academies use in their admissions process. As the chief justice clearly stated, “This opinion … does not address … [the service academies’ admissions policies.]” Declining to address an issue because it was not part of the underlying litigation is not affirming, exempting, carving out, or otherwise approving of a particular practice.

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Source:  https://thefederalist.com/2023/07/06/no-the-supreme-court-did-not-carve-out-a-military-exception-in-race-based-admissions/