Fisher v. Univ. of Texas Affirmative Action Case -- Ramifications for SAs?

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AcademyFriend1

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I'm sure many have read by now that the U.S. Supreme Court has voted to take a case called Fisher v. University of Texas, which challenges the existing Supreme Court precedent (from 2003) that race may be used as a permissible factor in college admissions for the purpose of promoting the educational objective of diversity (which the Court said was a reasonable educational objective). Many think the Court has taken the Fisher case in order to reverse the existing law about considering race in college admissions.

Let's assume for now that the Court does hear the case out on its merits (and does not dismiss it on procedural grounds because Fisher is graduating from LSU by now). Let's assume the Court reverses its 2003 ruling and rules that race may not be a factor in college admissions -- in other words, no affirmative action allowed in college admissions. (It seems to me, that with Justice Kagan unable to take part in the case, the anti-affirmative action wing of the Supreme Court have the legal equivalent of a "free play"; either they win 5-3 if everyone votes as expected, or if Justice Kennedy were to switch sides on the issue it would end up 4-4 and they are in the same position they started in.)

So, if these assumptions play out, I'm curious about the ramifications for service academies. For example, the federal courts have traditionally been very deferential to the military, even where there are Constitutional issues at stake. If the Service Chiefs said that having the SAs reflect the racial make-up of the enlisted ranks was a military imperative for military reason (e.g., more cohesive service as a whole), would the Court defer to them? Does anyone think the Service Chiefs would argue for a "diversity exception" for SAs for military reasons? Or would the "diversity" piece at the SAs just be provided by the nomination process and to some extent athletics?

Curious what folks think, if this is not too controversial a topic?
 
Well, first, "diversity" means more than just racial diversity to the academies. As such, they could probably just tinker with their diversity metrics and admissions systems a small amount to reflect the change. My gut says they would probably make adjustments to their admissions rather than risk being taken to court. Getting taken to the Supreme Court over discrimination practices isn't good for the service's image or the leadership's careers. (Yes, I realize it wouldn't go straight to the SCOTUS, but if vigorously defended, it would likely end up there.)
 
raimius said:
Well, first, "diversity" means more than just racial diversity to the academies.
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The evidence disagrees.

Race is the current measure of diversity at the academies.

There is nothing to measure that would support any other conclusion.

You will be hard pressed to find published documents praising "diversity at the academies" that do not call out race as the "diverse" factor.
 
AcademyFriend1 said:
I'm sure many have read by now that the U.S. Supreme Court has voted to take a case called Fisher v. University of Texas, which challenges the existing Supreme Court precedent (from 2003) that race may be used as a permissible factor in college admissions for the purpose of promoting the educational objective of diversity (which the Court said was a reasonable educational objective). Many think the Court has taken the Fisher case in order to reverse the existing law about considering race in college admissions.

Let's assume for now that the Court does hear the case out on its merits (and does not dismiss it on procedural grounds because Fisher is graduating from LSU by now). Let's assume the Court reverses its 2003 ruling and rules that race may not be a factor in college admissions -- in other words, no affirmative action allowed in college admissions. (It seems to me, that with Justice Kagan unable to take part in the case, the anti-affirmative action wing of the Supreme Court have the legal equivalent of a "free play"; either they win 5-3 if everyone votes as expected, or if Justice Kennedy were to switch sides on the issue it would end up 4-4 and they are in the same position they started in.)

So, if these assumptions play out, I'm curious about the ramifications for service academies. For example, the federal courts have traditionally been very deferential to the military, even where there are Constitutional issues at stake. If the Service Chiefs said that having the SAs reflect the racial make-up of the enlisted ranks was a military imperative for military reason (e.g., more cohesive service as a whole), would the Court defer to them? Does anyone think the Service Chiefs would argue for a "diversity exception" for SAs for military reasons? Or would the "diversity" piece at the SAs just be provided by the nomination process and to some extent athletics?

Curious what folks think, if this is not too controversial a topic?
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It is *very* controversial. But, what the heck. My own personal opinion only is that if the Court overturns Grutter, then the SAs will have a serious problem in maintaining race conscious policies. The Equal Protection Clause law of the 14th Amendment is equally applicable to the Federal Government, via the Due Process Clause of the 5th Amendment. See Bolling v. Sharpe. If it is unconstitutional for the states, it will be hard to argue that military necessity makes it constitutional for the SAs -- especially in the absence of express legislation making it so. Of course, the Court could easily distinguish Fisher from Grutter on a number of factual grounds, not the least of which is that Texas in Fisher uses race to assign classes and make other decisions going well beyond simple admission. That is what I would expect the Court to do. But we shall see. Fisher wasn't expedited, so we won't have argument until next term or a decision until this time next year.
 
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