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Supreme Court’s ruling against affirmative action leaves defense-related loophole

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While the Supreme Court ruled Thursday against affirmative action in college admissions, the conservative majority’s opinion noted an exception related to national defense, saying military academies weren’t covered by the courty’s decision.

The U.S. government had contended in an amicus brief that “race-based admissions programs further compelling interests at our Nation’s military academies,” wrote Chief Justice John Roberts in that opinion.

“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.”

One legal expert said this passage from Roberts muddies the outlook for affirmative action.

“One of the problems with carving out the military academies is it suggests that the seemingly inflexible constitutional rule that the majority articulated today may actually not be inflexible,” said Stephen Vladeck, a law professor at the University of Texas at Austin, in a Bloomberg TV interview on Thursday.

“Between that and the passage of the chief’s opinion where he leaves open the possibility that a single applicant might talk about how race shaped their experience, I think affirmative action as we have known it is dead, but whether that means there’s going to be no room for any colleges and universities to ever take race into account going forward, I think it’s not actually settled.”

Justices Ketanji Brown Jackson and Sonia Sotomayor attacked how the majority addressed military academies.

“The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom,” Jackson wrote in her dissent.

Sotomayor said in a separate dissent that “national security interests are also implicated at civilian universities,” referring to the links between the defense industry and many colleges.

“The Court’s carveout only highlights the arbitrariness of its decision and further proves that the Fourteenth Amendment does not categorically prohibit the use of race in college admissions,” she added.

Democratic Rep. Jason Crow of Colorado offered criticism as well, saying the ruling is “outright grotesque for exempting military academies.”

“The court is saying diversity shouldn’t matter, EXCEPT when deciding who can fight and die for our country — reinforcing the notion that these communities can sacrifice for America but not be full participants in every other way,” tweeted Crow, an Army veteran who served in Afghanistan and Iraq. 

Meanwhile, Republican Sen. Roger Wicker of Mississippi cheered the court’s ruling on affirmative action, tweeting that it “affirmed that merit should be the focus of college admissions nationwide,” and he noted that he has introduced a bill that aims to “further prohibit our military service academies from engaging in race-based affirmative action.”

There are five U.S. military academies: one for the Air Force in Colorado Springs, Colo.; one for the Army in West Point, N.Y.; one for the Coast Guard in New London, Conn.; one for the Navy in Annapolis, Md.; and one for the merchant marine in Kings Point, N.Y.

Defense stocks, as tracked by the iShares U.S. Aerospace and Defense ETF
have gained 18% over the past 12 months, while the S&P 500 index is also up 18%.

Now read: The Supreme Court ended affirmative action at colleges. That could harm companies’ diversity efforts.


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