“I announce this necessary change to our policy with deep sadness,” wrote Dean Michael A. Fitts of the University of Pennsylvania law school.
In a memorandum to “The Penn Law Community,” the dean unhappily proclaimed that the military would henceforth be permitted to recruit directly through the law school’s career planning and placement office. Faced with the prospect of losing an estimated $500 million in annual federal funds to the university as a whole, the law school had decided to treat military interviewers “like all other recruiters.”
In a similar memo, Mr. Fitts’s counterpart at Columbia called the federal government’s leverage of funds to gain access for military recruiters “abhorrent.” Mr. Fitts settled on the less-incendiary adjective “troubling,” but vowed to take “ameliorative action.”
The dean’s memo was dated March 20, 2003. The men and women in America’s armed forces were just heading into harm’s way in Iraq.
PERHAPS IT SHOULD COME AS NO surprise that roughly half of Penn law school’s faculty have sued the Department of Defense over its enforcement of federal legislation linking government grants to military access. “Ameliorative action,” indeed.
In their role as plaintiffs, Penn’s 21 litigating professors are far from alone — they enjoy ample and distinguished company among the ranks of legal academia.
Then again, maybe these lawsuits should surprise us. After all, the very same military that so many law professors deem unworthy of access to the nation’s preeminent law schools was their staunchest and most influential ally in last summer’s legal battles over affirmative action. Legal scholars, it appears, have an unconventional way of saying thank you.
In her majority opinion in Grutter v. Bollinger, upholding the limited use of race in the admissions process at the University of Michigan law school, Justice Sandra Day O’Connor made it abundantly clear that the support for affirmative action from “high-ranking retired officers and civilian leaders of the United States military” was crucial to the Court’s decision. The Legal Times reported that the military amicus brief supporting the University of Michigan “had a direct impact” on the outcome of the case.
The influential amicus brief, signed by 29 former leaders of the armed forces, was not just another stack of paper sitting amid the reams of predictable briefs submitted by legal scholars. It was, arguably, decisive. When it comes to affirmative action, the military is its most persuasive advocate.
In their brief, the amici professed to be “deeply interested in this case, because its outcome could affect the diversity of our nation’s officer corps and, in turn, the military’s ability to fulfill its missions.” Such an assertion, expressed by a group of luminaries in the realm of national defense, informed Justice O’Connor’s pragmatic view that the benefits of affirmative action “are not theoretical but real.”
If there is ever such a thing as a “compelling governmental interest” that the courts must recognize, national security fits the bill. To call diversity compelling, the military need not rely on esoteric arguments about its benefits on the mind and soul. All the amici had to do was draw upon history and point to a frightening specter: “the dangerous and destructive environment of a racially diverse enlisted corps commanded by an overwhelmingly white officer corps.”
Scholars can wax poetic (and legalistic) all they want about the benefits of affirmative action, but there is no image more haunting and persuasive than that of minority enlisted troops looking to their officer corps and seeing no one of their own race. When someone like retired General H. Norman Schwarzkopf signs his name to a document calling diversity “critical to national security,” you tend to listen — whether or not you happen to be a Supreme Court justice.
IN THE WAKE OF THE SUPREME COURT’S 5-4 decision in Grutter v. Bollinger, admissions offices at institutions of higher education expressed a sense of relief and celebration. Harvard Magazine congratulated Crimson alumni on the amicus brief their university had filed, and on the references that Justice O’Connor made in her opinion to the 1978 case lionizing Harvard’s admissions program as a model for narrowly tailored racial preferences.
What has been lost to some scholars, unfortunately, is not only the impact that the military brief had on the outcome of the law school affirmative action case, but also the implicit message that the brief contained for our nation’s educators: Making life difficult for military recruiters is incompatible with a commitment to affirmative action, not to mention national defense.
The military amici wrote that “the military must both maintain selectivity in admissions and train and educate a racially diverse officer corps to command racially diverse troops.” Clearly, if we are to have the highly qualified and diverse officer corps that the military wants and needs, it has to come from somewhere. Due to financial and space constraints, the service academies and officer training schools can only commission so many new officers each year.
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