No "Carve Out" for Military Service Academies

The Center for Military Readiness (CMR) applauds rulings of the Supreme Court in two cases brought by the Students for Fair Admissions (SFFA) against Harvard University and the University of North Carolina. The following comments may be attributed to CMR President Elaine Donnelly:

“The Supreme Court’s opinions in SFFA vs. Harvard and the University of North Carolina are a welcome return to sound principles of non-discrimination and recognition of merit -- concepts of equal protection that are enshrined in the U.S. Constitution and reflected in military tradition since President Harry Truman's 1948 Executive Order ending racial segregation. 

“CMR applauds these historic rulings and hopes that the Department of Defense will fully comply with them, instead of looking for ways to continue discriminatory practices in military education.

“Any White House or Defense Department claim that the Supreme Court has endorsed a ‘carve-out’ that would allow discriminatory practices at the service academies to continue would be disingenuous at best and without credible support. 

“Some media have quoted Justice Sonia Sotomayor’s claim in her Dissent that the Court has created a ‘carve out’ exempting the military service academies from the Court’s mandate to end racially discriminatory practices in higher education.

On the contrary, Justice Sotomayor’s dissenting interpretation of a footnote (#4, p. 22) is not equivalent to the majority’s opinions, and her alleged “carve-out” for the military is a shimmering hologram, not reality.

“Chief Justice John Roberts’ footnote simply states the obvious: another lawsuit in the future may attempt to prove “potentially distinct interests” in military educational institutions. The comment is not surprising or definitive, since such a case was not before this Court, and it will take a more complete record to fully and properly evaluate future arguments.

“ROTC scholarship programs produce the majority of commissioned officers, but the Defense Department and its surrogates have not made the case that national security requires suspension of equal protection rights in military education, including ROTC. 

“If the Solicitor General of the United States who represented the Department of Defense in oral arguments last Fall had persuaded the majority that exceptions for military educational institutions were warranted, the Court would have applied the illusory “carve-out” to ROTC programs at Harvard and the University of North Carolina. They did not.

“Ultimately, the Constitution assigns policy-making power to Congress, not the Courts. The power and responsibility of Congress to make policy for the military remains unchanged. 

“The Supreme Court’s principled opinions, which are rooted in the Constitution, should reinforce efforts in Congress to enact laws that will protect meritocracy and non-discrimination in the military.”

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The Center for Military Readiness is an independent public policy organization, founded in 1993, which reports on and analyzes military/social issues. To schedule an interview, CMR President Elaine Donnelly can be reached at 734/464-9430 or elaine@cmrlink.org. Background information on the Harvard/UNC cases is available here:

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