Amicus Curiae Brief — Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College

Nos. 20-1199 & 21-707

In the

Supreme Court of the United States

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

v.

PRESIDENT AND FELLOWS

OF HARVARD COLLEGE,

Respondent.

––––––––––––––––––––––––––––––

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

v.

UNIVERSITY OF NORTH CAROLINA, et al.,

Respondents.

On Writs of Certiorari to the United States Courts

of A ppeals for the First and Fourth Circuits

BRIEF OF ADM. CHARLES S. ABBOT, ADM. DENNIS C. BLAIR,

GEN. CHARLES F. BOLDEN, JR., GEN. THOMAS P. BOSTICK,

GEN. VINCENT K. BROOKS, ADM. WALTER E. CARTER, JR.,

ET AL., AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Joe R. Reeder

Robert P. Charrow

Elliot H. Scherker

K atherine M. Clemente

Greenberg Traurig, LLP

2101 L Street, NW,

Suite 1000

Washington, DC 20037

(202) 331-3100

Michael M. Purpura

Counsel of Record

Moez M. K aba

A mber Munoz

Segun I. Babatunde II

Hueston Hennigan LLP

620 Newport Center Drive,

Suite 1300

Newport Beach, CA 92660

(949) 229-8640

mpurpura@hueston.com

Counsel for Amici Curiae

313619

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

Grow ing A nd Maintaining A Highly

Qualified, Diverse Officer Corps Remains

A U.S. National Security Imperative . . . . . . . . . 4

A. The U.S. militar y’s commitment

to diverse and inclusive leadership

derives from decades of experience . . . . . . . 4

B. The U.S. military’s international

presence and engagement abroad with

foreign military and civilians requires

diversity in the officer corps . . . . . . . . . . . . . 9

C. U.S. military diversity initiatives

have led to signif icant prog ress

in growing a highly qualified and

racially diverse officer corps, but

this work must continue . . . . . . . . . . . . . . . . 14

ii

Table of Contents

Page

II. Invalidating Universities’ Modest RaceConscious Admissions Policies Would

Seriously Impair the Military’s Efforts to

Maintain Cohesion and Effectiveness . . . . . . . . 22

A. Nullifying admissions policies that

are carefully crafted to comply with

Grutter and Fisher would adversely

affect the military . . . . . . . . . . . . . . . . . . . . 22

B. Completely ig nor ing race would

impede our militar y ’s ability to

acquire essential entry level leadership

attributes and training essential to

cohesion, and thereby undermine

prior diversity progress . . . . . . . . . . . . . . . . 25

III. Respondents’ and the Military’s RaceConscious Policies Are Constitutional . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

APPENDIX:

APPENDIX A: Short Biographies of Amici

Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Fisher v. Univ. of Tex. at Austin,

570 U.S. 297 (2013) . . . . . . . . . . . . . . . . . . . . . . . passim

Fisher v. Univ. of Tex. at Austin,

579 U.S. 365 (2016) . . . . . . . . . . . . . . . . . . . . . . . passim

Gilligan v. Morgan,

413 U. S. 1 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Goldman v. Weinberger,

475 U.S. 503 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Grutter v. Bollinger,

539 U.S. 306 (2003) . . . . . . . . . . . . . . . . . . . . . . . passim

Court Filings

Br. of Lt. Gen. Julius W. Becton, Jr., et al.,

Fisher v. Univ. of Tex. at Austin, 570 U.S. 297

(2013) (No. 11-345) . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 29

Br. of Lt. Gen. Julius W. Becton, Jr., et al.,

Fisher v. Univ. of Tex. at Austin, 579 U.S. 365

(2016) (No. 14-981) . . . . . . . . . . . . . . . . . . . . . . . . passim

Consolidated Brief of Lt. Gen. Julius W. Becton,

Jr., et al., Grutter v. Bollinger, 539 U.S.

306 (2003) (Nos. 02-241 & 02-516) . . . . . . . . . . . passim

iv

Cited Authorities

Page

Constitutional Provisions

U.S. Const., art. I, § 8, cls. 12–13 . . . . . . . . . . . . . . . . . . . 3

Executive Order

Exec. Order No. 98 81 , 13 Fed . Reg. 4313

(July 28, 1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

RULES

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

2 0 2 0 D e m o g r a p h i c s o f t h e Mi l i t a r y

Community, Dep’t of Def. (2020) . . . . . . . . . . . . 19, 21

A Report by The President’s Committee, U.S.

Gov’t Printing Office Wash. (1950) . . . . . . . . . . . . . . 5

A c t i o n s f o r Im p r o v i n g D i v e r s i t y a n d

Inclusion in the Department of Defense,

Message from the Secretary Mark T. Esper,

Dep’t of Def. (Jun. 19, 2020) . . . . . . . . . . . . . . . . . . . 29

Adam Cly mer, Ser vice Academies Defend

Use of Race in Their Admissions Policies,

N.Y. Times (Jan. 28, 2003) . . . . . . . . . . . . . . . . . . . . . 28

v

Cited Authorities

Page

Aimee Picche, Harvard says it won’t require

SAT or ACT scores through 2026, CBS News

(Dec. 17, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Anny Wong, et al., The Use of Standardized Scores

in Officer Career Management and Selection,

RAND Corp. (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 17-18

Army Public Affairs, Army announces upcoming

1st ABCT, 1st Armored Division, unit rotation

(Dec. 16, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bernard C. Nalty, Strength for the Fight: A History

of Black A mericans in the Military (1986) . . . . . . . 7

Beth J. Asch, Navigating Current and Emerging

Army Recruiting Challenges: What Can

Research Tell Us?, RAND Corp. (2019) . . . . . . . . . . 23

Brad N. Greenwood, et al., Physician-patient

racial concordance and dispar ities

in b ir t hin g m o r t a li ty fo r n e w b o r n s ,

PNAS (August 17, 2020) . . . . . . . . . . . . . . . . . . . . . . . . 8

Bro w n Co mmit tee o n th e ROTC Repo r t ,

Frequently Asked Questions, Brown Univ. . . . . . . . 23

Bryan W. Leach, Race as Mission Critical:

Th e Occ up a ti o n a l Need Ra ti o n a l e in

Military Affirmative Action and Beyond,

113 Yale L.J. 1093 (2004) . . . . . . . . . . . . . . . . . . . . . . . 6

vi

Cited Authorities

Page

C h a rl ie S ava g e & Er ic S c h m it t , Bi d e n

Ap p r o v e s Pl a n t o R e d e p l o y Se v e r a l

Hundred Ground Forces Into Somalia,

N.Y. Times (May 16, 2022) . . . . . . . . . . . . . . . . . . . . . 12

Class of 2025 Statistics, U.S. Nava l A ca d .

(Jul. 7, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Colonel Maxie McFarland, Military Cultural

Education, MIL. REV. 85 (Mar.-Apr. 2005) . . . . . . 10

Defense Primer: Military Service Academies,

Cong. Rsch. Serv. 1 (updated Dec. 9, 2021) . . . . . . . 14

Demographic Profile of the Incoming USAFA

C l a ss of 2 0 25 , U. S . A i r F o r c e A c a d .

(Jun. 24, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Department of Defense Board on Diversity

and Inclusion Report: Recommendations to

Improve Racial and Ethnic Diversity and

Inclusion in the U.S. Military, Dep’t of Def. 1

(Dec. 17, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

DoD Instruction 1020.05: DoD Diversity and

Inclusion Management Program , D ep ’ t

of Def. (effective Sep. 9, 2020) . . . . . . . . . . . . . . . . . 11

Franklin Foer, Quotas and Colin Powell,

Slate (Dec. 14, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 20

vii

Cited Authorities

Page

Fr o m R e p r e s e n t a t i o n t o In c l u s i o n :

Diversity Leadership for the 21st-Century

Military, Final Report, M il . L ea dership

Diversity Comm’n (Mar. 15, 2011) . . . . . . . 8, 10, 22, 30

Gen. Michael X. Garrett, Military Diversity,

A Key American Strategic Asset, Military

Rev., (May-June 2021) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Global News, First Black Air Force chief in U.S.

history recounts his own experiences with

discrimination, Youtube (Jun. 10, 2020) . . . . . . . . 21

Headquarters United States Special Operations

Command, Diversity and Inclusion Strategic

Plan, U.S. Naval Acad. (Mar. 2021) . . . . . . . . . . 13, 16

Helene Cooper, African-Americans Are Highly

Visible in the Military, but Almost Invisible at

the Top, N.Y. Times (May 25, 2020) . . . . . . . . . . . . . .21

Immediate Actions to Address Diversity, Inclusion

and Equal Opportunity in the Military

Services, Dep’t of Def. 4 (July 14, 2020) . . . . . . . . . 11

Jason Lyall, The military is making changes

i n r e s p o n s e t o B l a c k L i v e s Ma t t e r

protests. That’s good for fighting wars,

Washington Post (2020) . . . . . . . . . . . . . . . . . . . . . . . . 5

viii

Cited Authorities

Page

J i m G a r a m o n e , D OD Ne w s , D i v e r s i t y ,

Equity, Inclusion Are Necessities in U.S.

Military, Dep’t of Def. (Feb. 9, 2022) . . . . . . . . . . . . 9

Jim Garamone, U.S. to Deploy 3,000 Troops

t o Ro m ani a , Pol an d , Ger m any, DOD

News (Feb. 2, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

JTF-Bravo commits to additional assistance,

JTF-Bravo Public A ffairs (Nov. 12, 2020) . . . . . . . 12

Lisa Ferdinando, Carter Commissions Yale’s

First ROTC Class in Four Decades, D oD

News (May 24, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Lolita C. Baldor, US military’s elite commando

fo rces l ook t o ex pan d diversity, ABC

News (June 15, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Lorelle L. Espinosa, et al., Race, Class, & College

Access: Achieving Diversity in a Shifting

Legal Landscape, 15 (2015) . . . . . . . . . . . . . . . . . . . . 23

Mark C. Long & Nicole A. Bateman, LongRun Ch an ges in Un d er rep resentatio n

After Affirmative Action Bans in Public

Universities, 42 E duc . E va luat ion a n d

Pol’y A nalysis 188 (2020) . . . . . . . . . . . . . . . . . . . . . . 26

Mark Thompson, Navy Seeking More Minority

SEALS, TIME (Feb. 24, 2012) . . . . . . . . . . . . . . . . . 13

ix

Cited Authorities

Page

Military Education: DOD Needs To Enhance

Performance Goals And Measures To Improve

Oversight Of Militar y Academies, U.S.

Gov’t Accountability Off. (2003) . . . . . . . . . . . . . . . 17

Minority Serving Institution Scholarships to

be upgraded to further Air, Space Force

diversity efforts, S ec ’ y of the A ir Force

Pub. A ffairs (Jun. 29, 2020) . . . . . . . . . . . . . . . . . . . 16

Morris J. MacGregory, Jr., Integration of the

Armed Forces 1940-1965, Washington, DC:

Center of Military History (1981) . . . . . . . . . . . . . . . . 4

Population Representation in the Military

Services: Fiscal Year 2019 Summary Report,

Dep’t of Def. (2019) . . . . . . . . . . . . . . . . . . . . . . . . 14-15

Report of the Task Force on the Administration

of Military Justice in the Armed Forces,

Dep’t of Defense (Nov. 30, 1972) . . . . . . . . . . . . . . . . 7

Retention and Graduation Rates, National

Center for Education Statistics, United

States Military Academy . . . . . . . . . . . . . . . . . . . . . . 18

Robert Knowles, The Intertwined Fates of

Affirmative Action and the Military, 45

Loyola Univ. Chi. L. Jrnl. 1027 (2014) . . . . . . 6, 8, 19

x

Cited Authorities

Page

ROTC Pr o g r a m s, Today ’s M i li ta ry

(last visited July 2022) . . . . . . . . . . . . . . . . . . . . . . . . 15

Sa rah Cammarata , House panel explores

h o w spec i a l o per a ti o n s can m a k e it s

force more diverse, S ta r s a n d S t r ip e s

(Mar. 26, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

Section 528 of the National Defense Authorization

Act for Fiscal Year 2016 (P.L. 114 92) . . . . . . . . . . . . 29

Statement on the Deployment of Army’s 1st

Security Force Assistance Brigade to Africa,

DoD News Release (Feb. 12, 2020) . . . . . . . . . . . . . 11

Steve Inskeep, Weekend All Things Considered,

Natl. Pub. Radio (Feb. 23, 2003) . . . . . . . . . . . . . . . . 30

Sujit Raman, Colin Powell’s Turn at the Supreme

Court Lectern: An Unknown Episode in the

History of Affirmative Action, Nat ’l L.J.

(Nov. 23, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Thomas J. Espenshade & Chang Y. Chung, The

Opportunity Cost of Admission Preferences

at Elite Universities, 86 Soc. Sci. Q. (2005) . . . . . . 26

Trends Affecting Government and Society,

Gov’t Accountability Office, GAO-22-3SP . . . . . . 26

xi

Cited Authorities

Page

Undergraduate Graduation Rates, National

Center for Education Statistics . . . . . . . . . . . . . . . . . 19

United States Ar my Diversity Roadmap,

Dep’t of the Army (Dec. 2010) . . . . . . . . . . . . . . . 11, 25

U.S . So uth er n Co mm an d Sup po r t s U.S .

Disaster Assistance to Haiti, SOUTHCOM

(Aug. 15, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

USMA Class Profile - Class of 2025, West Point . . . 18-19

Valerie Strauss, Why race-based affirmative

action is still needed in college admissions,

Washington Post (Jan. 30, 2020) . . . . . . . . . . . . . . . . 24

West Point Admissions, U.S. Military Acad.

(last visited Jun. 8, 2022) . . . . . . . . . . . . . . . . . . . . . . 17

West Point Association of Graduates, West

Point Diversity & Inclusion Initiatives

(Mar. 20, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Yeganeh Torbati, On Ivy League Campuses,

Military Bases Find a Warmer Welcome,

Reuters (May 23, 2016) . . . . . . . . . . . . . . . . . . . . . . . 23

1

INTEREST OF AMICI CURIAE

Amici include 35 top former military leaders, 1

reflecting the highest leadership from all four services:

four Chairmen of the Joint Chiefs of Staff; Chiefs of Staff

of the Army and the Air Force; Chief of Naval Operations

of the Navy; Commandant of the Marine Corps; Medal

of Honor recipients; and other military leaders who

also serve as university presidents, chancellors, and

professors. Amici are greatly interested in this case

because of its impact on our Armed Forces’ ability to

defend our Nation. Amici’s submission is informed by their

collective centuries of experience serving in and leading

our Armed Forces.

SUMMARY OF ARGUMENT

Diversity in the halls of academia directly affects

performance in the theaters of war. In Grutter v. Bollinger

(“Grutter”), 539 U.S. 306 (2003), Fisher v. Univ. of Tex.

at Austin (“Fisher I”), 570 U.S. 297 (2013), and Fisher v.

Univ. of Tex. at Austin (“Fisher II”), 579 U.S. 365 (2016),

this Court adjudicated the constitutionality of colleges and

universities considering racial diversity as one of many

factors in admissions practices. These cases remain of

great interest to Amici because of their potential impact

on the military’s ability to cultivate a diverse, highly

1. See Appendix. All parties have consented to the filing of this

brief. Pursuant to Rule 37.6, Amici and their counsel represent that

no party to this case or their counsel authored this brief in whole

or in part, and that no person other than Amici and their counsel

paid for or monetarily contributed to prepare or submit this brief.

2

qualified officer corps.2 That ability hinges, in turn, on the

military’s continuing admission of diverse student bodies

into its service academies and continuing recruitment of

diverse students into Reserve Officer Training Corps

(“ROTC”) programs at civilian universities nationwide,

such as Harvard College (“Harvard”) and the University

of North Carolina (“UNC”). Indeed, because most of the

military’s officer corps come from service academies or

ROTC, the diversity of these institutions and programs

directly impacts the diversity of our military’s leadership.

The importance of maintaining a diverse, highly

qualified officer corps has been beyond legitimate dispute

for decades. History has shown that placing a diverse

Armed Forces under the command of homogenous

leadership is a recipe for internal resentment, discord,

and violence. By contrast, units that are diverse across

all levels are more cohesive, collaborative, and effective.

The importance of diverse leadership has risen to new

heights in recent years, as international conflicts and

humanitarian crises require the military to perform civil

functions that call for heightened cultural awareness

and sensitivity to ethnic and religious issues. All service

members—minority or otherwise—are better equipped

to meet these challenges if they are educated in a racially

diverse environment and guided by diverse leadership in

the field.

2. The importance of this issue prompted scores of topranking Generals, Admirals and other leaders to submit amicus

briefs supporting consideration of race in admissions policies. See

Consolidated Br. of Lt. Gen. Julius W. Becton, Jr. et al., Grutter (Nos.

02-241 & 02-516) (“Grutter Military Brief”); Br. of Lt. Gen. Julius W.

Becton, Jr. et al., Fisher I (No. 11-345) (“Fisher I Military Brief”); Br.

of Lt. Gen. Julius W. Becton, Jr. et al., Fisher II (No. 14-981) (“Fisher

II Military Brief,” and, collectively the “Prior Military Briefs”).

3

Our academies and ROTC programs admit students

pursuant to the Raise and Maintain Clauses of the United

States Constitution. See U.S. Const. art. I, § 8, cls. 12–13.

In Amici’s professional judgment, the status quo—which

permits service academies and civilian universities to

consider racial diversity as one factor among many in

their admissions practices—is essential to the continued

vitality of the U.S. military to “raise,” “support,” and

“maintain” a diverse, highly effective officer corps. This

Court has rightly deferred “to the professional judgment

of military authorities” on matters concerning the optimal

composition and operations of our Armed Forces. E.g.,

Goldman v. Weinberger, 475 U.S. 503, 507 (1986). To

that end, in Grutter, the Court deferred to the military’s

judgment regarding the importance of a diverse officer

corps and validated its interest in that diversity:

[T]o cultivate a set of leaders with legitimacy in

the eyes of the citizenry, it is necessary that the

path to leadership be visibly open to talented

and qualified individuals of every race and

ethnicity. All members of our heterogeneous

society must have confidence in the openness

and integrity of the educational institutions that

provide this training.

Grutter, 539 U.S. at 332.

These words rema in tr ue today. P rohibiting

educational institutions from using modest, race-conscious

admissions policies would impair the military’s ability

to maintain diverse leadership, and thereby seriously

undermine its institutional legitimacy and operational

effectiveness. Amici respectfully request that, in

4

considering whether to reverse decades of precedent

affirming the constitutionality of such admissions policies,

the Court will continue to consider how such policies enable

the military to serve our Nation’s security interests.

ARGUMENT

I.

Growing And Maintaining A Highly Qualified,

Diverse Officer Corps Remains A U.S. National

Security Imperative.

A.

The U.S. military’s commitment to diverse and

inclusive leadership derives from decades of

experience.

Our military’s commitment to fostering racial

diversity and inclusivity across its leadership grew from

many decades of painful lessons. Racial minorities have

fought and died in the Armed Forces since the American

Revolution. See Morris J. MacGregor, Jr., Integration

of the Armed Forces 1940-1965, Wa shingt on , DC:

Center of Military History, at 4 (1981). Yet minority

servicemembers for more than a century were subjected

to openly discriminatory practices that restricted

opportunities for leadership. Army practices, for instance,

“limited the employment and restricted the rank of black

officers,” and “tended to convince enlisted men that their

black leaders were not full-fledged officers.” Id. at 37.

In July 1948, President Truman ordered complete

desegregation of the military. See Exec. Order No. 9981,

13 Fed. Reg. 4313 (July 28, 1948). That order, issued over

15 years before passage of the 1964 Civil Rights Act, was

5

a trailblazing act of deliberate institutional integration. 3

But even after the Armed Forces were fully desegregated

in 1954, the officer corps remained almost entirely

white. Grutter Military Br. at 13–14 (“[i]n 1962, a mere

1.6% of all commissioned military officers were AfricanAmerican,” in stark contrast to much larger percentages

in the enlisted ranks). This continuing inequity—coupled

with the military’s history of discriminatory policies and

practices—prompted many Black troops to conclude that

the command structure had no regard for their careers

3. Some military personnel opposed President Truman’s

desegregation order, arguing that integration created inefficiencies

and “impaired morale in mixed units.” A Report by The President’s

Committee, U.S. G ov ’t Printing Office Wash., 14 (1950), https://

www.trumanlibrary.gov/library/freedom-to-serve. Such purported

concerns echo those raised by the brief filed by Veterans for Fairness

and Merit (“VFM Brief”), which repeatedly claims that efforts

to diversify military leadership will cause inefficiencies, enable

incompetency, and harm morale. VFM Br. at 5, 15–17, 21. The

military has repeatedly debunked these deeply problematic tropes,

finding that diversity initiatives promote a culture of inclusion that

greatly benefits unit performance. See, e.g., Department of Defense

Board on Diversity and Inclusion Report: Recommendations

to Improve Racial and Ethnic Diversity and Inclusion in the

U.S. Military, Dep ’t of Def. 1 (Dec. 17, 2020), [hereinafter DoD

Diversity and Inclusion Report] (“President Truman commissioned

the Fahy Committee . . . to determine the impacts of integration

and desegregation. The Committee found that desegregation and

inclusivity abetted military readiness and effectiveness, and the

financial costs of these endeavors were minimal in the face of the

benefits.”). Third-party studies have shown that “inclusive armies

fight harder, suffer lower rates of desertion and defection, and exhibit

more creative problem-solving on complex battlefields.” Jason Lyall,

The military is making changes in response to Black Lives Matter

protests. That’s good for fighting wars, Washington Post (2020).

Studies on the impacts of diversity outside the military setting have

reached the same conclusion. See, e.g., Fisher II Military Br. at 10 n.4.

6

and unfairly favored White troops. See Grutter Military

Br., at 16 & n.5.

Widespread instances of racial tensions, disruptions,

and violence followed. Fisher I Military Br. at 6–7. “In

1969 and 1970 alone, the Army catalogued more than 300

race-related internal disturbances, which resulted in the

deaths of seventy-one American troops.” Bryan W. Leach,

Race as Mission Critical: The Occupational Need

Rationale in Military Affirmative Action and Beyond,

113 Yale L.J. 1093, 1111 (2004) (citation omitted). This

was “[o]ne of the darkest chapters in the recent history

of the U.S. military,” caused in significant part by “a

complete breakdown in understanding between minority

enlisted servicemembers and the white officers who

led them.” Robert Knowles, The Intertwined Fates of

Affirmative Action and the Military, 45 Loyola Univ. Chi.

L. Jrnl. 1027, 1033 (2014) (footnote omitted) [hereinafter

Intertwined Fates]. This painful chapter brought home

the importance of cultivating diversity across all levels of

leadership. Id. at 1034 (“[s]o began the military’s use of

affirmative action in earnest,” including “race-conscious

admissions policies at service academies” and in ROTC

programs).

The VFM Brief4 strenuously denies that the military’s

homogenous leadership contributed to internal discord

and violence during the Vietnam War. See VFM Br. at

4. Unlike Amici’s military brief, the VFM Brief rests its

arguments on anecdotes, unpublished studies, studies that do

not directly support its assertions, opinion pieces, anonymous

signatories, and the supposed expertise of individuals who are not

signatories at all. The Court should consider these deficiencies in

weighing its credibility.

7

9–12. This thinly sourced argument contradicts decades

of broad historical and military consensus. E.g., Bernard

C. Nalty, Strength for the Fight: A History of Black

A mericans in the Military 287–317 (1986) [hereinafter

Nalty]. 5 In 1972, for instance, a Department of Defense

Task Force report concluded that minority troops:

resent leadership by a corps which does not

contain a proportion of minority officers

anywhere nearly equivalent to the proportion

of minority members in the service, or services,

as a whole. Our conversation with enlisted men

convince us that this is a point of irritation with

minority personnel, and causes distrust of both

the military system and the military justice

system.

Report of the Task Force on the Administration of

Military Justice in the Armed Forces, Dep’t of Defense

54-57 (Nov. 30, 1972). Years later, the Military Leadership

Diversity Commission, an independent body commissioned

by Congress in 2009 to assess diversity in military

leadership, reached the same conclusion:

During the Vietnam War, the lack of diversity

in military leadership led to problems that

threatened the integrity and performance

of the Nation’s military. This is because

servicemembers’ vision of what is possible for

5. In addition to chronicling numerous incidents, Nalty

observed that, during the late 1960s, “[r]acial conflict surfaced

in all the armed forces, from South Vietnam to Labrador to West

Germany.” Nalty, at 311.

8

their career is shaped by whether they see

individuals with similar backgrounds excelling

and being recognized in their Service.

From Representation to Inclusion: Diversity Leadership

for the 21st-Century Military, Final Report, M il .

Leadership Diversity Comm’n, at xvi (Mar. 15, 2011),

https://www.hsdl.org/?view&did=11390 [hereinafter

MLDC Report].6

The military’s successes and challenges w ith

integration and inclusion, both in peacetime and in war,

inform its position that “developing and maintaining

qualified and demographically diverse leadership is

critical for mission effectiveness.” MLDC Report, at 39.

The military’s post-Vietnam policies “established the

basic framework for race-conscious affirmative action in

the military” and “helped the military rebuild its morale

and reputation during the 1990s.” Intertwined Fates, at

1035. “The military transformed itself in a short period

of time from a racially segregated institution hostile to

equality to a model of successful integration.” Id. at 1044.

Its policies were widely praised and held up as a model for

successful integration at civilian institutions.” Id. at 1057.

6. This finding aligns with social science research documenting

the beneficial effects of gender or racial concordance in some

situations. For example, a National Academy of Science study reports

the “benefits of female leadership for young women working at firms,”

and the dramatic decline of infant mortality rates of Black newborns

when they are treated by Black doctors. Brad N. Greenwood, et

al., Physician-patient racial concordance and disparities in

birthing mortality for newborns, PNAS (Aug. 17, 2020), https://doi.

org/10.1073/pnas.1913405117.

9

The recently retired Commanding General of the

United States Army Forces Command aptly captured the

essence of the military’s position: “[w]ithout diversity, a

homogeneous team of soldiers would lack the resilience,

perspective, and growth offered by teammates from

different backgrounds. . . . This makes diversity not only

a right but also a strategic military asset—essential

to meet today’s security challenges.” Gen. Michael X.

Garrett, Military Diversity, A Key American Strategic

Asset, M ilita ry R ev., 14 (May-June 2021), https://

www.armyupress.army.mil/Portals/7/military-review/

Archives/English/MJ-21/Garrett-Military-Diversity-1.

pdf; see also Jim Garamone, DOD News, Diversity,

Equity, Inclusion Are Necessities in U.S. Military,

Dep’t of Def. (Feb. 9, 2022), https://www.defense.gov/

News/News-Stories/Article/Article/2929658/diversityequity-inclusion-are-necessities-in-us-military (“When

the military gets recruits from diverse backgrounds,

there will be more innovative thought, more innovative

solutions to incredibly complex and complicated problems

that are facing the national security apparatus today.”).

Amici urge this Court to continue to respect the military’s

professional judgment regarding the optimal “composition,

training, equipping, and control of a military force.”

Gilligan v. Morgan, 413 U. S. 1, 10 (1973) (noting it is

“difficult to conceive of an area of governmental activity

in which the courts have less competence”).

B. The U.S. military’s international presence and

engagement abroad with foreign military and

civilians requires diversity in the officer corps.

Diversity is imperative to our military’s dealings with

international allies and complex global challenges, which

10

require leaders who can leverage talent, experience, and

perspective to reach nuanced and innovative solutions.

Indeed, the most difficult missions often demand the most

diverse talent pools. Military leadership understands that

officers trained in a racially diverse environment can

more capably manage engagements in foreign regions

where understanding and ably navigating pre-existing

religious and ethnic tensions are inextricably intertwined

with battlefield success. See Colonel Maxie McFarland,

Military Cultural Education, MIL. REV. 85 (Mar.-Apr.

2005), (“[o]ver the past decade the Army has increasingly

engaged in lengthy overseas deployments in which

mission performance demanded significant interface

with indigenous populations,” and “engagement with local

populaces has become so crucial that mission success is

often significantly affected by soldiers’ ability to interact

with local individuals and communities”); see also MLDC

Report, at xiv (“The ability to work collaboratively with

many stakeholders, including international partners,

will also be critical . . . and will require greater foreign

language, regional, and cultural skills.”).

The military has long recognized the importance of

diversity in its ranks when engaged abroad. The Army

explained that:

Today’s security environment demands more

from our military and civilian leaders than

ever before. . . . The unconventional and

asymmetrical battlefields of the future mean we

must understand people and the environments

where they live. A more adaptive and culturally

astute Army will enhance our ability to operate

in these environments. Training, educating and

11

preparing culturally adaptive leaders, able to

meet global challenges because of their ability

to understand varying cultures, will continue

to help the Army achieve mission readiness.

United States Army Diversity Roadmap, Dep’t of the

A rmy 3 (Dec. 2010), http://www.armydiversity.army.mil/

document/Diversity_Roadmap.pdf [hereinafter Diversity

Roadmap]. Today is no different. As the Department of

Defense recently advised, “[d]iversity and inclusivity in the

ranks are not merely aspirations, they are fundamental

necessities to our readiness and our mission success.”

Immediate Actions to Address Diversity, Inclusion and

Equal Opportunity in the Military Services, Dep’t of

Def. 4 (July 14, 2020), https://media.defense.gov/2020/

Jul /15/2002457268/-1/-1/1/Immediate_Actions_to_

Address_Diversity _Inclusion_Equal_Opportunity _

in_Military_Services.pdf; See also DoD Instruction

1020.05: DoD Diversity and Inclusion Management

Program, Dep’t of Def. 12 (effective Sep. 9, 2020), https://

www.esd.whs.mil/Portals/54/Documents/DD/issuances/

dodi/102005p. pdf?ver=2020-09-09-112958-573.

Recent military engagements have frequently

required close collaboration with people of diverse racial

and ethnic backgrounds. In February 2020, for example,

the Secretary of Defense ordered deployment of an Army

brigade to Africa to train and assist African countries to

better compete with China and Russia in those regions.

Statement on the Deployment of Army’s 1st Security Force

Assistance Brigade to Africa, DoD News Release (Feb.

12, 2020), https://www.defense.gov/Newsroom/Releases/

Release/Article/2082314/statement-on-the-deploymentof-armys-1st-security-force-assistance-brigade-to-a. On

12

August 15, 2021, the U.S. Southern Command established

Joint Task Force Haiti to provide foreign disaster

assistance to the Haitian people following a 7.2 magnitude

earthquake. See U.S. Southern Command Supports U.S.

Disaster Assistance to Haiti, SOUTHCOM (Aug. 15,

2021), https://www.southcom.mil/News/PressReleases/

Article/2732060/us-southern-command-supports-usdisaster-assistance-to-haiti; see also Charlie Savage &

Eric Schmitt, Biden Approves Plan to Redeploy Several

Hundred Ground Forces Into Somalia, N.Y. T imes

(May 16, 2022), https://www.nytimes.com/2022/05/16/

us/politics/ biden-military-somalia.html (reporting

deployment of U.S. soldiers to Somalia to counter Islamist

advances). The United States also deploys forces to

support operations in Europe, Central America, and Asia.

See Captain Rachel Salpietra, JTF-Bravo commits to

additional assistance, JTF-Bravo Public A ffairs (Nov.

12, 2020), https://www.jtfb.southcom.mil/News/ArticleDisplay/Article/2413413/jtf-bravo-commits-to-additionalassistance (reporting the military’s life-saving disaster

assistance in Honduras, Panama, and Guatemala); Jim

Garamone, U.S. to Deploy 3,000 Troops to Romania,

Poland, Germany, DOD News (Feb. 2, 2022), https://www.

defense.gov/News/News-Stories/Article/Article/2920844/

us-to-deploy-3000-troops-to-romania-poland-germany

(Romania, Poland, and Germany deployments); Army

Public Affairs, Army announces upcoming 1st ABCT,

1st Armored Division, unit rotation, (Dec. 16, 2021),

https://www.army.mil/article/252603/army_announces_

upcoming_ 1st_abct_1st_ armored_division_unit_rotation

(deployment to Korea).

A qualified and diverse officer corps is especially

vital in the elite Special Operations forces. Life and death

13

missions conducted by these units require diverse skills,

including foreign language competency and knowledge of

other cultures, along with the ability to collaborate and

culturally empathize with vastly different individuals. Yet

these units face a critical shortage of minority officers and

enlisted personnel. As of March 2021, 95% of all Navy

SEAL and combatant-craft crew officers were White and

just 2% were Black. See Lolita C. Baldor, US military’s

elite commando forces look to expand diversity, ABC

News (June 15, 2021), https://abcnews.go.com/Politics/

wireStory/us-militarys-elite-commando-forces-expanddiversity-78307046.

The urgency of the problem demands flexibility in

recruiting and assignments. “Traditional SEAL Team

demographics will not support some of the emerging

mission elements that will be required.” Mark Thompson,

Navy Seeking More Minority SEALS, TIME (Feb. 24,

2012), http://nation.time.com/2012/02/24/navy-seeks-adarker-shade-of-seals (Navy SEALS actively recruit

minorities, including Hispanic and Arab candidates).

For this reason, the Special Operations Command views

diversity and inclusion as “operational imperatives,”

and is actively building “infrastructure dedicated to

the sustainment of diversity and inclusion throughout

the enterprise.” See Headquarters United States

Special Operations Command, Diversity and Inclusion

Strategic Plan, at 4, 9 (2021), https://s3.amazonaws.com/

static.militarytimes.com/assets/pdfs/1616771642.pdf. As

then-acting Assistant Secretary of Defense for Special

Operations, Chris Maier, told House members last year:

“[A] more diverse force empowers us to draw upon broader

perspectives, different lived experiences, and new ideas.”

Sarah Cammarata, House panel explores how special

14

operations can make its force more diverse, Stars and

Stripes (Mar. 26, 2021), https://www.stripes.com/theaters/

us/house-panel-explores-how-special-operations-canmake-its-force-more-diverse-1.667440.

Given the military’s vital role in complex global affairs,

officer corps diversity is far more than a laudable goal—it is

a strategic imperative. Modest race-conscious admissions

programs, such as those used by service academies and

Respondents, enable the Nation’s educational institutions

to recruit and educate minority leaders to fill these critical

leadership roles.

C.

U.S. military diversity initiatives have led

to significant progress in growing a highly

qualified and racially diverse officer corps, but

this work must continue.

The careful use of modest race-conscious policies

is one of several means by which the U.S. military has

increased the diversity of its officer corps, and it remains

an essential one.

The Armed Forces’ service academies provide tuitionfree undergraduate education and prepare entrants to

be military officers who, once commissioned, serve the

military as officers for at least five years. Each academy

admits 1,100 to 1,350 entrants annually. See Defense

Primer: Military Service Academies, Cong. Rsch. Serv.

1 (updated Dec. 9, 2021) https://sgp.fas.org/crs/natsec/

IF11788.pdf. In fiscal year 2019, the Department of

Defense reported that approximately 19% of officers

came from the academies. See Population Representation

in the Military Services: Fiscal Year 2019 Summary

15

Report, Dep’t of Def., tbl. B-31 (2019), https://www.cna.

org/pop-rep/2019/appendixb/appendixb.pdf [hereinafter

Population Representation 2019].

Many civilian colleges and universities—including

UNC and Harvard—offer ROTC programs. See ROTC

Programs, Today’s Military, https://www.todaysmilitary.

com/education-training/rotc-programs (last visited July

2022). ROTC provides military education and training

as well as scholarships, which include full tuition for up

to four years in exchange for a five-year post-graduation

service commitment. In fiscal year 2019, approximately

36% of active-duty officers were ROTC-commissioned.

Population Representation 2019, at tbl. B-31. Notably, in

2019 ROTC provided 52.6% of the Army’s officer corps (the

largest service) and 40.7% of the Air Force officer corps.

Id. ROTC has also been the primary source of minority

officers: approximately 29% of Black officers and 32% of

Hispanic officers obtained commissions through ROTC in

2019. Population Representation 2019, at tbl. B-32.

ROTC and the academies employ unique programs to

achieve their diversity objectives, in addition to militarywide diversity initiatives. Each service branch has

organizational divisions or offices devoted to recruiting

members of demographic groups underrepresented in the

officer corps, which participate with community leaders

and affinity group events, such as events hosted by the

National Society of Black Engineers and the Society

for Advancement of Chicanos and Native Americans in

Science. They also strategically establish ROTC programs

and academic scholarships at Minority-Ser vicing

Institutions and use media channels directed at diverse

audiences.

16

The U.S. Military Academy (“West Point”) was the

first service academy to successfully increase minority

representation. See Fisher II Military Br. at 22; Grutter

Military Br. at 18. West Point continues to pursue initiatives

to sustain this progress, including diversity-oriented

leadership conferences and visitation programs. See, e.g.,

West Point Association of Graduates, West Point Diversity

& Inclusion Initiatives (Mar. 20, 2022), https://www.

westpointaog.org/file/westpointdiversityandinclusion.

pdf. The U.S. Naval Academy (“USNA”) is similarly

committed to diversity initiatives, and has pursued

“[a]dmissions training sessions with congressional staff

members to discuss nominations for underrepresented

minorities.” Diversity and Inclusion Strategic Plan,

U.S. Naval Acad., at 6 (Mar. 2021), https://www.usna.edu/

Diversity/_files/documents/D_I_PLAN. The Air Force

recently announced that Air Force ROTC scholarship

recipients attending Historically Black Colleges or

Hispanic-Serving Institutions “will receive an upgrade

offer from their current scholarship level, which will

advance students to full tuition and fees paid, beginning

the fall term of academic year 2020-21.” Minority Serving

Institution Scholarships to be upgraded to further Air,

Space Force diversity efforts, Sec’y of the Air Force Pub.

A ffairs (Jun. 29, 2020), https://www.af.mil/News/ArticleDisplay/Article/2241084/minority-serving-institutionscholarships-to-be-upgraded-to-further-air-space-f.

On June 19, 2020, the Secretary of Defense announced

additional initiatives to promote diversity across the

Armed Forces, including a new Board on Diversity and

Inclusion (the “Board”). DoD Diversity and Inclusion

Report, at vii. Its review of military policies and programs

led the Board to recommend further actions to improve

diversity and inclusion. Id. at ix–xi.

17

These initiatives are important components of the

military’s diversity efforts, but modest race-conscious

admissions policies remain indispensable. As detailed in

Fisher II, the service academies employ an individualized,

“whole person” approach to evaluate applicants. The U.S.

Government Accountability Office (“GAO”) has described

the process, in part, as follows:

The academies do not grant waivers from

academic criteria but do not have absolute

minimum scores for admission.. . . . This

admissions approach is consistent with the

intent of the academies to admit students who

also demonstrate leadership and initiative

characteristics, which cannot be quantified

by purely objective scoring methods . . . The

subjective nature of this approach is consistent

with the intent of the whole person concept . . . .

Military Education: DOD Needs To Enhance Performance

Goals And Measures To Improve Oversight Of Military

Academies, U.S. Gov’t Accountability Off. 19–20 (2003),

http://www.gao.gov/assets/240/239612.

West Point notes that “[t]here are no appointments,

vacancies, or nominations designed exclusively for minority

groups . . . [yet] cultural and socio-economic backgrounds

are given appropriate consideration while evaluating

all applicants.” West Point Admissions, U.S. Military

A ca d ., http://w w w.usma.edu/admissions/SitePages/

FAQ_Admission.aspx (last visited Jun. 8, 2022). ROTC

likewise conducts a whole-person, individualized review of

its scholarship applicants, objectively assessing academic,

physical, and leadership aptitude. See, e.g., Anny Wong

18

et al., The Use of Standardized Scores in Officer Career

Management and Selection, RAND C orp. 13 (2012),

http://www.rand.org/content/dam/rand/pubs/technical_

reports/2012/RAND_TR952.pdf (Department of Defense

commissioned report noting ROTC “[a]dmission boards

consider the candidate’s qualifications broadly using the

whole-person concept, which includes a combination of test

scores, academic background, athletic accomplishments,

field of study in college, and other personal qualities”).

With the aid of modest race-conscious admissions

policies this Court approved in Grutter, minority

representation in service academies has moved closer

to reflecting the Nation’s diverse demographics. The

recent class of students matriculating at USNA had 41%

minority representation. See Class of 2025 Statistics,

U.S. Naval Acad. (Jul. 7, 2017), https://www.usna.edu/

NewsCenter/2021/06/CLASS_OF_2025_STATS.php.

The U.S. Air Force Academy (“USAFA”) class of 2025

boasted approximately 35% minority enrollees. See

Demographic Profile of the Incoming USAFA Class of

2025, U.S. A ir Force Acad. (Jun. 24, 2021), https://www.

usafa.edu/app/uploads/CL2025-Class-Profile.pdf. And

the West Point Class of 2025 has approximately 40%

minority representation.7 USMA Class Profile – Class of

7. The VFM Brief at 29 claims West Point’s diversity efforts

have resulted in admitting “marginally qualified candidates” who

are “failing by the Academy’s own standards,” yet West Point’s

graduation rates prove otherwise. Indeed, graduation rates for

West Point are roughly 20% higher than the national average.

Compare Retention and Graduation Rates, National Center for

Education Statistics , United States Military Academy, https://

nces.ed.gov/collegenavigator/?q=united+states+military+acade

my&s= all&id=197036#outcome (last visited July 11, 2020) (West

19

2025, West Point, https://s3.amazonaws.com/usma-media/

inline-images/about/g5/Class_2025_profile_final_0.pdf.

The service branches, buoyed by the diverse pool of

servicemembers entering from the ROTC and service

academies, have also made progress. Of the approximately

1.3 million soldiers serving in the active-duty forces as of

2020, roughly 60.8% identified as White, 17.2% as African

American, 4.8% as Asian, 1.1% as American Indian or

Alaska Native, 1.2% as Native Hawaiian or Other Pacific

Islander, and 3% as “multi-racial.” 2020 Demographics

of the Military Community, Dep ’t of Def., 22 (2020),

https://download.militaryonesource.mil/12038/MOS/

Reports/2020-demographics-report.pdf [hereinafter 2020

Military Demographics]. In sharp contrast to the Vietnam

era, when minority officers were almost nonexistent, see

Grutter Military Br. at 5, 6 n.2, 17, by fiscal year 2020,

African Americans comprised approximately 9% of the

officer corps; Asians 5.7%, American Indians or Alaska

Natives 0.7%, and Native Hawaiian and Pacific Islanders

0.6%. Id. at 22–23. “Without these aggressive measures

with respect to education, Defense Department officials

have argued, the officer corps would rapidly revert to an

almost exclusively non-minority one.” Intertwined Fates,

at 1083.

The VFM Brief makes the stunning and completely

unsupported claim that the military has reached and

sustained this level of diversity without the aid of racePoint has 84% graduation rate), with Undergraduate Graduation

Rates, National Center for Education Statistics https://nces.

ed.gov/fastfacts/display.asp?id=40 (last visited July 11, 2020)

(nationally, 64% of students received a bachelor’s degree from the

same institution within six years of enrollment).

20

conscious admission policies, while also warning that

those policies undermine the military’s effectiveness. In

truth, the VFM Brief tries to have it both ways: it touts

the very integration made possible by the military’s

race-conscious policies as evidence that those policies

are, and never were, necessary. 8 For example, the VFM

Brief cites Colin Powell’s remarkable achievements in

the military and in government as evidence that a “colorblind” system allows qualified Black officers to rise to the

top. Yet Secretary Powell’s rise through the ranks was

made possible in part by the race-conscious policies the

VFM Brief condemns. See Franklin Foer, Quotas and

Colin Powell, Slate (Dec. 14, 1997), https://slate.com/

news-and-politics/1997/12/quotas-and-colin-powell.html.

And Secretary Powell himself consistently argued for

the importance of race-conscious university admissions

policies. See, e.g., Sujit Raman, Colin Powell’s Turn at

the Supreme Court Lectern: An Unknown Episode in the

History of Affirmative Action, Nat ’l L.J. (Nov. 23, 2021),

https://www.law.com/nationallawjournal/2021/11/03/colinpowells-turn-at-the-supreme-court-lectern-an-unknownepisode-in-the-history-of-affirmative-action (describing

Secretary Powell’s staunch support for affirmative action

throughout his public life and for Grutter-approved

policies in particular). The bottom line is that raceconscious policies have been critical to the military’s

progress toward its diversity objectives and prohibiting

the continued use of such policies will undo that progress.

8. Indeed, the VFM Brief argues that race-conscious decisionmaking in promotions and assignments undermines military

effectiveness, but offers nothing to explain why military effectiveness

improved during the several decades in which race-conscious policies

have been in place.

21

The VFM Brief also overstates the military’s

advances on issues of diversity. Notwithstanding the

progress outlined above, our military officer corps

today remains significantly less racially and ethnically

diverse than the enlisted corps. For example, in 2020,

Black servicemembers accounted for roughly 19% of

the enlisted corps but only 9% of the total officer corps,

including just 5.7% of the Marine Officer Corps and

6.3% of the Air Force Officer Corps. See 2020 Military

Demographics, at 22–24. This discrepancy continues to

be felt by minority servicemembers, many of whom feel

“constantly challenged over their right to be in elite units,

let alone lead them.” Helene Cooper, African-Americans

Are Highly Visible in the Military, but Almost Invisible

at the Top, N.Y. T imes (May 25, 2020), https://www.

nytimes.com/2020/05/25/us/politics/military-minoritiesleadership.html. Many leaders have spoken to these

challenges, including General Charles Brown, Jr., the first

Black service chief in U.S. military history and current

Air Force Chief of Staff, who explained how a lack of

diverse leadership forced him to work “twice as hard”

to achieve his success. See Global News, First Black Air

Force chief in U.S. history recounts his own experiences

with discrimination, Youtube (Jun. 10, 2020), https://

www.youtube.com/watch?v=i76Wybvupgk.

Thanks to this Court’s Grutter decision, our military’s

leadership is more diverse today than in decades past, and

the Armed Forces are much stronger for it. This progress

gives reason for optimism, but it cannot be forgotten that

the military’s diversity efforts come on the heels of over

a century of institutionalized discrimination. Prohibiting

the continued use of race-conscious policies at this critical

juncture would ignore decades of experience—experience

22

that led this Court to accord deference to our top military

leaders in Grutter, and more recently in Fisher.

II. Invalidating Universities’ Modest Race-Conscious

Admissions Policies Would Seriously Impair the

Military’s Efforts to Maintain Cohesion and

Effectiveness.

A.

Nullifying admissions policies that are

carefully crafted to comply with Grutter and

Fisher would adversely affect the military.

Hindering diversity in universities with ROTC

programs would adversely affect the pool of recruits

entering the military.9 Military entry-level recruits affect

the composition of military ranks down the line because

leaders are promoted from lower ranks. “Therefore, each

stage of the military personnel life cycle—from who is

recruited to who is promoted—is intricately linked to the

composition of future military leaders.” MLDC Report, at

39. Prohibiting universities from continuing to use current

whole-person admission practices would thus reduce the

pool of qualified leaders.

9. With nothing to support their arguments, fear-mongers

argue that “racial preferences in officer command selection and

promotions . . . has begun to proliferate, necessarily diluting merit

selection, compromising leader quality, demeaning those involved,

eroding morale, and reducing overall military effectiveness.” VFM

Br. at 26. This argument is not only false, it is also a red herring.

ROTC and service academy admission practices govern entry from

the civilian world into the officer corps. Officer promotions, by

contrast, occur only after a servicemember has entered the Armed

Forces and proven that promotion is merited; conflating these

distinct and very different processes is unhelpful.

23

This is increasingly so as ROTC programs gain

popularity in selective institutions, which are the largest

pool of schools that consider race as a factor in admissions.

Lorelle L. Espinosa, et al., Race, Class, & College Access:

Achieving Diversity in a Shifting Legal Landscape, 15

(2015), https://www.acenet.edu/Documents/Race-Classand-College-Access-Achieving-Diversity-in-a-ShiftingLegal-Landscape.pdf [hereinafter Race Class and

College] (over 60% of universities that accept 40% or less

of applicants include race as one of many factors). ROTC

programs have increased in selective schools over the

past decade. See, e.g., Yeganeh Torbati, On Ivy League

Campuses, Military Bases Find a Warmer Welcome,

Reuters (May 23, 2016), https://www.reuters.com/article/

us-usa-military-elite/on-ivy-league-campuses-militarybrass-f ind-a-warmer-welcome-idUSKCN0Y E2MJ.

Today, Cornell, Dartmouth, Penn, Princeton, Harvard,

Columbia, Yale, and Brown all have ROTC programs.

Brown Committee on the ROTC Report, Frequently

Asked Questions, Brown Univ., https://www.brown.edu/

reports/rotc/faq/frequently-asked-questions (last visited

June 5, 2022).

Racially diverse ROTC programs at selective

universities are of particular importance to our military

leadership.10 As former Defense Secretary Ashton Carter

10. As the military’s competition for “high-quality entrants who

have better civilian employment opportunities” makes recruitment

more “challenging,” securing candidates through ROTC programs

becomes increasingly beneficial. Beth J. Asch, Navigating Current

and Emerging Army Recruiting Challenges: What Can Research

Tell Us?, RAND C orp., iii (2019), https://w w w.rand.org/pubs/

research_reports/RR3107.html [hereinafter Navigating Recruiting

Challenges].

24

explained, ROTC graduates help “bridge a divide” between

the Armed Forces and society, often exposing fellow future

leaders educated at Yale to the Armed Forces for the first

time. Lisa Ferdinando, Carter Commissions Yale’s First

ROTC Class in Four Decades, DoD News (May 24, 2016),

https://www.defense.gov/News/News-Stories/Article/

Article/780261/carter-commissions-yales-first-rotc-classin-four-decades [hereinafter Ferdinando DoD News

2016].11 This important exposure and interchange should

involve ROTC classmates who reflect the considerable

diversity of the nation’s Armed Forces.

Universities across the country have long understood

that failing to admit a sustained, diverse student body limits

the intellectual and social development of all students,

creating a material competitive disadvantage. Valerie

Strauss, Why race-based affirmative action is still needed

in college admissions, Washington Post (Jan. 30, 2020),

https://www.washingtonpost.com/education/2022/01/30/

needed-aff irmative-action-in-college-admissions/.

Universities’ widespread commitment to race-conscious

policies reflect that understanding. Military leadership

similarly understands that students of all races benefit

from diversity. This Court reaffirmed in Fisher II that

“enrolling a diverse student body ‘promotes cross-racial

understanding, helps to break down racial stereotypes,

and enables students to better understand persons of

11. Defense Secretary Carter also aptly observed that

“[p]eople think differently about the world when a former roommate

is managing the nuclear reactor on a submarine, or a former organic

chemistry classmate is serving as a combat medic, or a fellow

programmer is defending our nation’s cybersecurity.” Ferdinando

DoD News 2016.

25

different races.’” 579 U.S. at 381. That analysis is true

of students enrolled at service academies and in ROTC

programs at colleges nationwide. In such environments,

students and future military officers of all races and

backgrounds benefit from learning from and with diverse

classmates. Future leaders embarking on their military

careers carry these lessons with them.

B. Completely ignoring race would impede our

military’s ability to acquire essential entry

level leadership attributes and training

essential to cohesion, and thereby undermine

prior diversity progress.

As with universities, the military’s “people are

[its] most valuable resource.” Diversity Roadmap, at 5.

Requiring that admission practices be oblivious to race

would undermine the military’s ability, not only to recruit

the highest quality officers, but also to further develop

them over the years for higher command. That, in turn,

would set back decades of progress in achieving diversity.

Diversity in higher education leads directly to diversity

in the officer ranks. The civilian population eligible to be

commissioned as officers remains markedly less racially

and ethnically diverse than the population eligible for

enlisted service. Thanks, in part, to Grutter, Fisher I, and

Fisher II, officer diversity has measurably improved. See,

e.g., DoD Diversity and Inclusion Report, at 8. However,

and as noted above, even with nearly two decades under

Grutter, officers continue to be substantially less racially

and ethnically diverse than the enlisted corps. Id. This

disparity primarily results from disparities in educational

26

attainment by race and ethnicity, due to the bachelor’s

degree eligibility requirement for officers.12 Id. At 8 n.4.

Banning race-conscious admissions policies would,

therefore, shrink an already-small pool of eligible and

qualified minority officer candidates. Research confirms

that eliminating consideration of race in admissions

lowers acceptance and enrollment rates of minority

students, particularly at selective institutions. See,

e.g., Mark C. Long & Nicole A. Bateman, Long-Run

Changes in Underrepresentation After Affirmative

Action Bans in Public Universities, 42 Educ. Evaluation

and Pol’ y A nalysis 188 (2020) [hereinafter Long and

Bateman]; Thomas J. Espenshade & Chang Y. Chung,

The Opportunity Cost of Admission Preferences at Elite

Universities, 86 Soc. Sci. Q. 293, 298 (2005). Recent studies

report unavoidable declines in minority representation in

public universities following state affirmative action bans,

despite efforts to offset such declines. See Long and

Bateman at 191 (noting, for example, “a large decline in

URM’s share of students admitted to . . . and enrolling

in . . . UC-Berkeley immediately upon the elimination of

affirmative action in 1998,” a pattern that was “common

among elite public universities”).

Not only would reversing Grutter reduce the number

of minority candidates, it also would reduce the number

of qualified officers of all races who will be exposed to the

benefits of a diverse educational experience. The Fisher

12. The GAO identified racial and ethnic disparities in education

as a trend that will affect the domestic and global context in future years.

Trends Affecting Government and Society, G ov ’t Accountability

O ffice , GAO-22-3SP, 12 (Mar. 15, 2022), https://www.gao.gov/

assets/720/719909.pdf.

27

II Court recognized that student diversity “promotes

learning outcomes, and better prepares students for an

increasingly diverse workforce and society.” 579 U.S. at

381 (quoting Grutter, 539 U.S. at 330); see also Fisher I,

570 U.S. at 308 (student diversity “serves value beyond

race alone, including enhanced classroom dialogue and the

lessening of racial isolation and stereotypes”). Prohibiting

consideration by colleges and universities of every holistic

factor, such as race, would thus negatively impact all

students, including ROTC and service academy cadets or

midshipmen. Fisher II Military Br. at 32–33.

Critics of race conscious admissions policies often

rely on simplistic definitions of “merit” that do not reflect

the realities of either the admissions process or the

military’s mission. The VFM Brief, for instance, cites

two unpublished studies based entirely on SAT scores

and class rank to argue that race-conscious admissions

policies at military academies “dilute” the “merit” of their

student bodies. VFM Br. at 5, 15–17, 21, 27–30. Despite

the VFM Brief’s representations, however, the military

has never lowered its standards for admission into any

of its ranks. Rather, experience has taught military

leaders that test scores and high school class rank are

just two of many indicators of intelligence and leadership

potential, and often not the most important ones. See

Fisher II Military Br. at 32–33. Eliminating race as one

of many factors as permitted by Grutter will lead to the

exclusion of some applicants with solid test scores whose

experiences and skills are most needed in our Nation’s

leaders. Holistic admission policies such as Respondents’

consider the entire person and allow the military (and

schools) to evaluate all qualities of a well-rounded, capable

28

leader.13 As explained by former Naval Academy Dean

of Admissions, Dave Vetter, “Everybody [who] receives

an offer to the academy has to be fully qualified . . . But

beyond that, we want a brigade that reflects our country,

geographically diverse, we want it to be diverse in other

regards, too.” Adam Clymer, Service Academies Defend

Use of Race in Their Admissions Policies, N.Y. Times

(Jan. 28, 2003), https://www.nytimes.com/2003/01/28/

us/ser vice-academies-defend-use-of-race-in-theiradmissions-policies.html. The military remains committed

to using modest race-conscious policies to cultivate an

Armed Forces that is both highly qualified and diverse.

III. Respondents’ and the Military’s Race-Conscious

Policies Are Constitutional.

This Court consistently has affirmed that racial and

ethnic diversity is a compelling state interest that justifies

the use of race in university admissions. Fisher I, 570

U.S. at 297. In Grutter, the Court found that a university’s

“educational judgment that such diversity is essential to

its education mission is one to which [the Court] defer[s].”

539 U.S. at 328. Relying on the Grutter Military Brief’s

explanation of the military’s diversity needs, the Grutter

Court found that elite institutions, like the military, “must

remain both diverse and selective.” Id. at 331.

This submission and the Prior Military Briefs—all of

13. Indeed, in recognition that holistic assessments are more

reliable predictors of future success, some Ivy League schools are

beginning to do away with standardized test scores entirely. See

Aimee Picche, Harvard says it won’t require SAT or ACT scores

through 2026, CBS News (Dec. 17, 2021), https://www.cbsnews.com/

news/harvard-test-optional-sat-act-scores-college-admission.

29

which have been openly and unequivocally supported by

the Nation’s top-ranking military officers—underscore

diversity as mission essential.14 The immediate past

Secretary of Defense, Mark T. Esper, recognized the role

diversity plays in military effectiveness:

For more than 200 years the U.S. military

has fought to defend our great Nation and

our interests abroad, earning the reputation

as the greatest military force in history . . .

We have also reached this level of mission

excellence because we attract the best America

has to offer: young men and women . . . [that]

represent a wide range of creeds, religions,

races, ethnicities, sexual orientations, and other

attributes that distinguish us as individuals,

and make us stronger together.

Actions for Improving Diversity and Inclusion in the

Department of Defense, Message from the Secretary Mark

T. Esper, Dep ’t of Def. (Jun. 19, 2020), https://media.

defense.gov/2020/Jun/22/2002319394/-1/-1/1/actions-forimproving-diversity-and-inclusion-in-the-dod.pdf. As Lt.

Gen. Becton explained, Amici have tested and affirmed

this principle:

14. Congress too has reaffirmed a strong commitment to

maintaining military diversity: “[d]iversity contributes to the

strength of the Armed Forces . . . It is the sense of Congress that

the United States should (1) continue to recognize and promote

diversity in the Armed Forces; and (2) honor those from all diverse

backgrounds and religious traditions who have made sacrifices in

serving the United States through the Armed Forces.” Section 528

of the National Defense Authorization Act for Fiscal Year 2016 (P.L.

114 92).

30

Every senior officer who’s on [the Grutter

Military Brief], has been in battle, has been

battle-tested. And every senior member—I’ll

be one to wager—would recognize [that

minorities within the leadership] is a combat

multiplier. It brings about unit cohesiveness.

It takes away the “we–they” problems that we

had 30 and 40 years ago and it makes the force

to be one.

Steve Inskeep, Weekend All Things Considered, Natl.

Pub. Radio 2–3 (Feb. 23, 2003) https://archive.org/details/

npr-all-things-considered-02-23-2003/20030223_atc_03.

mp3. Defense leaders have determined that highly

qualified and diverse military ranks are imperative

to effective defense of our Nation’s security and have

instituted measures to include more diversity in service

academies and throughout the ranks. Deference to top,

battle-tested leaders remains critical to our Nation.

Disregard for race as one of myriad factors in lieu of

Grutter-compliant, whole-person admission practices,

instead of enhancing effectiveness and recruitment, would

upend a mission-critical military need.

The Department of Defense has recognized that

enhancing recruitment efforts alone, while necessary, will

bolster but not replace existing policies. See Diversity and

Inclusion Report, at 43; see also MLDC Report, at XIII

(quoting Honorable Claiborne Haughton, Jr.: “Despite

our progress today, too many people still suffer from

what I call the illusion of inclusion, which is a condition

you get when you rest on past laurels”). So long as ROTC

serves as a primary source for officers, and universities

control ROTC admissions, the national security interest

in admissions policies will stand.

31

Respondents’ policies are carefully crafted to comply

with Grutter and Fisher, and they continue to be vitally

important to the military’s missions. These benefits not

only flow to individuals of all races, but more critically

to the many institutions with ROTC programs. As this

Court recognized:

At present, “the military cannot achieve an

officer corps that is both highly qualified and

racially diverse unless the service academies

and the ROTC used limited race-conscious

recruiting and admissions policies.” To fulfill

its mission, the military “must be selective in

admissions for training and education for the

officer corps, and it must train and educate a

highly qualified, racially diverse officer corps

in a racially diverse educational setting.” We

agree that “it requires only a small step from

this analysis to conclude that our country’s

other most selective institutions must remain

both diverse and selective.”

Grutter, 539 U.S. at 331 (cleaned up; quoting Grutter

Military Brief). This remains as true today as in 2003.

Amici urge the Court to rule for Respondents, thereby

enabling our Nation’s military to “remain both diverse

and selective.” Id.

32

CONCLUSION

Amici, who have a unique perspective based on

centuries of combined military experience, respectfully

submit that diversity in the Armed Forces is both a

national imperative and an invaluable asset. Achieving

such diversity requires the continuing modest use of raceconscious policies at universities such as Respondents,

which serve as vital pipelines to the service branches. The

Courts of Appeals correctly confirmed the constitutionality

of the Respondents’ admissions policies under existing

precedent, and that judgment should be affirmed.

Respectfully submitted,

Joe R. Reeder

Robert P. Charrow

Elliot H. Scherker

K atherine M. Clemente

Greenberg Traurig, LLP

2101 L Street, NW,

Suite 1000

Washington, DC 20037

(202) 331-3100

Michael M. Purpura

Counsel of Record

Moez M. K aba

A mber Munoz

Segun I. Babatunde II

Hueston Hennigan LLP

620 Newport Center Drive,

Suite 1300

Newport Beach, CA 92660

(949) 229-8640

mpurpura@hueston.com

Counsel for Amici Curiae

APPENDIX

1a

Appendix BIOGRAPHIES OF

APPENDIX — ABBREVIATED

AMICI CURIAE

Admiral Charles S. Abbot, Navy 4-star; Commander

U.S. 6th Fleet (1996-98); European Deputy Commander

in Chief, (1998-2000); Rhodes Scholar

Admiral Dennis C. Blair, Navy 4-star; Director, National

Intelligence (2009-10); Pacific Commander-in-Chief,

(1999-2002); Rhodes Scholar

General Charles F. Bolden, Jr., Astronaut; Marine

2-star; (four space shuttle missions, commanding two);

Administrator, NASA (2009-17)

General Thomas P. Bostick, Army 3-star; Director,

A rmy Personnel (2010 -12); Chief, A rmy Corps of

Engineers (2012-16); Commander, Army Recruiting

Command (2005-09)

General Vincent K. Brooks, Army 4-star; Commander,

1st Infantry Division (2009-11); Commander, U.S. Army

Pacific (2013-16); Commander, United Nations Command,

Combined Forces Command, Korea (2016-18)

Admiral Walter E. Carter, Jr., Navy 3-star; Naval

Academy Superintendent, (2014-19); President, Naval

War College (2013-14).

General Robert L. Caslen, Army 3-star; West Point

Superintendent, (2013-18); President, University of South

Carolina (2019-2021)

2a

Appendix

General Daniel W. Christman, Army 3-star; West Point

Superintendent, (1996-2001)

General Wesley K. Clark, Army 4-star; Supreme Allied

Commander, Europe (1997-2000); Commander, U.S.

Southern Command (1996-97); Commander, 1st Calvary

Division (1992-94); Rhodes Scholar

General Richard A. Cody, Army 4-star; Army Vice Chief

of Staff (2004-08), Commander 101st Airborne Division

(2000-02)

General Joseph Dunford, Mar ine Corps 4 -star;

Chairman, Joint Chiefs of Staff (2015-19); Commandant,

U.S. Marine Corps (2014-15); Commander General I

Marine Expeditionary Force (2009-10)

Admiral Cecil D. Haney, Navy 4-star; Commander, U.S.

Strategic Command (2013-16); Commander, U.S. Pacific

Fleet (2012-13)

General James T. Hill, Army 4-star; Commander, U.S.

Southern Command (2002-04); Commander, I Corps

and Fort Lewis (1999-2002); Commander, 25th Infantry

Division (1997-99)

Admiral Bobby Inman, Navy 4-star; University of Texas

at Austin LBJ Centennial Chair in National Policy (20002021); Deputy Director, CIA (1981-82)

General Michelle D. Johnson, Air Force 3-star; Air Force

Academy Superintendent (2013-17); Rhodes Scholar

3a

Appendix

General John P. Jumper, Air Force 4-star; Air Force

Chief of Staff (2001-05); Commander, Air Combat

Command (1999-2001); Commander, U.S. Air Forces in

Europe (1997-99); President, VMI Board of Visitors (201617); Chairman/CEO, Museum of the American Revolution

(2017-18)

Senator Joseph Robert (“Bob”) Kerrey, Congressional

Medal of Honor, U.S. Navy SEAL, Special Forces;

President, New School University (2001-11); U.S. Senator

(1989-2001); Nebraska Governor (1983-87)

General William J. Lennox, Army 3-star; West Point

Superintendent (2001-06)

General Lester L. Lyles, Jr., Air Force 4-star; Commander,

Air Force Material Command (2000-03); Air Force Vice

Chief of Staff, (1999-2000)

Admiral William H. McRaven, Navy 4-star; Commander,

U.S. Special Operations Command (2011-14); Chancellor,

University of Texas System (2015-18)

General Richard B. Myers, Air Force 4-star; Chairman,

Joint Chiefs of Staff (2001-05); Commander, North

American Aerospace Defense Command (1998-2000),

President, Kansas State University (2016-2022)

Admiral Michael H. Miller, Navy 3-star; Naval Academy

Superintendent, (2010-14).

4a

Appendix

Admiral Michael G. Mullen, Navy 4-star; Chairman,

Joint Chiefs of Staff (2007-11); Chief, Naval Operations

(2005-07)

General Tad J. Oelstrom, Air Force 3-star; Director,

Nationa l Secu r ity P rog ram, Kennedy School of

Government, Harvard University (2001-2017); Air Force

Academy Superintendent (1997-2000)

Honorable Joe R. Reeder, Army Under Secretary (199397); after West Point, served as an 82nd Airborne Division

soldier

General Lori Robinson, Air Force 4-star; Commander,

U.S. Northern Command, North American Aerospace

Defense Command (2016-2018); Commander, Pacific Air

Forces (2014-2016)

Admiral John R. Ryan, Navy 3-star; Naval Academy

Superintendent (1998-2002); Chancellor, State University

of New York (2005-07)

General Curtis M. Scaparotti, Army 4-star; Supreme

Allied Commander, Europe (2016-19); Commanding

General, 82nd Airborne Division (2008-10); West Point

Commandant (2004-06)

General Henry H. Shelton, Army 4-star; Chairman,

Joint Chiefs of Staff (1997-2001); Commander, U.S. Special

Operations Command (1996-97)

5a

Appendix

General Larry O. Spencer, Air Force 4-star; Vice Chief

of Staff (2012-15); Joint Staff Director, Force Structure,

Resources & Assessments (2010-12)

General Gordon R. Sullivan, Army 4-star; Army Chief

of Staff (1991-1995); President, Association of the U.S.

Army (“AUSA”) (1998-2016)

General Dennis L. Via, Army 4-star; Commander, U.S.

Army Materiel Command (2012-16).

General Carl E. Vuono, Army 4-star; Army Chief of

Staff (1987-91); Commander, Army Training and Doctrine

Command (1986-87); Commandant, Army Command and

General Staff College (1983-85)

General Darrell K. Williams, Army 3-star; Director,

Defense Logistics Agency (2017-20); President, Hampton

University (2022-Present)

General Johnnie E. Wilson, Army 4-star; Commander,

U.S. Army Material Command (1996-99)