Retired Officers Join Obama Administration in Fisher Case

R. Lawrence Purdy

R. Lawrence Purdy is a Minneapolis attorney and a 1968 graduate of the U. S. Naval Academy.  He is the author of the amicus brief filed in Fisher on behalf of Congressman Allen B. West.

Nine years ago, I had the privilege of serving as one of the pro bono trial and appellate counsel for the plaintiffs who challenged the University of Michigan’s overtly race-conscious admissions policies.  In Gratz v. Bollinger, the U.S. Supreme Court struck down the university’s undergraduate policy (6-3); but, in Grutter v. Bollinger, it narrowly upheld (5-4) an even more discriminatory—though better camouflaged—law school policy.  On October 10, 2012, in Fisher v. University of Texas at Austin (No. 11-345), the Court will revisit the rationale upon which it based its decision in Grutter.  I hope the Court takes this opportunity to return our nation to the bedrock principle unanimously adopted by a previous Court almost sixty years ago, a principle widely accepted today by Americans of every hue:

[R]acial discrimination in public education is unconstitutional.  All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle.  Brown v. Bd. of Educ., 349 U.S. 294, 298 (1955). 

Sadly, a portion of Justice Sandra Day O’Connor’s opinion in Grutter, which implicitly rejected Brown’s principle, relied in part on an amicus brief submitted by a small group of retired military officers who professed support for the University of Michigan’s racially discriminatory policies.  In Fisher, many of these same officers have reappeared in a new brief endorsing UT’s adoption of the race-conscious policies approved in Grutter.  Support for these policies (in the context of their alleged impact on the military) also is found in a separate amicus brief filed by senior members of the Obama administration.  Their arguments are, to say the least, disappointing.

Both the retired officers and the Obama administration assert that our nation’s military academies and our universities must be allowed to use race as a factor in admissions in order to “train and educate a [racially] diverse officer corps.”  Their argument, of course, is unsupported by any hard evidence that race needs to be considered in order for our officer corps to become, much less remain, racially diverse.  Even worse, their argument entirely ignores the laws that govern us, including the “equal protection” language of the Fourteenth Amendment to the Constitution and the crystal clear language of Title VI of the Civil Rights Act of 1964 (prohibiting racial discrimination in Federal programs).  It also ignores decades of hard work by military leaders of every race who have been committed to insuring equal opportunity for every serviceman and woman without regard to his or her race.  Ask most any military veteran who served over the past forty-plus years or so and he or she will tell you that it has been our dedication to color-blind principles—not race preference policies—that has given us a military that, today, is perhaps the most racially diverse institution in the entire world.

It is a tribute, too, to the talent and achievement of thousands upon thousands of minority men and women who, once given the chance to compete on equal (not separate, but truly equal) terms, have contributed mightily to our nation’s defense.

The retired officers’ argument, which insinuates that minority candidates are somehow less able to compete for a commission or promotion unless their skin color is factored into the decision, also is deeply condescending.  The majority of our minority servicemen and women unquestionably earned their selection and promotions based on individual merit, not because of the immutable and irrelevant characteristic of their race.  Moreover, to advance any person for any reason other than his or her individual merit—irrespective of race—is simply wrong; and poses a direct threat to our nation’s security.

While many of these retired officers served our nation with honor, their willingness to encourage policies that reward some and penalize others based on the color of their skin is terribly misguided.  Nor can their position be reconciled with long-standing policies that guaranteed equal treatment and equal opportunity to every man and woman who served under them.  If the Court were to adopt their surprising view that race matters (a position the evidence strongly suggests is neither necessary to achieve a racially diverse officer corps nor one shared by the majority of their fellow senior officers), it would effectively nullify the guarantee contained in every equal opportunity/affirmative action policy ever written.  Consider the following words that reflect a principle now deeply ingrained in the hearts and minds of the vast majority of America’s diverse citizenry:

It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race . . .

-Executive Order No. 9981 signed by President Harry S. Truman (July 26, 1948).

Almost fifty years later to the day, the Department of Defense reaffirmed its commitment to President Truman’s policy:

[To attain the goal of defending the Nation with a well-trained volunteer force] we strive . . . to make military service . . . a model of equal opportunity for all regardless of race . . .

-Department of Defense Human Goals Charter (first adopted in 1969, with this version  signed on July 24, 1998).

Turning to my alma mater, the United States Naval Academy, it too guarantees equal treatment for every midshipman regardless of race, using language that mirrors President Truman’s historic executive order:

It is the Naval Academy’s policy to provide equal treatment and equal opportunity to all midshipmen and staff. * * * It . . . prohibit[s] unlawful discrimination . . . against persons or groups based on race . . . Midshipmen will be evaluated only on individual merit, fitness, and capability. 

-COMDTMIDNINST 5354.1A (29 July 2004)

And, of course, the Navy adheres to the same policy; and describes why it is important to do so:

The provisions of [the Navy Equal Opportunity Policy] apply without regard to race . . . * * * Acts of unlawful discrimination . . . are contrary to our Core Values of honor, courage and commitment.  Sailors and civilians who model Navy Core Values do not engage in negative behaviors nor condone these actions in others.  Additionally, [racially discriminatory] practices adversely affect good order and discipline, unit cohesion, mission readiness and prevent our Navy from attaining the highest level of operational readiness. 

-OPNAV INSTRUCTION 5354.1F (25 July 2007)

As one can readily see, equal opportunity within the armed forces has, for decades, been defined by its insistence that no person shall benefit nor be penalized based on his or her race.  It is a position fully consistent with the still-operative language contained in the Civil Rights Act of 1964.  And adherence to it is critical in order to insure good order, discipline, unit cohesion, and mission readiness.

Today, however, encouraged and abetted by senior Obama administration officials, these retired officers (including two of my Naval Academy classmates) urge the imposition of a dramatically different policy in which race most definitely matters.  The extent to which their view represents a complete annulment of traditional equal opportunity principles is foreshadowed in a 2011 report issued by a commission co-chaired by retired Lieutenant General Julius W. Becton, Jr. (the lead amicus on the retired officers’ briefs filed in both Grutter/Gratz and Fisher):

[A]lthough good diversity management rests on a foundation of fair treatment, it is not about treating everyone the same.  This can be a difficult concept to grasp, especially for leaders who grew up with the EO-inspired mandate to be . . .color blind. . . Blindness to differences, however, can lead to a culture of assimilation in which differences are suppressed rather than leveraged.

-See Military Leadership Diversity Commission Final Report (delivered to President  Obama on March 15, 2011) at 18.

However differently these words may have been intended, they mirror the abhorrent race matters ideology held by old-line segregationists.

Not all (nor, I submit, anywhere close to a majority of) our senior officers agree with this view.  One notable example is Congressman and retired Army Lieutenant Colonel Allen B. West. In his individual amicus brief in Fisher, opposing UT’s race-conscious policies and citing the intuitively obvious adverse implications of extending their use in our nation’s military, he concludes with the following:

This fact remains unchanged, as it has since President Truman issued his Executive Order in 1948:  Neither race nor ethnicity has a legitimate role to play in determining how opportunities, promotions, benefits and privileges are awarded within the U. S. military.

In the end, the principle prohibiting racial discrimination in the public sphere, as unanimously laid down in Brown, and statutorily reaffirmed in the Civil Rights Act, should be fully re-embraced as the governing principle for every policy affecting our military personnel.

Were the Court to perpetuate Grutter’s ruling that race-conscious policies (when used for a non-remedial purpose) are permissible in the context of higher education, it will result in (a) the rejection of the bedrock principle established in Brown v. Bd. of Educ.; (b) the effective nullification of the language of Title VI of the Civil Rights Act of 1964; and (c) the elimination of the guarantee, first issued by President Truman, that “there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, . . . or national origin.”

I respectfully submit the Court should avoid such an outcome and, instead, grasp the opportunity presented in Fisher to place its imprimatur on the color-blind principle deeply imbedded within each of the above.  To do otherwise would, tragically, in the eyes of the vast majority of Americans, constitute a rejection of Dr. King’s dream of a nation where each of us is judged by the content of our character and not by the color of our skin.

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