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The Generals’ Brief
The most powerful argument in the Michigan case.


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Peter Kirsanow

By far the most persuasive brief in the University of Michigan preference cases is the so-called “green brief” or “generals’ amicus brief.”

A constellation of military figures have signed onto a brief in support of the University of Michigan’s preferential admissions program — including such admired figures as retired generals Norman Schwartzkopf, Hugh Shelton, and Anthony Zinni.

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The generals’ brief has captured more attention than perhaps any other except the one filed by the Bush administration, and it’s the one that most troubles conservatives. After all, it contains arguments supported by serious men in the most serious occupation.

During last Tuesday’s oral arguments before the Supreme Court, Justices Ginsburg, Stevens, and Souter especially were fascinated by the arguments set forth in the brief, and peppered advocates with numerous questions about the points made therein. Rarely has a non-administration amicus had such an impact.

Liberals have seized upon the brief, according the military a strange new respect. Ellen Goodman of the Boston Globe, for example, asserts that the brief makes the most effective case in support of preferences in admissions.

Goodman is dead wrong. The generals’ brief so persuasively makes the point for striking down preferences at the University of Michigan (and, by extension, elsewhere) that a conspiracy theorist might well be excused for concluding that the brief was actually a malevolent attempt to undermine UM’s argument.

The generals’ brief effectively outlines the fundamental differences between service academies and other institutions of higher learning and emphatically demonstrates why UM’s preference program fails to satisfy either the compelling state interest or the narrow-tailoring prong of strict scrutiny.

Since racial classifications are based upon an immutable physical characteristic, and because of the nation’s baleful history with respect to race, the Supreme Court has declared racial classifications pernicious and “odious to a free people whose institutions are founded upon a doctrine of equality.” Consequently, post-Bakke jurisprudence requires that racial classifications must further a compelling governmental interest and be narrowly tailored to serve that interest.

Compelling governmental interests supporting the use of racial classifications or preferences are extremely rare. Indeed, except for the criminological benefits of using race in the selection of law-enforcement officers and in the hiring of corrections officers, courts have not looked favorably upon purported the “compelling interests” proffered in support of racial preferences.

The generals’ brief argues that a racially diverse officer corps trained to command the nation’s racially diverse enlisted ranks is essential to accomplishing the military’s mission — protecting national security. There is no more compelling governmental interest. The generals note that today’s officer corps is 81 percent white, 8.8 percent black, 4 percent Hispanic, 3.2 percent Asian-American, and .6 percent Native American, whereas the enlisted ranks are 61.7 percent white, 21.7 percent black, 9.6 percent Hispanic, 4 percent Asian-American, and 1.2 percent Native American. In contrast, during the Vietnam War, the ranks of black enlisted men in the Army swelled to between 15 percent and 20 percent, while only 3 percent of Army officers were black. This disparity contributed to low morale, racial polarization, disciplinary problems, and racial violence. Unit cohesion and effectiveness were compromised — at times severely.

The military performs the most important work with which the government is charged; obviously it is a serious matter for its capabilities to be compromised. Racial polarization is not only problematic in the armed forces of a democratic republic, it can cause racial schisms in overall domestic support for military enterprises. This is especially true in today’s force, which relies solely on volunteers.

But the above considerations nevertheless clearly demonstrate why the preference programs employed by UM and other non-military colleges fail the compelling governmental interest test. The respective missions of UM and West Point are manifestly light years apart. Producing a well-rounded Theatre Arts graduate may be a laudable mission, but it is hardly on the same level as preventing another 9/11.

The generals try, however, to elevate the importance of non-military preference programs by arguing that since the officer corps also draws from ROTC programs at elite schools, the preference programs at those schools must be preserved to maintain sufficient minority enrollment. This is both a peculiar and attenuated argument. It presumes that ROTC programs at elite schools cannot achieve diversity with a more narrowly tailored, race-neutral program. The Texas and Florida percentage plans refute that notion (we can debate the merits and constitutionality of those at a later time). Further, sizable numbers of officers come from so-called second-tier schools (e.g., Colin Powell, ROTC CUNY) and HBCUs, whereas ROTC participation at elite schools is often abysmal (and, at Harvard, non-existent).

The generals’ brief also shows that the means by which the service academies further the (arguably) compelling governmental interest is far more narrowly tailored than that employed by the University of Michigan, et al. In fact, the academies’ admissions programs more closely resemble affirmative action as it was originally conceived — i.e., aggressive recruitment and outreach to expand the pool of minority applicants, before it metastasized into a racial spoils system.

To be sure, the academies do consider race in admissions. But the degree to which race is a factor is tiny at these institutions, compared to UM. As Rich Lowry has noted, a Center for Equal Opportunity analysis shows that whereas a black West Point applicant is twice as likely to be admitted as a similarly situated white applicant, that same black applicant is 174 times more likely to be admitted to UM than his white counterpart. At other schools, this ratio rises to as much as 700 to 1. By any measure, a program that yields such an astonishing differential can hardly be narrowly tailored.

Whether the admissions programs at service academies pass constitutional muster is an inquiry for another day. Because of the distinctions noted above, a Supreme Court decision that struck down UM’s programs would not necessarily invalidate those of West Point and Annapolis. But, those same distinctions in effect render the unconstitutionality of UM’s programs nearly incontrovertible. Let’s see if the Supremes agree.

Peter N. Kirsanow is a member of the U.S. Commission on Civil Rights.



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