In a recent Washington Post op-ed, Harvard Law School professor Noah Feldman wrote that the U.S. Supreme Court could except military academies, like West Point, from the anti-discrimination rule that the Supreme Court adopted for most other universities last term in Students for Fair Admissions v. Harvard College. According to Feldman, the Court has long accepted “the idea that individual constitutional rights, even fundamental ones, operate differently for people serving the military.” That’s true, but Feldman and others who agree with him are wrong, as we explain in a soon-to-be-published article showing why the rule adopted in Fair Admissions should also apply to the service academies.
Professor Feldman is right that the Supreme Court has recognized that the Constitution applies differently to service members and civilians. The president and military commanders can burden soldiers, sailors, and airmen with tasks that cannot be demanded of civilians. Service members can be ordered to risk life and limb in circumstances where it is certain that some, perhaps even most or all, will not survive. But the deference that the Supreme Court gives to judgments of military necessity does not trump the anti-discrimination requirement set forth in the Fair Admissions case, for several reasons.
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