Military academy admissions may be key to U-M case Military academy admissions may be key to U-M case
April 3, 2003
BY SHAWN WINDSOR AND DAVID ZEMAN FREE PRESS STAFF WRITERS
Thousands of pages have been filed in the six years since the University of Michigan began battling to protect its race-conscious admissions policies. Yet Tuesday morning, several U.S. Supreme Court justices focused on just 30 pages filed on behalf of a group of prominent retired military officials who came out in favor of U-M's admissions policies. Court observers said Wednesday that the brief could play a key role in the outcome of the case.
"Anyone who has practiced before the Supreme Court will tell you not to count your chickens until they're hatched," said Eugene Fidell, a lawyer and president of the National Institute of Military Justice in Washington. "But when you see a single brief plucked out of a sheaf of briefs like this, something like that can well be a precursor for how this case is going to turn out."
Regardless of what happens, the brief showed that the Bush administration -- which opposes U-M's policies -- is at odds with admissions practices at the nation's elite military academies. The Army, Navy and Air Force academies in West Point, N.Y., Annapolis, Md., and Colorado Springs, Colo., use race as a factor in admissions.
In January, President George W. Bush declared in a speech that U-M's policies were unconstitutional because they "amount to a quota system that unfairly awards or penalizes prospective students, based solely on their race." The 30-page brief filed by the retired officers pointed out all three military academies considered race a factor in admissions.
"Today, there is no race-neutral alternative that will fulfill the military's and the nation's compelling need for a diverse officer corps of the highest quality to serve the country," the brief said. The signers included retired Gen. Norman Schwarzkopf, who led the United States and its allies during the Persian Gulf War in 1991. The document, one of many filed in favor of U-M's policies for its law school and undergraduates, commanded the most attention during Tuesday's oral arguments before the high court.
"The timing was remarkable," said Carter Phillips, a Washington-based attorney who wrote the brief. "The context of us being at war, in a multicultural environment, with a whole series of concerns about diversity." He added, "I don't think you can discount Norman Schwarzkopf." The retired generals were arguing that a segregated military was an unprepared military. In the 1960s and '70s, as integration increased the minority presence among the enlisted ranks, the percentage of African-American officers remained extremely low.
"The armed forces suffered increased racial polarization, pervasive disciplinary problems and racially motivated incidents in Vietnam," the brief from the retired generals said. As a result, the military ordered its academies to find a way to increase minority enrollment. It said such inclusion was a matter of national security.
During the hearing Tuesday, Justice Ruth Bader Ginsburg zeroed in on the officers' argument when she asked Ted Olson, the U.S. Solicitor General who was arguing on behalf of the administration, if he realized that the academies had racial preferences just as U-M did. "I do acknowledge," he replied, "that the other academies are doing so." It was a line of questioning that repeatedly came up during the two-hour hearing. And though the military academies said they don't use quotas, they do admit that race is a factor in admissions.
The academies say they don't use a point system but consider race among other factors such as grades, leadership skills and physical abilities. Experts in military law said the brief appeared to have a profound impact on the justices. That may be because retired military officers so rarely inject themselves into controversial social issues.
"It happens so infrequently that when it does happen it makes a great impression," Fidell said. Scott Silliman, a Duke University law professor and expert on national security, said the brief stood out because the military has been successful in diversifying its ranks and in reducing racial tension. Today, almost 80 percent of officers are white, compared with 60 percent of those enlisted in all branches of military, the brief said.
Wilfredo Ruiz, who served four years as a Navy lawyer before returning to Puerto Rico to practice law, said the real test of the military's commitment to affirmative action lies in its admissions practices in its service academies. "Many of the people who enlist in the military in general are minorities: blacks, Hispanics," Ruiz said. "That changes when you move to the officers and to the service academies.
Contact SHAWN WINDSOR at 313-222-6487 or windsor@freepress.com.
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