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Washington — The landmark Supreme Court decision rejecting race-conscious admissions at colleges and universities exempts military service academies, an exception that dissenting justices consider inconsistent and that some constitutional scholars say undercuts the majority's argument. 

Chief Justice John Roberts noted the court's decision does not apply to military service academies — for now — in a brief footnote in the 237-page opinion. He cited two reasons: first that the academies were not parties in the cases, and second, that there were "potentially distinct interests" involved.

"No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context," the footnote said. "The opinion also does not address the issue, in light of the potentially distinct interests that military academies may present." 

Though Roberts did not elaborate on what those "distinct interests" are, a friend-of-the-court brief filed by thirty-five former military leaders — including four former Joint Chiefs of Staff chairmen — argued that affirmative action in higher education was essential for national security. 

The former military leaders asked the Supreme Court to consider how reversing the longstanding admissions policy would affect the military's ability "to serve our nation's security interests." 

In particular, they argued that diversity in the officer corps, the graduates of the academies, was necessary because the forces they would be leading are diverse.

"The importance of maintaining a diverse, highly qualified officer corps has been beyond legitimate dispute for decades," the brief said. "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 brief continued. 

"Prohibiting 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," the brief said.

Still, Joe Reeder, a former undersecretary in the Army and one of the brief's signatories, pointed out that the former military leaders had not asked to be exempted from the ruling. 

"No one asked for a military academy carveout," said Reeder, who now practices private law at Greenberg Traurig. "We didn't ask for that. No one has asked for that."

In her dissent, Justice Sonia Sotomayor questioned the majority's narrow exemption, and questioned why religious institutions of higher learning, which also weren't a party to the case, weren't granted a similar exemption. 

"To the extent the Court suggests national security interests are 'distinct,' those interests cannot explain the Court's narrow exemption, as national security interests are also implicated at civilian universities," Sotomayor wrote. 

Some legal experts appeared to agree with Sotomayor's assessment that Roberts' justification for the carveout —while he doesn't elaborate on it — appears flawed. Jessica Levinson, a CBS News contributor and Loyola Law School professor who teaches constitutional law, said it's "absolutely true" that many students who attend public colleges and private universities end up working in national security fields. 

"If we're concerned that diversity promotes national security, then this carveout is such an incredibly narrow way to try and achieve that goal," she said.

The academies differ from public and private colleges and universities in that all graduating students work in national security — their tuition, room and board are free, in return for a minimum of five years of service as commissioned officers in the military.

However, only about 25% of the military's officer corps attended military academies, Reeder said. The "vast majority" of such recruits came from ROTC programs in colleges and universities, or other training programs.

That the officer corps reflect the diversity of the soldiers in their ranks is critical, Reeder said. When he graduated from West Point in 1970 and entered the Army's 82nd Airborne Division, 24% of the soldiers in his division were Black. 

"I had zero African American officers," Reeder said. 

If minority recruits don't see leaders who look like them, especially in a crisis on the battlefield, it's hard for that to feel like a true team, Reeder said. 

"While it is fortunate that the Supreme Court didn't interpose or substitute its judgment for that of our military leadership, we very much need the nation's ROTC programs to ensure that we have a healthy pool from the very inception of officer-hood, which is as an ROTC cadet," Reeder said. 

Reeder called the Supreme Court decision "myopic," because the nation needs healthy diversity, "and affirmative action helps us get there." 

F. Michael Higginbotham, a law professor at the University of Baltimore who focuses on constitutional law and race relations, thinks that the majority's exemption for military academies appears to undermine its own argument. Certainly, the federal government has some unique responsibilities, he said, but "the concerns of universities, especially in creating diversity, are the same." 

"I think that Justice Sotomayor had it right," Higginbotham said. "It kind of highlights the inconsistencies of the decision of the majority's position. And I don't really understand the exemption for the military academies. They are colleges and universities just like many many other institutions in the country."

Levinson suggested the arguments for preserving race-conscious admissions in military academies are inconsistent with the decision to end them for other colleges and universities.

"It definitely undercuts the argument that the way to end racial discrimination is to end race-conscious decisions, because the court is allowing military academies to make race-conscious decisions and they're saying and there's a really good reason for that…" Levinson said. "They're seemingly acknowledging that you don't want people in leadership positions to be wholly unrepresentative of those whom they're leading."

But the Supreme Court's landmark decision is not likely to be the end of affirmative action cases, and it's possible that the military academies could be a party in a future case. 

"It is entirely possible that the court is going to have to address this again," Levinson said. "At a certain point, they're going to have to answer the question of how broadly this ruling applies."

In:
• Affirmative Action
• Supreme Court of the United States

Caitlin Yilek

Caitlin Yilek is a politics reporter for CBS News Digital. Reach her at [email protected]. Follow her on Twitter: https://twitter.com/hausofcait

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