AFFIRMATIVE ACTION: LESSONS FROM THE MILITARY
Lauren Robel
Dean and Val Nolan Professor of Law
Indiana University School of Law---Bloomington

No brief in the Michigan litigation attracted as much attention, or so clearly influenced the Supreme Court majority, as that submitted by former high-ranking officers and civilian leaders of the United States armed forces. The story they told was both compelling and chilling. It was the story of what happens when important institutions do not integrate their elite. In the case of the military, the leaders argued, lives and military effectiveness were lost. Those of us in the legal profession should recognize that an equally compelling, and chilling, story can be told about our system of justice.

The Supreme Court brief supporting affirmative action was signed by military luminaries, pragmatic and clear-eyed men whom no one would associate with “political correctness.” The signatories included generals like Wesley Clark and Norman Schwarzkopf, admirals like Dennis Blair and Archie Clemins, former Chairmen of the Joint Chiefs of Staff like Admiral William Crowe, former Secretaries of Defense William Cohen and William Perry, Senators like Max Cleland, former head of the Veteran’s Administration, Bud MacFarlane, President Reagan’s National Security Advisory, former heads of the Armed Forces Service Academies, and a host of others of equal military credibility and experience, if not equal public recognition.

It recounted the history of integration in the armed forces. While minorities have fought in every war since this nation’s founding, it was not until President Truman’s 1948 executive order requiring integration of the troops that they fought alongside white forces. Truman’s order was the result of a report that found integration a military necessity to ensure combat readiness, and it resulted in segregation being dismantled with military efficiency. By 1954, the last segregated unit was gone. The armed forces are now the most racially-integrated institution in American life. By 2002, almost a quarter of the men and women who fought in the first Gulf War were African-American. Minority men and women constitute almost 40% of active-duty military personnel and almost 20% of the officer corps.

But this integration was hard-won, and almost came at the cost of our military. The brief also told the story of the Vietnam era, when only 1.3% of the officer corps were members of minority groups. Racial strife and violence was rampant. While the enlisted corps experienced racially-discriminatory treatment, that information rarely made it up an all-white command structure. “African-American troops, who rarely saw members of their own race in command positions, lost confidence in the military as an institution,” wrote the officers, and “concluded that the command structure had no regard for whether African-Americans would succeed in military careers.” And in a chilling allusion to the practice of “fragging” during that war, the brief states that “violence and even death proved necessary to drive home the realization that ...even commanding officers had only the faintest idea what the black man and woman in the service were thinking.” When the military became an all-volunteer force in 1973, integrating the officer corps became doubly critical to assuring military readiness in light of the need for minority military personnel.

The services turned to aggressive affirmative action, both in the service academies and in ROTC programs in colleges and universities. Each of the services set goals for minority officer recruitment. Realizing they could not rely on SAT and grade point average alone, the services worked hard to identify and develop the academic, character, physical, and leadership qualities that suggested that the numbers were not telling the whole story of an individual’s ability to succeed in the officer corps. And tellingly, the military leaders rejected the top 10% alternatives pushed by the Bush administration, because, as they noted, “minority candidates are not fungible.” It takes special qualities to be a military officer, and the military elite was pointedly unwilling to sacrifice either diversity or selectivity.

Our system of justice has an equally bleak history of failing to integrate its elite, one that led to massive distrust of the courts by minority citizens. As recently as the ‘50's and 60's, minority citizens routinely saw murderers released because their race and that of their victims differed. They still see racial disparities in everything from the amount of jury awards to the imposition of the death penalty. Indeed, the O.J. Simpson trial reminded us yet again that minority and majority citizens have radically different levels of trust in the results of the public system of justice. Imagine how much worse that level of trust would be in a criminal justice system without African-American and Hispanic prosecutors, defense attorneys, and judges.

And as a degree from one of the service academies is the route to power in the military, a degree from a law school is an obvious route to power in both the legal profession and government generally. In what is likely to become the most-quoted sentence in Grutter, Justice O’Connor correctly noted, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”

It is not just a degree from the most elite law schools that leads to power. All public law schools see their effect on the political infrastructure of their states. Indiana University School of Law–Bloomington counts as its graduates our current and several former governors, senators such as Birch Bayh and Vance Hartke, Congressmen such as Lee Hamilton, and countless state legislators, mayors, judges, and prosecutors. As dean of an outstanding public law school, I am proud that our school serves as a path to important positions in our government and justice system for our graduates, majority and minority. The analogy between the military’s experience and that of the public justice system is uncomfortably close. As its experience should remind us, nothing less than the legitimacy of our public institutions depends on our commitment to keeping the path to power open to all.

September 5, 2003