Major Flaws in the Court’s Decision

Bennett found that a diverse officer corps positively affected unit cohesion, saying “it allows for a wider range of perspectives, experiences, and problem-solving approaches.”

Yet Fuller, the vice admiral, testified that in essence that kind of thinking is “broad” and, in my words, an overexaggeration.

Bennett noted that several witnesses testified about their “personal experiences that diverse units are more cohesive,” but then said Haynie “acknowledged that DoD has not conducted a wide-ranging study that examines whether diverse teams solve complex problems better than non-diverse ones in a military setting.”

That’s exactly what Dakota Wood pointed out in his expert testimony, which the judge discounted. 

Haynie later testified that “within a few weeks of graduating” the Naval Academy, its officers were “leading … sailors and Marines in different places.”  This seemed to impress the judge, but it shouldn’t have.

The fact that a man or woman who graduates from officer candidate school leads enlisted members within weeks of graduating holds true for graduates of the military academies, ROTC programs, direct commission programs, and every officer candidate school.

Haynie added the blatantly obvious tidbit that the Naval Academy is “not a normal college.” So what? Princeton, Harvard, and tons of other top colleges with ROTC programs aren’t “normal colleges” either.

It didn’t dawn on Bennett as judge that some students who attend the Naval Academy did so because they didn’t get

Can the U.S. Naval Academy continue to use race and ethnicity in admissions decisions, even though the Supreme Court last year expressly forbade the use of race in college admissions in two related cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC? 

The answer is yes, according to U.S. District Court Judge Richard D. Bennett, who presided over a nine-day bench trial in September. 

However, I continue to believe the clear answer is “no,” as I have argued elsewhere. Bennett’s 175-page opinion is, with all due respect, not convincing, as I discuss below. 

As a policy matter, it is likely that the nation’s military service academies will be prohibited from using race in admissions under the second Trump administration. Depending on how the new administration implements the policy, that may settle the issue as a legal matter for future presidents. 

This is the third and final of three commentaries in which I analyze the court’s ruling and attempt to predict how this issue will be handled by the Trump administration after it takes over Jan. 20.

 In the first piece, I discussed the legal arguments of the parties. In the second one, I discussed the key witnesses in the trial. 

The Court’s Ruling

Bennett, the District Court judge, held that the Naval Academy’s “race-conscious admissions program withstands the strict scrutiny in the ambit of the Supreme Court’s opinion in the Harvard case.”

The court found that the Naval Academy had “established a compelling national security interest in a diverse officer corps in the Navy and Marine Corps,” and that interest was measurable and narrowly tailored. Bennett wrote that “quite simply, this Court defers to the executive branch with respect to military personnel decisions.” 

During the trial, Bennett heard from 18 witnesses and reviewed 420 exhibits. 

One of the first hints that Bennett gave little to no weight to the plaintiff’s witnesses may be found on page 10 of his opinion, where he wrote: “At trial, the Defendants produced substantial and credible evidence, which is not seriously disputed, that the Government has made the judgment, informed by history and experience, that a diverse officer corps is vital to national security, and that the United States Naval Academy is a vital pipeline to the officer corps.” 

But that “substantial” evidence wasn’t backed up by peer-reviewed studies and the “credible” evidence were the opinions of current Navy officers, government witnesses, and civilians whom the government chose as witnesses. 

Furthermore, the evidence and opinions of the government witnesses were vigorously disputed by the plaintiff’s witnesses, whom the court dismissively characterized as “a retired U.S. Air Force General Officer with over 40 years of military experience” (referring to Brig. Gen. Christopher S. Walker) and a person who served in the U.S. Marine Corps “for 20 years before retiring from active duty in 2005 and has since studied military readiness” (referring to my former Heritage Foundation colleague, Dakota Wood).

Wood alone has published more about military readiness and strategy—over 85 articles and major reports —than almost all of the government witnesses combined. He also edited 10 annual editions of The Heritage Foundation’s Index of U.S. Military Strength, the only nongovernmental annual assessment of U.S. military strength.

Wood worked under one of the most brilliant military strategists in modern history, Andrew Marshall, in the Pentagon’s Office of Net Assessments. Marshall was so revered that his nickname at home and abroad was Yoda, after the “Star Wars” character with transcendent mental powers.

To give a Marshall protégé such short shrift demonstrates the shallowness of the court’s ruling.

Bennett, who served in the military for a short period of time, seemed to give weight to the government’s witnesses simply because they were government witnesses, instead of evaluating the expert opinions and experience of each on the merits.   

How else, I wonder, can one interpret this comment on page 11 of the judge’s opinion: “Simply stated, the personal opinions of Brig. Ben. Walker and Lt. Col. Wood and other evidence produced by Plaintiff do not undermine the Government’s well informed and reasoned determination that a diverse officer corps is ‘not a lofty ideal’ but a ‘mission critical national security interest.’”

The so-called personal opinions of Walker and Wood were based on their well-informed, scholarly, and experienced-based expert opinions that the government witnesses’ evidence of the national security “need” for diversity of skin color in the officer corps generally in the Navy, and at the Naval Academy in particular, wasn’t backed up by peer-reviewed studies and had no bearing on combat readiness. 

If the opinions of Walker and Wood were merely “personal opinions,” as characterized by the judge, then so too were the opinions of most, if not all, of the government witnesses, most of whom had far less (or no) time in uniform and/or little to no scholarly work in the area of combat readiness.   

To drive home the point, let’s take a quick look at the government witnesses, who included Capt. Jason Birch and Vice Adm. John Fuller, both black senior officers with distinguished records.

Like all active-duty officers, Birch and Fuller are required to toe the line and follow the lead of the commander in chief and the current chief of naval operations.  The relevance of the government’s other witnesses, also discussed below, to the issue at hand is less than clear.

Capt. Jason Birch

Birch is a Navy SEAL, which puts him in an elite class of warriors.

Birch didn’t make it through the grueling, introductory training in Coronado, California, called BUDS (Basic Underwater Demolition School) because he was black. He made it through BUDS and other SEAL-credentialing programs because he had the physical and mental toughness to become a SEAL. He is the first black officer to command a SEAL team.    

Birch testified about two incidents that seemed to affect the court. Had the judge had more experience in the military, these two incidents would not have had much weight, if any.  

First, when Birch was deployed with SEAL Team 8 in 2011, he said two SEALs in his unit altered the image of another SEAL, who happened to be black, by changing his hair to a “brill-like nappy” and his brown eyes to “doodoo brown” and making his lips larger. They included “what he ate, and other, again, very nasty, inappropriate things,”  Birch said.

Birch’s commanding officer asked him to talk to the SEAL whose image was defaced, which he did.  At trial, Birch testified that his takeaway “from those conversations” with that SEAL “was that he felt comfortable in speaking with me about what happened.” 

The government didn’t establish the race of the perpetrators, but Birch said they were held accountable by going to captain’s mast (a form of nonjudicial punishment). Birch wasn’t asked whether any other officer in the unit could have had a similar “comfortable” conversation with the black SEAL.

In my 30 years in the military, I find it hard to believe that only a black officer could make an enlisted black sailor “feel comfortable” talking about a racial incident.    

Birch also testified that he was the commanding officer of SEAL Team 10 when it was deployed years ago to Somalia. He opined that his interactions with Somali senior military leaders and civilian leaders were “significant” because they called him “brother” and were curious about how “I gained the position that I did.”

As an aside, when I was deployed as a naval officer to Kenya in the spring of 2000 on Operation Natural Fire, several Kenyans referred to me and other white officers as “my brother.”  It was a way of saying “friend.” 

How these two incidents justified the use of race in admissions was never made clear in Bennett’s ruling or emphasized in the government’s closing argument.   

Vice Adm. John Fuller

I detailed Fuller’s testimony in my second post on this topic, which you may read here.

A distinguished three-star admiral who graduated from the Naval Academy, where he played football, Fuller serves as inspector general of the Navy. He testified in this case as a fact witness, not an expert witness. 

Fuller’s sworn testimony during cross-examination undercut the central thesis of the government’s case, which is that black students provide important, distinct viewpoints and life experience to the military simply because of their skin color.

On cross, Fuller was asked: “You would never assume that anyone of a particular race shares the same perspective with each other?”

Fuller replied: “That’s a very broad assumption.” 

Pressing the point further, counsel asked: “You would not assume that a white man from Texas has the same perspective on the world or any other, for that matter, as a white man from New York City?”

Fuller replied: “So that’s so broad. It depends on the subject.”

Getting to the point, counsel pressed further by asking: “You would not assume a black man from New York shares the same perspective of a black man from Oregon, correct?” 

Fuller, finally realizing what was happening, answered: “Broadly speaking. I don’t know the topic. So, it could be on specifics. It could be; it could not be.”

That cross-examination, albeit brief, eviscerated the central pillar of the government’s case in under two minutes. 

So, the highest-ranking black officer who testified for the government undercut the government’s central thesis, yet Bennett, as judge, ignored that aspect of Fuller’s testimony entirely. 

Why? There is no way of knowing. Bennett didn’t even try to reconcile that testimony with the rest of the evidence admitted at trial that purportedly supported the government’s theory.

One hint to the answer may be found in the judge’s own questions and comments to Fuller. After the cross-examination, the following dialogue took place:

Judge: In terms of your rank as admiral, as I understand it, 40% of flag officers, flag rank officers in the Navy, are U.S. Naval Academy graduates, correct?

Fuller: That is my understanding, yes, sir.

Judge: And how many flag rank officers are there in the U.S. Navy who are of color?

Fuller: I’d say less than a dozen.

Judge: Less than a dozen?

Fuller: That’s my recollection. I don’t have them all memorized. But it’s small.

Judge: As of last December, there were some 229 flag rank officers and about, you said, 92 of them, 40%, are Naval Academy graduates.  And … of the 229, you believe there may be a dozen, 12, who are people of color?

Fuller: Correct. People of color.

(As an aside, the evidence at trial showed the Navy has 218 admirals.)

A few questions and answers later, Bennett presses further.

Judge: So, in short, in terms of the statistics we have here, there hasn’t been a lot of movement since World War II. … [T]here was only one black general in the Army after World War II and there were no black admirals after World War II. And here we are, you know, 70 years later and we might have 12 black admirals in the U.S. Navy out of 230.  Not a lot of progress.

Fuller: But it is progress.

After more back and forth, Fuller blurted out something.

Fuller: And I wanted to say I’m not advocating for any type of quota system.

Judge: No, no. I’m not advocating a quota, either. I’m just talking about that the underlying reality here, when all is said and done, is that you have a volunteer … force … and so you have a reality of that disproportion that the military has to deal with. And certainly the Navy has to deal with, in terms of the numbers, in terms of the issue of some type of diversity in the officer corps to deal with this imbalance.

Stop and think about the judge’s comments for a moment.

Ask yourself whether a fair person, looking at Bennett’s comments, would perceive that the judge had made up his mind before the trial’s conclusion that the Naval Academy should be allowed to use race in its admissions program. 

Bennett opined that 12 black admirals in the Navy since World War II is “not a lot of progress,” despite the numerical fact that those 12 admirals represent over a tenfold increase in the number of black admirals since the end of World War II.

The judge ignores the fact that there are many female admirals in the Navy today, including the four-star chief of naval operations (the top admiral), and the fact that there are other minorities besides blacks who are admirals. 

Bennett’s comments to Fuller about “trying to get some kind of racial diversity in the officer corps” signaled that the judge most likely was hinting at the need for racial quotas, prompting Fuller to interject that he wasn’t advocating a quota system.

Nor did Bennett take into consideration, much less discuss, the fact that many officers—including blacks who attended the Naval Academy—leave active duty for more lucrative jobs in the private sector by choice.

Former military officers are highly sought-after recruits, especially minorities.  Such veterans tend to be quite educated, disciplined, team-oriented, and endowed with natural leadership qualities.

Aspiring to become an admiral is not the goal of all naval officers.   

Ashish Vazirani

Ashish Vazirani, who is performing the duties of the undersecretary of defense for personnel and readiness (USD P&R), also has had a distinguished career. 

Vazirani has served as acting USD P&R since Sept. 8, 2023; he has worked as deputy USD P&R, the No. 2 in that office, since July 2022. Prior to his confirmation as deputy, Vazirani was a senior adviser to the assistant secretary of the Navy focusing on force resilience. 

Vazirani testified that the 2022 National Defense Strategy requires “diversity,” which includes race and ethnicity. Diversity, according to the NDS, is a “strength that our competitors cannot match.” 

Vazirani also testified that then-Defense Secretary Mark Esper signed a memorandum dated June 19, 2020, stating that: “to ensure the morale, cohesion, and readiness of the military, it is essential that our ranks reflect and are inclusive of the American people we have sworn to protect and defend.” 

Under cross-examination, Vazirani testified that the word diversity is broad and includes “gender identity” and religious diversity. He conceded that the U.S. military is more diverse than China’s military with respect to gender identity and sexual orientation.

Vazirani also was forced to concede the results of an Office of People Analytics study (Exhibit No. 275), which looked at the impact of the health of diversity and inclusion on individuals and readiness of the force. The study found that  “the percentage of people who thought there was too much attention paid to D&I [diversity and inclusion] in the military exceeded the unhealthy D&I climate.”

Worse still, Vazirani reluctantly conceded that a whopping 80% of active duty respondents say they think too much attention is paid to “racial and ethnic harassment and discrimination training.” 

And Vazirani conceded that he wasn’t aware of any study of the level of racial representation in the Navy’s officer corps that would best promote unit cohesion, or promote trust with a unit, or allow minority recruits to see themselves as future leaders.      

Beth Bailey

Beth Bailey is a history professor at the University of Kansas who specializes in, according to the university website, “calls for racial justice” in the Army and studies “pervasive racial conflict during the broader unrest of the Vietnam era.”

Bailey’s latest published work is titled “Managing Sex in the U.S. Military: Gender, Identity, and Behavior.” She was called to testify about a report she prepared for the trial based on records she received from the Department of the Navy, the Defense Department, and the Defense Race Relations Institute.

Bailey offered three opinions: first, that “racial conflict, segregation, and discrimination hindered U.S. military readiness and efficiency in the years before 1967;” second, that racial violence in the military exploded during the Vietnam era; and third, that diversity “aids the military’s public legitimacy.”

After discussing ad nauseum the history of racial strife in the military that occurred decades ago, Bailey conceded that she had not conducted research into race relations in the military in the 1980s or the 1990s, and was “not claiming expertise in the 21st century.” 

Jeannette Haynie

Dr. Jeannette Haynie, a Marine who pilots Cobra attack helicopters, graduated from the Naval Academy and served on active duty and in the reserves before retiring.

An impressive officer who graduated first in her class in flight school and was only the third woman to fly Cobras, Haynie is now an adjunct senior fellow at the Center for New American Security. Her academic research focuses on the “intersections of people, culture, leadership, and security.” 

Haynie worked at the Defense Department as a “highly qualified expert” under Vazirani, but also for the commandant of the Marine Corps in the Strategic Initiatives Group, where she focused on warfighting effectiveness and talent management.

Haynie opined that “diversity and inclusion support military effectiveness and mission accomplishment … that diversity and inclusion support recruitment and retention,” and that diversity and inclusion support the international legitimacy of our fighting forces. 

During cross-examination, Haynie conceded that she was unaware of a major study earlier this year from the Naval Postgraduate School that reviewed 2,482 technical reports available on a Defense Department research website from January 2000 to September 2023. That study determined: “Overall, our data do not support a one-size-fits-all conclusion about the empirical relationship between Navy unit diversity and unit performance.” 

John Sherwood

John Sherwood, a historian at the Naval History and Heritage Command, has written six books about the military and naval history. Although impressive, Sherwood’s scholarship doesn’t focus on current military readiness or lethality. He did read existing literature on “race relations and racial integration at the Naval Academy.” 

Sherwood opined that the “lack of black representation in the Navy’s Officer Corps contributed to racial tension and unrest during World War II, which hindered naval readiness, national security, and domestic security.”

Sherwood also expressed the view that the same lack of black representation in the officer corps contributed to race riots during the Vietnam War. He said that ever since the Naval Academy and other commissioning sources began enrolling more black officers in the mid-1970s, the Navy “has not since experienced major incidents of racial unrest.”

On cross-examination, though, Sherwood admitted that he was focused on the past and has no opinion about what would happen if the Naval Academy stopped using race as a factor in its admissions process. 

Stephanie Miller

Stephanie Miller reports to Vazirani as the deputy assistant secretary of defense for military personnel policy (DASD-MPP). A career civil servant who is part of the Senior Executive Service, Miller has tackled a variety of jobs and issues at the Pentagon, from reserve affairs to sexual assault prevention to veterans affairs.

Miller was a special assistant to two defense secretaries, Chuck Hagel and Ashton Carter. She previously worked in the Office of Diversity and Inclusion in the Navy’s Office of Women’s Policy. A veteran who attended Villanova University on a Navy ROTC scholarship, Miller was an active-duty surface warfare officer for seven years.

Miller testified that 20% of new Navy and Marine Corps officers each year are commissioned out of the Naval Academy. She said about 28% to 30% of new unrestricted line officers in the Navy eligible each year to take command at sea come from the Naval Academy. By regulation, 95% of the academy’s graduating class must be unrestricted line officers.

The Navy and Marine Corps can’t consider race and ethnicity in making promotion or assignment decisions. Less diversity exists in the aviation, submarine, and special forces divisions. 

Miller testified that “we see a higher percentage of diversity coming out of those ROTC programs,” referring to historically black colleges and universities and other institutions that serve minorities. She indicated that it was too early to tell whether the Supreme Court’s holding in the two Students for Fair Admissions cases would result in a decline in the number of black ROTC students.

Miller testified that in 2001, 99% of flag officers in the Navy were white, compared to 92% today. She noted that “we see small but measurable improvements in diversity representation over time, both for retention and then overall counts,” which “gives me some reason to be cautiously optimistic that we can develop this talent over time; and again, in 20 to 30 years, then we may see larger representation in our senior ranks.” 

During cross-examination, Miller reluctantly admitted that she doesn’t know how the number of minorities admitted to the Naval Academy would change if race wasn’t used in admissions. She also conceded that the vast majority of commissioned officers and 72% of new unrestricted line officers who enter the Navy come through channels other than the academy. 

Miller got testy when she was asked about recommendations in a report by the Military Leadership Diversity Commission and what the Navy or Pentagon has done to increase recruitment efforts at two-year colleges.

She said that she didn’t know how many programs the Navy has at two-year colleges, nor did she know what percentage of officers started out in two-year colleges or how many partnerships the Defense Department has with two-year colleges. She didn’t even know how many ROTC units exist across the country, except to say that it numbers in the “thousands.”

The Military Leadership Diversity Commission also recommended 13 years ago that the services “explore developing formal processes for coordinating enlisted and officer recruiting,” but Miller grudgingly admitted that she didn’t know what progress, if any, has taken place on that front. 

Miller was forced to admit that the Military Leadership Diversity Commission also recommended a unified application process for ROTC and multiple service academies, but that hasn’t happened. The commission’s report recommended that the Defense Department “closely examine the preparatory school admissions process and make required changes to ensure that accessions align with the needs of the military,” but that hasn’t happened either.   

Miller also was forced to admit that 44% of black male officers in the Navy and 37% of black female officers were enlisted before commissioning. This was significant because Miller previously testified that 55% of enlisted personnel are minorities, proving Students for Fair Admissions’ point that the Naval Academy isn’t a significant source of officer recruitment. 

Major Flaws in the Court’s Decision

Bennett found that a diverse officer corps positively affected unit cohesion, saying “it allows for a wider range of perspectives, experiences, and problem-solving approaches.”

Yet Fuller, the vice admiral, testified that in essence that kind of thinking is “broad” and, in my words, an overexaggeration.

Bennett noted that several witnesses testified about their “personal experiences that diverse units are more cohesive,” but then said Haynie “acknowledged that DoD has not conducted a wide-ranging study that examines whether diverse teams solve complex problems better than non-diverse ones in a military setting.”

That’s exactly what Dakota Wood pointed out in his expert testimony, which the judge discounted. 

Haynie later testified that “within a few weeks of graduating” the Naval Academy, its officers were “leading … sailors and Marines in different places.”  This seemed to impress the judge, but it shouldn’t have.

The fact that a man or woman who graduates from officer candidate school leads enlisted members within weeks of graduating holds true for graduates of the military academies, ROTC programs, direct commission programs, and every officer candidate school.

Haynie added the blatantly obvious tidbit that the Naval Academy is “not a normal college.” So what? Princeton, Harvard, and tons of other top colleges with ROTC programs aren’t “normal colleges” either.

It didn’t dawn on Bennett as judge that some students who attend the Naval Academy did so because they didn’t get into Harvard, Princeton, Duke, or other top schools. 

The point is this: How a man or woman becomes an officer in the Navy or Marine Corps is irrelevant. If he or she makes the grade, including academic and military proficiency, he or she may enter the Navy or Marine Corps as an officer. 

The court’s decision is undercut by the judge’s own findings of fact.

For example, Bennett found that the Naval Academy uses race in four of the five steps of its admissions process. Experts on both sides quibbled over whether the academy used race a lot or just a little in each of those four steps.

But the bottom line is that the Naval Academy uses race in 80% of its admissions processes. 

Next, the court found that the academy “demonstrated that there are not workable or viable race-neutral alternatives that would allow it to achieve its current level of diversity.” But when you read the court’s justification, it’s clear that so-called insurmountable barriers are actually very doable. 

For example, one witness suggested that the Naval Academy could achieve its current level of racial diversity by “altering its admissions process to place greater emphasis on socio-economic factors.” The court curtly noted that it was “unpersuaded” despite the fact that, since the Supreme Court’s decision in the Students for Fair Admissions cases, other colleges have done exactly that to achieve diversity. 

Bennett bemoaned the fact that the Naval Academy’s recruiting budget is insufficient to expand its digital presence or engage in other significant outreach. But lack of a sufficient budget isn’t an excuse to violate the Constitution or the tenets of the high court’s holding in Students for Fair Admissions. 

The court pooh-poohed the suggestion that the Naval Academy Prep School could be vastly expanded to provide a solid pool of diverse students to the academy, calling such an expansion “dramatic” and “unworkable.”

Currently, enrollment at the prep school is limited to 310 students. However, Congress could pass legislation increasing the size of each military academy’s prep school as a way to increase diversity at the academies.

Yes, that potentially would affect the number of congressional slots at each academy available to members of Congress. But that is something the legislative branch can and should decide. 

Next, Bennett noted several times that the Supreme Court “exempted” military service academies from its holding in Students for Fair Admissions.  That is simply not true.

The fourth footnote of the high court’s majority opinion simply noted that the military service academies weren’t party to the lawsuits against Harvard and the University of North Carolina, not that they were exempt from the logic of the court’s holding. 

In justifying the Naval Academy’s use of race in admissions, Bennett also concluded that the academy’s use of race is timebound and that it will “conclude its use of race-conscious admissions practices … when the Navy and Marine officer corps represents the American population that it defends.” 

There are, to say the least, numerous problems with this finding.

First, the government never said when that utopian moment might occur.  Second, since the Naval Academy produces only around 20% of the officers commissioned into the Navy and Marine Corps each year, how can it produce enough “diverse” officers each year to drive up the number in the Navy and Marine Corps? 

Bennett never tried to answer those questions, but simply parroted the government line that “diversity”—by which it means black officers—are a national security imperative. 

The lower court ignores the fact that the Naval Academy admits women and other minorities each year, and those midshipmen drive up the “diversity” of the officer corps in the Navy and Marine Corps when they enter the Fleet and Corps.

Why? What reasonable explanation can there be for that? None.

To his credit, Bennett got one thing exactly correct when he wrote: “In short, the military judgment is set by the president of the United States and not the federal judiciary.”

Commander in Chief Donald Trump

In nominating Pete Hegseth for secretary of defense, President-elect Donald Trump has selected a combat veteran who has said he will refocus the U.S. military on becoming the most lethal fighting force in the world.

Trump and Hegseth have decried the woke policies of President Joe Biden’s Defense Department, including its emphasis on climate change. 

Once Trump takes office, he can, and likely will, order the service academies to stop using race in admissions. That would be a lawful order, and the academies would be required to follow that order immediately. 

The U.S. Naval Academy and other military service academies should prepare for this now. 

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