By not striking down the University of Texas’s affirmative action program on Monday, the U.S. Supreme Court seemed to preserve some legal room for using racial and gender preferences to create diversity in public education. The same is true of that other American institution where such preferences still play a significant role: the military. In fact, as it reels from a sexual-assault scandal and introduces women to combat roles, the military should be even more aggressive with affirmative action.
The military has long been committed to the principle that “an all-volunteer force must represent the country it defends.” Although the military was once as segregated as any part of America, the needs of war forced it to integrate more quickly than most institutions. In part through aggressive integration goals imposed on unit commanders and heavy minority recruitment at the service academies, officer candidate schools, and ROTC programs, the military transformed itself from a heavily segregated, race-riot-burdened institution in the early 1970s to a widely-praised example of successful racial integration by the late 1980s. Most of these policies, which enabled outstanding leaders such as General Colin Powell to rise rapidly through the ranks, continue in some form today.
But the military still has a long way to go before it truly reflects the nation it serves. Despite substantial progress, racial minorities remain underrepresented in upper ranks. But the gender imbalance is even more dramatic. While the number of women increased from 1 percent of the armed forces in 1960 to 10 percent by the mid-1980s, it has plateaued at about 15 percent since 2009. Men still dominate both senior enlisted and senior officer positions.
The dearth of women in leadership roles is not just an optics problem. It undermines effectiveness, inhibiting the recruitment and retention of talented women who are repulsed by a male-dominated culture. General Martin Dempsey, the chairman of the Joint Chiefs of Staff, has himself identified the vast gender disparity in command positions as a key cause of the sexual-assault crisis: “I believe it’s because we’ve had separate classes of military personnel, at some level,” he said last month.
When this article’s female author entered the U.S. Air Force Academy as a student in the late 1980s, sexual harassment and assault were ubiquitous. Only a tiny percentage of women were assigned to teach the primarily male cadet student body. When, in 2010, she returned as a senior-ranking officer to teach and lead an academic department, she was thrilled to discover more women in teaching and command positions, and a vastly improved atmosphere for female cadets. Nonetheless, many of those cadets sought her out to discuss their experiences with sexual assault and harassment.
After decades of ignoring the sexual-assault epidemic, the military recently began to address it. Measures that have been proposed—devoting more resources to sexual assault prevention training, removing commanders’ authority to overturn convictions, and ensuring greater accountability for their exercise of prosecutorial discretion—will help. But the sheer number of reported sexual-assault cases—not to mention the many that go unreported—and the sluggish response by leadership show that the military just doesn’t get how fully it must change. Officers assigned to address sexual harassment have more than once turned out to be sexual predators themselves.
Because sexual assault, harassment, and inequality in the ranks are fundamentally leadership issues, what’s needed is a sweeping change in leadership. A handful of female generals and a small percentage of female officers simply aren’t enough. Women, after all, are not immune to the pressures of military culture, either—as the mishandling of a sexual-assault case by Air Force Lt. Gen. Susan Helms shows. Helms recently ignored her senior military attorney’s advice and overturned the sexual assault conviction of a male subordinate under her command.
Until women occupy the highest ranks in sufficient numbers, the sexual assault epidemic will likely persist. Studies show that institutions with a critical mass of women in leadership roles have far fewer instances of sexual harassment. When recruitment, promotion, and retention strategies lead to greater gender equality in the upper ranks, it will, in General Dempsey's words, cause people to “treat each other equally.” In fact, such changes can have a far greater impact than in the civilian sector. The military’s culture, for all its flaws, prizes discipline and cohesiveness, which gives the armed services the unique ability to change quickly when they decide to do so.
Now that the Pentagon has lifted its ban on women in combat positions, extensive gender-based affirmative action should follow. As combat positions are the top springboard for advancement, more women must fill these positions now and female officers must be promoted at a much greater rate. This does not mean imposing fixed quotas or disregarding standards and merit. But integration goals should be especially aggressive for these positions, and commanders should consider the previous exclusion of women when assigning and promoting candidates.
Done properly, these moves won’t undermine combat effectiveness. Policies that are focused on recruiting, retaining, and promoting women who meet the same standards as men—those reasonably required by the needs of the particular position—will do the opposite. The military will be better able to attract the best and brightest recruits of both sexes, from which future leadership will be drawn; gain legitimacy from having a military that looks like the nation it serves; and, crucially, relate more easily to the civilians it must win over during military engagements around the world.
Such measures would not only be effective; they would be constitutional. Affirmative action in the military stands on much firmer legal footing than the university programs the Court refused to strike down on Monday. In several key cases, the Supreme Court has recognized that the military is a unique institution deserving of deference to its personnel policies. Doubling down on its current affirmative-action programs in fair, reasonable ways—ones focused on rigorous standards and merit—will help the military solve the sexual-assault crisis while improving its ability to face the challenges that lie ahead. The Supreme Court has given the green light to such steps—it’s up to the military to take them.
Robert Knowles is an assistant professor of Law at Valparaiso University Law School and a national security law expert. His history of affirmative action in the military will be published next year. Rachel E. VanLandingham recently retired as a lieutenant colonel and judge advocate in the United States Air Force and is currently a visiting assistant professor of Law at Stetson University College of Law.