74 Am. U. L. Rev. 1111 (2025).

Abstract

The future of affirmative action in the United States military service academies faces critical uncertainty following the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, which ended race-conscious admissions practices in higher education. Although the Court explicitly excluded the service academies from its holding—preserving space for race-conscious practices tied to national security—the Naval Academy, Military Academy, and Air Force Academy have recently indicated they will discontinue the use of affirmative action in response to changes in Department of Defense policy.

This Comment examines the historical and statutory foundations of the military academies’ admissions systems, and analyzes whether their prior race-conscious practices satisfy the strict scrutiny standard articulated in Fair Admissions, or whether a distinct standard should apply given the academies’ unique national security mission. It argues that the military service academies’ use of race-conscious admissions furthers a compelling government interest in national security, advanced through goals such as unit cohesion and public, legitimacy, both of which are capable of judicial review. Additionally, this Comment contends that affirmative action may also be justified through direct remediation of racial disparities in the congressional nomination process. The Comment concludes that the means historically employed by the academies are narrowly tailored to achieve these interests, and either meet or are not governed by all the requirements set forth in Fair Admissions. Courts should continue to defer to military expertise in matters of national security and recognize that the distinct context of the service academies demands a different application of strict scrutiny than that applied to civilian institutions.

* Senior Staffer, American University Law Review, Volume 74. J.D. Candidate, May 2025, American University Washington College of Law, B.S. English, 2019 United States Naval Academy. Krista Trefren is an active-duty Lieutenant in the United States Navy. The views expressed in this Comment are those of the Author and do not reflect the official policy or position of the Department of Defense or the United States government. I would like to thank my wonderful fellow staffers on the AULR whose tireless efforts have greatly transformed this Comment. To my husband, Samuele Polsinelli, thank you for your unwavering support and encouragement.