Constitutional Rights at Stake
in Promoting by Race, Gender...
by Barry Steinberg and Bill Aileo

Legislative proposals to undermine the authority of our judicial system are as suspect as the affirmative action practices now subject to judicial review. Although a brazen attempt to influence pending litigation, it has far more serious implications.

Anyone concerned about the rights of Americans in uniform and the role of the Armed Forces in our society ought to vigorously oppose this proposal.

Service Secretaries have long imposed racial and gender keyed composition goals upon selections otherwise focused on merit. These goals encouraged special consideration for accessions, commissions, schooling, and promotions.

Supporting efforts continued long after they were successfully challenged in judicial proceedings and even after the Supreme Court in 1995 (Adarand Constructors, Inc. v. Pena, 515 U.S. 200), required that all governmental racial classifications satisfy the highest standard of judicial review: strict scrutiny.

Facing continued judicial challenges, the Army Navy, Air Force and Marines - rather than redressing the Constitutional wrongs- propose to avoid effective judicial review of these and other allegations that the tainted proceedings were conducted contrary to law.

If a service member now is the subject of allegedly unconstitutional or otherwise illegal action he or she can seek non-monetary relief, and limited monetary relief in an appropriate United States District Court, or, when an entitlement to pay is affected, in the United States Court of Federal Claims. The current system represents a careful balancing of Congressional oversight, individual access to judicial review and military needs.

Meaningful judicial review does not adversely impact readiness or war fighting capability. Further, it enhances morale, and makes it far less likely that our armed forces can be politicized or otherwise used contrary to our democratic values. Moreover, the judiciary serves to preclude military authorities from conducting proceedings in violation of law. The 1979 case (Doyle v. United States), gave meaningful effect to the Congressionally imposed requirement that promotion selection boards considering reserve officers include reserve officer board members. The relief imposed by the Doyle case would no longer be possible if this proposal were enacted. Congress generally requires service secretaries to use selections boards to make recommendations regarding major career events for officers, such as promotions, reductions in force, and involuntary retirements.

While Congress has mandated that selection boards be centralized to assure fair consideration of all officers, the Service Secretaries have regularly used these procedures for other purposes, ordering board members to consider the constitutionally suspect criteria of race and gender of officers under consideration, for example, in the Air Force Fiscal Year 1992 Selective Early Retirement Boards, Baker v. United States, and 1997 Department of the Army promotion selection boards, Sirmans v. Caldera.

"Subtitle F" of the DoD Fiscal Year 2001 Authorization Act would permit a Service Secretary cavalierly to abuse both individual constitutional rights and statutory requirements without serious consequence. The DoD legislative proposal would accomplish this by adding to Title 10 of the United States Code provisions that would:

• Preclude most judicial review.
• Limit the remedy for all illegally conducted selection boards to remedial special selection boards.
• Constrain judicial enforcement of Congressional "... Rules for the Government of the land and naval Forces."
• Apply retroactively.
• Permit a Service Secretary to indefinitely delay judicial review.