Time was when the U.S. military felt the need to lie about using quotas to promote women and minorities. Now the Biden White House openly defends discriminating against men and non-minorities through the Pentagon’s various “Diversity Equity, Inclusion, Access (DEIA)” programs.
In the wake of the Supreme Court’s recent decision invalidating affirmative action in college admissions, the U.S. House of Representatives wants to curtail military affirmative action. It won’t get its way; the Senate won’t go along.
But even if the House did get its way, the admirals and generals, captains and colonels, who run the military will find a way to keep discriminating—let the law be damned.
Here’s how the Army did it, starting in 1988. I wrote about it for Army Times in 1992, and an Army lawyer wrote about it for Military Law Review in 1991.
Did publishing the truth make any difference? Read on.
“Army, Bush keep quotas, disregard law”
by Brian Mitchell
Army Times, January 27, 1992
The recent flap over a draft White House directive on affirmative action prompted President Bush to declare his support for affirmative action while still insisting he opposes quotas. But because the draft directive banned the use of “quotas, preferences, set-asides, or other similar devices” by federal agencies and contractors, civil rights leaders were outraged. Ralph Neas, executive director of the Leadership Conference on Civil Rights, accused Bush of “declaring· open war on civil rights,” according to The Washington Post.
It appears Neas understands what Bush does not: that in the 1990s, “civil rights” means affirmative action, and affirmative action means many things most Americans abhor. No one, not even Neas, is still pretending that affirmative action is anything as unobjectionable as “aggressive recruiting” of “qualified” minorities and women. That fig leaf has fallen, and in its place, we now see widespread, systematic, federally administered race and gender discrimination.
Let’s look at how affirmative action works for one large federal agency, the Army. The Army’s current affirmative action plan includes a list of specific goals the Army strives to achieve. “Goals are not ceilings,” says the plan, “nor are they base figures that are to be reached at the expense of requisite qualifications and standards. In affirmative action efforts, goals are not quotas.”
The Army’s goal for personnel promotions reads: “Selection rates for all categories should not be less than the overall selection rate for the total population considered.” That’s a “should” and not a “shall,” so one might expect this goal to lack the authority of a rigid quota. In fact, however, the Army’s promotion system is rigged in such a way that this goal is almost always met. Here’s how it happens for officers:
The Army assembles a promotion board of senior officers, including representative minorities and women. The board is sworn to secrecy and given written instructions, which normally contain the following statement: “The goal for this board is to achieve a percentage of minority and female selections [from the promotion zone] not less than the selection rate for the total number of officers in the promotion zone.”
A one- or two-star general then briefs the board members on their responsibilities, explaining in detail the Army’s affirmative action program and leaving little room for doubt as to what is expected of the board. The board is advised that its after-action report must explain any failure to meet an affirmative action goal to the satisfaction of the Army’s Director of Military Personnel Management.
The board then begins work by reviewing the records of each officer in the promotion zone. Its first task is to produce an Order of Merit List, or OML, ranking all officers from best to worst. Its next task is to identify those officers best qualified for promotion. Rarely can the Army promote all officers on the OML. If there are 100 officers on the OML but the Army can promote only 50, the board simply counts down from the top of the list and draws a line after the 50th officer.
The board’s work would stop here if the percentage of minorities and women above this “best qualified line” equaled the percentage of minorities and women on the OML, but this rarely happens. To meet its goal, the board will begin moving officers above and below the line. The last non-minority officer above the best qualified line will be bumped by the first minority or female officer below the line until the goal is met or the board runs out of qualified minorities and women. Of 34 officer promotion boards convened in 1990, all but one managed to meet their affirmative action goals in this way.
The process of bumping qualified officers off the promotion list to meet affirmative action goals was first revealed by an Army lawyer in the winter 1991 issue of Military Law Review. Capt. Donovan Bigelow was a student at the Army Judge Advocate General school when he began a review of the Army’s promotion system in light of recent Supreme Court decisions curbing the use of quotas and set-asides.
The Army cooperated fully with Bigelow’s review. At the Total Army Personnel Command, Alexandria, Va., two colonels and a sergeant major sat down and very candidly explained to Bigelow the facts of life. After they had described the bumping process, Bigelow asked the sergeant major what happens to the original Order of Merit List.
Bigelow recalls, “He kinda laughed, and the colonels kinda giggled, and he said, ‘We destroy it, sir.’ I said, ‘You destroy it?’ He said, ‘Oh yes sir! Could you imagine what would happen if that got out?’ “I smiled and nodded—‘Yeah boy, I’m with you on that one.’ In the back of my mind, I’m thinking, ‘Yeah, 1 know, sergeant major, a whole lot better than you do what would happen: There’d be lawsuits all over the damn country.’”
Bigelow calls the Army’s affirmative action goal for promotions “the rankest of rigid numerical quotas.” He argues in his law review article that it would not pass the test of constitutionality established by the Supreme Court in the 1989 City of Richmond vs. J.A. Croson Co.
The Army’s opinion on the issue has been divided. When Bigelow submitted his article for pre-publication review, the first response of the Army’s Office of the Judge Advocate General was denial. A few months later, however, the acting Judge Advocate General sent a memo to the Army’s deputy chief of staff for personnel saying that the Croson ruling meant that “race and gender may be considered by Army selection boards only when there has been a specific finding that individual officers have been the victims of discrimination.” The memo, dated March 19, 1990, recommended instructing boards that they could not move officers on the list solely to meet affirmative action goals.
Bigelow says a JAG colonel later told him the personnel office had chosen to ignore the JAG’s legal advice “for their own reasons” and that the memo had been “withdrawn in anticipation of litigation.’’
The Army has been reluctant to answer questions about its promotion procedures. It denies that it uses “quotas,” of course, but admits to using “goals.” When asked how many recent officer boards met their affirmative action goals, the Army provided only a brief statement, saying, “Historically, the select rate for minority officers has been comparable to the select rate for non-minority officers.”
(In fact, according to Bigelow, not until May 1988 did Army promotion boards begin producing selection rates for minority officers regularly equal to the rate for non-minorities. Before then, boards were given affirmative action goals that specified a range within which the selection rates for minorities and women were expected to fall. Because those rates regularly fell at the bottom of the range, the Army began requiring boards to equalize selection rates for both groups.)
Bigelow is now out of the Army and in private practice. He is preparing a class-action lawsuit to force the Army to change its ways. His suit wouldn’t be necessary if the Army had taken its own advice, or if President Bush opposed quotas enough to sign the directive banning them. Instead, the Army and Bush have chosen to keep quotas and ignore the law.
Brian Mitchell, a former Army officer, is the author of Weak Link: The Feminization of the American Military (Regnery Gateway, 1989). [And now also Women in the Military: Flirting with Disaster (Regnery, 1998)]
