One of the more prominent means by which our nation acquires commissioned officers is through a system of service academies and senior military colleges. Specifically, Congress has established four service academies and acquiesced to a fifth: the Military Academy, Naval Academy, Air Force Academy, and the Merchant Marine Academy are all creatures of statute – 10 U.S.C. § 4331, 10 U.S.C. § 6951, 10 U.S.C. § 9331, 46 U.S.C. § 51301, respectively. There is no statute which establishes the Coast Guard Academy, but Congress has acknowledged its existence and provided for its regulation in 14 U.S.C. § 181. Additionally, in 10 U.S.C. § 2111a(f), Congress designated six “senior military colleges” whose graduates may, if they desire, enter active duty as commissioned officers. Those senior military colleges are: Texas A&M University, Norwich University, Virginia Military Institute, The Citadel, Virginia Polytechnic Institute and State University, and the University of North Georgia.
To aid in the development of aspiring officers, each these institutions employ “honor systems” to instill discipline in their corps of cadets or midshipmen. Those systems have been busy of late. For example, a couple of weeks ago, the Air Force Academy announced that it is reevaluating its honor program on account of a recent cheating scandal involving 249 cadets. West point is embroiled in its own cheating scandal, involving 73 cadets, that has so shaken the institution that one of its own professors, Tim Bakken, told NPR recently that, in his view, the cheating at West Point is emblematic of a military establishment which, “by many accounts, has been very dishonest with the American public over the last 75 years. And that has only resulted in failed wars or, if we don't like that expression, we certainly have not won any of the last four wars we've fought since 1945.”
In the pursuit of honor that Professor Bakken finds so lacking, the academies and senior military colleges use “honor systems” or “honor concepts.” Those constructs are employed to address noncompliance of both an academic and non-academic nature and to, hopefully, instill a sense of discipline and justice among the future officers those institutions are developing. Details about those systems can be found here: West Point, Naval Academy, Air Force Academy, Merchant Marine Academy, Coast Guard Academy, Texas A&M, Norwich, VMI, The Citadel, Virginia Tech, and North Georgia. A feature held in common by all of those honor systems is that alleged violations of the honor code are resolved by “boards” comprised entirely, or nearly entirely, of other cadets and midshipmen. An article published by U.S. District Court Law Clerk Anna G. Bobrow in the Virginia Law Review asserts that such systems are vulnerable to racial and ethnic disparities:
[M]any institutions believe] that honor systems are effective and enhance community values, however, student-led honor systems are not immune from the racial discrimination that pervades the administration of public elementary and secondary school disciplinary policies and the criminal justice system.
Restoring Honor: Ending Racial Disparities in University Honor Systems, 106 Va.L.Rv. Online 47, 48 (June 18, 2020, online here). Ms. Bobrow specifically warns that student-run honor systems, such as those found in our service academies and senior military colleges, may manifest racial bias in three ways:
[A board could find] a minority student guilty when, presented with similar evidence, they would not have found a white student guilty; [a board could give] a minority student a harsher punishment than they would have given a similarly situated white student; or a professor [could report] a minority student to the honor system when they would not have reported a white student.
Anecdotally, there appears to be some basis for applying Ms. Bobrow’s concerns to the context of the honor systems present in the academies and senior service colleges. As a case study, consider recent happenings at Virginia Military Institute (VMI), one of the senior military colleges that serves as a commissioning source via 10 U.S.C. § 2111a(f): VMI is presently “under fire” for “expelling black students at a disproportionately high rate.” Specifically, the institute’s new black superintendent, Retired Major General Cedric T. Wins, has “raised questions about VMI’s student-run Honor Court.” Mr. Wins took over at VMI after the abrupt resignation of former 101st Airborne Division commander, Retired General J.H. Binford Peay III, who had been the Superintendent for 17 years, and who left amid allegations that he permitted “relentless racism” to fester at the school. An external investigation of the institution, supported by a million dollar appropriation from the Virginia Legislature, is underway.
One case from VMI’s honor court has drawn particular attention. The Washington Post reports that Rafael Jenkins, a man of black and Hispanic origin, was expelled from VMI by an honor court on a cheating allegation that lacked significant evidence and was quite dated by the time the allegation was made. That expulsion occurred shortly after Mr. Jenkins brought a substantiated honor complaint against a white upperclassman who was suspended rather than expelled for conduct against Mr. Jenkins that was considerably more egregious. Mr. Jenkins’ conflict with the white upperclassman came about when that upperclassman demanded that Mr. Jenkins publicly shout aloud the names, grades, and home states of each of the 10 VMI cadets who died fighting for the Confederacy at the Battle of New Market. VMI holds a New Market Day Ceremony annually to commemorate those men, proclaiming that they “Died on the Field of Honor,” and their names are inscribed in the “Rat Bible” every cadet is expected to memorize. When Mr. Jenkins refused the order to recite their names, the upperclassman, incensed, said:
“Jenkins, if you don’t sound off, I’m going to lynch you . . . and use your dead corpse as a punching bag.”
Mr. Jenkins reported that misconduct to the honor system, and the upperclassman was suspended. When asked why a white upperclassman who publicly threatened to lynch a minority subordinate was only suspended and not expelled, the VMI Commandant of Cadets, Colonel William Wanovich (who has since come under scrutiny for mocking Hispanic people at an on-campus Halloween party), is said to have responded that “many cadets ha[ve] grown up in racist homes, and that he hoped their time at VMI could change them.”
Mr. Jenkins’ experience with disparate treatment in the student-run honor system is not unique. Other black cadets at VMI have reported similar mistreatment.
VMI is supposed to be providing the military services with commissioned officers who are ready and able to effectively lead a diverse fighting force. One must question whether such practices further that aim. These sorts of failures are particularly concerning given the fact that the military has never needed competent commissioning sources more than it does now. The military is under immense pressure to resolve its long-enduring racial disparity problems. The lack of a diverse officer corps is at the center of those problems. This dynamic was discussed, at length, in a Government Accountability Office report issued in May 2020, and it was confirmed in an Air Force IG report issued in December 2020. Similar reports have been issued periodically at least as far back as 1972, when a Task Force on the Administration of Military Justice in the Armed Forces issued its report. Those long-studied disparities, and their second- and third-order implications, have been a recurring topic of discussion in this column, elsewhere on CAAFlog, and in other publications:
January 23, 2021 - Scholarship Saturday: The government makes its first peremptory challenges at the Military Entrance Processing Station (CAAFlog)
January 2, 2021 - Scholarship Saturday: We hear drums, drums in the deep (CAAFlog)
December 22, 2020 - AF IG Releases Racial Disparity Report (CAAFlog)
June 20, 2020 - Racial disparities in the military justice system, continued (Global Military Justice Reform blog)
June 17, 2017 - Scholarship Saturday: Racial bias in military justice (CAAFlog)
Those articles tend to discuss the problem with lacking diversity in the context of our military force as a whole. But, the problem has also plagued our service academies, specifically. Just today, the new Commandant of Cadets at West Point, Brigadier General Mark Quander, commented on the challenge of combating the current problem of racial extremism in the military: “if it was easy, we would have fixed it a long time ago.” And, this past summer, as this blog reported, Coast Guard leaders were summoned to the House Homeland Security Committee to discuss persistent racial and sexual harassment problems at the Coast Guard Academy. In a curious move given his previous claim to afford his “full attention” to the issues of race and gender bias, Admiral Karl Schultz, the Academy’s Commandant, disobeyed that summons. His refusal to discuss the matter even by remote means with the Committee was particularly puzzling given the mass protests against racism that were gripping Nation during that period.
In any case, to conquer these problems, the Department of Defense must increase its ability to attract highly qualified minority candidates for commissioning. As the Air Force Recruiting Service Commander, Major General Edward Thomas Jr., put it:
We’re talking about fishing in the right places, being able to attract those people who might not be interested or propensed, and convince them that the U.S. [military] is a great way of life. And go out and meet them on their own ground, where they live, study, recreate – with people who look like them, who have similar stories they can relate to and understand that this a good place to be.
Fishing in the right places means making sure your go-to fishing holes aren’t polluted. To keep those fishing holes productive, the military establishment should demand that the service academies and senior service colleges employ measures to assess the prevalence of racial bias pollution in their honor systems and, if bias is found, remediate it. To that end, Ms. Bobrow’s article suggests four measures that the Department of Defense should undertake:
1. Impose data reporting requirements for the honor systems employed by the service academies and senior service colleges. Ms. Bobrow’s article suggests the academies and senior service colleges should be required to “annually report on the outcomes of honor system proceedings and to make this data publicly available.” Specifically, the data should show: “the race and ethnicity of each student found guilty of an honor offense compared to the student body at large, as well as the punishment awarded for each offense broken down by race and ethnicity.” Restoring Honor at 66.
2. Require the service academies and senior service colleges to provide specified minimum procedural protections for their honor trials. Ms. Bobrow asserts that, at a minimum, uniform procedures ought to cover: “the evidentiary standards, the ability of accused students to present and cross-examine witnesses, provisions for assistance of student or legal counsel, and rights of appeal.” Id. at 67.
3. Require the service academies and senior service colleges to implement practices designed to ensure that the boards for honor trials are racially and ethnically diverse. If the honor board is a standing entity, as opposed to one convened on an ad hoc basis, then “[institutions] must recruit students of color to apply to the pool to help ensure that selected [board members], on the whole, represent the racial demographics of the student body.” For systems that convene boards on an ad hoc basis, Ms. Bobrow recommends practices that allow the institution to “monitor the composition of selected [boards] to ensure adequate representation of the student body at large, rather than waiting for accused students to raise objections.” Id. at 69.
4. Require the service academies and senior service colleges to implement practices designed to reduce the prevalence of racial bias in their honor systems. Because many honor system complaints are initiated by faculty, Ms. Bobrow recommends that institutions require all professors to complete implicit bias training that expressly includes instruction on what the University of Virginia Honor System calls “spotlighting” (unconsciously tending to monitor minority students more closely) and “dimming” (unconsciously tending to monitor white students less closely). Restoring Honor at 68. Additionally, the students who make up an honor board should receive implicit bias training with an express focus “on what constitutes mitigating factors, as racial bias can affect the sanctioning phase.” Id. at 69-70.
Implementing the measures Ms. Bobrow suggests might help prevent injustices like those Mr. Jenkins experienced at VMI. Essentially, these measures would help clean up the Department of Defense’s fishing holes. Doing that work is essential to obtaining a more diverse officer corps. And, a more racially and ethnically diverse officer corps, and one that is conditioned - early - to not stomach racial bias among its members, is essential to making the cultural change necessary to combat ills ranging from our persistent racial and ethnic disparities in the administration of justice to the fact that trained military veterans were over-represented among the extremists that launched an attack against our Nation's Capitol on January 6th.
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