"This document provides a brief introduction to the legal limits that frame what a military diversity program may do. Military diversity and equal opportunity programs are regulated by the U.S. Constitution and by internal military policies that generally follow the requirements of Title VII of the Civil Rights Act of 1964 (as amended). In general, military policies or actions that use different standards on the basis of membership in one or more suspect classes-- namely, race, ethnicity, color, national origin, and religion (and, to a slightly lesser extent, gender)--in making admission, accession, assignment, promotion, or separation decisions are presumed to be unlawful under the Equal Protection clause of the Fourteenth Amendment. To overcome this presumption in a lawsuit, the government program must satisfy the strict scrutiny test. To do so, the government would have to persuade a court that the diversity program (1) advances a compelling government interest and (2) is narrowly tailored to successfully address that interest and to infringe as little as possible on the rights of others. However, a diversity program that does not use different standards on the basis of membership in one or more suspect classes in making admission, accession, assignment, promotion, or separation decisions is not presumptively unconstitutional and, thus, would not have to satisfy the strict scrutiny test. Instead, in a lawsuit, the burden would fall on the plaintiff to prove that those adopting the program did so with an intent to discriminate."
Military Leadership Diversity Commission Issue Paper No. 35
Department of Defense Office of Diversity Management and Equal Opportunity: http://diversity.defense.gov/