Overview of Civil Cases Challenging Equal Opportunity Guidance to Certain Military Promotion and Retirement Boards [open pdf - 457KB]
"This paper reviews a set of civil lawsuits in which military members challenged the results of promotion and retirement boards, claiming that the boards' selection processes violated the equal protection of the laws guaranteed under the United States Constitution. Each of the cases was filed in a federal court and alleged that Secretary-level guidance directing the boards to consider the potential effects of individual and institutional discrimination for minority and women officers resulted in discrimination against white male officers. In each case, a primary question pertained to whether the guidance given to a particular board actually involved the use of a racial or gender (protected) classification, either on the face of the guidance or in the manner it in which it was applied by the board. For any case in which a court determined that the board process employed a racial or gender classification, heightened scrutiny was directed for assessing the propriety of the government's decision. Heightened scrutiny, as used here, refers to the strict scrutiny applied to the use of racial classifications and the intermediate scrutiny applied to the use of gender classifications. In a small subset of these cases, the courts also evaluated whether the government' s justifications for considering race and gender actually met the requirements of heightened judicial scrutiny."
Military Leadership Diversity Commission Issue Paper No. 51
Department of Defense Office of Diversity Management and Equal Opportunity: http://diversity.defense.gov/