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Under Clinton in 1993, the services instituted a policy of racial and gender preferences in military promotion. The policy required members of promotion boards to guess whether the performance documented in evaluations of minority and female officers was somehow tainted by discrimination. The policy also ordered promotion boards to meet quotas based on racial and gender classifications by reselecting officers and revoting if initial board results did not meet the quotas. In 1996 and 1997, an Army JAG LCOL named Ray Saunders was denied promotion to COL by promotion boards following the race and gender policy. Saunders filed suit, and the Army gave him a special selection board for the 1997 fail to select presided over by a JAG General Officer who had made speeches ridiculing both Saunders and his suit. Saunders was not promoted and the suit went ahead. Judge Royce C. Lamberth of the D.C. District Court - a federal trial court - recently issued an opinion holding that the policy as articulated in the written orders to Saunders' promotion boards violated the Constitution. The Army attempted to justify the policy by saying it wanted to create the perception of equal treament in the officer corps. The court said the standard was not the perception but the reality of equal treatment. The Army's statistical evidence on promotions failed to show past discrimination that might have justified the preferences as remedial measures. The court's opinion is a victory for those who think the military ought to be colorblind. For LCOL Saunders, however, the case is not over yet. He is seeking promotion to COL. The Army can still avoid liability in Saunders' particular case by showing it would not have promoted him even if it had not used the discriminatory policy. This will be difficult for the Army to do, since it destroys the records of promotion boards after results are officially issued. But the court's opinion will require all services to eliminate the discriminatory preferences in the promotion of all officers. The opinion is quite thorough and would probably not be reversed on appeal. It includes the actual text of the orders to the promotion board, setting out the policy. You can read it here. |
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