Accountability group wants Joint Chiefs Chairman nominee investigated for views on race, free speech

A Washington based accountability organization has filed a complaint, requesting several U.S. government components investigate USAF Gen. Charles Quinton (C.Q.) Brown, one of the military’s highest ranking officers who currently serves as the Air Force Chief of Staff, and is President Biden’s nominee to replace Gen Mark Milley as Joint Chiefs Chairman.

The American Accountability Foundation, a “non-profit organization focused on educating the public on issues related to personnel, policy and spending” filed a July 10 request with Inspector Generals for the Air Force and Pentagon as well as the Civil Rights Divisionof the Justice Department, asking the agencies to investigate the general’s “potential constitutional and ethical violations.”

The 10-page complaint, obtained by ADN America, is based on Gen. Brown’s past statements “about hiring on the basis of race as well as monitoring the private beliefs of employees or potential employees with the intention of censoring those beliefs.”

The foundation asserts the general’s past statements advocate positions, that, if implemented, ‘”present a significant likelihood of violating the civil and constitutional rights of military personnel, in addition to violating existing code of conduct for Air Force personnel.”

The complaint also raises concerns the general’s leadership may have created a military culture that forced subordinates to commit violations in their hiring and promotion processes, resulting in “a misuse of government resources and abuse of position.”

News of Gen. Brown’s nomination came in March, making headlines since his appointment would make him only the second African-American officer to serve as Chairman of the Joint Chiefs of Staff, following Colin Powell’s role as chairman who led the Pentagon three decades ago (1989-1993).

The former F-16 Fighting Falcon pilot currently serves as the twenty second Chief of the Air Force and formerly served as leader of the Pacific Air Forces.

Gen. Brown’s statements

The AAF’s complaint seven key statements made by the general, which it suggests raise constitutional and military code concerns.

On June 5, 2020, Gen. Brown voiced doubts about whether airmen who are not Black were capable of understanding and recognizing racism, and “whether they don’t see it as a problem…” conceding he was considering implementing changes based on those concerns, “thinking about how [to] make improvements, personally, professional, and institutionally, so that all Airmen, both today and tomorrow, appreciate the value of diversity…”

During a July 28, 2021 PBS News Hour interview, the general said that “the beauty of” George Floyd’s death was that it forced the Air Force to take a “hard look at ourselves” and that that the military needs to break up the “white boys club” and that the military needs to make sure that the military has a “diverse set of candidates.”

During a February 11, 2021, interview with People Magazine, the general said, “we’ve got to closely manage our diverse populations …to make sure their development and opportunities aren’t happening by luck.” He also said the Air Force needs to “tweak the screening process, so it’s not so reliant upon a paper test” in its promotion and recruitment process.

In a Washington Post interview posted to YouTube on January 25, 2021, he said, “We broke up our promotion boards to actually do developmental categories, so it wasn’t kind of about a big one-size-fits-all by and large…” He added, “the other things that we have to do is ensure that we have diversity on the boards, but also diversity on the candidate list. That’s something we have been doing…”

During a February 2022 interview with Defense One, the Air Force Chief placed an emphasis on demographics and how they were changing, saying “if you have that approach [of opposing inclusivity efforts] you’re gonna have very few people that come serve.” During the same interview, Gen. Brown admitted that credit for flight experience was capped for admission into the pilot program to admit more non-white pilots.

In November 2020, the general told the Chicago Council on Global Affairs, “I hire for diversity” and, “I purposely build my office, my front office, and my team with diverse” backgrounds to hear “from all these different groups [which] provides a perspective.”

In a July 28, 2021 interview with PBS, asserted that “membership of an extremist organization that goes against our core values,” should not be a part of the armed forces that servicemembers’ social media accounts should be monitored since “individuals will put things on social media that they would never say to your face.”

He added that monitoring such accounts would “also tell you a little bit about the character of the individual that you’re bringing into our service,” and that unfavorable views would be a “factor” in recruiting.

Based on those statements, the complaint makes various legal arguments to assert the general’s comments warrant investigation, including the First Amendment right to free speech, the  14th Amendment Equal Protection Clause, and various federal codes of conduct.

Equal Protection under the law

Under the Equal Protection Clause, the AAF cites the recent June 29 Students for Fair Admissions v. Harvard College decision, which said universities are now prohibited from taking race into consideration for admission.

“While footnote 4 excludes military academies from its holding, the decision nevertheless establishes a clear standard for federal officials in the hiring and promotion process that stamps out race-based decision-making,” the complaint argues. Still, it makes the point that after the famous 1954 Brown v. Board of Education ruling that ended segregation in schools, lower courts began “invalidat[ing] all manner of race based state action.”

Other examples the Court referenced Students for Fair Admissions v. Harvard College were segregated busing, beaches, recreational activities, golf courses, neighborhoods, business, trains, schools, juries and other areas.

“The message from this historical recitation is clear: the equal protection clause applies to all areas of life,

not just education,” the complaint reads. “Because the Equal Protection Clause, as interpreted in Brown, applied to all settings, including “business,” (i.e. employment), so too should Students for Fair Admissions apply to all settings, including hiring practices by the government. And, here, the hiring practices advocated for by General Brown violate the principles articulated in Students for Fair Admissions.”

Finally, the complaint makes the point that suggesting the military should target non-whites for recruitment violates the Equal Protection Clause.

“The act of giving preferences to some candidates on the basis of race, to the detriment of other races, is ‘discrimination’ for which the Air Force has ‘zero tolerance.’”

Free speech and the military

In terms of free speech, the complaint cited a 2004 case, City of San Diego v. Roe, which ruled federal employees have First Amendment protection when they speak on matters that, “are of interest to the public at large on which employees are uniquely qualified.”

It further cited U.S. v. Treasury Employees, a 1995 decision, which ruled that when government employees speak or write on their own time on subjects unrelated to their employment, they are protected absent some governmental justification “far stronger than mere speculation in regulating it.”

This is what the Court refers to as “content neutral” speech because the ruling does not target the communicative impact of the message, but rather the “time, place and manner in which the way they are expressing themselves. When regulations are “content based” and target the communicative impact of one’s message, the servicemember has more rights, depending on the potential danger it creates.

Distinguishing civilian employees from the military, the complaint cited U.S. v. Wilcox from 2008, conceding that while soldiers have “potentially less protective” free speech rights, “servicemembers enjoy some measure of the right to free speech.

While unprotected speech usually must have a nexus to military cohesiveness and readiness or challenges the chain of command (U.S. v. Priest), dangerous speech is defined by speech that “interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops.”

“Words and actions are entitled to protection unless there is a greater countervailing government interest in suppressing the particular speech or expressions in question,” the Court ruled in 1975 in Carlson v. Schlesinger.

The complaint expresses concerns that the general’s comments in his PBS interview encouraging the monitoring of servicemember social media accounts will lead to censorship or create a “chilling effect” which inspires self-censorship out of fear of governmental punishment.

In this instance, the complaint expresses concerns that servicemembers and potential recruits may have their speech chilled for simply voicing opposition to critical race theory (CRT) or diversity, equity and inclusion (DEI). In fact, the Court has even said that it is not unlawful for soldiers to identify themselves as “white supremacist” because there was no direct connection because those political beliefs and speech that adversely impacts the military.

Federal codes of conduct and Dept. of Defense policy

In terms of federal codes of conduct, the complaint cites Dept. of Defense policy and 32 CFR §191.4, which “prohibit[s] discrimination based on race, color…” and Air Force Police Directive 36-27 §1.1 that prohibits unlawful discrimination against military servicemembers.

This includes “refusing to hire or promote, removing, or otherwise discriminating against any individual with respect to compensation, terms, conditions or privileges of employment because of a person race… color, etc.” It also illuminates the fact that the Air Force Handbook has a “zero-tolerance policy… for discrimination.”

The complaint asserts that actions that violate those standards rise to the level of “improper conduct” and “abuse of authority” and concludes by arguing that “remedial or preventive actions should be taken to ensure no additional future violations occur as a result of General Brown’s personal views in favor of race-based discrimination.”

Apart from his view on race and speech, who is Gen. Brown?

Gen. Brown was born to a miliary family in San Antonio and graduated from college at Texas Tech University with a degree in civil engineering and then studied at Embry Riddle Aeronautical University. His father served in the Pacific Theatre during the Second World War in Hawaii and Saipan.

The Texas native was commissioned as a second lieutenant in 1985 after finishing his ROTC program. He quickly rose up in the ranks and became an F-16 fighter pilot and served as a fellow at the Institute for Defense Analysis in Alexandria, Virginia.

He commanded a fighter squadron, the USAF Weapons School, and two fighter wings. In 2015, when he received his third star he was placed in charge of USAF Central Command and in 2016 was appointed as deputy commander of U.S. Central Command. Two years later he took over the Pacific Air Forces and by 2020 President Donald Trump promoted him to Chief of the Air Force. He was the first African American to serve as the chief of a military branch.

As part of his achievements, he monitored Russia’s operation after the Kremlin annexed Crimea, and targeted strike efforts against ISIS in Iraq and Syria.

In 2015 and 2016, Brown led the Air Forces Central Command (AFCENT) at the peak of the American air campaign against ISIS. A USA Today report published in 2015 indicates that of the 260 Air Force generals in position at that time, 18 were minorities.

Upcoming Senate confirmation hearing

The U.S. Senate will decide whether Gen. Brown succeeds Gen. Milley as Chairman of the Joint Chiefs of Staff during an upcoming July 11 Armed Services Committee hearing.

That morning, the general will face 25 U.S. Senators who will question him about his qualifications and viewpoints on the military, and some are bound to cover his controversial views on race and free speech, and the concerns raised by the American Accountability Foundation.

The organization reports on its website it successfully helped block the confirmations of other controversial Biden nominees such as Ann Carlson, Gigi Sohn and Phil Washington, an effort spearheaded by its BidenNoms.com project.

Its tactics were the subject of a FOX News feature in April 2013, and the conservative flagship news network recently highlighted the AAF’s work in illuminating Gen. Brown’s race based statements regarding military recruiting.

To get confirmed, Gen. Brown will have to muster a majority of votes on the committee and then on the Senate floor. A successful outcome would make the general the first Airman to serve as the top adviser to the commander-in-chief in 18 years.