As we reported, late last month the United States Supreme Court ruled that universities cannot use “affirmative action,” or considerations of race, in their admissions policies: Supreme Court: Harvard and UNC Affirmative Action “invalidated under the Equal Protection Clause of the Fourteenth Amendment”
The U.S. Supreme Court has dealt a blow to race-based affirmative action in college admissions and by implication elsewhere, putting to an end a narrow carve-out for higher education that had permitted colleges and universities to engage in otherwise unlawful conduct in the name of promoting diversity.
As Chief Justice Roberts stated:
the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.
But, as we covered here: The Supreme Court Should Apply Its Affirmative Action Ruling to Military Academies, there is an innocuous footnote near the beginning of the Court’s Affirmative Action opinion, stating that the opinion does not apply to the military academies:
The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.
We also explained that
“[p]rocedurally, of course, the Court is completely correct that the opinion cannot, and must not, apply to the military academies, because none of the parties briefed the Court on the unique status of the military academies as educational, and more importantly, national defense institutions. And federal courts, at any level, must only address the issues between the parties in the case, and are not authorized to issue “advisory opinions.” “[J]udicial power, as we have seen, is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.” Muskrat v. United States, 219 U.S. 346, 361 (1911).
Most importantly, however, we explained that legally, or substantively, as lawyers say, the opinion must apply to the service academies “because the use of race in admissions is equally ‘odious’ in the case of civilian or military institutions of higher education, but [also] has far-reaching extremely negative national security implications in the case of the service academies.”
Unfortunately, the only way the Court’s affirmative action opinion can apply to the service academies is if someone brings a lawsuit against them. We predicted that would occur, relaying an article in the Daily Caller discussing this very point: Pentagon Can Expect Legal Challenges To Race-Based Admissions Policies After Supreme Court Ruling, Experts Say, but personally, I was quite skeptical that such a case would be brought anytime soon.
Well I am happy to report that it looks like I was wrong.
As it turns out, Attorney Adam K. Mortara, the first attorney in the list of attorneys representing the Plaintiff/Petitioner Students for Fair Admissions, Inc. (SFFA) in the Affirmative Action case—which you can see from SFFA’s successful merits brief, available here—is on the hunt for plaintiffs who have been harmed by the service academies’ use of race in their admissions:
The website described, westpointnotfair.org, reads as follows:
Were you rejected from West Point? Or the Naval Academy or the Air Force Academy?
It may be because you’re the wrong race.Or are you a high school senior and plan to apply to any of these service academies?
Gaining admission to West Point is tough. Not only must an applicant have superior academic accomplishments, one must be in excellent physical shape, and receive an appointment from most often a U.S. senator or member of the U.S. House of Representatives.But West Point, as well as the Naval Academy and the Air Force Academy, uses an applicant’s race and ethnicity as a factor in admissions. That’s unfair and unconstitutional.We are Students for Fair Admissions—the membership group that recently won a major Supreme Court victory in our lawsuits against Harvard and the University of North Carolina. You can read our press release about the Supreme Court opinion here.We are committed to ending these practices at America’s military service academies.Tell Us Your Story:Were you rejected or planning to apply?
The website then has those responding fill out their contact information and explain their situation so SFFA can evaluate their status as potential plaintiffs.
I, for one, am thrilled that SFFA took note of the Supreme Court’s footnote and decided to correct that problem.
Why am I thrilled? Because there are huge, negative national security implications to the service academies’ use of race in admissions.
As we explained in our prior post on this subject, there was an amicus, or “friend of the court,” brief filed by an organization called “Veterans for Fairness and Merit,” or VFM, in SFFA’s affirmative action case that explains why affirmative action is so toxic in the military environment.
From the brief, which is available here:
[O]ur nation’s military culture was built on the principle of “selfless service” as part of an enlightened warrior ethos. Civilians, to become effective warriors, must acquire more than just the knowledge and technical training necessary to become effective warfighters on a lethal and unforgiving battlefield. Equally essential is that they undergo a significant and unnatural cultural transformation—one that includes a conscious, disciplined subordination of self, including of sub-group identities such as heritage, ethnicity and race—and assimilation to the norms of the organization. Subordination is not to be confused with abandonment. The warfighter must develop the capacity to put, sometimes for extended periods, self-interest completely out of mind. He/she must be able to trust every teammate as fully sharing that selfless culture, unreservedly committed to the organization and its mission, and to serving others without being concerned with self. Anything less is corrosive to the unit cohesion that, on the battlefield, can make the difference between life and death and mission success or failure.This culture requires that each warfighter see fellow warfighters as totally committed teammates, where race, ethnicity and heritage, while respected, do not matter. Some refer to that element of the culture as being “colorblind,” an imprecise term, but one that is often heard in military circles.This selfless-servant, “colorblind” culture is a national security imperative that is seriously weakened by racial preferences. As Sun Tzu said two thousand years ago, “he will win whose army is animated by the same spirit throughout all its ranks.” Our warfighters are thus expected to ignore racial and other differences to be maximally effective on the battlefield. When bullets are flying and mortar shells landing, warfighters cannot and do not care about the race of their buddy or of their leaders. They must be (and are) willing to risk their lives for another warfighter, regardless of skin color.
I could not have said it better myself, and VFM “is a 501(c)(19) veteran’s organization with over 600 members, most of whom served in combat, including 21 recipients of the Medal of Honor and recipients of over 900 other combat valor awards, 45 former POWs, and 121 retired general officers.” So they would know.
Let’s hope Attorney Mortara succeeds in his quest for a suitable plaintiff and files suit ASAP. Godspeed.
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