Student Group that Won Affirmative Action Case Against Harvard and UNC Sues West Point for its Race-Based Admissions Policy

Student Group that Won Affirmative Action Case Against Harvard and UNC Sues West Point for its Race-Based Admissions Policy

As you are undoubtedly well aware of by now, in late June 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 John 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 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.”

So, why should the Supreme Court’s Affirmative Action opinion apply to the service academies? The answer lies in an amicus curiae, or “friend of the court,” brief file by an organization in the Harvard and UNC cases called “Veterans for Fairness and Merit,” which “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.” 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.

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.

But then, as we reported, Group Behind Harvard Affirmative Action Victory Now Targeting Military Service Academies, 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—went on the hunt for plaintiffs who have been harmed by the service academies’ use of race in their admissions:

West Point Not Fair | We are Students for Fair Admissions. https://t.co/pCw5cyHNuk

— Adam Mortara (@AdamMortara) August 3, 2023

The group set up a website seeking students harmed by West Point’s race-based admissions policy,  westpointnotfair.org, and had those responding fill out their contact information and explain their situation so SFFA could evaluate their status as potential plaintiffs.

As I said at the time, “Let’s hope Attorney Mortara succeeds in his quest for a suitable plaintiff and files suit ASAP. Godspeed.”

Well I am happy to report that Students for Fair Admissions, the same group that sued Harvard and UNC, has now sued West Point.

From the Daily Caller: Student Group Sues West Point Over Race-Based Admissions:

Students for Fair Admissions (SFFA) filed a lawsuit against the military academy West Point Tuesday alleging that the school is violating the Fifth Amendment’s equal protection clause by using race-based admissions policies.

“Over the years, courts have been mindful of the military’s unique role in our nation’s life and the distinctive considerations that come with it,” Edward Blum, president of SFFA said in a press release. “However, no level of deference justifies these polarizing and disliked racial classifications and preferences in admissions to West Point or any of our service academies.”

A West Point spokesperson told the Daily Caller News Foundation that the academy doesn’t comment on pending litigation “to protect the integrity of its outcome for all parties involved.“

The lawsuit argues that instead of basing admissions on “objective metrics and leadership potential” the academy’s administrators had instead opted for discriminating on the basis of race. It notes the school’s “benchmarks” for the amount of students in each class that should be made up of “African Americans,” “Hispanics,” and “Asians.”

“Because skin color can be—and often is—a decisive factor for successful applicants who are chosen from those congressional nominee pools, it is equally dispositive for the other qualified nominees who are turned away,” SFFA argues. “Put differently, because race is a ‘positive’ factor for some West Point applicants, it is necessarily a ‘negative’ factor for others.”

SFFA criticized the military’s justification for the racial quotas, saying that these kinds of policies insinuate that all minorities think alike. The lawsuit also dismissed the academy’s claim that these policies were needed in order to gain legitimacy in a “diverse nation,” noting that a country’s military should not be considered trustworthy only because of its racial make up.

See the federal court complaint here:

From the Complaint:

1. The United States Military Academy, or West Point, is one of the crown jewels of the American military. It has trained the future leaders of the United States Army since 1802, producing some of our nation’s most revered generals…

3. For most of its history, West Point has evaluated cadets based on merit and achievement. For good reasons: America’s enemies do not fight differently based on the race of the commanding officer opposing them, soldiers must follow orders without regard to the skin color of those giving them, and battlefield realities apply equally to all soldiers regardless of race, ethnicity, or national origin. To that end, President Truman desegregated the military well before other institutions followed suit. See Executive Order 9981 (July 26, 1948) (“[T]here shall be equality of treatment and opportunity for all persons in the armed forces without regard to race, color, religion, or national origin.”).

4. Over the past few decades, however, West Point has strayed from that approach. Instead of admitting future cadets based on objective metrics and leadership potential, West Point focuses on race. In fact, it openly publishes its racial composition “goals,” and its director of admissions brags that race is wholly determinative for hundreds if not thousands of applicants.

5. West Point has no justification for using race-based admissions. Those admissions are unconstitutional for all other public institutions of higher education. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (“SFFA”). The Academy is not exempt from the Constitution. See, e.g., Crawford v. Cushman, 531 F.2d 1114, 1120 (2d Cir. 1976) (“A succession of cases in this circuit and others ha[s] reiterated the proposition that the military is subject to the Bill of Rights and its constitutional implications.”). And its calls for blind judicial deference to the military on questions of racial discrimination are “‘gravely wrong,’” both legally and historically. SFFA, 143 S. Ct. at 2162 n.3 (discussing the overruling of Korematsu v. United States, 323 U.S. 214 (1944)).

6. Because West Point discriminates on the basis of race, its admission policy should be declared unlawful and enjoined.

To that end SFFA also filed a Motion for Preliminary Injunction, asking that the court bar the academy from enforcing its race-based admissions policy while the lawsuit goes through the court system.

Best of luck to SFFA in this case. Of course, leftists are going insane:

Affirmative Active programs are needed to ameliorate the effects of 400 years of the “Good ole Boy” system that was always heavily advantageous to individuals who are members of Students for Fair Admissions. They are closet White supremacists !

— EELee (@eelee1203) September 20, 2023

Those people should take a break. They don't have to be assholes everyday of their lives.

— Dmintz (@22dmintz) September 19, 2023

When they say Make America Great Again, what they really mean is Make America White Again.

— 🦇⸸Vampire Jesus ⸸🦇 (@_vampire_christ) September 19, 2023

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