Trial Set To Begin in Naval Academy Affirmative Action Case

Trial Set To Begin in Naval Academy Affirmative Action Case

In June 2023, 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 in that report that this was actually, procedurally, the right answer:

“[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 Supreme Court’s affirmative action 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, [and] has far-reaching extremely negative national security implications in the case of the service academies.”

For a discussion of these “far-reaching extremely negative national security implications,” we turn to an amicus curiae, or “friend of the court,” brief filed by an organization in the Harvard and UNC Supreme Court affirmative action 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.

Well, the same organization that sued Harvard in the affirmative action cases, Students for Fair Admissions (SFFA), has since sued both West Point and the Naval Academy over their use of race-based admissions, in September and October 2023 respectively, as we reported:

• Student Group that Won Affirmative Action Case Against Harvard and UNC Sues West Point for its Race-Based Admissions Policy
• U.S. Naval Academy Sued Over Use of Race in Admissions

From our report on the Naval Academy lawsuit:

Of special importance, SFFA, in both cases against the service academies, has moved the courts for preliminary injunctions. These motions, if granted, would cause an immediate halt to the service academies’ use of race in admissions.

Unfortunately, in both cases the respective courts, the federal Southern District of New York for West Point and the federal District of Maryland for the Naval Academy, denied SFFA’s motions for preliminary injunction, as we reported: Federal Judges Maintain Race-Based Admissions at the Naval Academy and West Point, For Now:

[I]n each case the respective courts held hearings on Students for Fair Admissions’ motions for preliminary injunction, seeking to block the use of race in admissions, and denied the motions.

From Reuters: US Military Academy at West Point can continue to consider race in admissions, judge rules:

The U.S. Military Academy at West Point can continue to consider race for now when evaluating who to admit to the elite military school, a federal judge ruled on Wednesday, rejecting a bid by the group behind the successful U.S. Supreme Court challenge to race-conscious college admissions policies.

U.S. District Judge Philip Halpern in White Plains, New York, rejected a request for a preliminary injunction sought by Students for Fair Admissions, which was founded by affirmative action opponent Edward Blum.

The judge, an appointee of Republican former President Donald Trump, wrote that he could not at this early stage in the case rule in SFFA’s favor without a full factual record to establish whether the use of race in West Point’s admissions furthers compelling governmental interests.

The Naval Academy preliminary injunction denial was similar.

In the West Point case SFFA filed a Notice of Appeal, and a Motion for Stay of the district court’s denial pending appeal, but that was swiftly rejected by the Second Circuit federal Court of Appeals, which covers New York. Following that, SFFA withdrew its appeal, apparently seeing the handwriting on the wall, and decided to fully litigate the case to trial in the federal Southern District of New York. That case is scheduled for trial in late 2025. This strategy will have the beneficial effect of providing a fully developed record, with discovery, including depositions of West Point’s admissions personnel and expert reports from both sides, not only to a jury, if there is one, but also to the court for review, to the appeals court for review during the inevitable appeal, and to the U.S. Supreme Court, who will almost certainly eventually hear this case, no matter how it turns out in the lower courts.

The Naval Academy case is on a much-accelerated timeline. Discovery is already complete, literally lightning-quick for federal courts, and a bench, non-jury trial is scheduled to begin Monday September 16, 2024, as you can see from the court’s Scheduling Order, available here (scroll to the end).

The Naval Academy trial is scheduled for two weeks of testimony every day, all day, with SFFA presenting testimony from 18 potential witnesses, and the Naval Academy presenting testimony from as many as 15 witnesses. In addition, SFFA intends to call four “experts” who presumable will testify as to why it is improper for the Naval Academy to use race in admissions, while the Naval Academy intends to use eight witnesses, who will testify to the opposite.

SFFA also intends to offer up to 613 trail exhibits, or pieces of physical evidence, including various documents, at the trial, and the Academy intends to offer up to 209 of such documents in its defense of race-based admissions.

You can review all of this in the Parties’ 80-page Joint Proposed Pretrial Order, available here.

The trial is going to be a massive undertaking by all hands.

The aforementioned document also sets out the Parties’ respective positions at trial:

From SFFA:

SFFA intends to show that USNA’s use of race does not further any compelling governmental interest and is not narrowly tailored, thus failing the strict scrutiny review required by the equal-protection component of the Fifth Amendment.

From the Naval Academy:

Plaintiff’s assertion that the Naval Academy’s limited consideration of race in its admissions process does not further any compelling interest and is not narrowly tailored is belied by the extensive evidentiary record in this case. The military has, across numerous administrations, repeatedly concluded that a diverse officer corps is critical to its ability to defend our nation, and the Naval Academy’s admissions policies are directly related to and narrowly tailored to achieve that precise goal. This military judgment—which is supported by research, the history of race relations in the military, and decades of military experience both in combat and preparing for combat—is entitled to deference. (citing cases).

Each Party also sets out more detail explaining why it should win.

We will be following the action closely and will provide any updates as they occur and an after-action report when the trial concludes.

Batten down the hatches!

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