In late September, we reported on the recently completed bench, non-jury trial in federal court in Maryland where the issue was whether the U.S. Naval Academy could consider an applicant’s race during the admissions process: Naval Academy Affirmative Action Trial Concludes, Judge’s Ruling Expected in November:
[T]he trial went more than eight full days, an eternity in federal court, and the trial was completed on Thursday, September 26, as reported in the Baltimore Banner: The Naval Academy’s affirmative action trial is over. What’s next?
The future of the U.S. Naval Academy’s admissions process is now in the hands of a federal judge.After a nearly two-week-long trial in a Baltimore district courtroom, Judge Richard Bennett will weigh whether the Annapolis-based military school will be allowed to continue considering race when selecting students — a practice it has said is already very limited. Students for Fair Admissions, the group that won landmark cases against Harvard and the University of North Carolina last year, sued the Naval Academy, alleging that its efforts to boost minority enrollment discriminate against white applicants and violate their Fifth Amendment rights to equal protection.Bennett, appointed to the bench in 2003 by President George W. Bush, said he would likely issue a decision within six to seven weeks — early to mid-November. An appeal to the 4th U.S. Circuit Court of Appeals could follow.
I would modify the last statement to say that an appeal to the Fourth Circuit will follow. And there will be the inevitable request for the U.S. Supreme Court to take the case.
Remember that in the Harvard case, now memorialized as Students for Fair Admissions v. President & Fellows of Harvard College, 600 U.S. 181 (2023), Chief Justice Roberts, writing for the majority, held:
[W]e have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.***For the reasons provided above, 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.
All good, except for footnote 4 of the opinion:
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.
So the Harvard ruling that colleges could not consider race in admissions did not apply to the service academies, which led to lawsuits against the Naval Academy and West Point. The case in Maryland finished first, with Judge Bennett, as mentioned, promising a ruling by early-to-mid November.
Well, the judge was a little overly optimistic in expecting to get his ruling out by then, as it just issued yesterday, December 6.
From Reuters: US judge upholds Naval Academy’s race-conscious admissions policies:
A federal judge on Friday ruled that the U.S. Naval Academy may continue to consider race when evaluating candidates to attend the elite military school, even after the U.S. Supreme Court last year barred civilian colleges from employing similar affirmative action policies.U.S. District Judge Richard Bennett in Baltimore rejected arguments by Students for Fair Admissions, a group founded by affirmative action opponent Edward Blum, that the Annapolis, Maryland-based Naval Academy’s race-conscious admissions program was unconstitutional.The decision marked a victory for outgoing Democratic President Joe Biden’s administration, which had argued that senior military leaders had long recognized that a scarcity of minority officers could create distrust within the armed forces, which were racially segregated until 1948.Blum in a statement said the group was disappointed by the ruling and planned to appeal, first to the 4th U.S. Circuit Court of Appeals and, if unsuccessful there, the U.S. Supreme Court.”It is our hope that the U.S. military academies ultimately will be compelled to follow the Supreme Court’s prohibition of race in college admissions,” he said.A spokesperson for the Naval Academy, which trains officers for the Navy and the Marine Corps, said it was aware of the ruling and was reviewing it.
The ruling can be reviewed here, and at the end of this post.
I have not completed my review of the behemoth 179-page opinion, but I would pause to note that the U.S. Supreme Court, as they explained in Students for Fair Admissions, specifically as Justice Thomas pointed out in his concurrence, diversity is not a compelling interest justifying racial discrimination: “[J]ust as the alleged educational benefits of segregation were insufficient to justify racial discrimination [in the 1950s], see Brown v. Board of Education, the alleged educational benefits of diversity cannot justify racial discrimination today.”
So Judge Bennett, in the face of that guidance, said diversity supporting national security is a compelling interest. I cannot imagine SCOTUS going for that, and I officially predict that after the Fourth Circuit federal court of appeals affirms Judge Bennett’s order, that the Supreme Court will reverse and outlaw racial discrimination in service academy admissions.
From our friends at X:
Even the great Brit Hume weighs in:
And others:
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