Federal Judges Maintain Race-Based Admissions at the Naval Academy and West Point, For Now

Federal Judges Maintain Race-Based Admissions at the Naval Academy and West Point, For Now

The United States Supreme Court ended race-based university admissions earlier this year in cases brought by Students for Fair Admissions against Harvard and North Carolina. But tucked away in Footnote 4 of that opinion was a special carve-out for the nation’s service academies, as we covered here: The Supreme Court Should Apply Its Affirmative Action Ruling to Military Academies.

Footnote 4 of the Court’s opinion states:

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, of course, were of the opinion that while it was procedurally proper for the Court to defer ruling on race-based admissions at the academies, using race in admissions anywhere, especially at the service academies, is substantively improper: The Supreme Court Should Apply Its Affirmative Action Ruling to Military Academies:

Substantively, however, it is clear that the Court’s opinion must apply with even more force, or a fortiori, as lawyers say, to the military academies. This is because the use of race in admissions is equally “odious” in the case of civilian or military institutions of higher education, but has far-reaching extremely negative national security implications in the case of the service academies. Because of that, we can expect future litigation over the use of affirmative action at the 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 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.

Well, as we hoped, litigation ensued last fall, this time brought, once again, by Students for Fair Admissions, and this time against both the the U.S. Military Academy at West Point and the U.S. Naval Academy.

The Complaint in each court (Naval Academy in federal court in Maryland, West Point in the federal Southern District of New York), explains the gist of the case. The following Complaint excerpt is from the West Point case:

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.

Sounds pretty good, right?

Well, not so fast. Because in 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.

As we reported on the Naval Academy case: Federal Judge Decided Not to Temporarily Block Naval Academy From Using Race in Admissions:

Judge Richard Bennett decided not to temporarily block the Naval Academy’s use of race in admissions….

Based in Baltimore, Bennett said “that Students for Fair Admissions had not sufficiently shown that its case would likely succeed against the military school.”

From Politico:

Multiple times during the hearing, which ran more than two hours, Bennett was combative with the lawyers representing SFFA, a group whose lawsuits essentially dismantled race-conscious affirmative action in higher education earlier this year before the Supreme Court. He also called a preliminary injunction against the Naval Academy an “extraordinary remedy.”

SFFA lawyers said they may appeal the preliminary injunction, something Bennett warned against, saying there are important issues to unearth in discovery.

“This case will stop dead under the water,” Bennett said, adding that if the circuit court reverses his decision, the case will be “frozen.”

Bennett agreed to publish “an opinion on the merits” within a week. He also told the lawyers that “he was willing to work quickly.”

Bennett also dashed the hopes of the government by not buying its argument “that SFFA lacked standing over its use of unnamed member plaintiffs looking to end race-based affirmative action in one of the last places it’s permitted in higher education.”

Judge Bennett’s promised opinion can be reviewed here.

And now, Judge Halpern in the West Point case has allowed that service academy to continue to use race in admissions:

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.

Judge Halpern’s ruling can be reviewed here.

Students for Fair Admissions immediately appealed Judge Halpern’s Order, and moved on an Emergency Basis for an Injunction Pending Appeal with the Second Circuit, the U.S. Court of Appeals that hears all New York federal appeals. From the Emergency Motion:

SFFA v. Harvard bans race-based admissions at universities nationwide, but it technically “does not address” the “military academies.” The Court left that question open because the academies “may” have “potentially distinct interests.” Still, the Court never suggested that the academies would be held to any lesser scrutiny. It decried the deference that Korematsu [the WWII Japanese internment case] gave the military, and rejected the government’s argument that the military needed racial preferences at civilian universities to preserve the diversity of officers coming from ROTC. Nor did the Court suggest that, if the academies identified “distinct interests,” those interests would get a pass on narrow tailoring. Harvard then gave several broad reasons why race-based admissions are not narrowly tailored.

West Point isn’t exempt from these narrow-tailoring requirements, and it badly violates them all. West Point uses race as a negative by using it as a positive for only three races. West Point uses the same arbitrary racial categories as Harvard and UNC. It promises to use race in perpetuity, asserting the same racial-balancing goals. West Point also considers race qua race, illegally stereotyping applicants. And its interests are just as amorphous as Harvard’s and UNC’s. Contra the district court, no more facts are needed to predict that West Point will likely lose, West Point will lose, even accepting its facts and crediting its asserted interests. The district court’s refusal to make any prediction was an abuse of discretion.

Because West Point will likely lose this appeal, this Court should enjoin it from racially discriminating now.

What Students for Fair Admissions is arguing is that using race in a governmental program, per Supreme Court precedent, could be allowed if (1) it was necessary to satisfy a “compelling” governmental interest, and (2) the means used are “narrowly tailored,” which basically means that other, non-racial means have to be tried first and that any means used cannot be unduly discriminatory, but here West Point’s use of race, even if it is “necessary” to satisfy a “compelling governmental interest,” fails the “narrowly tailored” prong of the analysis.

This is an intriguing strategy because Students for Fair Admissions argues that even if what West Point says is true, that diversity is a “compelling” national interest in the military, it has to achieve that goal using approved means, at which it is failing badly.

The Second Circuit has indicated that they will review Student for Fair Admissions’ Emergency Motion for Injunction Pending Appeal on Tuesday, January 23, 2024.

Interestingly, Students for Fair Admissions has not yet appealed the Naval Academy case. They have until January 16, 2024 to do so, if my math is correct.

We wish Students for Fair Admissions Godspeed and will keep you updated as these cases progress through the courts.

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