A new federal lawsuit could pick up where the U.S. Supreme Court left off, by challenging the race-based admissions policies employed at U.S. military service academies.
In June, the Supreme Court ruled in Students for Fair Admissions v. Harvard, which challenged the university’s admissions policies. The court ruled 6-3 against Harvard’s practices, ruling that similar admissions processes employed by many U.S. colleges and universities are unconstitutional.
While the ruling would prevent most colleges from using race as a direct factor in admissions decisions, Chief Justice John Roberts wrote in the majority opinion that the ruling does not necessarily apply to the various U.S. military service academies.
On Tuesday, the organization Students for Fair Admissions (SFFA) announced a new lawsuit (pdf) against the U.S. Military Academy at West Point, seeking to stop the service academy from continuing with race-based affirmative action 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. 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,” SFFA President Edward Blum said in a press statement on Tuesday.
The lawsuit contends that at least two SFFA members are “ready and able to apply” at West Point, but that the service academy’s continued embrace of affirmative action policies poses an “unfair, unnecessary, and unconstitutional” challenge to the admissions prospects of those SFFA members.
SFFA identified its two members seeking to apply to West Point as white male individuals, but anonymized them in the lawsuit as Member A and Member B. The lawsuit said Member A is a high school senior with a 3.77 grade point average who is active in youth sports and is “in excellent physical condition.” Member B was described as also being active in youth sports and in excellent physical condition, with a 4.2 grade point average.
“If West Point is allowed to continue making admissions decisions based on applicants’ race, SFFA’s members—including Members A and B and other similarly-situated applicants—will suffer harm because they will be denied the opportunity to compete for a West Point appointment on equal grounds, solely because of their race,” the lawsuit states.
Robert’s Service Academy Carve Out
The SFFA v. Harvard case attracted legal commentaries from a variety of entities, including the U.S. Department of Justice.
In its 2021 amicus curiae, or “friend-of-the-court” brief, the DOJ argued against SFFA’s legal challenges to race-based affirmative action policies. Among its various points, the DOJ brief argued that “[t]he government has a vital interest in drawing its personnel—many of whom will eventually become its civilian and military leaders—from a well-qualified and diverse pool of university and service academy graduates.”
Chief Justice Roberts acknowledged the DOJ’s amicus brief in a footnote in his majority 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,” the footnote in the majority opinion reads. “This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”
This footnote by the chief justice allows, in effect, the various service academies to maintain their affirmative action policies. Mr. Blum, on the other hand, said that based on the decision in SFFA v. Harvard, “it must follow that the U.S. military higher education institutions must end their race-based policies as well.”
In response to a request for comment, a West Point spokesperson said “The U.S. Military Academy does not comment on ongoing litigation to protect the integrity of its outcome for all parties involved.”