Biden Administration Asks Supreme Court to Allow Race-Based Admissions at West Point

Cadets walk into Michie Stadium during West Point's graduation ceremony in New York, on May 27, 2023. Photo by Spencer Platt/Getty Images

The Biden administration has urged the Supreme Court to allow the U.S. Military Academy at West Point to continue using racial criteria in its student admissions process, arguing that diversity is a “national security imperative.”

The new brief, filed on Jan. 30, comes after the nation’s highest court struck down the use of affirmative action in admissions at U.S. colleges in June 2023.

That ruling applied to civilian schools, but not to military academies. In a footnote, the court stated that it carved out an exception for military academies due to “potentially distinct” and “compelling interests” related to national security that may affect admissions decisions.

The new filing is in opposition to the emergency application (pdf) filed on Jan. 26 in Students for Fair Admissions (SFFA) v. United States Military Academy West Point. The prestigious school, commonly known as West Point, is located in West Point, New York, and prepares cadets to be commissioned as officers in the U.S. Army.

The application also named the U.S. Department of Defense, Defense Secretary Lloyd Austin, and three other military officials as respondents.

SFFA suggested Jan. 31 as a deadline for the justices to rule on its application. That date is the deadline for applications from prospective students for West Point’s class of 2028.

SFFA is asking the Supreme Court for an injunction preventing the school from using race-based admissions criteria. The U.S. Court of Appeals for the 2nd Circuit denied the group’s motion for an injunction against West Point on Jan. 29. The case, which has yet to be decided on the merits, remains pending in the 2nd Circuit.

Before that, SFFA’s motion for a preliminary injunction against the school was denied on Jan. 3 by the U.S. District Court for the Southern District of New York.

In the latest brief (pdf), U.S. Solicitor General Elizabeth Prelogar said that for more than 40 years “our nation’s military leaders have determined that a diverse Army officer corps is a national security imperative and that achieving that diversity requires limited consideration of race in selecting those who join the Army as cadets at the United States Military Academy at West Point.”

The Department of Defense has “identified diversity as a ‘strategic imperative,’ and has focused on the need to ‘ensure that the military across all grades reflects and is inclusive of the American people it has sworn to protect and defend.’”

Mr. Austin has emphasized that “[b]uilding a talented workforce that reflects our nation … is a national security imperative” that “improves our ability to compete, deter, and win in today’s increasingly complex global security environment,” the brief states.

In its application, SFFA said West Point has openly acknowledged it “is fully committed to affirmative action.” The school “considers race and ethnicity flexibly as a plus factor in an individualized, holistic assessment of African American, Hispanic, and Native American candidates at three limited stages of the admissions process.”

In its Supreme Court application, SFFA urged the justices to take action to protect applicants’ constitutional rights.

“Every year this case languishes in discovery, trial, or appeals, West Point will label and sort thousands more applicants based on their skin color, including the class of 2028, which West Point will start choosing in earnest once the application deadline closes on January 31,” the group wrote.

“Should these young Americans bear the burden of West Point’s unchecked racial discrimination? Or should West Point bear the burden of temporarily complying with the Constitution’s command of racial equality?”

SFFA also sued the U.S. Naval Academy in Annapolis, asking a federal district court to issue a preliminary injunction against that school’s use of racial criteria in the admissions process. On Dec. 14, 2023, U.S. District Judge Richard Bennett denied the injunction. The lawsuit is still before the courts.

Some college administrators have reportedly been resisting the Supreme Court’s 2023 ruling in SFFA v. President and Fellows of Harvard College and SFFA v. University of North Carolina (UNC), which ended the use of affirmative action in higher education.

Liberal justices dissented from the ruling.

Justice Ketanji Brown Jackson wrote in a 29-page dissenting opinion in the UNC case that the majority opinion was “truly a tragedy for us all.”

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life,” she wrote at the time.

“And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.”

Justices Sonia Sotomayor and Elena Kagan joined the dissent.

In the majority opinion, Chief Justice John Roberts wrote that universities have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”

“Our constitutional history does not tolerate that choice,” he wrote.

Meanwhile, the current SFFA application is before Justice Sonia Sotomayor, who oversees emergency matters in New York state. The justice may rule on the application on her own, or she may refer the case to the full court.

A ruling from the Supreme Court could come at any time.