Courts Let Military Academies Keep Race-Based Admissions Policies in Place for Now

West Point graduates stand and sing the Army Song during the 2022 West Point Commencement Ceremony at West Point Military Academy in West Point, N.Y., on May 21, 2022. Michael M. Santiago/Getty Images

The U.S. Military Academy at West Point and the U.S. Naval Academy at Annapolis can continue to use race-based “affirmative action” policies in their admissions, as challenges to such admissions policies wind their way through the federal court system.

Students for Fair Admissions (SFFA), a nonprofit legal advocacy group opposed to the use of racial considerations in college admissions, had sought to overturn the use of such race-based admissions policies at the West Point and Annapolis service academies. SFFA had sought preliminary injunctions that would have forced the two service academies to halt any affirmative action-based admissions decisions as the case proceeds

Judge Richard Bennett, of the Maryland federal court district, ruled in the Annapolis case on Dec. 20 that SFFA’s request for a preliminary injunction should be denied, because it is unclear whether SFFA is likely to succeed in its challenge against the Naval Academy’s admissions policies.

Judge Philip Halpern, of New York’s southern federal court district, issued a similar ruling in the West Point case on Jan. 3, assessing uncertainty as to whether SFFA is likely to succeed in its challenge against the Military Academy’s admissions policies.

The decisions in the West Point and Annapolis cases come after SFFA successfully challenged similar race-based admissions policies at Harvard and the University of North Carolina, with the U.S. Supreme Court ruling in SFFA v. Harvard that race-based affirmative action programs in college admissions processes violate the Equal Protection Clause of the 14th Amendment.

While SFFA v. Harvard resulted in the Supreme Court striking race-based admissions policies for most colleges, Chief Justice John Roberts carved out an exception for military service academies to continue such practices. In a footnote in his majority opinion, Chief Justice Roberts wrote that no military academy had been a party to the particular case and “none of the courts below addressed the propriety of race-based admissions systems in that context,” adding that the various military academies may have “potentially distinct interests” to consider.

Writing in his opinion denying SFFA’s request for a preliminary injunction against West Point, Judge Halpern—an appointee of President Donald Trump—wrote that he wished to get the “full factual record” to determine whether West Point’s use of race-based admissions policies “furthers compelling governmental interests” and is narrowly tailored to achieve those interests.

In his Dec. 20 opinion, Judge Bennett—an appointee of President George W. Bush—said he also would like to see “a factual record be developed” to determine what “potentially distinct interests” the Naval Academy may have, as Chief Justice Roberts alluded to in his opinion in SFFA v. Harvard.

Judge Bennett and Judge Halpern also both declined to grant SFFA’s request for a preliminary injunction on the grounds that the respective military academies were in the middle of their admissions cycles. Judge Halpern wrote that the timing of the requested preliminary injunction would require “a new policy be applied to the current applicant pool midstream” and could require West Point to withdraw some appointment offers that had already been sent out.

SFFA has filed a notice of appeal in its request for a preliminary injunction against West Point’s race-based admissions policies. The organization’s founder, Edward Blum, told NTD News that they will ask “the Second Circuit—and, if necessary, the Supreme Court—for emergency relief before West Point’s application deadline on January 31.”

Mr. Blum has filed other lawsuits challenging the use of race-selective policies in the corporate world following the Supreme Court’s ruling in SFFA v. Harvard. The American Alliance For Equal Rights (AAFER), another of Mr. Blum’s organizations, filed lawsuits challenging fellowship programs administered by the law firms of Morrison & Foerster LLP and Perkins Coie LLP, which AAFER alleged excluded heterosexual white applicants from applying. AAFER dropped its lawsuits after both law firms agreed to open their fellowship programs to all applicants.

AAFER has also brought a case against Fearless Fund Management LLC, a venture capital firm that awards grants to small businesses. Fearless Fund has a grant application page that explicitly states the grant is “open to black women” and lists as the first eligibility requirement that the “business must be at least 51% black woman-owned.” AAFER’s lawsuit argues this grant program is racially discriminatory. A federal district court initially rejected AAFER’s motion for a preliminary injunction, but a three-judge panel on the 11th Circuit Court of Appeals ruled 2–1 at the end of September that the injunction should be granted. AAFER’s case against Fearless Fund is ongoing.

From NTD News