A request to prevent West Point from using affirmative action in the student admissions process is still pending at the U.S. Supreme Court after the U.S. Court of Appeals for the Second Circuit denied the same request on Jan. 29.
The Supreme Court application from Students for Fair Admissions (SFFA) comes after the nation’s highest court struck down the use of racially discriminatory admissions policies at U.S. colleges in June 2023. SFFA was the litigant driving that case.
SFFA filed its new application noting that the 2023 decision didn’t apply to military academies.
“Having weighed the applicable factors, we conclude that an injunction pending appeal is not warranted,” the appeals court stated.
The panel consisted of Judge Dennis Jacobs, who was appointed in 1992 by President George H.W. Bush, Judge Barrington Parker, who was appointed in 2001 by President George W. Bush, and Judge Myrna Perez, who was appointed in 2021 by President Joe Biden.
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 judge was appointed in 2003 by President George W. Bush. The lawsuit is still before the courts.
In the West Point case, SFFA argued that the school has openly acknowledged it “is fully committed to affirmative action. The school countered that it “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.”
The school said that “the military has concluded that a diverse officer corps is critical to the military’s ability to defend our nation” because “it (1) fosters cohesion and lethality; (2) aids in recruitment of top talent; (3) increases retention; and (4) bolsters the Army’s legitimacy in the eyes of the nation and the world.”
But SFFA “has failed to establish a likelihood of success warranting the extraordinary and drastic remedy sought,” Judge Philip Halpern, who was appointed in 2020 by President Donald Trump, wrote.
Not enough evidence was presented to the court for it to decide whether the West Point admissions process “furthers compelling governmental interests and whether the government’s use of race is narrowly tailored to achieve that interest,” the judge wrote.
“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?”
The emergency application in SFFA v. United States Military Academy West Point was filed with the court on Jan. 26.
The prestigious school, known simply as West Point, is located in West Point, New York. The academy 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.
The application went before Justice Sonia Sotomayor, who oversees emergency matters in New York state. She ordered West Point to respond by 5 p.m. on Jan. 30. The justice may rule on the application on her own, or she may refer the case to the full court.
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.
Because military academies didn’t participate in the case and “none of the courts below addressed the propriety of race-based admissions systems in that context,” the decision applied only to civilian educational institutions of higher learning, he wrote.
There may be “potentially distinct” and “compelling” interests about military academy admissions related to national security that need to be considered, he added.
A West Point official declined to comment on the application.
“The Department of Justice has requested that we refer all queries concerning the lawsuit to them directly,” Michelle Kalish of West Point’s public affairs office said by email.
The Epoch Times reached out to the Justice Department for comment but didn’t receive a reply as of press time.
