West Point Can Continue Race-Based Admissions for Now, Supreme Court Rules

WEST POINT, NEW YORK - MAY 27: Cadets walk into Michie Stadium during West Point's graduation ceremony on May 27, 2023 in West Point, New York. Vice President Kamala Harris will deliver the keynote speech at the ceremony, becoming the first woman to give a commencement address in the military academy's 221-year history. Photo by Spencer Platt/Getty Images

The Supreme Court allowed the U.S. Military Academy at West Point to continue considering race in admissions on Feb. 2 when it declined an injunction request from a nonprofit that opposes affirmative action.

“The record before this Court is underdeveloped, and this order should not be construed as expressing any view on the merits of the constitutional question,” the order reads. Its language indicated that the court could still consider the merits at a later date.

A similar injunction request was denied by a three-judge panel of the Second Circuit on Jan. 29. U.S. District Judge Philip Halperin said that the group Students for Fair Admissions, which brought the suit, “has failed to establish a likelihood of success warranting the extraordinary and drastic remedy sought.”

Not enough evidence was presented to the court for it to decide whether the admissions process at the academy in New York “furthers compelling governmental interests and whether the government’s use of race is narrowly tailored to achieve that interest,” the judge wrote.

The order comes less than a year after the Supreme Court ruled that Harvard College’s and the University of North Carolina’s use of affirmative action violated the equal protection clause of the U.S. Constitution. SFFA, which was a litigant in that case, asked for an injunction, noting that the prior decision didn’t apply to military academies.

Chief Justice John Roberts wrote the majority opinion and included a footnote excluding military academies from the decision.

It reads: “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.”

SFFA had requested a Supreme Court decision on the injunction by Jan. 31, which was the deadline for applications from prospective members of the class of 2028.

In December, U.S. District Judge Richard Bennett denied a separate injunction in SFFA’s lawsuit against the U.S. Naval Academy in Annapolis, Maryland.

‘National-Security Imperative’

The Biden administration defended race-based admissions at West Point, arguing that diversity was a “national-security imperative.” In her Jan. 26 brief, U.S. Solicitor General Elizabeth Prelogar also argued that courts shouldn’t select who is in the pipeline for military service.

“It is the Executive officials charged with protecting our national security -- not courts -- that have authority to determine who will become a member of the Army (as cadets do immediately upon entering West Point ... ) and who will form the pipeline for the Army’s future leaders.”

The school similarly 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.”

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 argued that the school has openly acknowledged that 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.”

In the Harvard and UNC cases, U.S. lawyers sided with the universities that defended their affirmative action policies. In a supportive brief to the court, U.S. lawyers argued that the U.S. military “depends on a well-qualified and diverse officer corps that is prepared to lead a diverse fighting force” and that the military has “long recognized that the Nation’s military strength and readiness depend on a pipeline of officers who are both highly qualified and racially diverse—and who have been educated in diverse environments that prepare them to lead.”

That led to the adoption of admission policies that considered race at four of the five military academies. The Merchant Marine Academy is the exception.

The academies that consider race have weighed whether to use a percentage-based system that would leave a certain percentage of slots for minorities, but that “would not be workable” because the academies “have a nationwide applicant pool and require a combination of academic excellence, leadership skills, physical ability, and personal character for success,” the lawyers said.