On June 29, 2023, the Supreme Court effectively struck down affirmative action admissions practices in American universities. The 6-3 decision in Students for Fair Admissions (SFFA) v. Harvard and SFFA v. University of North Carolina at Chapel Hill overturned 45 years of precedent, stating that race-conscious admissions violate the Equal Protection Clause of the 14th Amendment. The Court did, however, carve out a space for the mentioning of one’s race insofar as it has affected the applicant's life and can speak to the applicant’s character traits. Calling back to Associate Justice Sandra Day O’Connor’s words in Grutter v. Bollinger, the court’s conservative majority decided that America has reached a day where it is no longer necessary to consider race in college admissions in order to achieve a diverse student body. This, however, opposes reports and expert testimonies claiming that considering race as a part of a holistic admissions process is, in fact, still the best way to ensure diverse student bodies. Immediately following the decision’s release, many students and admissions officers across the country mourned the loss of race-conscious admissions programs and started grappling with the real-world implications of the Court’s ruling. Among these, experts claim, is an eventual hit to the diversity of the workforce. However, the SFFA, which has been fighting to remove affirmative action since 2014, is not done yet.
On September 19, 2023, SFFA filed a lawsuit against West Point regarding the same question of affirmative action. This might seem odd considering the firm decision of the court in the recently addressed Harvard and UNC cases. However, on page 22 of the majority opinion, Chief Justice John Roberts included a footnote that clarified that military academies fell outside the scope of the ruling: “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.” In this footnote, SFFA found a question regarding affirmative action—they are now asking for an answer.
SFFA’s lawsuit argues that military academies have turned away from merit-based admissions and toward a process that focuses on race. This, SFFA claims, violates the Equal Protection Clause of the 5th Amendment, which binds all agencies under the federal government. Military academies, the argument continues, are still subjected to the Constitution and its provisions, thus necessitating a ruling against their use of affirmative action. But what about those “potentially distinct interests” Chief Justice Roberts mentioned in his footnote?
Military academies arguably need race-conscious admissions because of the direct pipeline between academies and officer positions. Having a diverse set of officers is extremely important to the operations of the U.S. Armed Forces, a lesson learned during the Vietnam War. During the war, there were racial tensions between the majority of white officers and the substantial number of minority active duty men. Such tensions were referenced in an amicus curie (or friend-of-the-court) brief filed during the Grutter v Bollinger (2003) case by several high-ranking officers: “As that war continued, the armed forces suffered increased racial polarization, pervasive disciplinary problems, and racially motivated incidents in Vietnam and on posts around the world.” Thus, to avoid similar issues in the future, military academies started considering race in admissions with the goal of increasing the diversity in officer positions.
However, as the federal government explained in an amicus curie brief in the Harvard decision, race-conscious admissions are necessary for both military training and civilian institutions to diversify the officer pool. In 2019, for example, only about 20% of officers came from military academies, thus showing how diversity in civilian universities greatly affects the diversity of military officers. Associate Justice Sonia Sotomayor referenced this line of reasoning in her dissent, saying, “To the extent, the Court suggests national security interests are “distinct,” those interests cannot explain the Court’s narrow exemption, as national security interests are also implicated at civilian universities.” This exemption, she concludes, only highlights the arbitrary nature of the majority’s decision.
For now, SFFA’s lawsuit against West Point is in the very early stages of litigation
as it waits to be heard in the Federal District Court in the Southern District of New York. However, this case still presents a tricky question for lower courts to answer that is inextricably linked to the admissions processes at civilian universities. If, as some statements from military and federal officials claimed, a rejection of affirmative action in military academies could eventually pose a threat to national security, so too could a rejection of affirmative action at civilian universities. Thus, if courts want to uphold the use of race-conscious admissions in military academies, the interests justifying such use are equally served by race-conscious admissions at civilian institutions.