The use of race in college admissions has been a hot-button issue for decades and most recently came to a head in Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023), where the Supreme Court all but ended affirmative action and held, inter alia, that race-conscious admissions policies in higher education violate the Equal Protection Clause of the Fourteenth Amendment. Because no military academy was a party to the case, however, the Supreme Court clarified in a footnote that its opinion does not address whether race-conscious admissions policies are permitted at those academies “in light of the potentially distinct interests that military academies may present.” In Harvard’s wake, Students for Fair Admissions (“SFFA”) has attempted to tee up this “military exception” for the Supreme Court by filing suit against three military academies: the United States Naval Academy, the United States Military Academy at West Point, and the United States Air Force Academy.
On Dec. 6, a Maryland federal district court judge issued its Findings of Fact and Conclusions of Law following a nine-day bench trial in Students for Fair Admissions v. The United States Naval Academy et al., No. 1:23-cv-02699 (D. Md.), in which it ruled that the Naval Academy can continue to consider race in its admissions process. In its 179-page opinion, the district court ultimately concluded that the Naval Academy’s race-conscious admissions policies withstand strict scrutiny because the Naval Academy established a compelling national security interest in having a diverse officer corps. Specifically, the Naval Academy tied its use of race to the realization of an officer corps that represents the country it protects and the people it leads. The district court also found that the Naval Academy’s asserted national security interest was measurable, and that its admissions policies were narrowly tailored to meet that interest because, inter alia, the policies “do not result in an overrepresentation of some minority racial groups relative to others.” In reaching this conclusion, the district court placed particular significance on the military exception footnote in Harvard. SFFA has appealed the district court’s decision to the Fourth Circuit Court of Appeals.
SFFA’s suit against West Point is still proceeding through discovery in the Southern District of New York (SFFA v. United States Military Academy at West Point et al., No. 7:23-cv-08262 (S.D.N.Y)). The New York district court denied SFFA’s motion for a preliminary injunction and, following that denial, SFFA petitioned the Supreme Court to intervene. Representing West Point, the U.S. Solicitor General urged the justices to allow West Point to continue using its existing admissions process because having diversity in the Army’s officer corps is crucial for national security. Justice Sotomayor denied the application for an injunction pending appeal on Feb. 2, 2024, finding that the record is “underdeveloped” and the order “should not be construed as expressing any view on the merits of the constitutional question.” The case returned to the New York federal district court and West Point is allowed to continue using its existing admissions policy while litigation proceeds.
Most recently, on Dec. 10, 2024, SFFA filed suit against the United States Air Force Academy in the District of Colorado (SFFA v. United States Air Force Academy, the et al., No. 1:24-cv-03430 (D. Colo.)), challenging the Air Force Academy’s consideration of race in its admissions process. These three substantially similar lawsuits filed by SFFA in three different circuits may lead to a circuit split on the constitutionality of race-conscious admissions policies at military academies—an issue that the Supreme Court may ultimately be forced to resolve.
