The National Security Footnote in the Affirmative Action Decision

In late June, the Supreme Court issued a landmark ruling in Students for Fair Admissions v. President and Fellows of Harvard College, prohibiting public and private universities from engaging in affirmative action. The opinion contains an exception for military academies in footnote 4 on page 22. The carve-out is slim: The Court says that it has declined to address whether military academies may use race in admissions because no military academies were party to the case and no lower courts had considered the issue. The majority simply writes that military academies may present “potentially distinct interests” from other kinds of educational institutions. It thus left open the question of whether the institutions that train the nation’s future military leaders may affirmatively admit diverse classes. 

Students for Fair Admissions (SFFA) is leaving no footnote unturned. The legal advocacy and membership group has now brought a lawsuit in the Southern District of New York against the U.S. Military Academy at West Point arguing that it, too, should not be allowed to use race considerations in admissions. West Point, the nation’s oldest military academy, trains officers for the U.S. Army and is one of three congressionally funded military academies operated by the Department of Defense (along with the Naval and Air Force academies). (The Coast Guard and Merchant Marine academies are also federal military academies, but they are operated by the Department of Homeland Security and Department of Transportation, respectively.) SFFA asks for a declaratory judgment that West Point’s admissions policy is unconstitutional, as well as both a preliminary and permanent injunction that would not allow West Point to consider or know applicants’ race when making admissions decisions.

SFFA contends that West Point’s use of race considerations in admissions violates the Fifth Amendment’s Due Process Clause and will hurt the chances of two white candidates who are applying this fall for admission, since the military academies have not changed their admissions processes since the Court’s summer ruling. SFFA lodges the complaint against West Point, the Department of Defense, Defense Secretary Lloyd Austin, Army Secretary Christine Wormuth, West Point Superintendent Steven Gilland, and West Point Director of Admissions Rance Lee.

SFFA’s main argument is that military academies’ use of race in admissions will result in similar constitutional problems as did the policies at Harvard or the University of North Carolina (UNC), the other university involved in the Harvard case. It argues that West Point’s admissions process won’t survive strict scrutiny, since West Point’s use of race in admissions is ultimately rooted in similar “themes” of “compelling need” for diversity that the Court struck down as unconstitutional when it came to Harvard and UNC. Moreover, SFFA’s complaint disputes the notion that there is a specific military need for diversity, such as internal cohesion or military effectiveness, arguing that such rationales are based on “infantilizing and crude stereotypes” about service members and that they lack evidence of effectiveness. In all, it asks the Court to not resort to a “blind deference” national security rationale to save something that is otherwise unconstitutional. The challenge in SFFA v. West Point is for the government to outline exactly why its use of race in admissions processes is distinguishable from the use of race in admissions at Harvard or UNC.

SFFA’s complaint begins by extolling West Point as “one of the crown jewels of the American military.” It describes the academy’s history of “evaluat[ing] cadets based on merit and achievement,” arguing that it has “strayed from that approach” by focusing on race in admissions. 

SFFA then describes West Point’s admissions process, which is twofold. One must first “qualify” for admission: Namely, one must pass a medical exam and physical fitness test, as well as be nominated for admission by a member of Congress, the president, or the vice president. Once qualified, one can be considered for admissions. SFFA’s suit alleges that the second step of the process is where the academy’s “racial preferences kick in.”

According to the complaint, West Point sets benchmarks to fill a certain percentage of its incoming class—which is typically between 1,200 and 1,300 individuals, with an overall acceptance rate of 12 percent—with Black, Hispanic, and Asian American students. West Point’s superintendent sets the benchmarks, which in 2020 were as follows: 14+ percent for Black Americans, 11+ percent for Hispanic Americans, and 5+ percent for Asian Americans. SFFA notes that West Point is rather open about its commitment to affirmative action. It alleges that West Point engages in “racial balancing” that is pursued with “surgical precision” and that West Point considers any admittance rate less than the ones set internally a “failure.”

West Point’s racial diversity goals are generally informed by two metrics: the racial and ethnic composition of the nation as a whole, and the racial and ethnic composition of the enlisted Army members, whom West Point’s cadets will eventually lead as officers. West Point’s admissions policies fall into the broader military’s stated goal to “mirror the demographic composition of the population it serves and that senior leaders should mirror the demographic composition of the troops they lead.”

In its complaint, SFFA points to three ways that West Point has justified its setting of racial benchmarks over the years. The first is West Point’s desire to ensure that those being trained to become the Army’s officers are representative of the Army’s composition in order to maintain “internal functioning and military readiness.” The second is West Point’s purported desire to ensure that the officer corps is reflective of the racial makeup of the population it serves in order to “foster internal confidence within the ranks and bolster external legitimacy[,]” thus “increas[ing] societal trust and recruitment efforts.” Finally, SFFA points to West Point’s general appeals to “educational benefits of diversity”—but asserts that since this justification was brought down in SFFA v. Harvard, West Point is left with only the former two.

As to West Point’s first justification—that racial preferences are essential to internal functioning of the military—SFFA argues that all of the academy’s examples fall into two traps. First, they subject soldiers to being categorized as members of racial groups instead of as individuals, and second, they assume that all minority service members think in the same way.

For instance, SFFA considers West Point’s historical claim that it needs racial diversity to “preserve unit cohesion and ward off racial strife within units,” in support of which West Point had pointed to racial tension during the Vietnam War among enlisted service members that debilitated fighting capabilities. (This was a position that military officials took in what is known as the Becton brief during Grutter v. Bollinger (2003) and which the military has employed since.) SFFA calls the Vietnam War-era racial strife example “cherry-picked” and an example of a reasoning error that conflates correlation with causation. SFFA argues that the Vietnam War-era incidents were “the product of a ‘perfect storm for racial conflict’” that no longer apply today, caused not by colorblind policies but, rather, by other factors like socioeconomic pressures. And SFFA argues that such a justification is premised on an assumption for which there is no evidence: that soldiers see one another “foremost in terms of race, rather than in terms of their ability or character traits like loyalty, devotion, and selflessness.”

SFFA then addresses West Point’s claim that race-conscious admissions are needed to try to achieve statistical parity between the Army’s officer corps and the Army’s enlisted members, in order to “foster trust between [‘]the enlisted corps and its leaders.[’]” According to SFFA, this argument “relies on crude and infantilizing stereotypes about the men and women who volunteer to serve in our armed forces, and it defies common sense.” So says SFFA: 

It assumes that black soldiers will be more likely to trust a black officer or a chain of command that includes black officers, that Hispanic soldiers are more likely to trust Hispanic officers, and so forth—because of their skin color, not their trustworthiness. And it completely ignores reams of evidence showing that trust between soldiers is formed through battlefield performance, and that servicemembers in war zones are more concerned with their leaders’ competency than with their skin color.   

SFFA also disputes West Point’s claim that diversity produces military effectiveness. It argues that West Point doesn’t define what would actually achieve diversity in the military and also doesn’t provide evidence that military units are more successful on the battlefield than unit members “based on objective measures of tactical competency, regardless of skin color.”

As for West Point’s second justification—that racial preferences “foster internal confidence” and “bolster external legitimacy”—SFFA objects that it is premised on an incorrect assumption: that Americans will judge an institution’s legitimacy and trustworthiness based on its racial makeup. Such a presumption is “both un-American and devoid of any evidentiary support,” contends SFFA, pointing to a Gallup Poll that shows that confidence in the military has generally declined over the past few decades. SFFA then responds to West Point’s claim that unbalanced racial metrics between officer and enlisted corps will harm recruitment efforts, arguing that its assertions “are backwards” and that the true cause of the recruiting crisis is the military’s “emphasis on non-merit factors in admissions and promotions decisions.”

SFFA then reviews the Court’s decision in SFFA v. Harvard, which found that Harvard and UNC’s use of race in admissions violated the equal protection clause of the 14th Amendment because they “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” SFFA argues that West Point’s justifications for using race in admissions are the very ones that the Court dismissed in SFFA v. Harvard, and that West Point’s appeal to the military’s benefit from diversity is “no different from Harvard and UNC’s appeal to the ‘educational benefits of diversity.’”

SFFA posits that West Point’s admissions policies also fail the “narrowly tailored” requirement of the strict scrutiny test. This is because, according to SFFA, the military hasn’t articulated the connection between racial diversity and the goals the military pursues. SFFA argues that the racial categories used are imprecise and that West Point’s “practice of racial preferences barely moves the needle in terms of the demographics of the officer corps as a whole” because it comprises only 17 percent of newly commissioned Army officers annually. It further alleges that race-neutral alternatives have not been sufficiently explored at West Point. When it comes to end points—the requirement set forth by Grutter that race-conscious programs must have “a logical end point,” about which Justice Sonia Sotomayor wrote a vigorous dissent—SFFA argues that West Point’s racial benchmarks are necessarily unending if they are pegged to the “ever-shifting demographics of the country and the enlisted ranks.”

An appeal to national security in this realm would be dangerous, asserts SFFA, pointing to the decision in Korematsu that allowed Japanese internment camps during World War II via national security need, to warn of the dangers such an allowance might create: “Although courts have been mindful of the military’s unique role in society and the unique considerations that come with it, no level of deference justifies systematic racial discrimination,” the complaint reads. It argues that the Court should find that West Point’s policies violate the Fifth Amendment, which binds the federal government’s actions to at least the same level of strict scrutiny as the 14th Amendment does.

In all, SFFA argues that courts should not see West Point’s affirmative action policies as any less violative of constitutional rights than those employed by Harvard or UNC. 

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An amicus brief submitted by the United States in SFFA v. Harvard gives a preview of the likely arguments West Point will raise in response. The brief was signed by the departments of Defense, Homeland Security, Education, Health and Human Services, Commerce, and Labor, and the solicitor general.

In its brief, the government had defended the use of affirmative action in admissions by arguing that it was in the national interest to ensure that the individuals admitted to institutes of higher learning were diverse, and that the overall learning environment was diverse, too—arguments that seem called into question by the Court’s ruling. But the government also argued that diversity in higher education was essential to national security. From the government’s perspective, this national security need entailed that both military academies as well as civilian universities maintain an ability to use race to build diverse classes. The amicus brief stressed that the latter was included in the national security argument because nonmilitary academies host Reserve Officers’ Training Corps (ROTC) programs and also educate students who will go on to serve, thus contributing to the “diverse pipeline of leaders” needed for an effective military.

The Supreme Court’s carve-out in SFFA v. Harvard suggests that the government has some room to make the case for why the use of race considerations for admissions at the military academies should be considered different by the courts. Whether it can successfully explain why is the live question.