Judge Allows Naval Academy to Consider Race in Admissions

• A federal judge denied a preliminary injunction seeking to ban the consideration of race in admissions at the Naval Academy.
• The academy, along with West Point, is being sued by Students for Fair Admissions, which won the landmark affirmative action case in June.
• That Supreme Court decision carved out an exception for the service academies given the importance of diversity in the military.
• A final ruling on the injunction is due within a week.

Last June, Students for Fair Admissions (SFFA) received the news it had hoped for — a U.S. Supreme Court decision banning the consideration of race in college admissions. While the court's ruling applied specifically to Harvard University and the University of North Carolina at Chapel Hill, the two defendants, it had broad implications for higher education writ large.

Except for military academies, which Chief Justice John Roberts carved out as an exemption in a footnote.

That exemption evidently didn't sit well with SFFA, which in turn filed similar lawsuits against the U.S. Military Academy (West Point) and the U.S. Naval Academy this fall.

Now, as the academies are beginning to consider applicants during the fall admissions cycle, SFFA requested a preliminary injunction to temporarily block the Naval Academy from considering race in its decisions while the cases remain pending.

A federal judge said no, at least for now.

Landmark Affirmative Action Ruling Exempts Military Academies

In a brief footnote on page 22 of the court's 6-3 opinion, Roberts states that the nation's military academies weren't party to the cases against Harvard and the University of North Carolina and that the lower courts didn't address "the propriety of race-based admissions systems in that context."

Therefore, the majority opinion does not apply to military academies — West Point, the Naval Academy, and the Air Force Academy — "in light of the potentially distinct interests [they] may present."

What, exactly, are those "distinct interests"?

Roberts didn't specify, but his footnote references an amicus brief filed by the United States arguing for the importance of maintaining diversity among military leadership. "The government," the brief contends, "has a vital interest in drawing its personnel — many of whom will eventually become its civilian and military leaders — from a well-qualified and diverse pool of university and service academy graduates."

A similar brief, filed on behalf of 35 top former military leaders from all four services, offers a deeper analysis of the issue.

"The importance of maintaining a diverse, highly qualified officer corps has been beyond legitimate dispute for decades," the brief argues. "History has shown that placing a diverse Armed Forces under the command of homogenous leadership is a recipe for internal resentment, discord, and violence. By contrast, units that are diverse across all levels are more cohesive, collaborative, and effective."

Therefore, the military leaders conclude, "the status quo — which permits service academies and civilian universities to consider racial diversity as one factor among many in their admissions practices — is essential to the continued vitality of the U.S. military …."

At the same time, this commitment to diversity fails to embrace ROTC programs, including those at Harvard and UNC, which provide the military with a steady supply of officers. The brief from military leadership points out that in 2019, 36% of active-duty officers were ROTC-commissioned. More than half (52.6%) of the Army's officer corps that year came from ROTC programs.

What's more, ROTC has been the primary source of minority officers, the brief details, with 29% of Black and 32% of Hispanic officers earning commissions through ROTC in 2019.

"Diversity in the halls of academia," the brief asserts, "directly affects performance in the theaters of war."

Injunction Denied Temporarily

In October, SFFA filed a lawsuit against the Naval Academy claiming it's in violation of the Fifth Amendment, which contains "an equal-protection principle that binds the entire federal government."

The Naval Academy's admissions policies, the lawsuit asserts, rely on racial classifications, and "must employ measures that are 'narrowly tailored' to 'further compelling government interests.'"

"The Academy's overt racial preferences cannot clear this bar," the suit concludes.

A month earlier, SFFA had filed a similar suit against West Point.

Meanwhile, as this fall's admissions cycle proceeds, lawyers for SFFA filed a request for a preliminary injunction, which U.S. District Judge Richard Bennett considered at a hearing on Oct. 14 in Baltimore. The injunction would prevent the Naval Academy from considering race in its admissions decisions.

Following the hearing, Bennett denied the request, calling it an "extraordinary remedy."

According to Reuters, Bennett said SFFA had "failed to show it would likely succeed in proving that … the Naval Academy's consideration of race as an admissions factor was discriminatory and a violation of equal protection rights under the … Fifth Amendment."

Representing the academy, Joshua Gardner, a Justice Department special counsel, argued that race is "not a determinative factor" in admissions decisions, adding that diversity in the military is important for "cohesion."

In a brief filed ahead of the hearing, Brian Boynton, principal deputy assistant attorney general, claimed SFFA's suit "ignores critical differences between civilian and military universities" and that the group failed to identify by name any members with standing who might suffer irreparable harm absent an injunction.

A former member of the U.S. Army Reserve and the Maryland National Guard, Bennett discussed the lingering racial tension among the military.

"There have always been racial tensions in the military," he said. "They have lessened, but they are still there."

Case Might Reach the Supreme Court

Following the hearing, the plaintiffs said they might appeal the decision.

Bennett promised to issue a final ruling within a week, adding that he wants to learn more about the case through discovery, such as how many minority graduates continue in the military following their required five-year service commitment and whether the academies plan to eventually eliminate race as a consideration in admissions decisions.

Bennett also noted he believes the case against the Naval Academy might ultimately reach the Supreme Court.

The academy's application deadline is Jan. 31, and admissions decisions will be made by April.

For the time being, the military academies can continue to consider race, which has served to bolster diversity on those campuses in recent years. From 2000-2021, racial minorities increased from 20% to 36% at West Point and from 19% to 37% at the Naval Academy.

Diversity gains, however, don't necessarily trickle upward. About 90% of generals and admirals today are white.