Federal judge allows West Point to maintain racist admissions policy, but its future remains uncertain

On​ Jan. 3,​ Philip Halperin, a judge for the U.S. District Court for the Southern District ⁢of New York, denied a request to preliminarily enjoin the U.S.‍ Military Academy at West Point from using race as a factor for selecting members of its incoming classes. The ​plaintiff, ‍Students for Fair Admissions — which successfully​ litigated a similar lawsuit in the U.S. Supreme​ Court‍ against Harvard University‌ and the University of North Carolina in‍ 2023 — had sued West Point. Students for Fair Admissions sought a ​preliminary and permanent injunction against the academy’s use of race in its admissions process.

Relying on its victory in Students⁢ for Fair Admissions v. President & Fellows of Harvard College, the organization argued that the equal protection principles embodied by the Fifth Amendment due process clause barred West Point from using race because the government lacked a “compelling” justification for not treating everyone equally. In that case, the ⁣court held neither Harvard nor UNC ​had established a ⁤compelling justification for a racially biased ​admissions process. But it left‍ open the question of whether that ruling applied ⁤to the U.S. military academies because none of‌ them was a party to⁣ that⁣ case.

Since then,‍ Students for Fair Admissions sued the U.S. Naval Academy and West Point. In each case, the ‌district court denied a request for a ⁤preliminary injunction. The courts concluded that ​they could not resolve the merits of the‌ claims without the development of a factual record beyond the affidavits submitted ⁣by the parties.

‘Compelling’ Racial Discrimination

In the⁣ West Point case, like the⁢ Annapolis case, the federal government‍ admitted that‌ race plays a role in the admissions ⁢process. West Point argued, however, that‍ the ⁢armed forces have a “compelling” ‍need to discriminate on the basis of race in their admissions for several reasons. Namely, (1) that a diverse officer corps is necessary for the “lethality” of‌ and the “cohesion” within military units, ⁤(2) such a policy is necessary​ for satisfactory recruitment and retention of‍ a ‍potential and existing officer⁢ corps, and (3)⁤ such a policy would⁣ enhance⁤ “the military’s legitimacy in the eyes of the nation and the world.”

The government also argued​ that the courts should defer to the military’s judgment that bending to racism is necessary. West Point noted the Supreme Court has often declared that judgments about military necessity are peculiarly within‍ the province of military professionals to make. The judge in the Annapolis case expressed a willingness ⁣to defer to the military’s claimed need for discrimination, while the‌ judge in​ the West Point case declined to ⁢decide how to resolve that point.

At this stage, the two opinions should leave us with the following conclusions.

Law and Facts Left Unexamined

First, each court decided that, before it could adequately‌ address the merits of ‍the plaintiff’s claims, it needed a more⁣ elaborate development of the underlying facts. That‌ is not surprising. Before reaching the ⁣Supreme Court, the ​Harvard and UNC cases had both been tried in different federal⁢ courts, where an extensive factual record was established. Perhaps, the district courts in the ⁢Annapolis and West ⁢Point cases will later decide ⁣that they can resolve those ‍cases at ‌the summary judgment stage. No one⁤ should be surprised, ‌however, if each court concludes that a‌ full trial‍ is necessary for it⁢ to enter a judgment for Students for Fair Admissions ⁢or the service academies.

Second, neither court analyzed in any detail the legal issues posed ⁤by the plaintiffs. There are ⁤numerous reasons why their denials​ of preliminary relief do not signal their view about the ultimate​ merits of the claims. Significantly, neither court decided whether the government’s alleged need for “diversity” was compelling, let ⁤alone whether the government has shown a surpassing need for “racial diversity.”

The courts also did not‌ require the government to explain why racial diversity is necessary to establish ⁤the “lethality” or “cohesion” of military units. No service branch assigns different tools of warfare to different soldiers,⁤ sailors, airmen, or marines based on their race, ‌so it is ⁢not⁣ obvious how or why the government’s alleged need for⁢ racial ​discrimination contributes to the “lethality” of our ⁤fighting ​forces.

Similarly, unless the government ⁣can ⁤prove that servicemembers⁤ will be influenced ‍by the color of their officers —‍ that is, ​they will be⁢ less likely to fully comply with the orders issued by officers whose skin color does​ not match their own — it is difficult ⁢to understand how or why “cohesion” ⁣would be affected⁣ by the racial makeup ⁣of military personnel.

Legitimacy or Lethality?

Third, the government’s claim that racial‌ discrimination is ‍— paradoxically — necessary to establish the​ “legitimacy” of our armed forces is, to be kind, precisely the type of vacuous claim that the Supreme Court rejected in 2023.

Why ‌do ⁣we ⁤need the eyes of the world to see the racial composition of our military as “legitimate” for our military ⁤to fight effectively? Why should we care about any factor other than our ability to protect the nation’s interests against foreign nations who want‌ to do us harm and destroy ​our way of life? How many ⁤minority⁣ officers does the ‌military need to cross ⁢the line from being an “illegitimate” military to one that is instead “legitimate”? Whose opinion counts when answering that ​question — China’s? Russia’s? Iran’s? North Korea’s? And what is ‌ their record of illegitimate discrimination in this regard? The government’s claim is ​precisely the sort of political sop that ​cannot constitute a “compelling” justification for racial‌ discrimination.

Precedent to Consider

Fourth, neither judge addressed the relevance​ of the Supreme Court’s 2005 decision‌ in Johnson v. California, ‍in which‌ the court rejected California’s argument that it had a compelling interest in assigning prisoners to cells on the​ basis ‍of their race. The court held that “compliance with the Fourteenth Amendment’s ban on racial⁢ discrimination is not only consistent with⁢ proper prison administration, but also ​bolsters the legitimacy of the entire criminal justice system.” In addition, the court rejected the proposition that decisions about race-based cell assignments “are better left in the first instance to the⁣ officials ⁢who run our⁣ Nation’s prisons.”

The​ bottom line is this: The district court judges ‍in⁤ the Annapolis and ⁤West Point cases have decided that factual​ development ‌is necessary for them to adjudicate the plaintiff’s claims and that, in the meantime, the academies⁣ may continue ​with⁤ their admissions ‍policies. That is a ⁣setback for the plaintiff but only a ‌temporary one.

To be sure, the plaintiff must wait longer for those courts to decide on the relief that it sought,‍ and it might ultimately lose the cases on the merits. But the plaintiff‌ is still in the game. The first inning or two have been played, but there are more to⁢ go,⁢ and the score ⁤is 0-0. Order a hot dog; ⁤there’s plenty ‍ahead​ to watch.