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.
