Supreme Court lets West Point continue considering race as part of admissions

The decision is a temporary blow to the anti-affirmative action group Students for Fair Admissions, or SFFA, whose lawsuits against Harvard and the University of North Carolina led the Supreme Court last year to declare race-based admissions policies unlawful – except at US military service academies.

The court said in a brief order that the record in the case “is underdeveloped” and that its decision “should not be construed as expressing any view on the merits of the constitutional question.”

The carveout in last year’s rulings led SFFA to sue West Point and the US Naval Academy in 2023, alleging in two separate lawsuits that the military academies’ use of race in their admissions processes is unconstitutional. Lower courts have declined to grant the group’s request to order the schools to stop the practice while the lawsuits play out.

Last week, SFFA asked the high court to step in on an emergency basis to block West Point from considering race in its admissions process as the litigation unfolds.

“For now, the only question is what should happen as this case proceeds – who should bear the burden of the status quo,” attorneys for SFFA told the Supreme Court. “Every year this case languishes in discovery, trial, or appeals, West Point will label and sort thousands more applicants based on their skin color – including the class of 2028, which West Point will start choosing in earnest once the application deadline closes on January 31.

“Should these young Americans bear the burden of West Point’s unchecked racial discrimination? Or should West Point bear the burden of temporarily complying with the Constitution’s command of racial equality?” they added in part.

Though the application to the high court was filed at the same time a similar one from the group was pending before a New York-based federal appeals court, the intermediate court also turned down the group’s request earlier this week.

The Biden administration had urged the Supreme Court to not intervene in the matter, stressing the injunction sought by SFFA would be “profoundly disruptive” for West Point since the school’s application and selection process is already well underway.

“SFFA would have this Court compel West Point to alter its admissions process overnight, retrain admissions officers midstream, restart consideration of candidates for whom a decision has not yet been announced, and either rescind offers already issued or apply different criteria to candidates based on the happenstance of when their applications were reviewed,” Solicitor General Elizabeth Prelogar wrote in court papers.

Prelogar also defended the academy’s use of race in its admissions process, warning that a “lack of diversity in leadership can jeopardize the Army’s ability to win wars.”

“For more than forty years, our Nation’s military leaders have determined that a diverse Army officer corps is a national-security imperative and that achieving that diversity requires limited consideration of race in selecting those who join the Army as cadets at the United States Military Academy at West Point,” she told the court.

In a ruling issued January 3, US District Judge Philip M. Halpern wrote that while it’s possible West Point may have to ultimately stop considering race like other civilian universities, it’s also possible the school can prove it has “compelling governmental interests” to conduct its admissions process the way it does.

Like Prelogar, the judge also raised concerns about how the preliminary injunction SFFA asked for could “disrupt” the admissions process for two admissions cycles and cause the school to make drastic changes at a critical time.

“The requested injunction, to take effect on February 1, 2024, would require the entire admissions policy to be changed, and a new policy be applied to the current applicant pool midstream, as well as to applicants to the new admissions cycle beginning on February 1, 2024,” he wrote.

In its lawsuit against West Point, SFFA argued the school “has no justification for using race-based admissions” and said its policy “discriminates on the basis of race.”

“West Point sets benchmarks for the percentage of each class that should be filled by ‘African Americans,’ ‘Hispanics,’ and ‘Asians,’ and it meticulously tracks its compliance with those figures down to a tenth of a percentage point,” the suit claimed. “Race is, indeed, determinative for hundreds of applicants each year.”

The Supreme Court’s ruling last June said colleges and universities could no longer take race into consideration as a specific basis for granting admissions – except at US military service academies. It was a significant decision against affirmative action policies, which have focused on improving opportunities for historically excluded minorities.

In a footnote in the majority opinion, Chief Justice John Roberts said the cases before the court did “not address the issue” and left open the possibility that there are “potentially distinct interests that military academies may present” in a future case.

SFFA brought its lawsuit against the Naval Academy in October. A federal judge in Maryland declined in December to temporarily block the school from considering race in its admissions decisions while that legal challenge plays out.

US District Judge Richard Bennett said in his ruling that because a “factual record” has not been developed in the case, it’s “unclear whether SFFA is likely to succeed on the merits at this stage.”

This story has been updated with additional reporting.

CNN’s Jamiel Lynch contributed to this report.

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