Emboldened by its success in ending race-based admissions policies at civilian colleges, a conservative advocacy group moved on Tuesday to end a similar policy at the U.S. Military Academy at West Point – the 221-year-old institution founded by President George Washington and other early leaders.
The lawsuit filed in federal court in White Plains, N.Y., is an attempt to close a gap that the Supreme Court left in June when it ruled unconstitutional the use of race in selecting the entering classes at Harvard University and the University of North Carolina.
Chief Justice John Roberts’ main opinion included a footnote, responding to a filing in the case by the federal government, which had argued that the nation’s military academies have their own “compelling interests” in taking race into account in choosing their cadets.
The footnote added: “No military academy is a party to these cases…and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”
Students for Fair Admissions, a private group based in Arlington, VA, won the Harvard and UNC cases in the Supreme Court last June, on a 6-3 vote. SFFA has been the most energetic challenger of any use of race as a factor in shaping student admissions.
Its success against Harvard University was based on the equal protection guarantees of a 1964 federal civil rights law that applies to educational institutions receiving federal funds, and its victory against UNC – a state-run institution – was based on the equal protection clause of the Constitution’s 14th Amendment, which applies to state governments and agencies. (Harvard, as a private institution, is generally not required to obey the 14th Amendment, but the Court treats the 1964 law at issue as covering the same legal ground.)
Neither of those legal promises of equality applies to federal institutions, like West Point. The new lawsuit is based upon the similar guarantees of racial equality under the Constitution’s 5th Amendment promise of legal “due process.” (The Supreme Court first gave that interpretation of the 5th Amendment in a 1954 decision, Bolling v. Sharpe, a companion case to the historic Brown v. Board of Education, ending racial segregation in public schools.)
The new lawsuit refers to the footnote in Roberts’ opinion about military academies, but contends that the reasoning of the Court in the Harvard and UNC cases “makes it perfectly clear that West Point’s use of race in the admissions process is unconstitutional.” The academy, the group complained, uses actual racial balancing in selecting cadets, and it has not changed that policy following last June’s decision.
The lawsuit was filed against West Point and its leaders, and against the Pentagon and its leaders. SFFA sues for itself, but also includes in its legal claims two of its members – identified only as “Members A and B” — who, it says, are honor students in high schools who want to apply to a military academy. Both, it says, are white, and both fear that their race will prevent them from competing on “an equal footing” unless West Point is required to drop its race-based policy. Both students, it adds, want to remain anonymous for fear of reprisal.
The lawsuit makes a single legal claim: the West Point admissions policy violates the equal protection principles of the Fifth Amendment. Over five pages, it outlines its specific points that West Point cannot prove that it has a “compelling interest” in using race as it now does in its admissions process.
The lawsuit seeks a formal court order declaring that the process violates the Fifth Amendment, along with temporary and permanent court orders barring West Point “from considering or knowing applicants’ race when making admissions decisions.” A temporary order appears to be a way to stop the policy promptly, while the case goes through the courts on the question of whether to issue a permanent ban.