Supreme Court asked to halt use of race in admissions at West Point

WASHINGTON (CN) — The advocacy group that successfully gutted affirmative action last term asked the Supreme Court on Friday to block the government from using a loophole in the court’s opinion to consider the race of applicants at West Point Military Academy.

Students for Fair Admissions successfully challenged the constitutionality of affirmative action policies before the high court last term. The group claims military academies shouldn’t be exempt from the landmark ruling.

“After this court’s landmark decision in SFFA v. Harvard , no public or private university is openly considering race in admissions, with one exception: our nation’s military academies,” Patrick Strawbridge, an attorney with Consovoy McCarthy representing the group, wrote in the application before the court.

Chief Justice John Roberts’ majority opinion stopped short of overturning over four decades of precedent, instead choosing to raise the level of scrutiny universities must meet to utilize affirmative action policies.

Although the ruling eliminated policies used by Harvard and the University of North Carolina, a footnote in the ruling appeared to exclude military academies from its reach. Roberts said the opinion did not address the distinct interests that military academies may present.

“The United States as amicus curiae contends that race-based admissions programs further compelling interests at our nation’s military academies,” Roberts wrote. “No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context.”

Students for Fair Admissions said the government has misinterpreted Roberts’ opinion, viewing the footnote as a carveout when it should have focused on the law within the ruling itself.

“Far from a carveout, Harvard ‘does not address’ the military academies because this court didn’t know how they used race,” Strawbridge wrote. “But the opinion says plenty about the law that governs them.”

Three months after the court’s ruling, Students for Fair Admissions sued West Point, claiming its use of race in admissions unconstitutionally violated equal protection guarantees. The group asked for immediate intervention on behalf of two white students applying to the school for the first time.

A lower court declined to grant Students for Fair Admissions a preliminary injunction. The Second Circuit has yet to rule but the group filed an emergency appeal to the Supreme Court, arguing the school’s application deadline warrants expedited action.

“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 Jan. 31,” Strawbridge wrote. “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?”

Students for Fair Admissions has asked the court to rule by Jan. 31 to decide if West Point can use race in upcoming admissions decisions. The group says this will avoid the potential for rescinded admissions offers.

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