The same group that dismantled affirmative action has returned to the Supreme Court, asking the justices on Friday to prevent West Point from considering race in its admissions process, saying military academies shouldn’t be exempt from the high court’s precedent.
The petition comes as the application deadline at West Point is approaching next week. The group Students for Fair Admissions says the high court should decide by Jan. 31, the application deadline for West Point’s class of 2028.
“West Point awards preferences to only three races: blacks, Hispanics, and Native Americans,” the filing read. “They cannot use race as a negative, lack an endpoint, stereotype, deploy arbitrary categories, or pursue interests that courts can’t reliably measure.”
According to the filing, West Point has applications from African Americans, Hispanics, or Native Americans reviewed by their Diversity Outreach Office, while regional admissions officers review applicants of another race.
The academy doesn’t consider Asian and Pacific Islander applicants under the Diversity Outreach Office because they are “overrepresented,” according to the brief.
A lower court denied the request, prompting Students for Fair Admissions to appeal to the 2nd U.S. Circuit Court of Appeals, but before the circuit court ruled on the petition for an injunction halting the academy from considering race, the group has asked the Supreme Court to step in.
The court asked for a response from West Point to be filed by Jan. 30.
Students for Fair Admissions sued West Point in September. The lawsuit notes the military was desegregated, but recent moves have set racial goals for hiring and diversifying the academy’s members.
The lawsuit claims the consideration of race runs afoul of the Fifth Amendment of the Constitution, which requires the federal government to provide equal protection and treatment for all.
If it’s unlawful for civilian schools to use race as an admissions factor, the lawsuit argues, then it should also be unlawful for the military.
When the high court struck down affirmative action policies at private and state schools last summer in its 6-3 ruling, it provided a footnote noting that military academies were not part of the case.
“No military academy is a party to these cases, but 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,” the footnote read.
Advocates for affirmative action had told the justices that diversity in the military was a goal and that any ruling outlawing the use of race could lead to problems with various ranks and races in the armed forces.
A spokesperson from both the Justice Department and West Point did not immediately respond to a request for comment.
Justice Sonia Sotomayor noted in her dissent in the 2023 affirmative action ruling that the military had promoted the use of diversity for national security purposes.
“Based on ‘lessons from decades of battlefield experience,’ it has been the ‘longstanding military judgment’ across administrations that racial diversity ‘is essential to achieving a mission-ready’ military and to ensuring the Nation’s ‘ability to compete, deter, and win in today’s increasingly complex global security environment,” she wrote.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.