(Bloomberg Law) -- The US Naval Academy’s practice of using race as a factor in admissions passes constitutional muster, a Maryland federal judge ruled in a blow to the conservative legal group behind the US Supreme Court’s landmark order outlawing affirmative action in higher education.
Judge Richard Bennett of the US District Court for the District of Maryland ruled against Students for Fair Admissions (SFFA), which argued the Annapolis, Md.-based Naval Academy’s admissions practices violate the Fifth Amendment by giving racial minority students an edge.
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The group, founded by affirmative action foe Edward Blum, accused the government of lacking any legal justification for its admissions policy, which currently seeks to have a student body that reflects the makeup of society generally.
“This Court concludes that the Naval Academy’s race-conscious admissions program withstands the strict scrutiny in the ambit of the Supreme Court’s opinion in the Harvard case,” said Bennett, an appointee of former president George W. Bush, who served over two decades in the US Army Reserve and the Maryland National Guard.
“The program survives strict scrutiny because the Naval Academy has established a compelling national security interest in a diverse officer corps in the Navy and Marine Corps,” he wrote.
SFFA sought to use the case to bolster its June 2023 victory in Students for Fair Admissions Inc. v. President and Fellows of Harvard College, which specifically invalidated the use of race as a factor in admissions at Harvard and the University of North Carolina. That decision quickly inspired litigation and increased legal threats from conservatives to workplace diversity, equity, and inclusion initiatives across several sectors.
But the Harvard decision explicitly excluded military academies, with Chief Justice John G. Roberts Jr. writing in a footnote that these federal institutions have “potentially distinct interests.”
The Naval Academy case is identical to another pending lawsuit from SFFA at the US District Court for the Southern District of New York that challenges the constitutionality of the US Military Academy at West Point’s race-conscious admissions policy.
Admissions Policy
The Naval Academy is the country’s second-oldest military school, which trains aspiring Naval and Marine officers after they undergo a highly competitive selection process.
Among other things, applicants must pass a physical fitness test and medical exams, and obtain a nomination from a member of Congress, the president, vice president, a secretary of a military service, or an academy superintendent before being accepted by the academy’s admissions office.
Bennett agreed with the government that as a vital pipeline to the Navy and Marine Corps, the Naval Academy’s race-conscious admissions served the compelling interest of “security of the Nation.” Diversity served that end by enhancing “unit cohesion and lethality” among officer ranks, “improving recruitment and retention,” and “enhancing the Navy and Marine Corps’ domestic and international legitimacy.”
“Specifically, the Academy has tied its use of race to the realization of an officer corps that represents the country it protects and the people it leads,” Bennett wrote. “The Academy has proven that this national security interest is indeed measurable and that its admissions program is narrowly tailored to meet that interest.”
The court also found that the admissions program was one of several factors considered when reviewing an applicant, that race is “nondeterminative,” and that after “serious, good-faith consideration” race-neutral measures were “insufficient to serve the compelling interests claimed.”
Adam Mortara, lead trial attorney for SFFA, argued during a seven-day bench trial in September that the Naval Academy engages in “racial balancing” to achieve the desired makeup of its annual classes and impermissibly rests on racial stereotypes.
US Justice Department attorneys countered that the Naval Academy has no control over the nomination process. It’s actually White students who are more likely to be nominated by members of Congress than minority students to attend the country’s elite military academies, they said.
DOJ attorney Josh Gardner argued in defense of the academy’s policy that Congress and senior military authorities realized that the lack of diversity fostered racial tensions in the armed forces throughout the Vietnam War and undermined their mission readiness.
“The Navy cannot consider race in promotion and hiring,” so the academy serves as a training ground to help build a diverse talent pipeline to improve the likelihood of future military leaders from different backgrounds, Gardner said.
The academy doesn’t have “quotas” or “points” for minority students, he said. It only considers race and ethnicity in a “narrowly tailored” way, and “no candidate is admitted solely because” of their racial identity.
Blum concluded, “It is our hope that the U.S. military academies ultimately will be compelled to follow the Supreme Court’s prohibition of race in college admissions.”
Blum said in a Friday statement in response to the district court’s ruling, “just as we did in our successful lawsuits against Harvard and the University of North Carolina, SFFA will appeal this to the appellate court.”
“If we are unsuccessful there, then we will appeal to the U.S. Supreme Court,” he said.
The court this year has signaled that it isn’t ready to say anything more on affirmative action, which has frustrated conservatives who want the justices to enforce and expand the court’s landmark ruling on race-conscious admissions.
The justices refused to stop West Point from using race as a factor in deciding who to admit to the military academy, concluding that the record in the case was “underdeveloped.” And the court later declined to hear an appeal challenging the admissions program at a competitive Virginia public high school that uses socio-economic factors to diversify its student body.
But the court’s five conservative justices may be in favor of finally settling the matter regarding military academies, said F. Michael Higginbotham, a law professor at the University of Baltimore who focuses on constitutional law and race.
“I think there might be five conservative justices that want to take this up,” Higginbotham said. " I don’t think they should, but you might find five,” he said.
The case is Students for Fair Admissions v. U.S. Naval Academy, D. Md., No. 1:23-cv-02699, judgment 12/6/24.
— With assistance from Lydia Wheeler.
To contact the reporters on this story: Khorri Atkinson in Washington at katkinson@bloombergindustry.com; Tiana Headley at theadley@bloombergindustry.com
To contact the editors responsible for this story: Genevieve Douglas at gdouglas@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com
(Updates with Higginbotham quote in final paragraphs.)
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