As a follow-up to its landmark Supreme Court victory last year that barred Harvard and the University of North Carolina from discriminating on the basis of race in their admissions processes, Students For Fair Admissions has sued the United States Military Academy at West Point over its use of race in its admissions decisions. On Friday, SFFA filed in the Supreme Court an “emergency application for an injunction pending appellate review.”
A few comments:
1. As the title of its filing reflects, SFFA is not seeking a final merits ruling at this point. Rather, “the only question is what should happen as this case proceeds—who should bear the burden of the status quo” for “[e]very year this case languishes in discovery, trial, or appeals”:
Should these young Americans [who apply to West Point] 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? The answer, as Judge Sutton once explained in a similar case, “turns on the likelihood of success on the merits.” And here, West Point is highly likely to lose.
2. In a footnote in its ruling last year, the Court stated that it wasn’t addressing the question whether West Point and the other military academies might have “compelling interests” that would justify race-based admissions programs:
The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. 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. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.
But while the Court did not decide this question, it did, SFFA argues, “say[] plenty about the law that governs” the military academies:
The academies must satisfy real strict scrutiny: The lesson of Korematsu is that even the military must satisfy “the most rigid scrutiny” when it racially classifies citizens, and this Court will not defer to the government’s assertions of military necessity, like its insistence that civilian universities needed to use race to preserve the diversity of ROTC. To satisfy strict scrutiny, the academies must identify “distinct interests”: They can no longer rely on the educational benefits that Harvard rejects. And even if the academies have distinct interests, they must prove narrow tailoring: They cannot use race as a negative, lack an endpoint, stereotype, deploy arbitrary categories, or pursue interests that courts can’t reliably measure. [Cleaned up.]
3. SFFA argues that West Point is violating the Court’s principles “worse than Harvard itself”:
While Harvard denied that “some races are not eligible to receive a tip,” West Point awards preferences to only three races: blacks, Hispanics, and Native Americans. Worse, in a throwback to Bakke and Gratz, West Point uses race to determine which office reviews applications, how many early offers it makes, and what scores applicants need to get. West Point concedes that it uses the same racial categories that [the Court] deemed “incoherent,” and that it has no firmer endpoint for its race-based admissions. And its asserted interests would have courts try to measure whether racial preferences are necessary to make the Army “lethal” on the battlefield or “legitimate” in the eyes of foreign countries. Even less amenable to judicial review.
4. On Saturday morning, Justice Sotomayor, the circuit justice for the Second Circuit, ordered the United States to file its response to the emergency application by tomorrow (Tuesday). Misled by a Supreme Court reporter who tweeted that “The Court” imposed that tight deadline, Chris Hayes of MSNBC immediately misinformed his millions of followers that the Court was moved by “the pressing issue of ‘reducing the number of black people at West Point.” More than two days later, his racebaiting tweet remains uncorrected.
Why Sotomayor imposed such a tight deadline is unclear. Perhaps she did so because West Point’s admissions-application deadline is January 31 (Wednesday).