Legal group Students for Fair Admissions has been angling to overturn colleges’ race-conscious admissions practices for more than a decade — and last month won big at the U.S. Supreme Court.
But it appears SFFA’s legal crusade isn’t over. Edward Blum, the organization’s founder and president, last week emailed members and donors informing them that it may challenge race-conscious policies at military academies.
“SFFA is exploring the legality of using race at these institutions — West Point, Annapolis and the Air Force Academy,” Blum wrote. “If you know of any student who was recently rejected from these institutions, or any students who will be applying to any of them, please contact me.”
The controversial Supreme Court ruling late last month barring colleges from explicitly relying on race as an admissions factor contained a carveout for military academies. Chief Justice John Roberts, writing for the majority, indicated this was because the academies had “potentially distinct interests” from other institutions.
College leaders are apprehensive the decision is just the start of a broader effort to further dismantle race-based admissions programs — and even those beyond, like scholarships. This in turn would further box out historically underrepresented students in higher ed, they say.
SFFA’s latest missive plays into those fears.
What did the Supreme Court rule?
Last month’s ruling struck down race-based admissions practices at Harvard University and the University of North Carolina at Chapel Hill, saying they violate the 14th Amendment's guarantee of equal protection under the law.
The 6-3 decision overturned decades of legal precedent that enabled college admissions offices to factor in race, so long as it was not the sole criterion and that they didn't pursue racial quotas.
But the decision, while gut wrenching for enrollment managers and administrators trying to admit more diverse classes, offered some wiggle room.
Roberts wrote colleges can consider in admissions decisions how race influences students’ lives — “so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
Colleges are still working out what this means, as Roberts also wrote institutions couldn’t circumvent the ruling through methods like admissions essays.
Military academies, however, were explicitly excluded from the ruling.
In a footnote, Roberts wrote that no military academy was a party in SFFA’s lawsuits and no court had “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,” Roberts wrote.
Progressives on the high court said this statement smacked of hypocrisy.
Justice Sonia Sotomayor, in her dissent on the decision, wrote that “national security interests are also implicated at civilian universities.” And the ruling will nonetheless trickle down to colleges that weren’t a party in the case, she wrote.
“The Court's carveout only highlights the arbitrariness of its decision and further proves that the Fourteenth Amendment does not categorically prohibit the use of race in college admissions," Sotomayor wrote.
A big question mark
How military academies would respond to litigation has yet to be seen. The U.S. Naval Academy’s public affairs office said in an emailed statement Wednesday that the “Department of Defense is aware of the Supreme Court decision concerning affirmative action in college admissions. We are currently assessing the decision and its potential impacts on our practices.”
The other two institutions Blum named in his email — the U.S. Air Force Academy, and the U.S. Military Academy, known as West Point — did not respond to a request for comment Wednesday. Blum also did not respond to requests for comment.
The federal government had argued in a brief to the Supreme Court that the military has long acknowledged it relies on a pipeline of officers “who are both highly qualified and racially diverse — and who have been educated in diverse environments that prepare them to lead increasingly diverse forces.”
It further noted that the armed forces depend on civilian colleges, like Harvard, which host Reserve Officers’ Training Corps, commonly known as ROTC programs.
“That longstanding military judgment reflects lessons from decades of battlefield experience,” federal attorneys wrote in the court filing. “During the Vietnam War, for example, the disparity between the overwhelmingly white officer corps and highly diverse enlisted ranks ‘threatened the integrity and performance of the military.’”
Decades later, U.S. armed forces remain majority White.
Statistics published by the Defense Department showed that in 2021, almost 69% of active duty members were White. Demographics were even more lopsided for active duty officers, who were more than 75% White.
Just over 17% of active duty members, and 9% of active officers, were Black.
What is higher ed saying?
The Supreme Court’s acknowledgment that diversity, equity and inclusion is important to military forces “is a critically important point,” according to David Hawkins, chief education and policy officer at the National Association for College Admission Counseling.
Hawkins said in an email Wednesday that the Supreme Court’s stance on military academies should “have been applied evenly to colleges and universities.”
“We are eager to resume the conversation about the flaws in the Court’s decision and demonstrate that ‘fairness’ is a multifaceted concept,” Hawkins said.
The American Council on Education, higher ed’s top lobby, said it did not have a comment Wednesday.
Only a small slice of American colleges — selective ones — will need to remold their admissions policies as a result of the decision, as most institutions accept a majority or all of their applicants.
These highly selectives tend to attract outsized media attention, however, in part because high-level government and corporate positions tend to value an “elite” degree.
And even if historically marginalized students aren’t seeking a selective college, higher ed leaders worry the Supreme Court ruling sends a message they aren’t welcome in the postsecondary education world.
The decision could also provide justification for policymakers seeking to strike down other race-centered programs.
This already happened in Missouri. Just after the high court handed down its ruling, the state's Republican attorney general demanded colleges end all policies that “give preference to individuals on the basis of race.” The University of Missouri System subsequently said it would no longer account for race in admissions and scholarship decisions — despite that the Supreme Court opinion only extends to admissions.
Opponents of race-conscious programs are keeping watch, too.
SFFA said this week it contacted 150 public and private colleges with certain demands, such as no longer making available to admissions officers “check the box” data on applicants’ race.
In his email last week, Blum wrote that SFFA was rejoicing in the lawsuits’ outcome.
But the group “must remain vigilant and continue to closely monitor potential changes in admissions procedures that will be implemented by colleges and universities throughout the nation,” he wrote.
