• Students For Fair Admissions (SFFA) filed a lawsuit this week against the West Point military academy over its race-based admissions policies, and legal experts who spoke with the Daily Caller News Foundation said that the military will have to explain why they should be given special treatment on this issue.
• Cully Stimson, former Navy JAG, retired captain and legal fellow for the Heritage Foundation, noted that the Supreme Court’s opinion in Harvard applies to the Reserve Officer Training Corps (ROTC) at public universities, and this could be a strong argument for SFFA against the academy’s race-based admissions policies. 
• “The military assumes that enlisted men and women will respond to orders better from someone with the same skin color, but the truth is soldiers obey the orders because of the uniform, not because of skin color,” Edward Blum, president of SFFA, told the DCNF. 

The West Point military academy is set to be the center of a lawsuit filed earlier this week over race-based admissions and legal experts and student advocates who spoke with the Daily Caller News Foundation said that there’s a strong case against the military on this issue.

The lawsuit was filed on Sept. 19 by Students for Fair Admissions (SFFA), the same organization that sued Harvard and the University of North Carolina before ultimately winning at the Supreme Court in June. The court’s decision brought the military’s policies to the forefront, and legal experts and student advocates told the DCNF that there are a lot of questions concerning the military’s justification of its admissions policies that need to be answered. (RELATED: University Faces Civil Rights Complaint For Race-Based Scholarship Programs)

While the military has a “unique role in our nation’s life” that doesn’t give its academies the ability to justify “polarizing and disliked racial classifications,” Edward Blum, president of SFFA, told the DCNF.

“Because the U.S. Supreme Court’s recent opinion in the SFFA case expressly forbids all institutions of higher education from using race in admissions decisions, it must follow that the U.S. military’s higher education institutions must end their race-based policies as well,” Blum said.

The lawsuit claims that the military has two general arguments for making race a deciding factor during the admissions process. The first is that “racial preferences enhance the military’s internal functioning”; and the second is that these same preferences are vital to the “military’s functional capacity by fostering internal confidence within the ranks” as well as boosting “external legitimacy.”

The “legitimacy” argument is not grounded in fact and “no level of deference justifies” racial preferences in the admission process, Blum told the DCNF.

The claim is not supported by the Department of Defense’s own research on the issue, according to Cully Stimson, former Navy JAG, retired captain and legal fellow for the Heritage Foundation, who spoke with the DCNF.

“They talk about this in a climate survey. There’s a perception among white students that some of the black students didn’t otherwise qualify to get in there, but for their race,” Stimson explained. “There’s a perception among black students that some of them were promoted within the academies solely because of their race, and therefore they put less emphasis and respect on some black officers if they get promoted because they wonder ‘well, did he get it or did she get it because she’s black or did she get it because she has merit?’”

The Supreme Court’s opinion in Harvard applies to the Reserve Officer Training Corps (ROTC) at public universities, which make up a significant portion of officers in the military, Stimson told the DCNF. He explained that this begs the question why it’s prohibited for admission into the ROTC and not West Point or the other academies, which only make up less than 20% of the officers in the service.

The other argument the military makes is that race-based admissions fosters “trust between the enlisted corps and its leaders,” according to the lawsuit. Diversity among the ranks means that minority servicemen and women will improve their “performance” if the military can create “‘greater confidence’ in leadership” as well as facilitate trust with a diverse civilian population.

The military’s position shows that they view minorities as the same and not individuals who think for themselves and determine their own set of values and loyalties, according to Blum

“The military assumes that enlisted men and women will respond to orders better from someone with the same skin color, but the truth is soldiers obey orders because of the uniform, not because of skin color,” Blum told the DCNF. “Policies like these just assume that different minority groups think the same way or will respond better to someone of the same race as opposed to someone of a different race.”

Along those same lines, David Bernstein, George Mason University professor of law and executive director of the Liberty & Law Center, told the DCNF that another point of interest was in the racial groups the military prioritized.

“One thing [SFFA] can argue is that the military says they want diversity in the officer corps but they haven’t explained why it’s important to have representation of a specific group like Hispanics, rather than Mexican Americans, Puerto Rican, Cuban, Columbian and for that matter, why not say why not Arab Americans? Why not Greek Americans?” Bernstein said.

Bernstein said that SFFA’s lawsuit creates an opportunity for the military to answer this question on the record and explain what Chief Justice John Roberts called an “arbitrary or undefined” means of classification in the Harvard case. Bernstein further stated that if SFFA could prove that the military was creating a quota for each racial group then it would put the academy in a “worse legal position than Harvard and UNC.”

Though he could not say with absolute certainty whether or not SFFA’s lawsuit would be the one taken up by the courts, Stimson felt that it is only a matter of time before the issue lands in the lap of the Supreme Court again.

“Sooner or later a case and controversy where a person has suffered concrete injury will go to the court, and it’s very likely the court is just going to extend Students for Fair Admissions to the academies and be done with it,” Stimson said.

The DOD and West Point told the DCNF that they do not comment on pending litigation.

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