After Affirmative Action Win Over Harvard, Group Takes On West Point

Authored by Michael Washburn via The Epoch Times (emphasis ours),

The group that triumphed in a landmark Supreme Court case that struck down affirmative action policies at Harvard University earlier this year hopes to build on the victory with a lawsuit targeting similar policies at the U.S. Military Academy at West Point.

Students for Fair Admissions (SFFA) filed the lawsuit on Sept. 19 with high hopes, but the organization has strayed into a legal and political minefield as the academy and the Biden administration try to block the lawsuit on the grounds that an institution training military officers isn't subject to the same rules as private universities and that diversity, equity, and inclusion (DEI) policies help, rather than hinder, effectiveness in combat.

Largely as a result of the perceived disparity between those standards that apply to private colleges and universities and those applicable to entities under federal oversight, the SFFA faces one of the most formidable legal challenges, the outcome of which will have implications for every school and academy in the nation.

Since President Joe Biden took office, a marked cultural shift has been underway in virtually all branches of the military.

The Biden administration has forced through policies that promote DEI at the expense of the traditional criteria of combat readiness and the minimization of U.S. casualties, experts have told The Epoch Times.

President Biden has revised rules put in place by the Obama administration to remake the military even more boldly in accordance with DEI principles and has relied on executive orders, often without public discussion, to force through this agenda.

In December 2022, revisions to the Obama-era Department of Defense (DOD) Instruction 1300.28 altered official DOD vocabulary regarding transgender recruits, made officers more directly liable for perceived offenses against such persons, and gave official approval to cross-dressing on military bases, among other changes.

President Biden’s general DEI stance makes the SFFA litigation one of the most impactful lawsuits so far undertaken against a military institution in modern history.

DOD officials and representatives for West Point didn't respond to a request for comment.

From Triumph to Trial

The Supreme Court handed down its ruling on June 29 in the closely watched legal case of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, finding that affirmative action policies at Harvard violated Title VI of the Civil Rights Act of 1964.

The court issued a similar ruling in the matter of Students for Fair Admissions, Inc. v. University of North Carolina (UNC) on the same day.

In a footnote to its opinion in the Harvard case, the majority explained that its ruling didn't apply to military institutions such as West Point, stating that no military academies were a party in the case.

The court acknowledged a U.S. government brief that contended that "race-based admissions programs further compelling interests at our Nation's military academies."

SFFA's founder, Edward Mr. Blum, now sees an opportunity to redress what he sees as a glaring omission in the Supreme Court's June rulings.

“The SFFA cases have energized the legal community to challenge longstanding policies that have always been illegal. That is happening especially in the employment arena,” he told The Epoch Times.

In the case of West Point, the legal issues are fundamentally the same, Mr. Blum believes—as is the opposing argument from those who want to preserve affirmative action.

“It is the same failed argument that the government made about ‘leadership’ and ‘diversity’ in the Harvard and UNC cases,” he told The Epoch Times.

But West Point and the Biden administration don't see matters that way.

In a Nov. 22 memorandum filed in the U.S. District Court for the Southern District of New York, U.S. Attorney Damian Williams and colleagues set forth a number of defenses of West Point's admissions policies.

They charge that the plaintiff, in extending the reasoning from the Harvard and UNC cases to this one, "ignores critical differences between civilian and military universities" and has failed to establish legal standing to weigh in on a matter that falls under federal jurisdiction.

The government lawyers also argue that the Army's "operational interests" require the training of officers who can build a "cohesive rapport with subordinates," and that, in "an increasingly diverse nation," that goal isn't achievable without affirmative action.

But it isn't clear if arguments in court will even get far enough to consider that last issue.

Clearing the Standing Bar

During hearings set to take place early in 2024, defense lawyers for West Point will attempt to have the lawsuit dismissed on the grounds that the plaintiff lacks standing under Article III of the Constitution.

The article sets the bar high for proving actual or imminent injury as grounds for a party to pursue legal action touching on matters that would normally fall under federal jurisdiction, as military matters generally do.

The highest court has been moving toward an ever-stricter interpretation of what such standing requires.

Pursuant to its ruling in the 2021 case of TransUnion LLC v. Ramirez, the Supreme Court now requires evidence of “concrete harm” to qualify for Article III standing.

“That’s an important issue. You’ve got to clear the standing hurdle before you get in the courthouse,” lawyer William Woodruff, former chief of the U.S. Army’s litigation division and former Department of Justice trial attorney, told The Epoch Times.

The new legal standard has evolved to the point in which establishing Article III standing will be hard for any plaintiff, he said.

“You’ve got to have direct injury. So the question is: What is your injury, and is that direct enough?” Mr. Woodruff said.

“The government’s main defense is that this is military policy, national security, and the Constitution invests that authority in the government and not in the courts. The courts should stay out of it, we’re the ones responsible for the defense of the nation.”

He said that, as an Army lawyer defending the service from lawsuits, he made that very argument regularly in courts around the country, with the goal of keeping the courts from meddling in Army policy.

“And it’s a valid argument, except that now, we’ve got the SFFA and Harvard/UNC cases, which sort of cracked open the door on that and shed some new light," Mr. Woodruff said.

"In the unique situation of the military, how does this apply and how much deference should we extend?"

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