The Debate over Affirmative Action at West Point and the Fourteenth Amendment

By: Sarah Wejman

Edited by: Valerie Chu and Simon Carr

Within less than fifty years, the Supreme Court of the United States (SCOTUS) first ruled that affirmative action was constitutional and then that it wasn’t. In Students for Fair Admissions v. Harvard (2023), SCOTUS ruled that the purpose and reasoning for Harvard and other institutions’ race-based admissions processes were unable to avoid racial stereotypes and thus did not pass a strict scrutiny test. The case clarified that universities are welcome to consider an applicant’s race, how their lives were impacted by it, and what they could uniquely contribute to the institution. [1] Just last month on January 26, Students for Fair Admissions (SFFA) acted once again by asking SCOTUS to review the race-conscious admissions of West Point. [2] The U.S. Justice Department stated that West Point’s race-based admissions is a “vital pipeline to the officer corps” and is essential to ensuring a diverse class of military officers. [3]

The reason that West Point was not included in the ruling of the 2023 case is because of a footnote that Chief Justice Roberts wrote in the majority opinion: “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.” [4] A lower court declined to grant a preliminary injunction, so SFFA, while awaiting the Second Circuit’s ruling, filed an emergency appeal to SCOTUS due to West Point’s approaching January 31 application deadline. [5]

The SFFA v. Harvard case effectively overturned the precedent of Regents of the University of California v. Bakke (1978), an affirmative action case involving a white student denied admission from the Medical School of the University of California at Davis (UCD). The UCD race-based admissions were more involved than Harvard’s because they used racial quotas by setting aside sixteen seats in their class of one hundred members for minorities. SCOTUS ruled that racial quotas are unconstitutional, but universities are permitted to use race-based classifications to ensure an ethnically diverse institution. [6]

Both of these cases relied on the Fourteenth Amendment’s Equal Protection Clause, which protects against discrimination by the states based on one’s race, ethnicity, gender, religion, and other identifying factors. Racial-based classifications receive the highest level of scrutiny, strict scrutiny, which requires that the state proves that the discrimination is furthering an important government interest and that the law is substantially related to such interests. [7] While Bakke ruled that ethnic diversity was a compelling interest for the state, the Court in Harvard ruled that this standard was not met since racial stereotypes permeated the admissions system, creating a substantial disadvantage for many minority applicants.

The Fourteenth Amendment applies to states, meaning education-wise it affects publicly owned schools. However, precedent holds that violations against Title VI of the Civil Rights Act of 1964 are also violations of the Equal Protection Clause. Title VI applies to all institutions that receive any sort of federal funding, which most private schools including Harvard do. Thus through indirect means, the Fourteenth Amendment does apply.

Whether SCOTUS will even accept this case is still uncertain. However, based on their recent rulings, it seems unlikely that West Point will be able to continue to consider race to the extent that they do.

Notes:

1. Students for Fair Admissions, Inc. v. Harvard, 600 U.S. (2023)

2. Kruzel, John , and Andrew Chung. “US Supreme Court Is Asked to Stop West Point from Considering Race in Admissions.” Reuters, January 26, 2024. https://www.reuters.com/world/us/us-supreme-court-is-asked-stop-west-pointconsidering-race-admissions-2024-01-27/.

3. Kruzel and Chung, “US Supreme Court Is Asked”

4. Reichmann, Kelsey. “Supreme Court Asked to Halt Use of Race in Admissions at West Point.” Courthouse News Service, January 26, 2024. https://www.courthousenews.com/supreme-court-asked-to-halt-use-of-race-inadmissions-at-west-point/.

5. Reichmann, “Supreme Court Asked”

6. Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

7. Cornell Law School Legal Information Institute. “Strict Scrutiny.” Accessed January 28, 2024. https://www.law.cornell.edu/wex/strict_scrutiny.

Bibliography:

Cornell Law School Legal Information Institute. “Strict Scrutiny.” Accessed January 28, 2024. https://www.law.cornell.edu/wex/strict_scrutiny.

Kruzel, John , and Andrew Chung. “US Supreme Court Is Asked to Stop West Point from Considering Race in Admissions.” Reuters, January 26, 2024.https://www.reuters.com/world/us/us-supreme-court-is-asked-stop-west-point-considering-race-admissions-2024-01-27/.Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

Reichmann, Kelsey. “Supreme Court Asked to Halt Use of Race in Admissions at West Point.” Courthouse News Service, January 26, 2024.https://www.courthousenews.com/supreme-court-asked-to-halt-use-of-race-in-admissions-at-west-point/.Students for Fair Admissions, Inc. v. Harvard, 600 U.S. (2023)