SCOTUS Permits Military Academy to Use Race as a Factor in Student Admissions — for Now

February 9, 2024

Affirmative action admissions developments in the higher education sector continue, as the U.S. Supreme Court recently declined to issue an emergency injunction pending appeal that would have prohibited the U.S. Military Academy at West Point from considering race as a stand-alone factor in its student admissions decisions beginning with the class of 2028. However, unlike the Supreme Court’s admissions decision in 2023, the recent action is non-substantive in nature — and merely postpones the argument to another day (and another court).


On June 29, 2023, the U.S. Supreme Court issued a landmark decision on the use of race as a factor in collegiate admissions in two cases brought by Students for Fair Admissions (SFFA) — Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina, et al. (collectively, Harvard). The Supreme Court held that admissions processes at Harvard University and the University of North Carolina at Chapel Hill violated Title VI of the Civil Rights Act of 1964 and, with respect to the public university, the Equal Protection Clause of the Fourteenth Amendment in the manner in which the universities considered race. McGuireWoods previously published an insight on the impact of that landmark decision.

Although broad in scope, the Supreme Court’s holding in Harvard expressly caveated the decision’s applicability as to military academies, stating in a footnote:

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.

Thus, in response, on Sept. 19, 2023, SFFA separately sued the U.S. Military Academy at West Point (West Point) in the U.S. District Court for the Southern District of New York, arguing that the Supreme Court’s Harvard decision and related reasoning should extend to military academies as well.

New SFFA Action

In the case Students for Fair Admissions v. United States Military Academy at West Point, et al., No. 23-cv-08262, 2024 WL 36026 (S.D.N.Y. 2024), SFFA claims that military academies have no interests distinct from other universities, and thus military academies should similarly be prohibited from considering race as a stand-alone admissions factor. SFFA further asserts that West Point favors applicants who are Black, Hispanic or Native American by implementing lower entry requirements for those groups of applicants versus others. West Point in turn has generally stated that its admissions policies are supported on multiple grounds (including some that have separate executive branch-level constitutional support that did not apply in Harvard), such as West Point’s goal of developing an officer corps that is reflective of the racial diversity in the U.S. Army’s enlisted ranks.

As part of filing suit, SFFA requested that the district court preliminarily enjoin West Point from considering race in its admissions process for the class of 2028 and during the pendency of the action — which the district court denied. SFFA then appealed the denial to the U.S. Court of Appeals for the Second Circuit. Also, while the appeal was yet pending, SFFA filed an emergency application with the Supreme Court for an injunction.


Despite its prior ruling in Harvard, on Feb. 2, 2024, the Supreme Court denied SFFA’s emergency application in an unsigned order. However, the court explained in a statement accompanying the order that the record before it was “underdeveloped” and noted that its denial of emergency relief “should not be construed as expressing any view on the merits of the constitutional question.” Or, put another way, the facts and record of the new SFFA case need to run the regular route of appellate review before the Supreme Court would consider granting certiorari.

The Second Circuit meanwhile continues to review whether SFFA is entitled to a preliminary injunction prohibiting West Point from considering race as a factor while the case proceeds. And the Second Circuit’s decision in the pending appeal has the potential of impacting the future makeup of West Point’s incoming classes, including West Point’s class of 2028.

More importantly, the issues in the underlying case have important implications on the reach of the Supreme Court’s decision in Harvard, raising the question of whether there can be any distinctive interests that would allow institutions to consider race as a stand-alone factor in college admissions.

McGuireWoods will continue to monitor this case as developments unfold. In addition, the firm has dedicated education; diversity, equity and inclusion; appeals and issues; and affirmative action teams that can assist with any issues in this area. Please contact any of the authors of this article or your McGuireWoods contact for more information.