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Federal judge allows Naval Academy to continue using race in admissions — for now

Multiple times during the hearing, which ran more than two hours, Bennett was combative with the lawyers representing SFFA, a group whose lawsuits essentially dismantled race-conscious admissions in higher education earlier this year before the Supreme Court. He also called a preliminary injunction against the Naval Academy an “extraordinary remedy.”

SFFA lawyers had urged the importance of getting quick relief for their members while the Naval Academy’s admissions process is underway for its next class. They said they may appeal the preliminary injunction, something Bennett warned against, saying there are important issues to unearth in discovery.

“This case will stop dead under the water,” Bennett said, adding that if the circuit court reverses his decision, the case will be “frozen.”

Bennett committed to putting out an opinion on the merits of the case within a week and also said he was willing to work quickly. He also seemed unwilling to toss the case over the federal government’s argument that SFFA lacked standing over its use of unnamed member plaintiffs looking to end race-based affirmative action in one of the last places it’s permitted in higher education.

Bennett acknowledged that the Supreme Court’s June affirmative action decision against Harvard University was “transformative and “opened other avenues for the plaintiffs.”

But he also said: “Harvard is not an absolute cookie cutter,” noting that SFFA’s case is heavily relying on the Supreme Court’s decision.

Key context

The anti-affirmative action group argued that the Naval Academy has “no justification for using race-based admissions” when using race in admissions is unconstitutional for all other colleges across the country. The group is suing West Point on similar grounds.

The federal government urged the judge to toss the injunction request from SFFA, which would bar the academy from using race in the middle of its admissions cycle. So far, 15 midshipmen have been accepted into the academy, Gardner said, and more admissions decisions will be made between February and April. The deadline for applications is Jan. 31.

Brian Boynton, principal deputy assistant attorney general, argued in a response brief filed before the hearing that SFFA was overreading the case against Harvard because the Supreme Court explicitly did not address military academies’ admissions policies. He also wrote that SFFA’s case “ignores critical differences between civilian and military universities” and does not demonstrate why it is entitled to an injunction.

The high court, in siding with SFFA against Harvard, said it could not address admissions at the schools because of “potentially distinct interests that military academies may present.”

Boynton outlined that SFFA did not identify by name any members with standing in their brief, and could not show their members would suffer irreparable harm without an injunction. He also reiterated that SFFA could not demonstrate likelihood of success because the Naval Academy’s admissions policies “serve a compelling national security interest.”

“Any alleged burden on the constitutional rights of Plaintiff’s members is far outweighed by the burden that would be created by an order from this Court requiring USNA to apply a different admissions policy in the middle of its admissions cycle,” Boynton wrote, “and countermanding the strategic judgment of the nation’s military leaders on what national security requires.”

SFFA had argued that the Annapolis academy is violating the Fifth Amendment, which the group says includes “an equal-protection principle that binds the entire federal government.” The group also accused the institution of engaging in racial balancing and argued the policies harm white and Asian American students’ chances of gaining admission.

Competitive applicants must be nominated by a member of Congress, which plays a large factor in admissions, according to the academy. Each incoming class consists of about 1,180 students.

Once they graduate, midshipmen are commissioned as active duty officers in the Navy or Marine Corps and are obligated to serve a minimum of five years. About 28 percent of new Navy and Marine Corps officers in the warfighting communities are graduates of the Naval Academy. Around 91 percent of Chiefs of Naval Operations, one of the highest-ranking officers, are graduates of the academy.

The academy’s admissions office uses what it calls a “Whole Person Multiple,” a computer-generated score used by board members to evaluate applicants. The score factors GPA, class rank, extracurricular activities, letters of recommendation, life experiences, socioeconomic status, “unique cultural experiences” and ability to overcome adversity. Race and ethnicity are not factored into this score.

In the courtroom

Bennett launched his hearing by saying he had a “hot bench.”

He also acknowledged several times for the record that it was important to get the facts of the case right because of the large public interest in the case. The court had a public line so members of the public could listen into the proceedings.

Bennett intensely prodded and challenged each of the lawyers on opposite sides of the courtroom, while also clarifying the injunctive relief steps for the public. He grilled SFFA lawyers, and emphasized that the burden was on them to prove they satisfied the criteria for this “extraordinary remedy.”

The most notable exchanges were with Cameron Norris, a Consovoy McCarthy lawyer, who represented SFFA. Bennett corrected Norris several times over what he deemed to be “advocacy” and not a proper interpretation of the Harvard affirmative action case that SFFA’s argument heavily relied on.

Norris asserted their position was that the Naval Academy will lose the case because of the Harvard decision. But Bennett pushed back saying that the public needed an accurate summary of the case.

Bennett said the Supreme Court was “very specific” and there “wasn’t any ambiguity” over the fact that a footnote in the Harvard case said it did not address admissions at military academies because of the “potentially distinct interests” they may have.

“I’m not arguing with you,” Bennett said. “I’m just quoting the chief justice.”

Another tense moment between Bennett and Norris came over a discussion on racial tension in the military. Norris asserted that there haven’t been race riots recently, and Bennett quickly jumped in and slammed the idea that racial tension in the military does not exist. He waived his legal pad in the air, and said he was waiting to see when Norris would bring up racial tension.

“I’m afraid, sir, that is totally baseless,” Bennett said, mentioning racial tension during the Vietnam War and his experience serving in the Army Reserve and Maryland National Guard. “We can’t blow past racial tension in the military.”

“Racial tension has existed in the military,” he said “and still exists.”

He also criticized the use of the Harvard case again, saying that the leaders of Harvard and UNC “are not leading people into combat. They’re not leading people into death situations.”

When Norris finished, Bennett told him: “Thank you for your advocacy” and added “we deal with facts here.”

Joshua Gardner, a Justice Department special counsel representing the Naval Academy, also faced tough questions.

He argued that the race is not a determinative factor in admissions decisions, and mentioned that diversity in the military is important for “cohesion.”

Bennett largely criticized Gardner’s argument that SFFA had no standing because their members were anonymous and could not prove that they’ve met all of the requirements to even apply to the academy. Bennett said that standard for standing in the case would be “unachievable.”

“I’m definitely not inclined to go down that path,” he said.

He also was critical of Gardner’s argument that SFFA’s choice to sue after the Harvard case was a “strategic call, not a legal call.”

Bennett said that the Harvard case was “transformative,” but he also seemed inclined to agree with Gardner that the members in the case have plenty of time to apply to the Naval Academy, because they are “nowhere close to the 23-year age limit.”

Though, Bennett also seemed skeptical of Garner’s argument about the impact on national security. “I don’t know that any decision has an immediate effect on national security,” he said, adding that it’s possible the diversity of officers may have implications.

Bennett also wanted to know how the admissions decisions translate up the chain. Gardner responded that it would take 30 to 40 years to see the effects of their admissions decisions. Bennett was skeptical of that and wondered out loud how many minorities continue in the military after their five-year commitment post graduation, and whether the racial composition of leadership would reflect any gains from any use of race in admissions decisions.

He also wanted to know if the military ever has plans to sunset its use of race in admissions, and whether there should be more scrutiny of the Congressional nomination process, since minority applicants are underrepresented in that pool.

These would be facts he wants to learn in discovery, he said. He also promised it wouldn’t take years to get to a decision on this.

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