Can a College Class Still Be Diverse?

Last year, the Supreme Court, in Students for Fair Admissions v. Harvard, told colleges and universities that they could no longer consider an applicant's race as a factor in admissions. The decision applied to both public and private educational institutions, but in a footnote the Court said that it was reserving judgment on one category of schools—"our Nation's military academies," such as West Point and the Naval Academy, "in light of the potentially distinct interests that military academies may present." The footnote suggested that the admissions practices that the Court declared unlawful for civilian schools might be permissible for military academies. The only way to find out, however, was to litigate it. S.F.F.A. took the bait and, last fall, filed a pair of lawsuits against West Point and the Naval Academy, alleging that the use of race in admissions is as impermissible for them as it is for nonmilitary schools. The Naval Academy case went to trial on Monday, before a federal district judge in Baltimore. This was in the same month that the recently released demographic data on the first classes of students admitted after the S.F.F.A. decision provoked scrutiny, confusion, and suspicion.

Military academies have long played a role in arguments for affirmative action. In 2003, in Grutter v. Bollinger —which held that it was permissible for the University of Michigan Law School to consider race in a holistic review of an applicant—the Court emphasized the importance of having diverse training grounds for the citizens of a multiracial country: "Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized." Moreover, the Court said, "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." The Court seemed particularly moved by an amicus brief from former high-ranking officers and civilian leaders in the military who attested that racial diversity in military academies "is essential to the military's ability to fulfill its principal mission to provide national security." The leaders wrote that "the military cannot achieve an officer corps that is both highly qualified and racially diverse" without race-conscious admissions. The Court then accepted that it was "only a small step from this analysis to conclude that our country's other most selective institutions must remain both diverse and selective." The Court understood the military's need for affirmative action as an illustration of the general need for affirmative action, to benefit our nation's civic life.

That reasoning did not hold sway for the Court in 2023, when it overruled Grutter. But S.F.F.A. v. Harvard left open the possibility that the Court could treat the military academies as a special case—and not as emblematic of something broader. Leaning on the footnote in the Harvard case, the government in the Naval Academy case is arguing that it is allowed to do what schools such as Harvard are forbidden to do because of its national-security mission. An attorney for the Department of Justice described diversity as "a strategic imperative critical to mission readiness" and evoked people in uniform "prepared to sacrifice their lives for this country." He stated that "nothing in the Constitution requires the military to tolerate risks to its war fighting capability." The core story of the government's case is that more Americans will die if the court orders the Naval Academy not to use race in admissions.

Adam Mortara was the lead trial attorney for S.F.F.A. in its case against Harvard six years ago, and occupies the same role in the Naval Academy trial. His opening statement emphasized that, in order to win, the government must satisfy "strict scrutiny"—that is, it must show that its use of race is narrowly tailored to serve the stated compelling government interest. Looming over this case is the question of how strict, exactly, strict scrutiny is—and how narrow that narrow tailoring has to be—when the compelling interest is national security. Mortara made the point that "the United States Supreme Court has never suggested in any case that is still good law today that 'strict scrutiny' means something different when the U.S. military is involved." This was a veiled reference to Korematsu v. United States , decided, in 1944, during the Second World War. The Court used a form of strict scrutiny but upheld the government's internment of people of Japanese ancestry, claiming that "military authorities, charged with the primary responsibility of defending our shores," determined that the measure was needed.

In 2018, the Court stated that it was "obvious" that Korematsu was no longer good law, but a court applying strict scrutiny in 2024 might still be inclined to accept the military's judgment on what is necessary for our national security. The Naval Academy trial has already seen some back-and-forth on the claim that racial diversity fosters the military's "lethality." On the first day, a plaintiff's witness, Brigadier General Christopher S. Walker, who is Black and opposes race-conscious measures, testified that, in his experience, "racial diversity has little to nothing to do with the lethality and effectiveness of our armed forces." The fact that the trial judge, Richard Bennett, who was appointed by President George W. Bush, served more than two decades in the armed forces could cut in either direction when it comes to credulity toward assertions of military need. But, in the end, it is hard for any judge to tell the military that it is wrong about how to produce a lethal fighting force, certainly harder than it is to second-guess an élite university on how it selects students.

Though the government argues that "the absence of racial and ethnic diversity can harm military readiness," it doesn't appear to be making concrete predictions about how an inability to use race in admissions would numerically affect diversity at the Naval Academy. Perhaps that is wise, because, at the moment, predictions by universities that the numbers of Black and Latino students would drop dramatically have not been fully realized. M.I.T.'s racial-demographic data for its freshman class did live up to the warnings: Black American students dropped by two-thirds, to only five per cent; Hispanic American students dropped by nearly a third, to eleven per cent; and Asian American students increased from forty to forty-seven per cent. At Amherst, Black students dropped by nearly two-thirds, Hispanic students by a third, and Asian students remained roughly stable. But the outcomes at other schools were different, and more variable. The number of Black students decreased variously but less severely at Harvard, Brown, Columbia, and the University of Virginia, but it remained stable at Yale, Princeton, Duke, and Caltech. Hispanic students decreased at Princeton, Brown, Columbia, and Caltech, but they increased at Harvard, Yale, Duke, and U.Va. Asian students increased at Brown, Columbia, and Caltech, but decreased at Yale, Princeton, Duke, and U.Va. In S.F.F.A. v. Harvard, Harvard's own representation was that the number of Black students would likely drop by more than half and Latino students by more than a third. But apart from Harvard's four-per-cent decrease in Black students—a far cry from the predicted drop of more than fifty per cent—it appears that the school's racial diversity remained almost unchanged.

It's difficult to tell a single story about the immediate effect of S.F.F.A. v. Harvard, except to say that most selective schools found ways to prevent some of the expected impact. After S.F.F.A. v. Harvard, universities can still lawfully pursue diversity—the Court even said the goal was "commendable" and "worthy"—but they cannot do so by using an applicant's race in itself as a factor. Schools likely deployed a panoply of alternative means, including targeting recruitment and outreach in underrepresented, minority, and poor neighborhoods; giving greater weight to low-income status and poorly funded high schools; and "considering an applicant's discussion of how race affected his or her life," which the Court allowed. Judging by the mixed results, admissions offices will likely be experimenting with various formulas, which they'll adjust during the next several admissions cycles and in the long term.

One result that's impossible to deny is that Asian Americans did not experience the predicted universal increases in their share of the selective schools' student body and, instead, saw some meaningful decreases. It is important to recall that evidence at the Harvard trial revealed that, on "personal ratings" assessing such characteristics as integrity, kindness, helpfulness, and effervescence, Asian Americans scored the worst—and no court has ever held that these personal ratings constitute intentional racial discrimination or that they are not race-neutral. It's conceivable that some schools have formulated new admissions methods that place more weight on elements in which Asian Americans tend to score lower and underrepresented minorities tend to score higher. This year, the Supreme Court declined to hear a case against Thomas Jefferson High School of Science and Technology, in Virginia, which had adopted a race-neutral admissions policy designed to increase racial diversity–which resulted in a significant drop in the percentage of Asian American students. The Fourth Circuit had found that the method was not racially discriminatory against Asian Americans because they were still overrepresented relative to their share of the applicant pool. By leaving the Fourth Circuit decision in place (over Justice Samuel Alito and Justice Clarence Thomas's written dissent), the Court signalled to schools that they have leeway to craft similar policies, as long as Asian American students remain overrepresented.