USNA Ruling

Case 1:23-cv-02699-RDB Document 150 Filed 12/06/24 Page 1 of 179
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
STUDENTS FOR FAIR ADMISSIONS, *
Plaintiff, *
v. * Civil Action No. RDB-23-2699
THE UNITED STATES NAVAL *

ACADEMY, et al.,
*
Defendants.
* * * * * * * * * * * * *
TRIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
RICHARD D. BENNETT, Senior District Judge.

Table of Contents
I. Introduction ................................................................................................................................. 1
II. Parties & Procedural History ..................................................................................................... 3
A. Parties ....................................................................................................................................... 3
B. Procedural History .................................................................................................................. 4
III. Trial Findings of Fact ............................................................................................................. 6
A. Findings of Fact: The Government Has a Compelling Interest in a Diverse Officer
Corps, and the United States Naval Academy Is a Vital Pipeline to the Officer Corps. ...... 6
1. The Military Has Made the Judgment, Informed by History, that a Highly Qualified
and Diverse Officer Corps Is Critical for Mission Effectiveness. ........................................ 8
a. History of Internal Racial Strife Risking Mission Readiness ................................11
b. A Diverse Officer Corps is Vital to National Security ..........................................20
2. The Naval Academy is a Vital Pipeline to the Officer Corps .....................................28
a. The Naval Academy’s Mission and Programming .................................................28
b. Postgraduate Service Assignments ...........................................................................31
c. While Only Accounting for One-Fifth of the Officers Entering the Navy and
Marine Corps Annually, the Academy Is a Vital Pipeline to the Officer Corps, and
Especially to Senior Leadership ..........................................................................................32
B. Findings of Fact: The United States Naval Academy’s Admissions Procedures
Mandate a Holistic Evaluation of Candidates. ..........................................................................34
1. Naval Academy Admissions Overview .........................................................................35
2. Applying to the Naval Academy .....................................................................................36
a. The Preliminary Application .....................................................................................36
b. Candidate Information System .................................................................................37
c. The Nomination Requirement .................................................................................38
3. The Application Review Process ....................................................................................41
a. The Naval Academy’s Admissions Office ..............................................................42
b. Criteria Considered for Admission ..........................................................................44
c. Admissions Review Process ......................................................................................50
d. The Manner in Which the Academy Considers Race ............................................57
C. Findings of Fact: Statistical Analysis Does Not Demonstrate Discrimination. ...........61
1. Background on the Parties’ Economic Experts ...........................................................61
2. Overview of Research Questions and Process .............................................................63
a. Professor Arcidiacono ...............................................................................................64
i
b. Dr. Gurrea ...................................................................................................................66

3. Descriptive Analysis .........................................................................................................68
4. Professor Arcidiacono’s Econometric Modeling .........................................................70
5. Dr. Gurrea’s Criticisms ....................................................................................................75
a. Arcidiacono’s Estimates Are Unreliable. .................................................................76
b. Arcidiacono’s Modeling Relies on the Erroneous Assumption that the
Academy’s Admissions Decisions Are Independent. ......................................................82
c. Arcidiacono’s Modeling Arbitrarily Blends Race and Ethnicity and Assigns
Multiracial Applicants to Other Categories. ......................................................................84
d. Arcidiacono’s Estimates Do Not Imply a Large Impact on White Applicants. 86
e. Arcidiacono’s Prediction of the Racial Breakdown of Admissions in a World
Without the Academy’s Consideration of Race is Misleading. .......................................87
f. Professor Arcidiacono Does Not Provide Any Empirical Evidence to Support
Plaintiff’s Claim that Admissions Decisions Are Designed to Achieve Racial
Balancing. ...............................................................................................................................88
D. Findings of Fact: The Naval Academy Has Made a Serious, Good Faith Effort to
Consider Race-Neutral Alternatives. ..........................................................................................88
1. The Academy’s Race-Neutral Efforts ............................................................................89
a. Race-Neutral Efforts Within the Admissions Process ..........................................89
b. The Academy’s Extensive Recruiting Efforts and Outreach ...............................90
i. Partnership with Marketing Firm .............................................................................92
ii. Digital Outreach Efforts ........................................................................................93
iii. Outreach Events .....................................................................................................93
2. SFFA’s Proposed Race-Neutral Alternatives ................................................................99
a. Increase Socioeconomic Preferences .....................................................................100
b. Increase the Share of Enlisted Members Admitted .............................................101
c. Increase Recruitment Efforts..................................................................................102
d. Modify and Expand Preparation Programs ..........................................................103
e. Reduce or Eliminate Preferences that Favor Non-Minorities ...........................104
f. Pursue Changes to the Nomination Process ............................................................106
IV. Principles of Constitutional Review .................................................................................107
A. Overview ..............................................................................................................................107
B. Students For Fair Admissions Has Standing. .................................................................108
C. Standard of Review .............................................................................................................108
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D. Strict Scrutiny in Affirmative Action Cases .....................................................................111

1. Supreme Court Precedents on Race-Conscious Admissions ...................................112
2. SFFA v. President & Fellows of Harvard College ..............................................................115
E. Judicial Deference to the Legislative and Executive Branches in Military Matters ...119
1. Deference to Coordinate Branches’ Judgments in Constitutional Challenges .......120
a. Deference in Equal Protection Challenges ...........................................................120
i. Equal Protection Challenges Based on Race ........................................................121
ii. Equal Protection Challenges Based on Sex .......................................................124
b. Deference in First Amendment Challenges ..........................................................126
2. Deference to Military Personnel Regulations .............................................................127
V. Conclusions of Law: The Naval Academy’s Race-Conscious Admissions Program
Withstands Strict Scrutiny. .............................................................................................................132
A. Conclusions of Law: Defendants Have Established a Compelling National Security
Interest in a Diverse Officer Corps. .........................................................................................133
1. Unit Cohesion and Lethality .........................................................................................134
2. Recruitment and Retention ...........................................................................................138
3. Domestic and International Legitimacy .......................................................................144
B. Conclusions of Law: A Compelling National Security Interest Need Not Be
Measurable, But Defendants Have Shown Their Compelling Interests Are Measurable. 146
C. Conclusions of Law: The Naval Academy’s Admissions Process Is Narrowly Tailored
to Its Compelling National Security Interests. ........................................................................150
1. Conclusions of Law: The Naval Academy’s Limited Consideration of Race
Furthers the Government’s Compelling National Security Interests. .............................151
2. Conclusions of Law: The Naval Academy’s Race-Conscious Admissions Policies
Require Holistic Candidate Assessment Without Quotas or Racial Balancing. .............155
3. Conclusions of Law: The Naval Academy Does Not Use Race as a Negative or
Stereotype. ................................................................................................................................160
4. Conclusions of Law: The Naval Academy’s Consideration of Race Will Not
Continue Indefinitely. .............................................................................................................164
5. Conclusions of Law: The Use of Race is Necessary to the Government’s
Compelling National Security Interests. ..............................................................................168
6. Conclusions of Law: The Naval Academy Has Undertaken Serious, Good Faith
Consideration of Race-Neutral Alternatives. ......................................................................170
VI. Conclusion ...........................................................................................................................173
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I. Introduction
The Plaintiff Students for Fair Admissions (“SFFA” or “Plaintiff”) brought this action
on October 5, 2023, against the named U.S. Naval Academy Defendants (“the Naval
Academy” or “the Academy”) in the wake1 of its successful litigation in Students for Fair
Admissions v. President & Fellows of Harvard College (“Harvard”), 600 U.S. 181 (2023). In the
Harvard case, the Supreme Court held that the race-based admissions programs of Harvard
College and the University of North Carolina violated the Equal Protection Clause of the
Fourteenth Amendment of the U.S. Constitution in that these programs did not survive strict
scrutiny. The Supreme Court specifically noted that its opinion did not address “the propriety
of race-based admissions systems” “at our nation’s military academies . . . in light of the
potentially distinct interests that military academies may present.” Id. at 213 n.4. In this action,
SFFA addresses that exemption and seeks to expand the Harvard decision to include the Naval
Academy. After an intense period of pre-trial discovery, exhaustive legal briefing, excellent
legal advocacy by counsel for both parties, and a nine-day bench trial, that effort has FAILED.
The U.S. Naval Academy is distinct from a civilian university. Its mission is to prepare
its students to become officers in the Navy and Marine Corps. The applicants to the Naval
Academy include not only high school seniors, but enlisted personnel of the U.S. Navy and
Marine Corps. Upon admission all students become active-duty members of the Navy and
are required to take courses in Naval science, engineering, navigation, and weapons systems.
The Academy does not set any racial quotas nor engage in racial balancing, and no candidate
1 As those familiar with the U.S. Navy well know, a wake is a trail of water—often choppy—that appears
behind a moving boat. Wake, MERRIAM-WEBSTER DICTIONARY (11th ed. 2020). It also refers to the aftermath
of something that has passed. Id.
1
is admitted based solely on his or her race. During the admissions procedure, which is distinct
from that of a civilian university, race or ethnicity may be one of several non-determinative
factors considered.
Over many years, military and civilian leaders have determined that a racially diverse
officer corps is a national security interest. That judgment has been based on American
military history and a 2009 diversity commission mandated by the United States Congress.2
Indeed, a U.S. Senate Committee on Armed Services Report3 issued this year has noted the
continuing problem of underrepresentation of racial and ethnic minorities in the military
service academies. This is fundamentally a military personnel issue.
SFFA’s challenge to any consideration of race by the Naval Academy necessarily
includes analysis of Supreme Court precedents on not only race-conscious college admissions,
but also judicial deference to the legislative and executive branches in military matters. It has
not escaped the attention of this Court that the extensive legal briefing of SFFA has included
minimal analysis of judicial deference to executive and legislative judgments in military affairs. 4
The footnote exempting military academies from the Supreme Court’s opinion in the Harvard
case is consistent with a long history of Supreme Court deference.
2 (PX445 (Report of Military Leadership Diversity Commission).)

3 (DX128 (Senate Committee on Armed Services Report for Fiscal Year 2024 National Defense Authorization
Act) (noting “concern[] that the Military Service Academies do not maintain a strong presence in communities
with significant populations of students who are racial minorities or who are from low-income households”
and “direct[ing] the Secretaries of Army, Navy, and Air Force to brief the Committees on Armed Services of
the Senate and the House of Representatives . . . on measures each is taking to increase the diversity of its
student classes”).)
4 Despite submitting hundreds of pages of briefing during this litigation, Plaintiff provided minimal discussion
of judicial deference to military judgments in approximately twenty pages of its collective briefing. See (ECF
No. 9 (Motion for Preliminary Injunction); ECF No. 54 (Reply in Support of Preliminary Injunction); ECF No.
80 (Motion to Compel); ECF No. 101 (Response in Opposition to Defendants’ Motion in Limine); ECF No.
148 (Plaintiff’s Post-Trial Proposed Findings of Fact and Conclusions of Law).)
2
This Court concludes that the Naval Academy’s race-conscious admissions program
withstands the strict scrutiny in the ambit of the Supreme Court’s opinion in the Harvard case.
The program survives strict scrutiny because the Naval Academy has established a compelling
national security interest in a diverse officer corps in the Navy and Marine Corps. Specifically,
the Academy has tied its use of race to the realization of an officer corps that represents the
country it protects and the people it leads. The Academy has proven that this national security
interest is indeed measurable and that its admissions program is narrowly tailored to meet that
interest. Quite simply, this Court defers to the executive branch with respect to military
personnel decisions. Specifically, as noted infra, “under Article II of the Constitution, the
President of the United States, not any federal judge” ultimately makes such decisions. 5
Accordingly, as a result of this Court’s findings of fact and conclusions of law, JUDGMENT
SHALL BE ENTERED IN FAVOR OF DEFENDANT NAVAL ACADEMY AND THE
NAMED INDIVIDUAL DEFENDANTS.
II. Parties & Procedural History
A. Parties
The Plaintiff Students for Fair Admissions is a voluntary membership association, and
its members include four individuals whose prior applications to the U.S. Naval Academy were
denied. These four members are either currently reapplying to the Academy or ready and able
to reapply. SFFA’s primary mission is “challenging the use of race in admissions.” (ECF No.
148 ¶¶ 1–5.)
5 Austin v. United States Navy Seals 1–26, 142 S. Ct. 1301, 1302 (2022) (Mem.) (Kavanaugh, J., concurring); see also
infra Section IV.E.2.
3
The Defendant United States Naval Academy (“the Naval Academy” or “the
Academy”) is a four-year federally established undergraduate institution that prepares students
to become officers in the Navy and Marine Corps. (ECF No. 149 ¶ 143.) Once students enter
the Academy, they become active-duty members of the Navy; receive an annual salary, room
and board, and healthcare; and are subject to the Uniform Code of Military Justice. (Id.) The
Defendant U.S. Department of Defense (“DoD”) is the federal agency responsible for all
aspects of the military. (ECF No. 1 ¶ 9.) Defendant Lloyd Austin is the Secretary of Defense
and is responsible for all aspects of the military. (Id. ¶ 10.) Defendant Carlos del Toro is the
Secretary of the Navy and oversees all Navy operations and policies. (Id. ¶ 11.) Defendant
Rear Admiral Fred Kacher was the Acting Superintendent of the United States Naval
Academy.6 (Id. ¶ 12.) Defendant Bruce Latta is the Dean of Admissions at the Academy. (Id.)
The individual Defendants are all sued in their official capacities.
B. Procedural History
This lawsuit was initiated on October 5, 2023, just three months after the Supreme
Court’s opinion in the Harvard case on June 29, 2023.7 The one-count Complaint alleges a
violation of the Due Process Clause of the Fifth Amendment to the U.S. Constitution and the
equal protection privilege contained therein as a result of the Naval Academy’s consideration
6 On January 11, 2024, Rear Adm. Kacher was relieved by Vice Adm. Yvette Davids. Davids Confirmed as
Superintendent at Naval Academy, U.S. NAVAL ACAD. (Jan. 11, 2024), available at
https://www.usna.edu/NewsCenter/2024/01/DAVIDS_CONFIRMED_AS_SUPERINTENDENT_AT_NA
VAL_ACADEMY.php.
7 Earlier in that three-month period, SFFA filed a similar action in the United States District Court for the
Southern District of New York against the United States Military Academy at West Point. (ECF No. 148 ¶
250); Students for Fair Admissions v. U.S. Mil. Acad. at West Point, 709 F. Supp. 3d 118 (S.D.N.Y. 2024) injunction
pending appeal denied Students for Fair Admissions v. U.S. Mil. Acad. at West Point, 144 S. Ct. 716 (2024) (Mem.). That
case remains pending.
4
of race in its admissions process. (ECF No. 1.) On October 6, 2023, the Plaintiff filed a
Motion for Preliminary Injunction. (ECF No. 9.) A briefing schedule was established by this
Court’s Letter Order on October 23, 2023. (ECF No. 21.) A response in Opposition was
ultimately filed by the Defendants on December 1, 2023. (ECF No. 46.) The Court held a
hearing on the request for preliminary injunction on December 14, 2023, and DENIED the
requested injunctive relief. (ECF No. 57.)
In addition to the reasons set forth on the record during the hearing, the Court filed a
Memorandum Opinion (ECF No. 60) setting forth the reasons for the denial on
December 20, 2023. The Court’s analysis was clearly guided by the Supreme Court’s opinion
in Harvard, 600 U.S. 181 (2023), and its footnote noting “potentially distinct interests”
presented by military academies. Id. at 213 n.4. The Court noted the need to develop a factual
record. On December 20, 2023, a scheduling order was entered with the consent of the parties
setting a trial date of September 9, 2024. (ECF No. 61.) That date was subsequently extended
to September 16, 2024. (ECF No. 71.)
SFFA filed a Motion for Summary Judgment on its standing to bring this action. (ECF
No. 74.) At the conclusion of discovery and after a hearing, the Court GRANTED the motion
as memorialized in a Memorandum Opinion. (ECF No. 112.) The Court found that SFFA
has Article III standing. The Court addressed any discovery disputes (ECF No. 71; ECF No.
73) and pre-trial motions in limine (ECF No. 114; ECF No. 115; ECF No. 118). The parties
agreed to the introduction of numerous documents, including expert reports and deposition
testimony. (ECF No. 108.) The bench trial on the Plaintiff’s one-count Complaint began on
September 16, 2024, and lasted nine days, concluding with closing arguments on
5
September 26, 2024. The Court heard testimony from eighteen witnesses, including
designated deposition testimony and 420 exhibits. On October 2, 2024, the parties submitted
Proposed Findings of Fact and Conclusions of Law. (ECF No. 148; ECF No. 149.)
Based on the evidence admitted at trial, the Court now makes the following findings
of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil
Procedure.
III. Trial Findings of Fact
A. Findings of Fact: The Government Has a Compelling Interest in a Diverse

Officer Corps, and the United States Naval Academy Is a Vital Pipeline to
the Officer Corps.
At trial, the Defendants produced substantial and credible evidence, which is not
seriously disputed, that the Government has made the judgment, informed by history and
experience, that a diverse officer corps is vital to national security, and that the United States
Naval Academy is a vital pipeline to the officer corps. On this topic, the Court heard
compelling testimony from several witnesses testifying on behalf of Defendants. These
witnesses included current and former senior military and civilian leaders, as well as historians,
including, in the order called: (1) Captain Jason Birch, the former commanding officer of
SEAL Team 10 and current Third Battalion Officer at the Naval Academy (ECF No. 143 at
18:2–60:13); (2) Dr. Beth Bailey, an expert historian at the University of Kansas (id. at 103:23–
149:18; DX196);8 (3) Dr. John Sherwood, an expert historian at the Naval History and
8 “PX” refers to an exhibit offered by Plaintiff, and “PD” refers to demonstrative evidence presented by
Plaintiff. Similarly, “DX” refers to an exhibit offered by Defendants, and “DD” refers to demonstrative
evidence presented by Defendants. The parties did not provide consistently Bates-numbered exhibits.
Accordingly, the Court cites to exhibit page numbers where such consistent numbering was provided, and cites
to the exhibit overall where no such page numbers were provided.
6
Heritage Command (ECF No. 143 at 149:19–187:15; DX197); (4) Ashish Vazirani,
Performing the Duties of the Under Secretary of Defense for Personnel and Readiness
(“Under Secretary Vazirani”) (ECF No. 144 at 3:8–79:24); (5) Dr. Jeannette Haynie, a former
Senior Advisor to Under Secretary Vazirani and expert on the relevance of diversity and
inclusion to the military (id. at 80:3–232:10; DX194); (6) Professor Jason Lyall, a professor at
Dartmouth and an expert on diversity and battlefield performance (ECF No. 144 at 232:11–
252:7; ECF No. 145 at 3:2–88:22; DX195); (7) Vice Admiral John V. Fuller, the Inspector
General of the Department of the Navy (ECF No. 145 at 89:8–132:8); (8) Stephanie Miller,
the Deputy Assistant Secretary of Defense for Military Personnel Policy (ECF No. 146 at
28:8–148:10); and (9) Lisa Truesdale,9 the Deputy Assistant Secretary of the Navy for Military
Manpower and Personnel (DX199; DX210). On behalf of Plaintiff, the Court heard testimony
from two retired military officers—(1) Brigadier General Christopher S. Walker, a retired U.S.
Air Force General officer with over forty years of military experience (ECF No. 139 at 88:11–
190:3; PX224); and (2) Lieutenant Colonel Dakota Wood, who served in the U.S. Marine
Corps for 20 years before retiring from active duty in 2005 and has since studied military
readiness (ECF No. 142 at 189:21–231:6; ECF No. 143 at 3:6–17:8; PX221; PX225). Brig.
Gen. Walker and Lt. Col. Wood did not deny that the Department of Defense has long held
the view that a racially and ethnically diverse officer corps is a national security imperative, but
rather expressed their personal opinions that a racially and ethnically diverse offer corps does
not further unit cohesion or lethality. Simply stated, the personal opinions of Brig. Gen.
Walker and Lt. Col. Wood and other evidence produced by Plaintiff do not undermine the
9 Due to the witness’s availability, Lisa Truesdale testified by deposition designation. (DX210.)
7
Government’s well informed and reasoned determination that a diverse officer corps is “not
a lofty ideal,” but a “mission critical national security interest,” (DX190), and that the Naval
Academy is a vital pipeline to the officer corps. A summary of the evidence adduced during
the nine-day bench trial follows.
1. The Military Has Made the Judgment, Informed by History, that a

Highly Qualified and Diverse Officer Corps Is Critical for Mission
Effectiveness.
The Department of Defense (“DoD”) is America’s oldest and largest government
agency. Tracing its roots back to pre-Revolutionary times, the DoD’s mission “is to provide
the military forces to deter war and ensure the nation’s security.” (ECF No. 144 at 101:5–6
(Haynie).) At its highest level of organization, DoD contains three military departments—the
Departments of the Army, Navy, and Air Force. Collectively, these departments are
responsible for overseeing and managing five military services: the Department of Army
manages the Army; the Department of the Navy manages the Navy and the Marine Corps;
and the Department of the Air Force manages the Air Force and the Space Force. 10 In
addition, these departments are responsible for overseeing and managing the department’s
respective federal service academies, with the Department of the Navy overseeing the United
States Naval Academy, whose race-conscious admissions are the subject of the instant
litigation.
The U.S. military services are comprised of two primary categories of personnel:
enlisted members, who make up the majority of the force, and officers, who compose
The sixth branch of the U.S. Armed Forces is the United States Coast Guard, which is overseen by the
10
Department of Homeland Security during peacetime and the Navy during wartime. 14 U.S.C. § 103(a)–(b).
8
approximately 18 percent of the Armed Forces and manage operations and enlisted personnel.
To become an officer in any of the military services, there are limited paths of accession. To
become an officer, an individual must (1) graduate from a federal service academy—for the
Navy and Marine Corps, the Naval Academy; (2) attend a civilian college or university and
participate in the Reserve Officers’ Training Corps (“ROTC”) program—for the Navy and
Marine Corps, Naval ROTC (“NROTC”); (3) attend Officer Candidate School (“OCS”) after
graduating from college; (4) receive a direct commission after earning a professional degree;
or (5) advance through the enlisted ranks and then complete officer training (collectively,
“officer accession sources”).
The United States military has long made the judgment that developing and
maintaining a fighting force that is qualified and demographically diverse at all levels is critical
for mission effectiveness. (Id. at 146:24–147:17 (Haynie); PX210; PX445; DX194.) Since at
least 1963, and “[b]ased on decades of experience,” the military has concluded that a highly
qualified and racially diverse officer corps is “not a lofty ideal,” but a “mission-critical national
security interest.” (DX190; PX270; PX507; ECF No. 144 at 11:14–17 (Vazirani), 146:24–
147:17 (Haynie); ECF No. 146 at 82:4–7 (Miller).)
Unlike private and other public institutions, the military operates as a “closed-loop”
promotion system, with its top officers chosen not from outside, but rather promoted from
lower ranks. (DX190; ECF No. 145 at 109:12–25 (Fuller); ECF No. 146 at 44:24–50:6
(Miller).) That is, “[t]hey have to grow their own.” (ECF No. 143 at 137:20 (Bailey).)
Accordingly, the demographic composition of initial officer accessions is critical to the
achievement of a diverse officer corps. (DX190; ECF No. 145 at 109:12–25 (Fuller); ECF
9
No. 146 at 44:24–50:6 (Miller).) To achieve diversity in military leadership, the officer
accession sources and DoD, more generally, engage in extensive minority outreach and
recruiting. (DX190.)
Prior to the Supreme Court’s June 2023 decision in Harvard, 600 U.S. 181 (2023),
service academies and the civilian colleges and universities offering ROTC programs could
modestly consider race and ethnicity as part of their individualized, whole-person review of
admissions applicants. However, following the Supreme Court’s decision in Harvard, only
federal service academies such as the Naval Academy may consider race and ethnicity as part
of the admissions process. Id. at 213 n.4, 214; (ECF No. 146 at 52:13–53:14 (Miller).)
While the importance of maintaining a diverse, highly qualified officer corps has been
beyond legitimate dispute for several decades, Students for Fair Admissions invites the Court
to second guess the military’s half-a-century-long judgment that a diverse officer corps enables
the military to meet its critical national security mission by enhancing unit cohesion, assisting
recruitment and retention, and ensuring domestic and international legitimacy. The military’s
judgment is informed by the military’s specific history of racial discrimination and racial
tensions within the military’s ranks, as well as observations on how such racial strife impacted
our Nation’s military performance. Nevertheless, Plaintiff insists that the Government’s
interest is not one of national security, but in the educational benefits of student body diversity,
and that any claimed national security interest is groundless. At bottom, the Court, considering
all evidence before it, finds that the military’s interest in growing and maintaining a highly
qualified and diverse officer corps is informed by history and learned experience, and that a
highly qualified and diverse officer corps remains critical for military effectiveness and thus
10
for national security. Plaintiff’s suggestion to the contrary contradicts decades of broad
historical and military consensus.
a. History of Internal Racial Strife Risking Mission Readiness
As Under Secretary Vazirani explained, the DoD is a “learning organization,” meaning
it looks to history to try and “understand the factors that have contributed to [the military’s]
ability to perform effectively.” (ECF No. 144 at 36:5–37:18 (Vazirani); DX210; ECF No. 143
at 147:18–23 (Bailey).) As noted throughout trial and the instant filing, our military’s
commitment to fostering racial diversity and inclusivity across its leadership draws from
lessons learned the hard way. In short, the military’s history of racial discrimination and racial
tensions, and resulting “lack of unit cohesion,” “lack of trust,” and
“diminish[ed] . . . capability,” directly informed the military’s judgment about the critical need
for diversity in the Armed Forces generally and in the officer corps more specifically. (ECF
No. 144 at 36:5–37:18 (Vazirani).) While DoD “has been able to mitigate those risks by
increasing the diversity of the force,” “to go backward in [this] regard” would be “a dangerous
experiment” that could lead to “mission failure” and “loss of life.” (Id. at 36:5–37:18
(Vazirani).) Though the below is nowhere near exhaustive, the Court briefly attempts to
summarize how and why this broad historical and military consensus was reached.
Since its inception, our Nation’s armed services, including the Navy and Marine Corps,
have faced internal strife that has threatened mission readiness. From the Revolutionary War
through World War II, the Navy frequently limited the number of Black Americans able to
enlist, and the Marine Corps largely banned Black Americans all together. (ECF No. 143 at
116:19–20, 159:13–20 (Bailey), 160:12–18 (Sherwood); DX197 ¶¶ 10–12.) Black
11
servicemembers served in segregated units and were often limited to “the worst positions”
involving menial labor, such as messmen or coal heavers. (ECF No. 143 at 159:24–160:11
(Sherwood).) Even when the military did not have enough manpower, the Armed Forces
often turned away Black individuals seeking to serve. (Id. at 117:5–24 (Bailey).)
After World War I, an outbreak of racial violence known as the “Red Summer” of 1919
erupted in the United States, with white sailors and marines attacking Black communities
throughout the country. (Id. at 160:19–161:8 (Sherwood).) This racial violence, combined
with the segregation and unequal treatment practiced by the Navy, stigmatized the Navy in
the eyes of Black Americans and made Black Americans “very reluctant to want to send their
children to the Navy, especially given the jobs that their kids would have to perform in the
Navy.” (Id. at 161:4–161:8 (Sherwood).)
Prior to World War II, the Navy had no Black officers. (Id. at 158:11–160:11
(Sherwood).) In 1943, the Navy commissioned its first Black officer after it mistook him for
being white. (DX197 ¶ 22.) In 1945, Black servicemembers comprised about 5 percent of the
Navy’s enlisted force and just 0.02 percent of the sailors that received an officer’s commission
or warrant officer’s commission. (Id. ¶ 22.)
This lack of Black representation in the Navy’s officer corps contributed to racial
tension and unrest during World War II, which hindered naval readiness, national security,
and domestic security. (ECF No. 143 at 158:11–16 (Sherwood).) Between July 1944 and
March 1945, several large-scale incidents of racial unrest occurred at “some of the most
important logistics facilities in the Pacific” during World War II. (Id. at 162:7–20 (Sherwood).)
12
On July 17, 1944, a deadly munitions explosion at the Port Chicago Naval Magazine
near San Francisco killed 320 munitions workers, including 220 Black sailors. (DX197 ¶ 26;
ECF No. 143 at 161:24–162:6 (Sherwood).) As Dr. Sherwood explained, the majority of those
killed by the explosion were Black because the job of munitions worker was one of the most
dangerous and menial jobs in the Navy, and thus commonly assigned to Black sailors. (DX197
¶ 26; ECF No. 143 at 161:24–162:6.) Soon after the disaster, surviving personnel were
transferred to the nearby Mare Island Annex, and, in protest, 258 Black sailors refused to carry
out their duties, resulting in 208 Black sailors receiving bad conduct charges and 50 Black
sailors being convicted for mutiny and sentenced to 15 years of prison and hard labor. (DX197
¶¶ 26–27; ECF No. 143 at 161:24–162:6 (Sherwood).)
In December 1944, Black sailors in Guam protested the oppressive conditions and
violent racism they endured on base. (DX197 ¶ 27; ECF No. 143 at 161:16–20 (Sherwood).)
As a result of the protest, 48 Black sailors were arrested and imprisoned. (DX197 ¶ 27; ECF
No. 143 at 161:16–20 (Sherwood).)
In March 1945, approximately 1,000 Black Seabees at Port Hueneme, California, staged
a two-day hunger strike to protest racial bias in promotions and segregated practices at the
base, as the commanding officer refused to promote any Black Seabee to chief petty officer
and instituted segregated living and mess quarters. (DX197 ¶ 28.) While the Seabees refused
to eat, they continued performing all scheduled duties. (Id. ¶ 28.) Eventually the commanding
officer and many other officers were relieved of their duties, with the oncoming commanding
officer promising to reexamine promotions. (Id. ¶ 28.)
13
In 1948,11 President Truman issued Executive Order 9981, directing the desegregation
of the Armed Forces and establishing the Fahy Committee to evaluate the impact of
integration on military efficiency. (Id. ¶¶ 30–31.) The Fahy Committee concluded that “a
more inclusive military that enables all members to use their talents and skills to the fullest is
a more effective fighting force. (PX445.)
When the United States intervened in the Korean War in 1950, the Armed Forces were
faced with the need to rapidly build and deploy servicemembers, but still deeply resisted
integration, and racial discrimination continued to corrode military effectiveness. (PX272;
ECF No. 143 at 120:15–17 (Bailey); DX196.) Black sailors constituted 3.4 percent of the
Navy. (DX197 ¶ 32.) While that number grew to 9.5 percent during the Korean War, Black
representation fell to 5.1 percent by 1962. (Id.) And in 1962—almost a decade after the end
of the Korean War—only 0.2 percent of Naval officers were Black, and 65 percent of Black
sailors were serving in the steward branch. (Id.; ECF No. 143 at 120:9–10 (Bailey).)
In 1962, President John F. Kennedy convened the Gesell Committee to examine the
military’s continued racial disparities and recommend new policies to the Secretary of Defense.
(PX445.) The Gesell Committee recommended that then-Secretary of Defense Robert
11 Wesley Anthony Brown was the Academy’s first Black graduate, graduating and commissioning as an officer
in 1949. (ECF No. 143 at 172:20–174:20 (Sherwood).) Dr. Sherwood explained that “[a]fter Wes Brown
graduated in 1949, there were only a very small number of African Americans who graduated from the Naval
Academy year by year, up until the mid-’70s,” when President Lyndon B. Johnson ordered the Academy to
start recruiting Black midshipmen. (Id. at 172:20–174:20.) The Court finds it prudent to note that the Academy
began admitting Black midshipmen during the Reconstruction Era, admitting the first Black midshipman, James
H. Conyers, in September 1872. (Id. at 172:20–174:20 (Sherwood).) At the Academy, “[Conyers] was cursed
at, spat on, and physically abused, with some of his classmates even attempting to drown him.” (DX197 ¶ 55.)
Conyers resigned from the Academy in October 1873. (Id.) While a small number of Black midshipmen were
nominated, and a very small number were admitted between 1872 and 1945—though it is worth noting that no
Black midshipmen were successfully appointed between 1897 and 1936—“they all experienced severe
institutional racism and individual racism that prevented them from graduating.” (ECF No. 143 at 172:20–
174:20 (Sherwood).)
14
McNamara pursue “greater institutionalization of the military’s commitment to equality of
treatment and opportunity,” but McNamara failed to implement such changes. (Id.) As the
DoD Military Leadership Diversity Commission12 (“MLDC”) reflected in 2011, “DoD’s
failure to implement the Gesell Committee’s recommendation had high costs,” with
“[i]nequities persist[ing] at all levels of the military, particularly in the leadership ranks.” (Id.)
At trial, Dr. Bailey noted that, during this time, the DoD “adopted a set of policies and
procedures that were summed up by a phrase that the Army often used, ‘I see only one color,
and that’s [olive drab, Army green].’” (ECF No. 143 at 121:18–122:23.) In other words, the
military adopted color-blind policies, attempting to remove racial designations from military
forms as a way to enforce equal opportunity and promote a color-blind military. (Id. at 121:18–
122:23 (Bailey).) Dr. Bailey explained that, while these policies were better than what came
before, as a tactic, they had limits and often “defaulted white.” (Id. at 121:18–122:23.)
Major instances of racial violence first erupted in the Marine Corps during the late
1960s. As background, during the Vietnam War, a disproportionate number of Black enlistees
and draftees were recruited to ground services such as the Marine Corps and Army than
compared to the Air Force and Navy. (DX197 ¶ 38.) This was due to higher recruiting
standards in the latter two forces and most military-age males with a low draft number and
high test scores opting to join the Navy or Air Force to avoid ground combat in Vietnam.
(ECF No. 143 at 127:4–18 (Bailey), 162:22–163:1 (Sherwood); DX197 ¶ 38.) This influx of
Black recruits into the Marine Corps, which was still de facto segregated, combined with
12 The DoD MLDC is a commission of senior military leaders established by Congress in late 2008. (PX445.)
15
existing racial tensions, led to significant incidents of violence both in Vietnam and in military
bases in the United States. (DX197 ¶ 38.)
The incidents at Camp Lejeune in North Carolina, a major east coast Marine base, are
particularly noteworthy. (Id.; ECF No. 143 at 127:8–18 (Bailey).) During the first eight
months of 1969, there were 160 race-related assaults, muggings, and robberies at Camp
Lejeune alone. (DX197 ¶ 38; ECF No. 143 at 127:8–18 (Bailey).) The worst incident—and
the one that finally commanded Congress’s attention on the issue—left one white corporal
dead and several marines injured. (DX197 ¶ 38; ECF No. 143 at 127:8–18 (Bailey).) The
event sparked an investigation on the part of Congress into racial violence and conflict in the
military, which concluded that the events of Camp Lejeune were not restricted to the Marine
Corps. (ECF No. 143 at 127:8–18 (Bailey).)
While racial conflict and violence were slower to engulf the Navy, the Navy also
experienced racial tension during the late 1960s. To be clear, and as Dr. Sherwood aptly noted:
“[t]his is not a testament to superior treatment of African American sailors in the Navy, but
rather the outcome of qualitative recruitment, which had kept the proportion of Blacks in the
Navy very low compared to that of other services until 1972.” (DX197 ¶ 39; ECF No. 143 at
163:10–164:19.) While fewer minorities resulted in fewer incidents of racial unrest, the Navy
was not impervious to racial tension during this period. (DX197 ¶ 39.) One such example
occurred in 1969 when a riot nearly broke out in the Philippines when Black and white sailors
from the destroyer Collette were on shore leave. (Id.; ECF No. 143 at 163:10–164:19
(Sherwood).) After hearing of the unrest, a Black officer named William Kelley quelled the
potential riot by putting on his dress blue uniform with his sword and advising returning sailors
16
that he would not tolerate such behavior on his ship. (DX197 ¶ 39; ECF No. 143 at 163:10–
164:19 (Sherwood).)
When President Richard Nixon’s administration made the decision to scale back the
draft in the early 1970s and eliminate it all together in 1973, the Navy had to change its
recruitment standards to man its ships, resulting in an influx of minority sailors. (ECF No.
143 at 164:20–166:4 (Sherwood).) Major instances of racial violence began shortly thereafter.
The first incident in the Vietnam period to receive widespread attention from Naval
leaders was the race riot on the Kitty Hawk aircraft carrier on October 12, 1972—which
resulted in 47 injuries and led to numerous charges, primarily against Black sailors despite
allegations of unequal treatment. (Id. at 167:16–170:10 (Sherwood).) Other riots demonstrate
that the racial unrest experienced onboard the Kitty Hawk was not isolated. On
October 17, 1972, Black sailors frustrated with conditions aboard the fleet replenishment oiler
Hassayampa rioted, injuring 5 white sailors. (Id. at 171:19–25 (Sherwood); DX197 ¶ 45.) In
November 1972, more than 100 Black sailors serving on board the aircraft carrier Constellation
staged a sit-in in the mess deck of the ship to air their complaints of unfair treatment due to
their race, resulting in a critical mission disruption. (ECF No. 143 at 170:18–171:18
(Sherwood); DX197 ¶ 45.)
Between the fall of 1972 and the end of 1975, racial unrest spread to hundreds of ships
and shore installations. (DX197 ¶ 47.) During the two-month period from May 1 to
June 30, 1974, the Atlantic Fleet alone reported 57 racial incidents at various locations,
including the dock landing ship Trenton, Naval Station Midway Island, the aircraft carrier
Ticonderoga, the aircraft carrier Intrepid, the amphibious assault ship Inchon, and Kaohsiung Fleet
17
Landing in Taiwan. (Id.; ECF No. 143 at 166:5–13 (Sherwood).) Official investigations into
these six events revealed the following underlying causes: discrimination in promotion and job
assignments; a climate of racism; a disciplinary system perceived to be biased against Black
sailors; ineffective minority affairs councils; and, most significantly, the lack of Black sailors in
the Navy’s chain of command. (DX197 ¶ 47; ECF No. 143 at 166:5–167:4 (Sherwood).)
Racial violence during this time risked partnerships with international allies including
West Germany and South Korea and sparked Congressional concern. (ECF No. 143 at
129:22–131:17 (Bailey).) As Dr. Bailey explained:
Racial violence and racial conflict was pervasive and highly disruptive during
the U.S. war in Vietnam. . . . [M]ilitary leaders across services . . . worried that
the level of racial violence and conflict was so extreme that it was threatening
the ability of the U.S. military to fulfill its mission of national defense. [As such,]
military leaders, particularly Navy and Army leaders, put a great deal of time and
attention in trying to figure out how to manage, how to solve this crisis that they
were confronting, this problem of race.
(Id. at 123:5–15; DX196.) She further explained that:
[M]ilitary leaders in this era believed that the lack of visible Black leadership
played a significant role in fostering racial conflict, and the presence of Black
military leaders might ameliorate racial conflict. When [military leadership]
encountered this massive level of racial violence that they believed threatened
the ability of the services to defend the United States against its enemies, they
wanted all tools available at their disposal. And many believed that visible Black
leadership, that more Black officers would make a difference. And they weren’t
available. Their hands were tied. . . . I go as far as saying they didn’t have a
weapon they needed because of decisions that had been made in the past.
(ECF No. 143 at 148:1–15.)13
13 While Dr. Bailey acknowledged that the draft played a role in racial tensions, she emphasized that “historians
never think of historical events as mono-causal” and that some of the military installations that saw the most
racial violence were not places where people were primarily drafted. (ECF No. 143 at 126:12–25.)
18
As such, the military then focused on cultivating and including diverse leadership. (Id.
at 134:19–23, 135:1–8, 136:18–25 (Bailey).) To increase the number of racially diverse officers
in the Navy and Marine Corps, the Navy established NROTC units at Historically Black
Colleges and Universities, instituted a program named BOOST to prepare promising leaders
from educationally underprivileged backgrounds to successfully complete the Navy’s
commissioning programs, and increased minority enrollment at the Academy and the Naval
Academy Preparatory School (“NAPS”). (Id. at 175:10–176:1 (Sherwood).) While these
efforts have been somewhat successful, the broad military consensus is that diversity in our
Armed Services, and in our officer corps, more specifically, is imperative to national security,
as further explored below.
Today, the Navy is the most diverse branch of the Armed Forces, but it has the “widest
gap in minority representation among officers and enlisted.” (PX330; see also DX65.) As the
Navy faces the challenges of an all-volunteer force, recent demographic studies indicate that
52 percent of enlisted Naval servicemembers are racial minorities but just 31 percent of Naval
officers are minorities. (PX330; see also DX65 (showing 46 percent of enlisted Naval force in
2020 were minorities but only 23 percent of the Naval officer corps in 2020 were minorities);
ECF No. 140 at 210:12–15 (Latta) (testifying that the fleet is “well over 50 percent racial and
ethnic minorities”).) Within the Navy’s senior-most leadership cadre, this racial disparity is
even wider. There are 218 Admirals on active-duty in the United States Navy. (DX65).
During his testimony, the Court asked Vice Admiral Fuller “how many flag rank officers [i.e.,
Admirals] are there in the U.S. Navy who are of color?” (ECF No. 145 at 127:19–20.) Vice
Admiral Fuller responded: “I’d say less than a dozen,” and further noted: “I don’t have them
19
all memorized. But it’s small.” (Id. at 127:19–128:14.) Indeed, the number is small: it was
reported that as of May 2020, 201—or 92 percent—of the 218 Admirals in the Navy were
white, and all ten officers at the highest rank, O-10, were white. (DX65.)
For comparison, the Marine Corps, which is among the least racially diverse of the
Armed Forces, faces a much smaller representation gap between officers and enlisted
members. The Marine Corps struggles with racial and ethnic diversity more broadly, however,
and is “disproportionately white, particularly among the enlisted ranks.” (PX330) Just 35
percent of enlisted Marines are minorities, while 29 percent of Marine Corps officers are
minorities. (Id.)
b. A Diverse Officer Corps is Vital to National Security
For decades, our Nation’s military leaders have determined that a diverse officer corps
is vital to mission success and national security. (ECF No. 144 at 7:5–12:10 (Vazirani); ECF
No. 146 at 80:24–82:9 (Miller); DX137; DX177; PX270 DX190; DX67.) The military’s
successes and challenges with integration and inclusion inform its position that “developing
and maintaining qualified and demographically diverse leadership is critical for mission
effectiveness.” (PX445.) As Deputy Assistant Secretary Miller explained at trial, this is a
“military judgment formed over many years, over many senior leaders, political and uniformed,
and . . . over multiple different administrations.” (ECF No. 146 at 82:1–7.)
The military has actively evaluated and consistently reaffirmed its position that diversity
at all levels is mission essential. So too has Congress, consistently, and as recently as this year.
(DX128.) The National Defense Authorization Act for Fiscal Year 2009 established the
Military Leadership Diversity Commission, which aimed to evaluate and assess policies related
20
to diversity among military leaders and recommend improvements to promote a more
inclusive force. (PX445.) The Commission, comprised of thirty active and retired military
leaders, “conduct[ed] a comprehensive evaluation and assessment of policies that provide
opportunities for the promotion and advancement of minority members of the Armed Forces,
including minority members who are senior officers.” (Id.) The MLDC concluded that the
Armed Forces must “develop a demographically diverse leadership that reflects the public it
serves and the forces it leads,” underscoring the importance of “[d]evelop[ing] future leaders
who represent the face of America and are able to effectively lead a diverse workforce,”
because it would “inspire future servicemembers,” “engender trust among the population,”
and foster trust and confidence “between the enlisted corps and its leaders.” (Id.) In its
Diversity and Inclusion Strategic Plan for 2012 to 2017, DoD reenforced the MLDC’s
conclusion: “Diversity is a strategic imperative, critical to mission readiness and
accomplishment, and a leadership requirement.” (DX137.)
In June 2020, former Secretary of Defense Mark T. Esper directed the creation of an
“internal DoD Board on Diversity and Inclusion to undertake a more comprehensive
evaluation and assessment of military policies, processes, and practices to improve racial
diversity in our ranks.” (DX177.) He recognized:
For more than 200 years the U.S. military has fought to defend our great Nation
and our interests abroad, earning the reputation as the greatest military force in
history. . . . We have also reached this level of mission excellence because we
attract the best America has to offer: young men and women . . . [that] represent
a wide range of creeds, religions, races, ethnicities, sexual orientations, and other
attributes that distinguish us as individuals, and make us stronger together.
To ensure the morale, cohesion, and readiness of the military it is essential that
our ranks reflect and are inclusive of the American people we have sworn to
protect and defend.
21
While the military has often led on these issues throughout history, we are not
immune to the forces of bias and prejudice. We know this bias burdens many
of our uniformed personnel and has direct and indirect impacts on the
experiences of our minority members and their representation in our ranks,
especially in our officer corps. . . . We can and must do better.
(Id.)
Following a review of the military’s policies and data and reports, the fifteen-member
DoD Board on Diversity and Inclusion made recommendations on how to improve diversity
and inclusion in the military. (PX210.) The Board emphasized that DoD “recognize[d]
diversity and inclusion . . . as strategic imperatives—to ensure that the military across all grades
reflects and is inclusive of the American people it has sworn to protect and defend” and
concluded that “appropriate representation of minorities in military leadership positions is
increasingly important in the context of the nation’s demographic trends.” (Id.)
As Under Secretary Vazirani14 testified at trial, the Board’s judgment remains the
judgment of the DoD today. (ECF No. 144 at 9:6–11:10.) He explained that the DoD believes
that “[t]o meet this moment,” it must “tap into our core strengths: our dynamic, diverse and
innovative society; our unmatched network of allies and partners; and the tremendous men
and women of our armed forces.” (Id. at 8:4–10; see also id. at 10:15–25 (Vazirani); DX45.)
The Department of the Navy also holds this judgment. Deputy Assistant Secretary
Truesdale15 explained that “a highly qualified, diverse Navy and Marine Corps officer corps,
14 Under Secretary Vazirani is the current Under Secretary of Defense for Personnel and Readiness. (ECF No.
144 at 4:4–5); 10 U.S.C. § 136. In this role, he reports directly to the Secretary of Defense and serves as the
Secretary’s principal staff assistant on personnel and readiness matters. (ECF No. 144 at 4:7–5:10 (Vazirani).)
15 Deputy Assistant Secretary Truesdale is the current Deputy Assistant Secretary of Military Manpower
Personnel for the Department of the Navy, responsible for the establishment and oversight of policies related
to the Navy and Marine Corps’ active and reserve component servicemembers and their families, including
human resource management. (DX210 at 6:2–6 (Truesdale); PX507 ¶¶ 2–3.)
22
educated and trained to command and lead our Nation’s racially diverse forces is essential to
the [Department of the Navy’s] ability to fulfill its principal missions and to provide national
security.” (PX507 ¶ 6.) As such, the Navy has made a military judgment—made over decades
by senior military and civilian leaders—that a racially diverse officer corps is necessary for
mission execution and maritime dominance, recruitment and retention, and domestic and
international legitimacy. (Id. ¶ 7; see also ECF No. 145 at 108:15–18 (Fuller); ECF No. 146 at
81:1–25 (Miller); DX210 at 33:18–35:6 (Truesdale).)
i. Unit Cohesion
First, the military has made the informed determination that a diverse officer corps
positively impacts unit cohesion when effectively managed. As Under Secretary Vazirani
testified at trial:
Increased diversity of the officer corps helps . . . from an operational

perspective by improving unit cohesion and trust[,] . . . [which] is critical to the
ability for a unit to carry out its mission. By increasing unit cohesion and trust,
that increases communication, it increases a better understanding of mission
requirements, and it increases trust in the officers that lead that particular unit.
(ECF No. 144 at 14:6–15; see also id. at 16:8–18:18; ECF No. 145 at 108:13–18, 110:23–114:23
(Fuller).) A diverse officer corps furthers unit cohesion, as it allows for a wider range of
perspectives, experiences, and problem-solving approaches, leading to stronger
decision-making and a more adaptable unit. (ECF No. 144 at 14:6–18:18 (Vazirani); ECF No.
145 at 108:13–114:23 (Fuller).) As then-Commander of the United States Joint Forces
Command and later Secretary of Defense James B. Mattis recognized in 2010:
In this age, I don’t care how tactically or operationally brilliant you are, if you
cannot create harmony—even vicious harmony—on the battlefield based on
trust across service lines, across coalition and national lines, and across
civilian/military lines, you really need to go home, because your leadership in
23
today’s age is obsolete. We have got to have officers who can create harmony
across all those lines.
(PX445.)
At trial, the Court heard from several witnesses who testified about their personal
experiences that diverse units are more cohesive at a strategic level. (ECF No. 144 at 14:9–
24, 16:17–17:14, 19:25–20:25 (Vazirani); ECF No. 145 at 116:2–7, 112:20–114:10 (Haynie).)
These personal experiences are also supported by internal and external studies, and testimony
from Defendants’ experts Dr. Haynie, a Naval Academy graduate and Marine Corps combat
veteran who previously served as a Senior Advisor to Under Secretary of Defense for
Personnel and Readiness, and Professor Lyall. (ECF No. 144 at 80:3–232:10 (Haynie);
DX194; ECF No. 144 at 232:11–252:7 (Lyall); ECF No. 145 at 3:2–88:22 (Lyall); DX195;
DX16; DX22; DX135; DX168; DX174; DX188; PX275; PX597.) While Dr. Haynie
acknowledged that DoD has not conducted a wide-ranging study that examines whether
diverse teams solve complex problems better than non-diverse ones in a military setting, she
explained that there would be logistical and ethical constraints that would make conducting
such a study “really challenging.” (ECF No. 144 at 124:15–126:10.)
As noted above, the military learned the importance of racial diversity in its leadership
the hard way, and it must not be forgotten that our military’s efforts to increase the diversity
of the officer corps follow centuries of institutionalized discrimination. While our military
leadership is more diverse today and our military much stronger for it, the military is “not
immune to the forces of bias and prejudice.” (DX177.)
The Court heard compelling testimony from CAPT Birch on this point, who testified
about his personal experience as a Black Academy graduate and Naval officer. One particular
24
incident that CAPT Birch described illustrates the importance of having diversity in the officer
corps, as the presence of diverse officers allows the military to address instances of racial
discrimination more effectively. When CAPT Birch was leading SEAL Team 8 in Somalia,16
a Black enlisted sailor was the victim of racial caricatures and epithets written in his biography,
which had been placed in a team room area. (ECF No. 143 at 29:2–32:9 (Birch).) CAPT Birch
testified that, if not for CAPT Birch’s presence as a Black officer on the team, the enlisted
sailor might not have reported the incident. (Id. at 29:2–32:9.)
The discriminatory behavior described by CAPT Birch is not isolated. (DX169;
DX192.) On cross-examination, Brig. Gen. Walker acknowledged that “racial
prejudice . . . still exist[s] in the military,” noting “the military is a microcosm of society; so it
would be ridiculous for me to try and say that there are no racists in the military.” (ECF No.
139 at 169:21–25.) Such forces threaten unit cohesion, and the military has made the perhaps
obvious judgment that diversity in the officer corps can help mitigate and counter, if not
prevent, these corrosive and real internal threats.
ii. Recruitment and Retention
As Under Secretary Vazirani explained at trial, recruitment and retention are
“particularly important” for DoD as “an all-volunteer force and we aspire to be an
all-professional force.” (ECF No. 144 at 21:20–22:4.) DoD has made the informed
determination that a diverse officer corps is a strategic imperative to the mission of recruiting,
16 It is noteworthy that CAPT Birch was the “first Black officer to command a SEAL team.” (ECF No. 143
at 32:18–19 (Birch).)
25
developing, and retaining the best of America’s diverse talent pool. As Secretary of the Navy
Carlos Del Toro explained:
In order to meet the challenges of a complex world, we must continue to recruit,

retain, train, and promote the best from all of America. We need a diverse force,
so every child in America can see themselves wearing the uniform or working
in our civilian ranks tomorrow, and every viewpoint is represented in our
operations today, so that we can draw talent from all of America to build our
warfighting advantage.
(DX67; see also DX19; DX66; DX210 at 43:10–44:11, 49:19–50:10 (Truesdale); ECF No. 144
at 14:25–15:5, 21:20–22:4 (Vazirani); ECF No. 145 at 105:3–5, 107:17 (Fuller); ECF No. 146
at 30:5–32:11, 81:19–20 (Miller).)
Retaining top talent is critical to sustaining an all-volunteer force. (ECF No. 144 at
21:20–22:4 (Vazirani).) As a closed-loop personnel system, the Navy and Marine Corps cannot
replace officers from outside their ranks, and high rates of attrition present an organizational
risk—and could unwind any gains from recruiting diverse junior officers. As several witnesses
testified, research demonstrates that diversity directly impacts retention within the military.
(ECF No. 144 at 26:10–15 (Vazirani), 136:2–8 (Haynie); ECF No. 145 at 24:17–30:10 (Lyall),
118:17–25 (Fuller); ECF No. 146 at 100:8–101:1 (Miller); DX210 at 43:10–44:11 (Truesdale);
PX275; PX597; DX42; DX75; DX195; DX204; PX275; PX597.)
There are external constraints on the military’s recruiting efforts. Due to the increasing
prevalence of disqualifying factors in America’s youth population, only 23 percent of 17- to
24-year-olds are eligible to serve without a waiver. (ECF No. 146 at 77:21–78:4 (Miller).) DoD
further faces challenges with youth propensity to serve, as well as youth influencers becoming
less willing to recommend military service. (ECF No. 144 at 137:12–14 (Haynie); ECF No.
146 at 102:2–6 (Miller).) Youth propensity to serve in the military is generally higher for Black
26
and Hispanic young people than their white and Asian counterparts. (ECF No. 144 at 137:15–
20 (Haynie); DX187; DX194.) “These datapoints demonstrate that recruiting and retaining
top talent from those underrepresented communities who report higher propensity to serve
can pay greater dividends to the military.” (DX194.) Real-world experience suggests that
representation matters for recruiting. Deputy Assistant Secretary Truesdale noted that a
diverse group of recruiters helps to attract diverse recruits. (DX210 at 214:5–216:14.) Vice
Admiral Fuller testified that diverse representation can also contribute to parents, teachers,
and other influencers being more willing to encourage military service. (ECF No. 145 at
119:8–23.)
iii. Domestic and International Legitimacy
Lastly, DoD has made the informed and well-reasoned determination that the
all-volunteer military and its leadership must represent the Nation it defends to preserve its
domestic and international legitimacy. (PX445; ECF No. 144 at 28:5–12 (Vazirani).) As
Under Secretary Vazirani explained, “[our] diverse military and diverse officer
corps . . . demonstrates the fact that the military is representative of a nation with diverse
values and democratic values and that . . . [the] military will carry out the missions of the
people that we serve.” (ECF No. 144 at 28:5–12 (Vazirani); see also ECF No. 144 at 140:10–
141:10 (Haynie); ECF No. 145 at 18:17–21:10 (Lyall), 119:8–23 (Fuller); DX210 at 220:5–
222:9 (Truesdale); DX194; PX210; PX445.) “Not only do diversity and inclusion support
legitimacy within the U.S., but they similarly have been linked to legitimacy and influence while
enabling collaboration globally, all of which shapes the military’s effectiveness.” (DX194.)
27
2. The Naval Academy is a Vital Pipeline to the Officer Corps
The United States Naval Academy prepares its students—called midshipmen—to
become leaders and officers in the Navy and Marine Corps. (PX259 ¶ 7); 10 U.S.C. § 8451.
Midshipmen at the Naval Academy are active-duty members of the Navy, receiving pay and
healthcare, plus tuition, room, and board. (PX259 ¶ 7.) Immediately upon graduation,
midshipmen are commissioned as officers in the Navy or Marine Corps and are required to
serve on active duty for a minimum period of five years after graduating.17 10 U.S.C. § 8459.
a. The Naval Academy’s Mission and Programming
The Naval Academy’s mission is to “[d]evelop midshipmen morally, mentally, and
physically, and to imbue them with the highest ideals of duty, honor, and loyalty in order to
graduate leaders who are dedicated to a career of naval service and have potential for future
development in mind and character to assume the highest responsibilities of command,
citizenship, and government.” (ECF No. 140 at 64:19–24 (Latta); DX79.) The Naval
Academy advances this endeavor through comprehensive programming that includes
academic instruction, professional military training, and a strong emphasis on character
development, preparing midshipmen to become leaders with the necessary skills and moral
compass for service in the Armed Forces. (PX259 ¶ 8.)
With respect to academic education, professional courses and training are an essential
component of the Naval Academy’s “integrated program.” (Id.) Sixty-five percent of the
midshipmen are required to graduate with a STEM major. (ECF No. 140 at 169:3–170:4
17 The mandatory five-year service requirement is triggered at the commencement of a midshipmen’s third
(junior) year at the Naval Academy with the “two for seven” signing, where midshipmen make a seven-year
commitment to the United States Navy: two more years at the Academy, and 5 years minimum in the Navy or
Marine Corps. (ECF No. 143 at 77:16–78:8 (Vahsen).)
28
(Latta); OPNAVINST 5450.330B.) Midshipmen are required to take courses in naval science,
engineering, navigation, and weapons systems to attain working knowledge of modern naval
operations and technology. (PX259 ¶ 8.) Courses in leadership, ethics, and military law help
prepare midshipmen for leadership responsibilities as commissioned officers. (Id.)
The Naval Academy’s Character Development program—which is “perhaps the single
most important feature that distinguishes USNA from other educational and
officer-commissioning sources”—demonstrates the Academy’s deep and abiding
commitment to the moral development of our midshipmen and to instilling the Naval
Service’s core values of honor, courage, and commitment into midshipmen. (Id. ¶ 9.) Starting
during plebe summer,18 midshipmen are instructed on the concept of the professional military
officer, which follows three pillars as warriors who possess the toughness, competence, and
courage to prevail in an unending commitment to accomplishing the mission with excellence,
and development of leaders of character and servants to the nation. (Id.) The Character
Development curriculum is ongoing throughout a midshipman’s education at the Academy,
concluding in senior year with a capstone course on the core values of honor, courage, and
commitment. (Id.)
The Naval Academy is undisputably distinct from a civilian university. As Deputy
Assistant Secretary Miller explained at trial: “our service academies are quintessentially a
military organization that also happen to be a four-year degree-granting institution.” (ECF
No. 146 at 143:8–10.) “[A]t its core, [the Academy’s] sole purpose is to develop and provide
18 Plebe summer is a required seven-week training program that prepares incoming freshmen to become
midshipmen. Plebe Summer, U.S. NAVAL ACAD., available at https://www.usna.edu/PlebeSummer/index.php.
29
future officers to the Navy and ultimately the Department of Defense.” (Id. at 143:19–21
(Miller).) The Naval Academy is “driven by . . . military necessity and national defense
priorities.” (Id. at 143:23–24 (Miller).) As Dr. Haynie explained at trial: “[w]ithin a few weeks
of graduating, members of my class were leading . . . sailors and Marines in different places.”
(ECF No. 144 at 130:20–22.) As she aptly noted, the Academy “is not a normal college.” (Id.
at 131:17–18.)
The Naval Academy is also distinct from other officer accession sources, such as
ROTC and OCS.19 While officers commissioning from the service academies, ROTC, and
OCS “all obtain a baseline level of requirements to be a successful naval or Marine Corps
officer[,] . . . the academies . . . [are] specifically designed to ensure a higher degree of
experience, education, qualification, and preparation for officership.” (ECF No. 146 at 38:11–
16 (Miller).) As Deputy Assistant Secretary Miller explained: “the academies are innovative
and specific institutions that [the military] rel[ies] upon to have a steeped officer corps that
graduates with a greater degree of knowledge, expertise, and understanding of military
tradition and history[.]” (Id. at 38:6–10; DX81.) The Navy and Marine Corps “rely upon
[Academy graduates] to be a positive peer influence to [those] from other commissioning
sources to help convey that military and Navy history and tradition.” (ECF No. 146 at 38:16–
19 (Miller).)
19 Congress shares this view. (DX128.) The Senate Armed Services Report for Fiscal Year 2024 National
Defense Authorization Act recognized: “Military Service Academies provide exceptional leadership training
and educational opportunities to our nation’s high school graduates. Providing approximately 20 percent of
the annual commissioned officer population for the armed services, they are also a key pipeline into the
leadership of the Departments of the Army, Navy and Air Force.” (Id.)
30
b. Postgraduate Service Assignments
As noted, upon graduation from the Naval Academy, midshipmen are commissioned
as officers in the Navy or Marine Corps and are required to serve on active duty for a minimum
period of five years after graduating. 10 U.S.C. § 8459. In practice, this means that the Naval
Academy produces about 20 percent of the officers who enter the Navy and Marine Corps
every year. (ECF No. 140 at 114:1–13 (Latta).) Pursuant to OPNAV Instruction 5450.330B,
at least 95 percent of the Naval Academy graduates commission into the unrestricted line
communities,20 which include surface warfare, submarine warfare, naval aviation, and Marine
Corps roles. (ECF No. 146 at 39:3–6 (Miller); DX5.) The remaining 5 percent of Academy
graduates go into the restricted line21 or staff corps,22 whose total officer communities
comprise a “[l]ittle less than half” of the total officers in the Navy. (ECF No. 141 at 104:23–
105:12 (Latta); DX210 at 196:15–19 (Truesdale).)
Assignments are based on specific requirements provided to the Naval Academy by
Department of the Navy leadership and consider both a midshipman’s aptitude and preference
for a particular assignment. (ECF No. 146 at 8:22–10:17 (Sundberg); DX157.) The Naval
Academy endeavors to match personal preferences with aptitude and ability, placing
midshipmen in the community best suited to their strengths to set them up for successful
20 The unrestricted line is “the category of communities within the United States Navy that broadly
encompass . . . warfare specialties,” such as surface warfare, aviation, submarines, and special forces. (ECF No.
146 at 39:11–19 (Miller).) Unrestricted line officers are eligible to command the Navy’s ships, submarines,
aircraft squadrons, fleets, and shore bases, while restricted line officers are not. (Id. at 39:20–23, 40:5–16
(Miller).) Most command billets are held by unrestricted line officers. (Id. at 40:17–19 (Miller).)
21 The restricted line communities are “combat support roles,” such as intelligence, supply, cryptology, and
logistics. (ECF No. 146 at 41:9–13 (Miller).)

22 “A staff corps officer is a cadre of officers that usually correlate to a profession outside of the military,” such
as doctors, dentists, lawyers, and chaplains. (ECF No. 146 at 41:14–18 (Miller).)
31
careers of Navy and Marine Corps service. (ECF No. 146 at 8:22–10:17 (Sundberg), 51:2–6
(Miller); DX157.)
At a high level, the process of assigning midshipmen is a collaborative effort between
the Academy’s Officer Accessions and Talent Optimization (“OATO”) Department;
Community Assignment Boards, which are comprised of representatives from the respective
communities; and a Service Assignment Review Board. (ECF No. 146 at 10:13–17, 11:4–9,
14:5–22 (Sundberg); DX157.) First, the OATO Department “allocates midshipmen to the
various communities based on their first-choice preferences.” (ECF No. 146 at 10:13–17
(Sundberg).) Subsequently, the Community Assignment Boards rank midshipmen using the
criteria assigned to them by the Chief of Naval Personnel and USNAINST 1301.5L. (ECF
No. 146 at 11:4–9 (Sundberg).) After the Community Assignment Boards rank the
midshipmen, OATO redistributes midshipmen based on their next community of choice, and
the process is iterative until all billet goals set by the Chief of Naval Personnel are met. (Id. at
14:5–14 (Sundberg).) The Service Assignment Review Board is tasked with ensuring the
service assignment process is completed consistent with the number of billets and
requirements set by the Chief of Naval Personnel. (Id. at 14:15–22 (Sundberg).)
c. While Only Accounting for One-Fifth of the Officers Entering the

Navy and Marine Corps Annually, the Academy Is a Vital Pipeline to
the Officer Corps, and Especially to Senior Leadership
While the Academy accounts for one-fifth of officers commissioning into the Navy
and Marine Corps every year, the Academy produces approximately 28 percent of the officers
entering the Navy and Marine Corps’ warfighting communities. (ECF No. 140 at 114:1–13
32
(Latta).) Though these numbers may seem modest, the Academy’s representation in the Navy
and Marine Corps senior leadership proves otherwise.
The commissioned officer corps is divided into 10 pay grades—O-1 through O-10,
with O-1 through O-3 officers considered company grade officers; O-4 through O-6 officers
considered field grade officers; and O-7 through O-10 reserved for general officers in the
Army, Marine Corps, and Air Force and flag officers in the Navy. In the Army, Marine Corps,
and Air Force, these pay grades correspond to the ranks of second lieutenant (O-1), first
lieutenant (O-2), captain (O-3), major (O-4), lieutenant colonel (O-5), colonel (O-6), brigadier
general (O-7), major general (O-8), lieutenant general (O-9), and general (O-10). In the Navy,
these paygrades correspond to ensign (O-1), lieutenant junior grade (O-2), lieutenant (O-3),
lieutenant commander (O-4), commander (O-5), captain (O-6), rear admiral lower half (O-7),
rear admiral upper half (O-8), vice admiral (O-9), and admiral (O-10).
As officers advance through pay-grades, being selected for and performing well in a
warfare command billet is important for promotion in the Navy and Marine Corps, especially
as officers advance into pay-grades O-6 and beyond. (ECF No. 146 at 40:22–41:1 (Miller).)
A disproportionate number of warfare command billets are filled by Naval Academy
graduates. (Id. at 41:2–9 (Miller).) Accordingly, 68 percent of flag officers—the Navy’s
senior-most leadership cadre—are unrestricted line officers. (Id. at 43:10–12 (Miller).) As
much as 78 percent of O-9 and O-10 officers are unrestricted line positions. (Id. at 43:12–14
(Miller).)
Perhaps unsurprisingly, 40 percent of flag officers are Naval Academy graduates. (Id.
at 44:19–22 (Miller); ECF No. 145 at 127:12–18 (Fuller).) The Chief of Naval Operations is
33
an O-10 level position and the highest-ranking officer in the Navy. (ECF No. 146 at 43:25–
44:5 (Miller).) Approximately 90 percent of Chiefs of Naval Operations have been Academy
graduates. (ECF No. 143 at 176:17–177:2 (Sherwood).) Simply stated, the Academy is a vital
accession source to the officer corps, and especially to senior leadership.
B. Findings of Fact: The United States Naval Academy’s Admissions

Procedures Mandate a Holistic Evaluation of Candidates.
The Court heard testimony from the Naval Academy’s Dean of Admissions Stephen
Bruce Latta and Director of Nominations and Appointments Melody Hwang, who both
testified in great detail about the Naval Academy’s admissions process. Dean Latta and
Hwang—both Academy graduates themselves—have worked in the Academy’s Admissions
Office since 2002 and 2014, respectively. The Court also briefly heard testimony on the topic
of the Academy’s admissions process from another Navy graduate, Captain Jason Birch.
CAPT Birch is the former commanding officer of SEAL Team 10 and is currently assigned as
the 3rd Battalion Officer at the Academy, where he is sitting on the Academy’s Admissions
Board for a second year during the current admissions cycle. Dean Latta, Hwang, and CAPT
Birch each described a complex, robust, whole-person review process where every candidate
is evaluated as a unique individual. (ECF No. 139 at 192–237 (Hwang); ECF No. 140 at 4–31
(Hwang), 38–249 (Latta); ECF No. 141 at 3–108 (Latta); ECF No. 143 at 18–60 (Birch).)
Based on their credible testimony and other evidence, and for the reasons detailed below, the
Court finds that the Naval Academy’s admissions policies mandate that, in practice, race is
only taken into consideration in limited circumstances: (1) when offering letters of assurance;
34
(2) when deciding between two candidates with very close whole person multiple scores23 for
nominations using the “competitive” method, service-connected nominations, and in some
circumstances the “principal competitive alternate” method; (3) when extending
Superintendent nominations, though Defendants insist that race and ethnicity have not played
a factor in a Superintendent nomination since at least 2009; and (4) when extending offers to
additional appointees.24 In each of those circumstances, race is nondeterminative and taken
into consideration only as one of many factors in order to assess the candidate’s potential as a
midshipman and eventual officer in the Navy or Marine Corps.
1. Naval Academy Admissions Overview
Preliminarily, the Court briefly notes that the admissions process at the Academy is
governed by (1) federal statute—10 U.S.C. §§ 8453–8458; (2) Department of Defense
directives; (3) Department of Navy regulations; and (4) internal guidance. As noted
throughout trial and the instant filing, these requirements play imposing roles in the Academy’s
admissions decisions. In particular, 10 U.S.C. § 8454 and OPNAVINST25 5450.330B require,
respectively, that candidates secure a nomination for the admissions cycle in which they wish
to be considered and that the Academy graduate at least 65 percent of students with science,
23 As explained infra, a whole person multiple score is a computer-generated score assigned to applicants based
on various objective criteria. See infra Section III.B.3.b.i.
24 It is worth noting that Dean Latta testified that race or ethnicity may be a nondeterminative consideration
in deciding whether to extend an offer of appointment to a candidate off the waitlist, though he noted that this
was “pretty rare.” (ECF No. 140 at 62:15–63:21, 238:11–17 (Latta).) In any event, the Court, weighing all
evidence before it, finds that such consideration of race is limited to the above-noted circumstances. In other
words, where a candidate is offered appointment following placement on the waitlist, race and ethnicity are
only considered to the extent that the decision to offer the candidate an appointment overlaps with
circumstances (2) (deciding between candidates with very close WPMs for nominations using the competitive
method, service-connected nominations, and in some circumstances the principal competitive alternate) and
(4) (additional appointees) above.
25 OPNAVINST stands for Office of the Chief of Naval Operations Instruction.
35
technology, engineering, and mathematics (“STEM”) degrees.
Section 8454 of Title 10 limits the size of the Brigade of Midshipmen to 4,400, meaning
each incoming class consists of approximately 1,170 to 1,180 midshipmen before attrition.
(ECF No. 140 at 170:17–22 (Latta).) To achieve an incoming class of that size, the Academy
extends between 1,380 to 1,400 offers of appointment. (Id. at 170:17–22 (Latta).) In a typical
admissions cycle, the Naval Academy receives approximately 14,000 to 16,000 applications,
though more than 60 percent of those applications are incomplete or withdrawn and thus not
ultimately considered for admission to the Academy.26 (PX33; PD3.)
2. Applying to the Naval Academy
From an applicant’s standpoint, the application process for the Naval Academy
functions as follows.
a. The Preliminary Application
All students27 applying to the Naval Academy must complete an initial application for
the admissions cycle in which they wish to be considered, referred to as the “preliminary
application.” (ECF No. 140 at 143:11–14, 170:11–15 (Latta).) Applicants may submit the
preliminary application as early as January of the year before matriculation (i.e., for high school
applicants, January of junior year), and must submit a completed preliminary application no
later than December 31 the year prior to matriculation (i.e., for high school applicants,
26 “In a typical year, approximately 5,000 candidates receive nominations.” (DX79.)

27 Students that applied to the Naval Academy Summer Seminar (“NASS”) are not required to complete a
preliminary application, as the Academy considers an application for NASS to be a preliminary application for
admission. (ECF No. 140 at 143:11–14, 170:11–15 (Latta).) As further detailed infra, NASS is a program
managed by the Strategic Outreach Department within the Office of Admissions that brings promising
prospective candidates to the Naval Academy the summer before their senior year of high school to expose
them to the Academy and provide them with valuable insight and experiences into life at the Academy. (PX21;
DX94); see also infra Section III.D.1.e.
36
December 31 of senior year). (PX21; DX94.)
This preliminary application is used as a screening tool to determine whether an
applicant meets the basic statutory eligibility requirements and to assess whether the applicant
is likely to meet minimum academic standards.28 (ECF No. 140 at 144:14–22 (Latta).) To be
eligible for admission to the Naval Academy, applicants must be a U.S. citizen (except for
limited quotas of international midshipmen specifically authorized by Congress) by July 1st of
the year of matriculation (i.e., Induction Day or I-Day); be at least 17 and not yet 23 years of
age by I-Day; be unmarried, not pregnant, and have no obligations of parenthood; and have a
valid Social Security number. 10 U.S.C. § 8458; DoDINST 1322.22; (ECF No. 140 at 144:14–
22 (Latta); PX21; PX813; DX94; DX79; DX159.) These eligibility requirements cannot be
waived. (ECF No. 140 at 166:2–3 (Latta).)
b. Candidate Information System
After completing the preliminary application, and assuming the basic eligibility
requirements are met, the applicant—thereon referred to as a candidate—receives an email
with a candidate number and instructions to log into the Candidate Information System. (ECF
No. 140 at 145:1–5 (Latta); PX21; DX94.) This system includes a number of forms and steps
required for review by the Academy’s Admissions Board and other information. (ECF No.
140 at 145:6–146:4, 156:10–13 (Latta).) For first-time applicants applying from high school, 29
28 It is worth noting that Office of Management and Budget (“OMB”) rules and DoD guidance require the
Naval Academy to ask applicants about their race and ethnicity in the preliminary application, though Dean
Latta testified that the Naval Academy does not use this information contained on the preliminary application
for any purpose. (ECF No. 140 at 144:5–14.)
29 The application process varies somewhat for non-high school applicants, such as candidates from the Naval
Academy Preparatory School, reapplicants (i.e., transfers), and enlisted servicemembers. (PX21; DX94.)
37
mandatory forms and steps are: (1) submission of SAT/ACT test results;30 (2) submission of
a high school transcript; (3) submission of high school Mathematics and English teachers’
recommendations; (4) submission of extracurricular activities; (5) submission of a Personal
Data Record, which requests personal information about the candidate and the candidate’s
family, including a personal statement, family background information, foreign language
enrollment history, and the disclosure of any citations, arrests, convictions, or fines; (6)
successful completion of the required Candidate Fitness Assessment; and (7) completion of a
Blue and Gold Officer31 interview. (PX21; DX 94; DX79; PX813.) In addition to the
foregoing, candidates must receive a nomination from a Member of Congress, the Vice
President, President, or Secretary of the Navy, and pass a physical examination and review
performed by the Department of Defense Medical Examination Review Board
(“DoDMERB”). These components are not required as part of a completed application. 10
U.S.C. § 8454; (PX21; DX 94; DX79; PX813.) That is, while the nomination and the
DoDMERB’s determination of medical qualification are required for consideration for an
offer of appointment, an application may be reviewed prior to these two components being
fulfilled. (PX21; DX 94; DX79; PX813.)
c. The Nomination Requirement
As noted supra, applicants to the Naval Academy are required by statute to secure a
30 During the COVID-19 pandemic, the Naval Academy implemented a test-flexible policy under which
standardized test scores were optional. (ECF No. 140 at 189:4–190:12 (Latta).) While this test-flexible policy
applied to the classes of 2025 through 2027, it no longer applies, pursuant to a change in the National Defense
Authorization Act for Fiscal Year 2024. (Id. at 189:4–190:12 (Latta).)
31 Blue and Gold Officers are volunteer “[f]ield representatives of the [Academy’s Admissions Office] who
cover[] a specific geographic area[.]” (PX21; DX94.)
38
nomination for the admissions cycle in which they wish to be considered.32 10 U.S.C. § 8454.
There are two types of nominations: (1) nominations from a “statutory nominating authority,”
commonly referred to as congressional nominations; and (2) “service-connected”
nominations. Id. Statutory nominating authorities include the Vice President, Members of
Congress, Delegates to Congress from U.S. territories and the District of Columbia, and the
Governor and the Resident Commissioner of Puerto Rico. Id.; (DX15; PX26; ECF No. 139
at 196:10–17 (Hwang).) Service-connected nominations are reserved for children of certain
servicemembers; candidates who are already members of the Navy or Marine Corps or
members of Reserve Officers’ Training Corps (“ROTC”) programs; and candidates selected
by the Academy’s Superintendent. 10 U.S.C. § 8454; (DX15; DX87.)
Given the influential role nominations play in the Academy’s admissions process, some
additional background on the requirement is crucial. Where a candidate is appointed to the
Naval Academy pursuant to a nomination by a Member of Congress, that candidate is
“charged” to that Member.33 (DX87.) Each Member may have five “charges” at the Naval
32 At trial, Hwang explained that, approximately 20 to 30 times a year, the Academy “help[s] a candidate acquire
a nomination.” (ECF No. 139 at 199:19–24, 200:5–7, 223:23–224:9.) These nomination assists, or nom assists,
are primarily used for recruited athletes, but are sometimes used for candidates coming from the Academy’s
preparatory programs who fail to obtain a nomination during their preparatory year and for candidates who
have already received a letter of assurance. (Id. at 199:19–24, 200:5–7, 223:23–224:9 (Hwang).) Nom assists
are never pursued because of a candidate’s race or ethnicity. (Id. at 224:10–12 (Hwang); ECF No. 140 at 6:11–
14 (Hwang).) The congressional office may still decline to provide a nomination. (ECF No. 139 at 200:15–24;
ECF No. 140 at 5:16–6:10 (Hwang).)
33 As discussed throughout the instant filing, appointees that received congressional nominations account for
more than 80% of the Brigade of Midshipmen. (DX23; ECF No. 139 at 217:7–9 (Hwang).) The Academy
prioritizes representation from as many congressional districts as possible, which is one of the reasons why
congressional nominations make up such a large percentage of every class. (ECF No. 139 at 217:10–19
(Hwang).) As further discussed infra, recognizing this outsized role that congressional nominations play in the
admissions process, the Naval Academy periodically provides training to congressional offices on admissions
and nominations, including two trainings a year at the Naval Academy for congressional staffers as well as
admissions forums. (Id. at 219:23–222:12 (Hwang).) During these trainings, the Academy emphasizes that
congressional offices should look beyond a candidate’s transcripts and test scores and consider other factors
39
Academy at one time. 10 U.S.C. § 8454(a); (DX23.) When a Member has fewer than five
charges at the end of the academic year, the Member has a “vacancy” for the following
admissions cycle. 10 U.S.C. § 8454(a); (DX23.) For each vacancy, Members can nominate up
to a specified number of candidates. While Members were previously limited to 10 candidates
per vacancy, Members can nominate up to 15 candidates per cycle beginning in the class of
2029. 10 U.S.C. § 8454(a); (DX93.)
Congressional nominating authorities may nominate their slate of candidates using one
of three methods: (1) “competitive”—where the Member submits nominees to the Academy
without any order of preference, allowing the Academy to select the best qualified candidate
within that slate; (2) “principal competitive alternate”—where the Member identifies a
principal nominee and a list of unranked alternates; and (3) “principal numbered alternate”—
where the Member identifies a principal nominee and a ranked list of alternates. 10 U.S.C.
§ 8454(a); (ECF No. 139 at 197:5–198:17, 223:6–8 (Hwang); PX259 ¶¶ 25, 34–36; DX91.)
Approximately 35% of Members of Congress use the principal nominating methods, with the
remaining 65% using the competitive method. (ECF No. 139 at 198:18–20, 223:9–11
(Hwang).) Ultimately, Members of Congress decide which students they will nominate, and
the Naval Academy has no authority or control over which nomination method the
nominating source uses. (Id. at 219:1–7 (Hwang).) As discussed infra, testimony at trial
documented the racial disparity in nominations, with white students receiving the majority of
such as “any leadership experience[s],” “unusual life experiences,” first-generation college student,
“first-generation American,” and “cultural or diverse background.” (Id. at 220:20–221:11 (Hwang).) The Naval
Academy also encourages nominating sources to use the competitive nominating method because it provides
the Naval Academy the most flexibility in choosing competitive candidates. (Id. at 223:12–20 (Hwang).)
40
congressional nominations and certain districts typically nominating fewer minorities because
their constituents tend to have smaller minority populations. (Id. at 219:8–22 (Hwang).) While
the Naval Academy strives to inform Members of Congress about this disparity, the
Academy’s efforts have been “minimally [successful], if at all” in increasing the diversity of
congressional nominations. (Id. at 221:20–222:12 (Hwang).)
3. The Application Review Process
The Naval Academy’s mission is “[t]o develop midshipmen morally, mentally, and
physically and to imbue them with the highest ideals of duty, honor and loyalty in order to
graduate leaders who are dedicated to a career of naval service and have potential for future
development in mind and character to assume the highest responsibilities of command,
citizenship, and government.” (DX79; PX813.) Pursuant to SECNAVINST 34 1531.2D, the
Naval Academy’s admissions procedures must support the primary objectives of selecting
candidates who “[a]re mentally and physically able to undertake rigorous academic,
professional education, as well as physical training programs,” “[s]how interest in serving their
country as professional officers in the Naval Services,” “[s]how capabilities and interests in
fields of study that reflect the needs of the Navy and Marine Corps,” “[s]how potential for
leadership in the Naval Services,” “[s]how the capacity and desire to complete the 4-year
course and remain in Service beyond the period of obligated service after commissioning,”
and exhibit “good moral character.” Accordingly, the Naval Academy’s review process
functions quite differently from the application review process of a civilian university. In brief,
to be eligible to compete for an appointment to the Academy, an applicant must (1) obtain a
34 SECNAVINST stands for Secretary of the Navy Instruction.
41
nomination; (2) be determined whole person qualified; (3) be determined medically qualified
by the DoDMERB or obtain a waiver; and (4) be determined physically qualified. The Court
begins with an overview of the Academy’s Admissions Office before turning to the criteria
considered and admissions review process.
a. The Naval Academy’s Admissions Office
The Naval Academy’s Office of Admissions has approximately 47 staff members
comprised of an assortment of military and civilian personnel, though the effort of recruiting
and selecting the Brigade of Midshipmen certainly involves many more. (ECF No. 140 at
134:9–11 (Latta).) At a high level, the Naval Academy’s Admissions Office consists of three
entities: the Candidate Guidance Office; the Strategic Outreach Department; and the
Nominations and Appointments Department. (Id. at 134:14–24 (Latta).) While members of
the Admissions Office are involved in selecting the Brigade of Midshipmen to varying degrees,
the task of reviewing applications and making recommendations on their qualifications falls
to the Admissions Board, with the ultimate task of offering appointment to the Naval
Academy falling to the Slate Review Committee.
With respect to the three entities composing the Admissions Office, the Candidate
Guidance office is the largest with approximately 20 staff members. (Id. at 134:15–18 (Latta);
PX21; DX94.) Candidate Guidance identifies and counsels candidates and is the department
that first processes candidate applications. (ECF No. 140 at 134:15–18 (Latta); PX21; DX94.)
The Director of Candidate Guidance leads a staff of active-duty officers, civilian
administrators, and all Blue and Gold Officers. (PX21; DX94.)
Strategic Outreach is the department responsible for leading efforts to market the
42
Naval Academy throughout the United States and its territories. (ECF No. 140 at 134:19–22
(Latta); PX21; DX94.) It leads efforts to develop strategies and plans to create awareness of
the Naval Academy among middle and high school students. (PX21; DX94.) It also plans
and executes Office of Admissions’ marketing programs, which, as detailed infra, are expansive
and target prospective candidates, community influencers, and Members of Congress alike.
(PX21; DX94.)
The Nominations and Appointments Department is responsible for the midshipmen
selection process and oversight of the medical clearance process as well as all
service-connected nominations. (ECF No. 140 at 134:23–24 (Latta); PX21; DX94.) The
department also plays an important role as the Academy’s liaison to congressional staffs.
(PX21; DX94.) Since 2018, Melody Hwang has served as the Director of Nominations and
Appointments. (ECF No. 139 at 214:20–22 (Hwang).) In this role, she works directly with
congressional offices, advising offices on vacancies, making sure all congressional nominations
are received, and communicating the Academy’s selections to the nominating source. (ECF
No. 140 at 140:3–18 (Latta).)
The Admissions Board (“AB”) is comprised of a cross section of approximately 21 to
23 faculty and staff members designated in writing by the Academy’s Superintendent each
admissions cycle with the goal of representing a cross section of “experiences” and
“expertise.” (ECF No. 140 at 135:3–12 (Latta); DX79; DX159; PX813.) The Admissions
Board reviews applications submitted by candidates and makes recommendations to the Dean
of Admissions on the qualifications of each candidate following a review of their file. (ECF
No. 140 at 135:3–12 (Latta); DX159.) The AB’s primary responsibility is to review completed
43
applications and provide recommendations on applicants’ qualifications for admission. (ECF
No. 140 at 135:22–136:14 (Latta); DX159.) While the AB assigns a score to each candidate
and makes recommendations as to whether the candidate is qualified, not qualified, or deferred
(i.e., the application is put on hold for further review or pending additional information), the
AB does not make admissions decisions; rather, that is the responsibility of the Slate Review
Committee and Dean of Admissions. (ECF No. 140 at 137:14–138:7, 185:6–22 (Latta).)
The Slate Review Committee (“SRC” or “Committee”) is a panel comprised of the
Dean of Admissions, the Director of Candidate Guidance, and the Director of Nominations
and Appointments that reviews nomination slates to determine slate winners and offers of
appointment to the Naval Academy, after the Director of Nominations and Appointments
puts together the congressional lists and nomination sources to present to the Committee. (Id.
at 137:21–139:3, 140:3–18 (Latta).) In addition to these “corporate members,” the SRC
includes an additional regional expert from the Candidate Guidance office which varies
according to the location of the slate being considered. (Id. at 137:21–139:3 (Latta).)
b. Criteria Considered for Admission
The criteria considered by the Admissions Board for whole person qualification
determinations are as follows.
i. The Whole Person Multiple
Once a candidate’s application to the Naval Academy is completed, a
computer-generated score known as the Whole Person Multiple—or WPM—is calculated by
an algorithm based on SAT/ACT scores, class rank, teacher recommendations, and
extracurricular activities. (DX12; DX72.) After the initial computer-generated WPM is
44
calculated, the Admissions Board reviews the candidate’s file and makes Recommendations of
the Admissions Board, known as RABs, which are adjustments to the WPM that may be both
positive and negative. (ECF No. 140 at 187:6–188:8, 191:2–6 (Latta); DX1; DX2.) The final
WPM score—including all RAB adjustments—includes both objective and subjective
components, but race, ethnicity, and gender are not accounted for in the WPM or RAB
adjustments. (ECF No. 140 at 187:6–189:3 (Latta); DX1; DX12; DX72; DX161.)
The WPM was “designed to reduce first-year attrition at the Naval Academy.” (ECF
No. 140 at 161:7–9 (Latta).) While Dean Latta described the WPM as an “excellent tool for
comparing candidates,” he also explained that there are “other things” in the application that
“actually help provide context.” (Id. at 155:20–156:9.) In other words, the WPM does not tell
the whole story. For example, a recruited student athlete may have a comparatively lower
WPM due to relatively weak academics, but because recruited athletes possess other valuable
qualities such as leadership, teamwork, and perseverance, the Academy is willing to accept
some academic risk. (Id. at 214:5–215:9 (Latta); DX122.) Moreover, the Naval Academy
Preparatory School, which offers a 10-month college preparatory program designed to
strengthen the academic foundation of incoming midshipmen candidates, mitigates this
academic risk, as many athletes matriculate to the Academy through NAPS. (ECF No. 140 at
214:5–215:9 (Latta).) The Naval Academy also considers character—both positive attributes
and negative issues—when making qualification recommendations, but character is “not
actually a component of the [WPM].” (Id. at 231:17–233:8 (Latta).)
ii. Personal Statement
Candidates are also required to submit a personal statement, though this aspect of a
45
candidate’s application is not included in the WPM. (ECF No. 140 at 146:5–150:17 (Latta).)
At trial, Dean Latta explained that the essay is an “extremely important” component of the
Academy’s holistic review of a candidate’s record, affording the Naval Academy an exceptional
opportunity to get insight into the candidate. (Id. at 146:5–150:17.) The essay allows the
Academy to learn what motivates the candidate to serve, what informs their interest in the
Academy, as well as any character forming experiences. (Id. at 146:7–23 (Latta).) The essays
commonly reveal instances of overcoming hardship and important socioeconomic
information. (Id. at 146:24–150:17 (Latta).) Powerful personal statements commonly inform
and influence admissions decisions. (Id. at 147:8–148:1, 148:5–24, 148:24–149:10 (Latta).)
iii. Personal History and Family Background Information
While not always captured in the Whole Person Multiple, the Naval Academy also
requests personal history and family background information from candidates, which helps
inform the Academy’s assessment of whether a student would be an effective leader in the
Navy and Marine Corps after graduation. (ECF No. 140 at 145:10–15, 150:18–156:9 (Latta).)
Important components of this record include unusual life experiences, overcoming hardship,
adversity, language fluency, cultural literacy, and socioeconomic status. (Id. at 145:10–15,
150:18–156:9 (Latta).)
iv. Candidate Academic Information Form
The Candidate Academic Information (“CAI”) form must be completed by a school
official. (ECF No. 140 at 156:22–162:5 (Latta).) The CAI includes information such as class
rank and GPA, indicating whether such information is weighted; the school’s curriculum,
including whether the school offers Advance Placement (“AP”), International Baccalaureate
46
(“IB”), or honors courses; the percentage of students matriculating to two- and four-year
colleges; and, in some instances, can offer insight into a candidate’s aptitude for leadership.
(Id. at 157:5–158:9 (Latta).) The CAI form also inquires as to whether the applicant is a
member of a minority group or a disadvantaged background, including whether the student is
on free or reduced lunch, a recipient of Special Supplemental Nutrition Program for Women,
Infants, and Children (“WIC”) funding, or other financial assistance program. (Id. at 158:10–
159:1 (Latta).) While some of this information—such as class rank or, where class rank is
unavailable, GPA—factors into the WPM, some of the information contained in the CAI
form that the Academy considers falls outside of the WPM. (Id. at 158:2–9 (Latta).)
v. Blue and Gold Officer Interviews
With the exception of varsity football and basketball players35 and members of the
Fleet,36 an interview with a Blue and Gold Officer (“BGO”) is a mandatory requirement in
the Naval Academy’s admissions process. (ECF No. 140 at 175:18–178:14 (Latta).) Blue and
Gold Officers are volunteer “[f]ield representative[s] of the Office of Admissions who cover[]
a specific geographic area, usually defined by assigned high schools,” who “market the
[Academy] and encourage exceptional individuals to seek a career in the naval service through
the Naval Academy and other officer accession programs.” (PX21; DX94.) In addition, the
BGOs “provide counseling and information to candidates and prospective candidates.”
(PX21; DX94.) While many BGOs have served as naval officers and graduated from the
35 At trial, Dean Latta explained that varsity football and basketball recruits are excepted from the BGO
interview requirement due to concerns with the National Collegiate Athletics Association’s rules regulating
booster activities. (ECF No. 140 at 176:10–18.)
36 At trial Dean Latta explained that Fleet applicants are not interviewed by a BGO because they are required
to get a recommendation from their commanding officer. (Id. at 176:10–18.)
47
Academy, prior service or graduation from the Academy are not prerequisites for assignment;
rather, any “mature adult who has a sincere interest in fulfilling the mission of the Naval
Academy and the needs of the naval service may be considered for assignment” as a BGO.
(PX21; DX94; ECF No. 140 at 177:8–24 (Latta).)
The BGO interviews are “comprehensive,” and BGOs, who the Naval Academy trains
on what the Academy is looking for in midshipmen, provide the Academy with “a breadth of
data based on [the BGO’s] observations of the candidate” as well as “an overall
recommendation” of the interviewed candidate. (ECF No. 140 at 176:23–177:24 (Latta).) In
addition to discussing academic interests and career options as well as whether the candidate
is interested in NAPS, the BGOs evaluate “leadership potential, . . . organizational skills, time
management, communication skills, and other background information.” (Id. at 177:1–7
(Latta).) Dean Latta explained that the BGO interviews often reveal information about
hardship, family background, language skills, and other personal information that might not
be revealed anywhere else in the file. (Id. at 177:8–24.) While the BGO interview may justify
a RAB adjustment, the Academy also considers information from the interviews outside of
RAB adjustments. (Id. at 177:25–178:14 (Latta).)
Occasionally, a BGO’s assessment of a candidate conflicts with other information in
an applicant’s file. (Id. at 234:12–235:20 (Latta).) For example, a candidate who attended a
Naval Academy summer program such as Naval Academy Summer Seminar (“NASS”) 37 or
37 NASS is an outreach program offered at the Naval Academy to rising high school seniors during one of
three one-week sessions in June. (PX21; DX94.) Students experience all aspects of a midshipman’s life,
including academics and athletics. (PX21; DX94.) As noted infra, an application for NASS is considered an
initial application for admission, and students who participate in the program are encouraged to continue their
application. (PX21; DX94.)
48
Summer STEM Camp38 may have received a very positive review, but a negative BGO
interview write-up. (Id. at 234:12–235:20 (Latta).) When such a conflict exists, the Admissions
Board may seek another BGO interview or other information from school officials to resolve
the conflict. (Id. at 234:12–235:20 (Latta).)
vi. Athletic Activities
The Academy also seeks information on participation in athletics because of the
“warrior ethos,” teamwork, communication and leadership skills, and time management that
athletes exhibit. (ECF No. 140 at 162:6–164:3 (Latta).) Indeed, more than 90 percent of
admitted candidates participated in athletic activities in high school. (Id. at 162:21–25 (Latta).)
Participation in athletics may justify a RAB adjustment, and the Naval Academy does not limit
the award of RAB points to certain sports. (Id. at 163:1–164:3 (Latta).)
vii. Socioeconomic Information
The Academy also seeks information on socioeconomic status, requesting—but not
requiring—self-reported family income information, though other application sections are
also illuminating on this topic. (ECF No. 140 at 219:3–224:25 (Latta).) At trial, Dean Latta
explained that the self-reported family income information was “not [an] entirely reliable
metric.” (Id. at 219:3–220:14.) To evaluate the accuracy of this self-reported information, the
Academy will review the entirety of an applicant’s file, including information from the
counselor, the BGO, or the personal statement, as these sources can reveal whether an
applicant receives some form of government assistance. (Id. at 219:10–220:14 (Latta).) Still,
38 The Summer STEM Camp offers several hundred rising ninth- to eleventh-grade students the opportunity
to participate in a six-day residential program focused on science, technology, engineering, and mathematics.
(PX21; DX94.)
49
the Academy considers all of the socioeconomic information provided in a candidate’s record
in making admissions decisions by reviewing the entirety of the application file. (Id. at 220:20–
25 (Latta).)
c. Admissions Review Process
i. Admissions Office Examiner and Admissions Office Counselor

Review
After an applicant has submitted the materials necessary to be considered by the
Academy, an Admissions Office examiner will conduct a review of the submitted materials to
confirm the candidate’s record contains the correct information and to determine if there are
any character issues requiring additional information. (ECF No. 140 at 180:6–24 (Latta);
DX79; PX813.) After that initial review concludes, the record goes to the Admissions Office
counselor randomly assigned to that candidate who conducts a preliminary review of the
record. (ECF No. 140 at 180:25–181:25 (Latta); DX79; PX813.) The counselor reviews the
candidate’s file for any “triggers”—meaning “anything that stands out,” such as good or bad
grades, honors and AP courses, unusual life experiences, or character issues. (ECF No. 140
at 180:25–181:25 (Latta).) The counselor fills out a form “with all the things they observe in
the record for the [AB] member to review,” typically including a recommendation to the
member of the AB. (Id. at 181:8–14 (Latta).)
ii. The Admissions Board’s Review
Assuming the Admissions Office counselor concludes the application is ready for
review by the Admissions Board, the record is sent to the Board member randomly assigned
to the candidate. (ECF No. 140 at 181:23–184:15 (Latta).) The Board member reviews the
file and analyzes the overall qualities in the record, including both objective and subjective
50
factors, and prepares the record to brief the other Board members, including written
comments and recommended RAB adjustments to the WPM as well as an overall summary.
(Id. at 181:23–184:15 (Latta).) The Admissions Board convenes weekly during the admissions
cycle,39 and following the briefing on a candidate to the full Board, the full Board votes on any
RAB adjustments to the WPM, which require majority vote; and subsequently, the full Board
votes on whether to recommend the candidate as qualified to the Slate Review Committee.
(DX1; DX2; DX3; DX79; PX813.)
With respect to this first task, the Academy provides AB members guidance on how
to make RAB adjustments, which must be approved by a majority vote following a briefing to
the entire Admissions Board. (DX1; DX2; DX79; PX813; ECF No. 140 at 191:7–192:1
(Latta).) The Guidance for Recommendations of the Admissions Board (RABs) notes: “The
Admissions Board is authorized to adjust a candidate’s Whole Person Multiple (WPM) over a
range of up to +9000 points, generally in increments of 500 points (one RAB equals 500
points).” (DX1.)
Bases for RABs include high school quality, high school courses, interest in STEM,
teacher recommendations, life experience/hardship, military family, performance on the
Candidate Fitness Assessment, extracurricular activities, evaluation following candidate’s
attendance of NASS, BGO interview, adverse character issues, and personal statement. (Id.)
Importantly, race and ethnicity cannot justify a RAB adjustment. (Id.) While some RAB adjustments
reflect objective factors, such as the number of AP courses, IB program enrollment, or
39 While the Academy begins receiving congressional nominations as early as October and nominations must
be submitted no later than January 31, the Admissions Board begins meeting on a weekly basis in late August.
(ECF No. 140 at 9:16–10:7 (Hwang).)
51
attendance to a competitive entry school, the RAB adjustments also reflect more subjective
factors, such as hardship, unusual life experiences, teacher recommendations, and
socioeconomic information. (ECF No. 140 at 191:7–192:13 (Latta).) Still, the Academy aims
to apply RABs consistently: “Although each [AB] member must use their good judgment when
evaluating candidate records, the [B]oard must strive for consistent application of RABs
throughout the entire class.” (Id. at 202:12–16 (Latta); DX1.)
When the Admissions Board meets, each member briefs the other members on the
candidates assigned to them. (ECF No. 140 at 179:24–184:15 (Latta).) Each member will
review the entire record of the candidates presented and then discuss each candidate to make
a recommendation on the candidate’s qualifications. (Id. at 179:24–184:15 (Latta); DX123.)
Following a briefing to and majority vote by the full Board, the AB may recommend
that: (1) a candidate is qualified or not qualified; (2) if qualified, that the candidate be
considered for a Letter of Assurance (by designating the candidate “early notify”); or (3) a
candidate be considered for a preparatory program, such as NAPS; or (4) alternatively, the
Board may defer a recommendation because more information is needed. (ECF No. 140 at
235:21–236:24 (Latta); DX79; PX491; DX159; PX813.) To be admitted to the Naval
Academy, a candidate must be qualified. (ECF No. 140 at 16:18–20 (Hwang).) WPMs
generally range from 40,000 to 80,000. (PX259 ¶ 50.) Candidates normally need a WPM of
58,000 to be considered “qualified” for admission to the Naval Academy, with WPM scores
of 70,000 or above considered highly qualified and appropriate for early notify. (Id. ¶¶ 51–53;
DX3.)
There is no minimum test score or GPA required for qualification determinations, as
52
the Naval Academy considers every candidate’s whole record in assessing their candidacy for
an offer of appointment. (ECF No. 139 at 227:6–24 (Hwang).) As several witnesses testified
at trial, race and ethnicity are not considered in determining whether a candidate is qualified
or not qualified. (Id. at 224:13–15, 225:21–24 (Hwang); ECF No. 140 at 31:3–7 (Hwang),
50:4–5, 186:17–19 (Latta); ECF No. 143 at 44:14–45:4, 56:7–11, 58:21–59:4 (Birch).)
Once the AB reaches majority consensus on a candidate, the AB will annotate its
recommendation in the candidate’s record. (ECF No. 140 at 179:24–184:15 (Latta); DX79;
PX813.) Pursuant to authority delegated from the Superintendent, the Dean of Admissions
has “final approval” for determining whether an applicant is qualified or not qualified, though
he does not typically “override” the AB’s determination. (ECF No. 140 at 66:22–67:6, 216:16–
18 (Latta).) At trial, Dean Latta explained that, on the rare occasion that he does override the
AB’s determination and change a candidate from unqualified to qualified, it is “done for
efficiency in the admission process and usually when the [AB] is not in session” but new
information is received from the candidate. (Id. at 68:14–69:6, 216:19–217:4.) Dean Latta
emphasized that he has never overridden the Board’s determination where he had concerns
about the candidate’s academic potential and that race is not considered when making such a
change. (Id. at 218:19–25.) Dean Latta also testified that he has occasionally changed a
candidate from qualified to unqualified, noting this change typically only happens when
character issues arise when the AB is not in session or when new information is received
reflecting a decline in grades. (Id. at 217:21–218:18.)
After the AB makes a recommendation, the records are matched with each nominating
list to which the applicant has been nominated. (Id. at 179:24–184:24 (Latta).) If the AB
53
determines a candidate is qualified for admission, the candidate’s record will be reviewed by
the Slate Review Committee. (Id. at 186:3–11 (Latta).)
iii. The SRC’s Review of a Candidate
If the AB determines a candidate is qualified, the candidate’s record is passed along to
the Slate Review Committee, which reviews the nomination lists and makes final admission
decisions. (ECF No. 140 at 242:16–23 (Latta).) The Naval Academy aims to notify students
of their admission status (i.e., offered appointment, denied appointment, accepted to prep
pool, or placed on waitlist) no later than April 15—though admissions decisions are made and
communicated on a rolling basis, and admitted students have until May 1 to notify the
Academy of their decision. (Id. at 172:23–173:9 (Latta).)
As noted, the SRC’s review and ultimate selections are largely driven by Title 10’s
congressional nomination requirement. (DX127.) The SRC reviews congressional slates as
they are submitted with the goal of designating a slate winner who will then become the charge
to that congressional office. (ECF No. 139 at 201:9–14, 228:2–8 (Hwang).) The slate winner
is extended an offer to the Naval Academy. (Id. at 201:9–14 (Hwang).)
The slate winner depends in large part on the nomination method utilized by the
nomination source. (ECF No. 141 at 2:22–3:22 (Latta); ECF No. 139 at 229:3–24 (Hwang).)
For example, if the nominating source utilized either principal nominating method and the
principal nominee is fully qualified, the SRC must admit that candidate an offer of
appointment regardless of how the principal candidate compares to other candidates on the
congressional slate. (ECF No. 141 at 2:22–3:22 (Latta); ECF No. 139 at 229:3–24 (Hwang).)
Where a nominating source utilized either the competitive method or the principal competitive
54
alternate method and the principal either declines an offer or is not qualified, the SRC will
review the candidates in WPM order. (ECF No. 141 at 2:22–3:22, 4:10–23 (Latta).)
The SRC may also consider whether a candidate is from an “unrepresented district,”
meaning a congressional district that does not commonly provide nominees to the Academy.
(ECF No. 139 at 232:3–233:22 (Hwang); PX27.) Where a Member of Congress from an
underrepresented district submits nominees for multiple vacancies, the SRC will make an
effort to fill the vacancies. (ECF No. 139 at 232:23–233:10 (Hwang).) Because the Academy
wants the Brigade of Midshipmen to represent as many districts as possible, the Naval
Academy prioritizes underrepresented districts in the admissions process. (Id. at 233:11–19
(Hwang).)
Dean Latta described the SRC’s process as “iterative,” explaining that in addition to
comparing candidates on a single slate, the SRC often looks across multiple slates of
nominations, comparing candidates on multiple slates. (ECF No. 141 at 13:19–19:25.) Where
a candidate has multiple congressional nominations (e.g., a nomination from a Member of
Congress and a Member of the Senate), the SRC prioritizes the congressional slate, as the
Academy aims for every congressional district to be represented in the Brigade of
Midshipmen. (Id. at 13:19–19:25 (Latta); ECF No. 140 at 7:12–8:18 (Latta).) When the SRC
selects a slate winner who is on multiple slates, this selection permits the SRC to choose
another slate winner for the other slate. (ECF No. 140 at 7:12–8:18 (Latta).)
Occasionally, rather than selecting the candidate with the highest WPM, the SRC
selects a candidate with a relatively lower WPM. (ECF No. 141 at 6:19–7:24 (Latta).) If a
qualified candidate is not appointed to the vacancy for which they were nominated, the
55
candidate may be offered an appointment under two other statutory provisions. (Id. 141 at
7:12–24 (Latta).)
First, the Naval Academy may appoint up to 20040 “qualified alternates”—qualified
candidates who receive a statutory nomination but did not win the vacancy. 10 U.S.C.
§ 8454(b)(5). The Naval Academy appoints qualified alternates solely based on WPM, which
does not consider race or ethnicity. (PX26; ECF No. 140 at 237:18–20 (Latta); ECF No. 141 at 7:9–
8:6 (Latta).) Then, if the Naval Academy has filled each nomination vacancy, admitted 200
qualified alternates, and still has not filled its class, the Academy may offer appointment to
other remaining qualified nominees, known as “additional appointees,” so long as
three-fourths are selected from qualified alternates nominated under 10 U.S.C. § 8454(a)(2)–
(8). 10 U.S.C. § 8456(b); (ECF No. 141 at 9:7–13 (Latta); PX26; PX259 ¶ 62.)
The AB may recommend, and the SRC may choose to offer, some candidates
admission into one of the Naval Academy’s preparatory schools—NAPs, Foundation,41 or
Civilian Prep42—rather than direct admission to the Naval Academy. (ECF No. 140 at 186:20–
187:1 (Latta); PX21; DX94.) The Naval Academy typically extends a prep school offer to
candidates who would benefit from additional academic or physical preparation before
attending the Naval Academy. (PX26; DX79; PX813; ECF No. 141 at 22:16–23:24 (Latta).)
NAPS is limited to approximately 310 students, with the Naval Academy typically
accounting for between 235 to 245 students and other institutions such as NROTC and the
40 Until the current admissions cycle, 10 U.S.C. § 8454(b)(5) limited the number of qualified alternates to 150.
41 Foundation is a civilian program run through the Naval Academy Alumni Association and affiliated with
several civilian schools across the country to provide a similar opportunity to NAPS. (ECF No. 141 at 20:1–
21:07 (Latta).)
42 Civilian Prep (“CivPrep”) is the smallest of the three programs, where students attend a school of their
choice and pay on their own. (ECF No. 141 at 20:1–21:07 (Latta).)
56
Coast Guard Academy accounting for the remaining spots. (ECF No. 141 at 24:22–26:4
(Latta).) The majority of Academy candidates recommended for NAPS are members of the
Fleet, recruited athletes, and those from underrepresented congressional districts. (PX64;
DX146; ECF No. 141 at 22:16–23:24 (Latta).) Fleet Sailors and Marines who apply to the
Naval Academy but are not appointed are considered for, but not guaranteed, admission to
NAPS. (PX21; DX94; PX64.) Dean Latta explained that many such applicants are
recommended because they have been out of school for at least a year and tend to have lower
high school grades. (ECF No. 141 at 22:16–23:24.) Dean Latta testified that many of the
recruited athletes recommended for NAPS are minorities. (Id. at 30:3–31:3.) He further
testified that while recruited athletes tend to have weaker grades, athletes tend to have “unusual
athletic prowess” and “great leadership experience[.]” (Id. at 30:3–31:3.) Lastly, Dean Latta
testified that candidates from underrepresented districts tend to come from weaker school
systems, making an extra year of academic preparation appropriate. (Id. at 22:16–23:24.)
In admitting students to the Naval Academy from any of the prep programs, the Naval
Academy does not consider WPM. (ECF No. 140 at 215:10–15 (Latta).) Rather, the
Academy’s senior leaders review the candidate’s performance at the prep program. (PX62;
ECF No. 140 at 215:10–15 (Latta).) Dean Latta testified that race and ethnicity are not
considered when determining whether to admit a candidate from a prep program to the
Academy. (ECF No. 141 at 33:1–6.)
d. The Manner in Which the Academy Considers Race
At trial, the Court heard testimony that no candidate is admitted based solely on his or
her race or ethnicity. (ECF No. 140 at 16:2–4 (Hwang), 51:10–14 (Latta).) The Court further
57
heard testimony that no candidate is deemed qualified or not qualified based solely on his or
her race or ethnicity. (ECF No. 139 at 224:13–15, 225:21–24 (Hwang); ECF No. 140 at 31:3–
7 (Hwang), 46:9–15, 50:4–5, 52:12–53:1, 186:17–19 (Latta); ECF No. 141 at 10:4–8 (Latta);
ECF No. 142 at 44:14–45:4, 56:7–11, 58:21–59:4 (Arcidiacono).) Nevertheless, the Naval
Academy admits that there are certain points in the admissions process where the Naval
Academy may consider race or ethnicity as one of many nondeterminative factors, explaining
the Academy is trying to create a Brigade with a wide range of life experiences and
backgrounds that will ultimately lead a diverse enlisted force. (ECF No. 139 at 235:22–237:3
(Hwang); ECF No. 140 at 15:13–16:1 (Hwang), 45:11–21, 51:10–14, 52:12–53:8, 64:22–65:1,
152:5–20, 155:20–156:9 (Latta); ECF No. 141 at 9:19–10:3, 32:7–21, 33:5–34:18, 35:1–4
(Latta); PX28; PX29; PX389; PX491.)
There are four instances where the Naval Academy considers race: (1) when offering
letters of assurance; (2) when deciding between two candidates with very close WPMs for
nominations using the “competitive” method, service-connected nominations, and in some
circumstances the “principal competitive alternate” method; (3) when extending
Superintendent nominations; and (4) when extending offers to additional appointees.
First, letters of assurance (“LOAs”) refer to conditional offers made by the Dean of
Admissions, selected from the pool of candidates recommended by the Admissions Board for
early notify. (ECF No, 139 at 225:12–20 (Hwang); ECF No. 140 at 30:17–22 (Hwang),
173:18–174:23, 240:15–241:8 (Latta); DX127; PX259 ¶¶ 63–64, 66–68.) “A candidate’s race
or ethnicity can be considered as part of a holistic assessment in the letter of assurance
process[.]” (ECF No. 139 at 78:24–25 (Hwang).) LOAs are conditional offers of admission,
58
used to compete with other schools and service academies—the candidate must still pass
physical fitness standards, become medically qualified, receive a nomination, and complete any
remaining requirements for admission. (ECF No. 139 at 209:10–18, 225:12–20, 230:14–
234:10 (Hwang); ECF No. 140 at 30:17–22 (Hwang), 173:18–174:23, 240:15–241:8 (Latta);
DX127; PX259 ¶¶ 63–64, 66–68; PX497.)
Second, when selecting slate winners for congressional slates that used the
“competitive” method or the “principal competitive alternate” method when the principal
candidate is deemed unqualified or declines an offer of appointment, the Academy may
consider race or ethnicity as one of the many nondeterminative factors that inform the
decision. (ECF No. 139 at 210:20–211:8 (Hwang); ECF No. 140 at 49:24–51:4, 62:15–23,
63:11–19, 64:22–65:1, 238:8–22 (Latta); PX259 ¶ 77.) While the Academy typically selects the
candidate with the highest WPM score as the slate winner, in limited circumstances—where
the highest WPM scores are very close—the qualified candidate with a slightly lower WPM
may be selected over the qualified candidate with the slightly higher WPM after an in-depth
review of their entire records. (ECF No. 140 at 49:24–51:4 (Latta); PX259 ¶ 77.) The key
considerations in making this decision include class rank, grades, academic progression,
leadership, life experiences, and teachers’ recommendations. (PX259 ¶ 58.) Though race or
ethnicity may also be one of many nondeterminative factors that inform this decision, the
Naval Academy uses race and ethnicity “in the context of other factors that [the Slate Review
Committee] would see in the records [it] is comparing.” (ECF No. 140 at 51:5–14 (Latta);
PX259 ¶¶ 58, 77.)
Third, race or ethnicity could be one of many nondeterminative factors considered in
59
extending Superintendent nominations. (ECF No. 140 at 51:18–21 (Latta); ECF No. 141 at
11:16–25 (Latta); PX259 ¶ 76.) The Academy insists that race and ethnicity have not played a
factor in a Superintendent nomination since at least 2009. (ECF No. 141 at 10:12–11:25
(Latta); PX259 ¶ 76.) On the rare occasions in which Superintendent nominations are used,
they are typically used for sought-after athletes, for candidates that are highly qualified and
motivated to attend the Academy, and for candidates applying to other service academies.
(ECF No. 141 at 10:12–11:25 (Latta); PX259 ¶ 76.)
Fourth, at the end of the admissions cycle, if the Naval Academy has not reached its
class size, the Academy may consider race and ethnicity as one of many nondeterminative
factors in its holistic assessment of candidates to identify those who are expected to make
valuable contributions in extending offers to additional appointees. (ECF No. 140 at 49:18–
23 (Latta); ECF No. 141 at 9:19–10:3 (Latta); PX26; PX259 ¶ 75.)
Lastly, the Court notes that Dean Latta testified that race or ethnicity may be a
nondeterminative consideration in deciding whether to extend an offer of appointment to a
candidate off the waitlist, though he noted that this was “pretty rare.” (ECF No. 140 at 62:15–
63:21, 238:11–17.) In any event, the Court, weighing all evidence before it, finds that such
consideration of race is limited to the above-noted circumstances. In other words, where a
candidate is offered appointment following placement on the waitlist, race and ethnicity are
only considered to the extent that the decision to offer the candidate an appointment overlaps
with the SRC’s decision between candidates with very close WPMs for nominations using the
competitive method, service-connected nominations, and in some circumstances the principal
competitive alternate, and where a waitlist candidate is appointed as an additional appointee.
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C. Findings of Fact: Statistical Analysis Does Not Demonstrate

Discrimination.
To support its claim that the Naval Academy’s race-conscious admissions process
results in large disparities between minority and nonminority applicants, Plaintiff presented
statistical evidence through economic expert Professor Peter Arcidiacono. (ECF No. ECF
No. 141 at 108:4–228:11; ECF No. 142 at 3:2–63:11; PX218; PX222; PX518; PD3.) To rebut
Professor Arcidiacono’s testimony and analysis, Defendants presented testimony and analysis
from economic expert Dr. Stuart Gurrea. (ECF No. 145 at 133:6–228:10; DX200; DD5.)
While Professor Arcidiacono constructed a logit model of the Naval Academy’s
admissions process purporting to demonstrate the role that race plays in the Academy’s
admissions decisions, Dr. Gurrea took the position that unique features of the Academy’s
admissions process make the process unconducive to modeling. In sum, as discussed more
fully below, the Court finds that Professor Arcidiacono’s estimates on the size of impact of
the Academy’s consideration of race are overstated. There are non-racial observable and
unobservable factors considered in the Academy’s admissions process that are not included in
Professor Arcidiacono’s modeling, some of which are correlated with race and ethnicity. The
Court further finds that Professor Arcidiacono’s assumption that the Academy’s admissions
decisions are independent undermines his methodology.
1. Background on the Parties’ Economic Experts
Both of the parties’ experts are highly respected economists. Beginning with Plaintiff’s,
Professor Arcidiacono received his B.S. degree in 1993 from Willamette University, and a
Ph.D. in Economics in 1999 from the University of Wisconsin. (PX218.) He is the William
Henry Glasson Distinguished Professor of Economics—that is, the chair of the Economics
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Department—at Duke University, where he teaches undergraduate- and graduate-level
economic courses and has published numerous peer-reviewed articles. (ECF No. 141 at
109:24–119:2.) His research is focused on labor economics, and more narrowly, higher
education. (Id. at 110:25–111:8.)
Notably, Professor Arcidiacono testified in SFFA’s cases challenging Harvard and
UNC’s consideration of race in the admissions process and has written two papers on
affirmative action funded by the Searle Freedom Trust, which is also a funder of Plaintiff
Students for Fair Admissions. (ECF No. 141 at 112:25–113:25, 210:3–14, 212:25–214:10.)
Prior to this lawsuit, Professor Arcidiacono had never studied the admissions practices of a
service academy, nor did he speak with anyone from the Naval Academy’s admissions office,
any former or current applicants to the Naval Academy, or any current or former members of
SFFA in reaching his opinions in this case. (Id. at 214:11–215:12.)
Dr. Gurrea is an experienced economist who currently works as a Managing Director
for Secretariat, an economics consultancy, where he specializes in industrial organization,
financial economics, and econometrics. (ECF No. 145 at 133:24–135:22.) He received his
B.A. degree from the University of Seville, and his M.A. and Ph.D. in Economics from
Northwestern University. (DX200.) During his more than twenty-year tenure with
Secretariat, Dr. Gurrea has worked as an expert in the field of economics and economic
modeling on approximately 100 cases across a wide range of industries. (ECF No. 145 at
140:18–141:9, 142:9–11.) To prepare his testimony and opinion in this case, Dr. Gurrea visited
the Naval Academy, spoke with Dean Latta, Hwang, and others knowledgeable about the
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admissions process, reviewed documents produced in this case, reviewed public documents,
and consulted economic textbooks and journals. (Id. at 141:1–142:8.)
Both parties challenge the credibility of the other party’s economic expert—with
Plaintiff noting Dr. Gurrea’s compensation43 and his qualifications more generally,44 and
Defendants noting Professor Arcidiacono’s prior history as an expert for Students for Fair
Admissions and stated skepticism of holistic admissions practices. Nevertheless, the Court is
satisfied that both experts exercised independent judgment and are entirely qualified to offer
the testimony and opinions proffered in this case.
2. Overview of Research Questions and Process
The Court begins with a brief description of the questions that each expert testified
that they sought to answer and an overview of how each conducted their work.
43 To be clear, Professor Arcidiacono was handsomely compensated for his expert testimony, receiving $900
an hour for his testimony, though Defendants did not address this point during cross-examination. (PX218.)
Moreover, the Court finds it prudent to note that Secretariat—Dr. Gurrea’s employer, not Dr. Gurrea—
received $750 an hour for Dr. Gurrea’s work in this matter, with Dr. Gurrea receiving a share of revenue from
work performed by himself and others at Secretariat on the matter. (DX200; ECF No. 145 at 190:11–204:11.)
Nevertheless, Plaintiff’s counsel moved to strike Dr. Gurrea’s report pursuant to Fed. R. Civ. P. 26, suggesting
Secretariat’s revenue share compensation was improperly excluded from his report. (ECF No. 145 at 190:11–
204:11.) As counsel for Defendants noted, however, the reason Dr. Gurrea did not disclose this revenue share
compensation structure was due to a misunderstanding on behalf of the Government with respect to an
agreement between counsel regarding expert disclosures. (Id.) The Court finds that the misunderstanding—
which was between counsel—does not reflect the credibility of Dr. Gurrea or his opinions. Moreover, like
Professor Arcidiacono who noted his compensation was “not dependent on reaching any particular result or
conclusion,” Dr. Gurrea noted Secretariat’s “compensation is independent of all opinions [he] render[ed] in
this case and of the outcome of this matter.” (PX218; DX200.)
44 Plaintiff makes much of the fact that Dr. Gurrea has “never before testified about logit models with binary
outcomes” and “never published in the academic peer-reviewed literature about binary outcome logit models”
or published any peer-reviewed literature more generally, arguing that this means Dr. Gurrea is not qualified to
testify about Professor Arcidiacono’s model. (ECF No. 145 at 206:24–207:4, 225:16–21.) In brief, the Court
finds that Dr. Gurrea is undoubtedly qualified to offer such testimony. (Id. at 136:6–145:24.)
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a. Professor Arcidiacono
Professor Arcidiacono testified that he sought to understand the role that race and
ethnicity play in admissions decisions to the Academy and NAPS. (ECF No. 141 at 122:13–
16.) To answer these questions, he completed what he described as a multi-part “academic”
approach to data analysis. (Id. at 122:20–124:3.)
“[S]tep zero” involved “familiariz[ing]” himself with the literature, broadly and in the
“particular institutional setting” at issue. (Id. at 122:23–25.) The first step was to create a data
set. (Id. at 123:4–8.) The Naval Academy provided application data to Plaintiff for the
admissions cycles covering the classes of 2023 to 2027, meaning the 2018–2019, 2019–2020,
2020–2021, 2021–2022, and 2022–2023 admissions cycles. (Id. at 124:4–12.) This included
over 70,000 applications. (Id. at 124:13–14.) For each application, the Academy provided the
following data: (1) WPM components, which include, among other things, test scores (where
applicable), class rank, teacher recommendations, and extracurricular activities; (2) CFA,
medical exam, BGO Interviews; (3) demographics45 and socioeconomic status; (4) whether an
applicant was a blue chip athlete, meaning an athlete designated as highly desired by one of
the Academy’s sports teams; (5) whether the applicant is applying from one of Navy’s
preparatory programs (NAPS, CivPrep, or Foundation); and (6) where an applicant is
admitted, and if the candidate accepts the offer of appointment, how the candidate was
admitted (i.e., assigned as slate winner, qualified alternate, additional appointee, or
service-connected). (PX218; ECF No. 141 at 124:15–125:10.)
45 With respect to race, Professor Arcidiacono explained that he categorized race and ethnic identifications in
“the same way [he] did in Harvard and UNC,” meaning he allocates multiracial students to various racial groups.
(ECF No. 141 at 131:2–17.)
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Professor Arcidiacono “supplement[ed] the data files . . . with those from several
different public sources.” (PX218; ECF No. 141 at 125:14–126:1.) Of relevance to the Court’s
discussion, in order to “get more measures of socioeconomic status,” Professor Arcidiacono
supplemented the data with demographic information on ZIP codes from the U.S. Census
Bureau’s American Community Survey and income information on ZIP codes from the
Internal Revenue Service Statistics of Income. (PX218; ECF No. 141 at 125:14–126:1.) In
order to “merge in characteristics of [the applicant’s] school,” Professor Arcidiacono
supplemented the data with public and private secondary school characteristics from the
National Center for Education Statistics’ Common Core of Data and Private School Universe
Survey. (PX218; ECF No. 141 at 125:14–126:1.)
To prepare the dataset for examining admissions to the Academy, Professor
Arcidiacono took the beginning sample of 70,508 applicants and 7,009 admits, and removed:
non-US citizens; those who receive nominations from foreign delegates; those who withdraw
or have incomplete applications; those without a nomination; those who did not qualify
medically or physically; those with missing WPM components; those designated as blue chip
athletes; and those admitted from NAPS, Foundation, and Civilian Prep. (PX218; ECF No.
141 at 126:14–128:1.) After removing the aforementioned from the sample, the dataset
included 12,304 applicants and 4,728 admits. (PX218; ECF No. 141 at 128:2–13.)
The second step in Professor Arcidiacono’s analysis was to complete a descriptive
analysis of the remaining applications. (ECF No. 141 at 130:22–131:1.) In this step, Professor
Arcidiacono “analyz[ed] the patterns in the data, and in particular, patterns with regard to
race.” (Id. at 130:22–131:1.)
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To “reveal the effect that race has on admission to the Naval Academy,” Arcidiacono
“model[ed] the [Academy’s] admissions decisions,” creating a logit model 46 in which the
dependent variable is the decision to admit (e.g., admission to the Academy or rejection). (Id.
at 156:12–161:5.) The logit model produces two relevant metrics. First, it assigns a
“coefficient” to each variable, meaning a number that represents how much weight that factor
receives in the model compared to the baseline. (Id. at 159:1–161:5.) A “positive” coefficient
means an applicant with that trait is more likely to be admitted; a “negative” coefficient means
an applicant with that trait is less likely to be admitted. (Id.) The magnitude of a coefficient
“matters,” especially “when the scale of the things are the same,” as it relates to how strongly
a predictor variable influences the outcome. (Id.) Second, a logit model produces a predicted
probability of admission. (Id.)
Then, based on those metrics, Professor Arcidiacono attempted to quantify the effect
of race in his model by modifying the race of individual applicants to see how such a change
would alter the model’s projection for a student’s probability of admission. (Id. at 170:22–
182:1.) In other words, Professor Arcidiacono attempted to “turn off” “racial preferences”
within the model itself. (Id.)
b. Dr. Gurrea
Dr. Gurrea testified that he sought to “assess the analysis presented by Professor
Arcidiacono.” (ECF No. 145 at 145:2–6.) To conduct his analysis, Dr. Gurrea “scrutinized
46 A “logit model is a way of getting predicted probabilities of admission that depends on the characteristics of
the applicants.” (ECF No. 141 at 156:25–157:2.)
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Dr. Arcidiacono’s model results, implementation of his estimation methods, and presentation
of results . . . following the generally accepted principles in economics. (Id. at 145:7–12.)
His expert report provides additional detail on his process. (DX200.) In addition to
reviewing Professor Arcidiacono’s workpapers, Dr. Gurrea “constructed a database
containing a subset of the fields available for completed applications reviewed by USNA’s
Admissions Board from domestic civilians not already in a Naval preparatory program” using
the raw data provided by the Academy. (Id.) His database differs in a few ways from Professor
Arcidiacono’s. Most importantly, Dr. Gurrea chose different conditions for identifying
whether an application was sufficiently complete for the Academy’s consideration. (Id.) While
Dr. Gurrea opted to use the Board’s review of an application as a sign the application is
complete “[b]ased on [his] understanding that the Board reviews applications as they become
complete,” Professor Arcidiacono “relied on the Academy’s record of its final decision on the
application.” (Id.) Dr. Gurrea also opted to exclude applicants from the Navy itself. (Id.)
Like Arcidiacono, Dr. Gurrea applied several filters to his dataset. Specifically, Dr.
Gurrea took his beginning sample of 70,449 applicants and first removed applications missing
Board results, and then removed from the pool of applicants with a Board decision those
applications that are from foreign countries, from within the fleet, and from NAPS,
Foundation and CivPrep schools. (Id.) Thereafter, the dataset included 22,400 individual
applications reviewed by the Board. (Id.)
As further explained below, Dr. Gurrea took the position that Professor Arcidiacono’s
reliance on erroneous assumptions about the Academy’s admissions undermine his
methodology. Specifically, Dr. Gurrea contends that Professor Arcidiacono erroneously
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assumes that the Academy’s admissions decisions are independent. According to Dr. Gurrea,
unique features of the Academy’s admissions process make the process unconducive to
modeling. Accordingly, Dr. Gurrea did not offer an alternative estimation strategy. As such,
the Court looks to the results of Professor Arcidiacono’s analysis before turning to Dr.
Gurrea’s critiques.
3. Descriptive Analysis
The first part of Professor Arcidiacono’s analysis produced a set of descriptive
statistics, focused on domestic non-blue chip athlete, non-prep applicants who qualified
medically and physically and had completed applications and nominations. (ECF No. 141 at
170:8–13.) Sorting applicants by race and/or ethnicity—namely white, Black, Hispanic, or
Asian, with any multiracial students being allocated to various racial groups—Professor
Arcidiacono’s summary statistics show comparable admission rates for white, Black, and
Hispanic applicants, with the admission rates for Asian applicants being an outlier. (PD3;
PX218.) More specifically, this included 8,022 white applicants, who were admitted 36.11%
of the time; 778 Black applicants, who were admitted 37.28% of the time; 1,551 Hispanic
applicants, who were admitted 35.91% of the time; and 1,444 Asian applicants, who were
admitted 54.78% of the time. (PD3; PX218.)
Professor Arcidiacono contends that “despite the similar admit rates for white, Black,
and Hispanic applicants, there are large differences in qualifications.” (PX218.) He contends
that: “[w]ith the exception of RABs where Hispanics score slightly better than whites, white
applicants score better . . . than Black and Hispanic applicants on all components.” (Id.) He
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emphasizes white applicants’ higher SAT math and verbal scores, CFA scores, and BGO
interview scores. (ECF No. 141 at 144:20–145:5, 146:13–20.)
To further attempt to illustrate this alleged disparity, Professor Arcidiacono sorted
applicants into deciles by raw WPM, with the tenth decile consisting of the top 10% of WPMs
in the applicant pool and the first decile being the worst 10% of WPMs, and within those
deciles by race. (Id. at 148:8–9.) Predictably, admission rates increase according to higher
deciles. (Id. at 149:15–24.) While admission rates to the Academy 47 are not different across
races in the top and bottom deciles, Professor Arcidiacono contends there are stark differences
across racial groups in the middle of the distribution. (Id. at 154:8–20.) For example, the
eighth decile—the third highest decile—consists of 1,359 total applicants, consisting of 942
white applicants, who were admitted 46.6% of the time; 28 Black applicants, who were
admitted 92.86% of the time; 132 Hispanic applicants, who were admitted 68.94% of the time;
and 193 Asian applicants, who were admitted 78.24% of the time, for an average admissions
rate of 55.04%. (PD3; ECF No. 141 at 154:19–23.)
The Court finds it prudent to briefly note that the Academy has steep admissions
standards and does not make offers to students who are not qualified. (ECF No. 140 at 16:18–
20.) Indeed, Professor Arcidiacono confirmed on cross-examination he was “not
second-guessing the Naval Academy’s judgment that it’s admitting qualified students.” (ECF
No. 141 at 216:15–17.) More importantly, while Professor Arcidiacono testified that his
descriptive analysis “provides a hint that there might be racial preferences operating here,” he
47Professor Arcidiacono separately conducted a descriptive analysis regarding admissions to NAPS, which he
contended also showed “pretty big differences overall in admit rates.” (ECF No. 141 at 155:7–156:11.)
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acknowledged that the descriptive analysis does not “reveal the effect that race has on
admission to the Naval Academy.” (Id. at 156:8–15.) Accordingly, the Court finds that
Professor Arcidiacono’s decile analysis fails to provide evidence of racial preferences, let alone
that race is a predominant factor in admissions. The Court next addresses Professor
Arcidiacono’s econometric modeling and Dr. Gurrea’s respective criticism.
4. Professor Arcidiacono’s Econometric Modeling
After organizing a data set and producing descriptive statistics, Professor Arcidiacono
turned to assess what role does race and/or ethnicity play in the Naval Academy’s admissions
decisions.48 To do so, Professor Arcidiacono built a logit model to approximate the Naval
Academy’s actual admissions process of non-blue chip athletes and non-prep candidates who
are both physically and medically qualified as best as he could. (ECF No. 141 at 158:23–25.)
Professor Arcidiacono began by choosing several variables to add as “inputs to the
logit model for Naval Academy admissions.” (Id. at 157:13–158:3.) In his preferred model—
Model 6—which forms the basis of his analysis, Professor Arcidiacono used the following
factors:
x race/ethnicity;
x gender;
x class year indicators;
x household and community indicators;49
x Raw WPM components (excluding RABs);
x Maximum CFA score;
x class ≥ 2025 times each of SAT math and SAT verbal;
48 Professor Arcidiacono separately modeled admissions to NAPS, which he contended showed “the same
pattern”—that is, “large preferences for Black applicants, followed by Hispanic and Asian American
applicants.” (ECF No. 141 at 109:10–23; 191:13–194:7.)
49 Household and community indicators include first-generation college, household income less than $80,000,
percentage of high school going to four-year college, percentage of high school free and reduced price lunch,
private high school, IRS salary of ZIP code, missing indicators for each of the last five variables. (PX200.)
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x class rank;
x athletic and nonathletic extracurriculars;
x nomination type indicators50 and characteristics of the slates where the applicant
received a nomination;51
x legacy variables;
x RAB points for AP, IB, or honors courses; and
x BGO interview score.
(PX200 at 62; PD3; ECF No. 141 at 164:1–165:21.)
Notably, Professor Arcidiacono did not consider whether an applicant belonged to an
underrepresented district and excluded RABs for participation in NASS, super STEM, teacher
recommendations, life experience/hardship, extracurriculars and year-round sports, character
issues, and personal statement. With respect to his decision to exclude these RABs, in his
expert report, Professor Arcidiacono noted that he did so to “avoid[] concerns about the RAB
points being influenced by preferences for any group.” (PX200 at 64.) At trial, Professor
Arcidiacono testified that he found “the RAB components hard to interpret,” but explained
that “it wouldn’t matter if we controlled for those RABs . . . [as those] estimates are really not
that much different.” (ECF No. 141 at 169:25–170:7.)
Professor Arcidiacono attempted to measure how well his model incorporating the
above-observable variables could predict the “probability of admission and [] probability of
rejection.” (Id. at 158:5–7.) He testified that this model output—the probability of admission
and rejection—was necessary as opposed to a binary admit/reject decision because “you can’t
50 Nomination type indicators include any congressional, multiple congressional, Secretary of the Navy, valor,
applying from nuclear power school. (PX200.)
51 Characteristics of the slates where the applicant received a nomination include nominated on a one vacancy
competitive (“Type 1”) slate, nominated on a two vacancy competitive (“Type 2”) slate, nominated on a slate
with a principal, principal on a slate, within 4000 WPM of top WPM on Type 1 slate, within 4000 WPM on
Type 2 slate, max WPM on and 4000+ above others, minimum of log of qualified Type 1 competitors,
minimum of log of qualified Type 2 competitors, minimum of average WPM on Type 1 and Type 2 slates, and
indicators for number of nominations. (PX200.)
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account for everything.” (Id. at 158:8–12.) He explained: “That’s sort of the point of holistic
admissions. There’s going to be some unobservable associated with that. So we’re only going
to be able to get probabilities.” (Id.) He acknowledged that some of the unobserved
variables—such as motivation, leadership potential, personal statement, the full transcript
information, the text of teacher recommendations, discipline issues, and high school
curriculum, to name a few—were observable to Naval Academy’s admissions officers. (ECF
No. 142 at 25:21–28:5.)
In addition to estimating the probability that a candidate would be admitted or rejected,
Professor Arcidiacono’s model also estimated the relative importance of the variables in the
admissions process by providing a coefficient for each of them. (ECF No. 141 at 159:1–
161:25.) As briefly noted above, a “positive” coefficient means an applicant with that trait is
more likely to be admitted; a “negative” coefficient means an applicant with that trait is less
likely to be admitted. (Id. at 159:1–161:25.) These coefficients provided the basis for his
subsequent quantitative evaluations.
According to Professor Arcidiacono, his logit model revealed large racial preferences
in favor of minority applicants, particularly Black applicants.52 (Id. at 109:13–19, 167:12–
168:15; PD3; PX200.) His preferred model, for example, assigned coefficients 2.958, 1.195,
and 1.450 to Black, Hispanic, and Asian candidates, respectively. (PD3; PX200.)
52 Professor Arcidiacono further performed a nested logit model—a logit within the logit, treating the
admissions process as if it proceeds in two stages: first, a decision to admit, and second, a decision on the
channel through which to admit the applicant—to determine whether racial preferences existed in the different
channel of admissions and if so, how they operated. (ECF No. 141 at 182:3–185:10; PD3; PX200.) Professor
Arcidiacono testified that this demonstrated that the racial preference given to Black applicants is higher in the
qualified alternate channel than it is in the congressional channel, and even higher in the additional appointee
channel. (ECF No. 141 at 182:3–185:10; PD3; PX200.)
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To illustrate the size of these alleged racial preferences, Professor Arcidiacono
performed four calculations: (1) a transformational analysis, (2) an average marginal effect of
race analysis, (3) an admitted minority analysis, and (4) a capacity constraints analysis. The
first type of calculation that Professor Arcidiacono performed was a transformational analysis.
(PD3; PX200; ECF No. 141 at 172:19–174:8.) In this calculation, Professor Arcidiacono
began by creating a hypothetical white, non-blue chip, non-prep candidate with a specific
probability of admission in his preferred model. (PD3; PX200; ECF No. 141 at 172:19–174:8.)
From there, he considered how their probability of admission would change if the hypothetical
white student was not white, but Black, Hispanic, or Asian. (PD3; PX200; ECF No. 141 at
172:19–174:8.) According to Professor Arcidiacono, this analysis revealed that a white
candidate with a 25% chance of admission would have an 86.5% chance of admission if given
the racial preference that he alleges the Academy affords to Black candidates. (PD3; PX200;
ECF No. 141 at 172:19–174:8.) He similarly testified that if the same hypothetical white
applicant was treated as Hispanic or Asian, his admission probability would be 52.4% or
58.7%, respectively. (PD3; PX200; ECF No. 141 at 172:19–174:8.)
The second type of calculation performed by Professor Arcidiacono to quantify the
effect of race was the average marginal effect of race in the admissions process for non-blue
chip, non-prep applicants. (PD3; PX200; ECF No. 141 at 174:10–176:17.) The average
marginal effect is the difference between the overall admission rate for this subgroup, minus
the admission rate without racial preferences. (PD3; PX200; ECF No. 141 at 174:10–176:17.)
For Black candidates, Professor Arcidiacono testified that removing his coefficient for
race would reduce the average probability of admissions from 37.4% to 12.9%. (PD3; PX200;
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ECF No. 141 at 174:10–176:17.) For Hispanic candidates, Professor Arcidiacono testified
that removing his coefficient for race would reduce the average probability of admissions from
35.9% to 24.5%. (PD3; PX200; ECF No. 141 at 174:10–176:17.) For Asian candidates,
Professor Arcidiacono testified that removing his coefficient for race would reduce the average
probability of admissions from 54.8% to 37.6%. (PD3; PX200; ECF No. 141 at 174:10–
176:17.) Professor Arcidiacono then compared the before-and-after percentages for each
group and extrapolated that race is responsible for 24.5% of Black candidate admissions,
11.4% of Hispanic candidate admissions, and 17.2% of Asian candidate admissions. (PD3;
PX200; ECF No. 141 at 174:10–176:17.)
The third analysis that Professor Arcidiacono conducted was an admitted minority
analysis, which asks “how many of those who were admitted with racial preferences would
still be admitted without racial preferences?” (PD3; PX200; ECF No. 141 at 176:19–179:15.)
In this calculation, Professor Arcidiacono started with all of the minority candidates that the
Naval Academy admitted, excluding blue chip athletes and prep school applicants. (PD3;
PX200; ECF No. 141 at 176:19–179:15.) Then, Professor Arcidiacono worked backward to
determine each candidate’s probability of admission under his model if they were treated as a
white candidate. (PD3; PX200; ECF No. 141 at 176:19–179:15.) Professor Arcidiacono
testified that the average admitted Black candidate would have a 32.7% chance of being
admitted without racial preferences; that the average admitted Hispanic candidate would have
a 67.3% chance of being admitted without racial preferences; and that the average admitted
Asian candidate would have a 68.7% chance of being admitted without racial preferences.
(PD3; PX200; ECF No. 141 at 176:19–179:15.)
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The fourth analysis performed by Professor Arcidiacono was a capacity constraints
analysis, which included blue chip athletes and candidates from the prep pool, to determine
how many admissions slots were attributable to the Academy’s racial preferences over the five
year period included in his dataset. (PD3; PX200; ECF No. 141 at 179:17–182:1.) In brief,
Professor Arcidiacono turned off racial preferences and calculated new probabilities for all
candidates. (PD3; PX200; ECF No. 141 at 176:19–179:15.) He then built five new incoming
classes with students his model estimated would have the highest probability of admissions
based on the Naval Academy’s limited capacity of available spaces for admitted students.
(PD3; PX200; ECF No. 141 at 176:19–179:15.) He testified that, over the course of the five
admissions cycles he studied under his model, the Academy would have admitted 435 more
white students, and 165 fewer Black students, 104 fewer Hispanic students, and 156 fewer
Asian students. (PD3; PX200; ECF No. 141 at 176:19–179:15.)
5. Dr. Gurrea’s Criticisms
While Dr. Gurrea took the position that unique aspects of the Academy’s admissions
process make the process unconducive to modeling, he offered several criticisms of Professor
Arcidiacono’s modeling. (DD5; DX200; ECF No. 145 at 133:6–228:10.) Most significantly,
Dr. Gurrea highlights that the observables in Professor Arcidiacono are not representative of
the full range of factors that determine an outcome, and certain omitted variables are those
that are available to Professor Arcidiacono that he intentionally omitted from his admissions
analyses. Such omitted variables that are observable and relevant factors for admission include
whether a candidate belonged to an underrepresented district and RABs for participation in
NASS, interest in STEM, teacher recommendations, life experience and hardship,
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extracurriculars and year-round sports, character issues, and personal statements.
Undoubtedly, some of these excluded variables correlate with race and ethnicity. Dr. Gurrea
further opines that Professor Arcidiacono’s modeling relies on erroneous assumptions; that
Professor Arcidiacono’s modeling arbitrarily blends race and ethnicity and assigns multiracial
applicants to other categories; that the overall impact on white applicants resulting from the
Academy’s race-conscious admissions is small; that Professor Arcidiacono’s predictions of
class racial composition in a counterfactual world without the Academy’s consideration of race
and ethnicity are misleading; and that admissions and enrollment data do not show any
evidence of racial balancing in admissions decisions. His criticisms—which are largely
well-taken—are discussed in turn below.
a. Arcidiacono’s Estimates Are Unreliable.
First, Dr. Gurrea opines that Professor Arcidiacono’s estimates of the size of impact
of the Naval Academy’s consideration of race are biased because they confound the
contributions of the Academy’s consideration of race and other omitted factors, and likely
overstated because omitted factors likely explain the selection of minorities for reasons other
than race. (DD5; DX200; ECF No. 145 at 148:1–149:13, 151:15–169:10.) Dr. Gurrea notes
that Professor Arcidiacono acknowledges that his estimates of the magnitude of the
Academy’s consideration of race on admissions decisions are likely biased because his
econometric models of admissions do not account for all the relevant information accounted
for by the Academy, as noted above. (DD5; DX200.) Dr. Gurrea emphasizes that, as a result
of these omissions, Professor Arcidiacono acknowledges that his estimates of the magnitude
of the impact of race on admissions to the Academy are not only attributable to the Academy’s
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consideration of race, but also to other factors not accounted for in his model. (DD5; DX200.)
Further, Dr. Gurrea highlighted that Professor Arcidiacono predicts that, because of his
acknowledged bias, his estimate of the magnitude of the impact of race is understated—a
conclusion that Dr. Gurrea characterizes as “unsupported and speculative.” (DD5; DX200.)
According to Dr. Gurrea, “the unique and broad goals of the Academy’s admissions process
suggest that [Professor] Arcidiacono ignores factors that, if accounted for, likely would reduce
his estimate of the impact of the Academy’s consideration of race. (DD5; DX200.)
To begin, Dr. Gurrea agrees with Professor Arcidiacono that admission rates are very
similar for white, Black, and Hispanic applicants that are non-blue chip athletes and non-prep.
(ECF No. 145 at 151:22–152:2.) To independently estimate admission rates at the Academy,
Dr. Gurrea compiled admissions data, replicated Professor Arcidiacono’s analysis, and
obtained very similar results. (Id. at 152:3–6.) However, Dr. Gurrea disagrees with Professor
Arcidiacono’s interpretation of the coefficient in his model because the “coefficient accounts
for race and everything that’s not explicitly modeled that is correlated with race.” (Id. at
152:10–18.)
As noted above, according to Professor Arcidiacono, almost two-thirds of the
admission rate for Black, non-blue chip, non-prep candidates can be attributed to the
consideration of race, with only about one-third of such candidates admitted to the Academy
based on the strength of their applications. (Id. at 152:25–153:10.) While Dr. Gurrea agrees
that the Academy considers race in the admissions process, he opines—convincingly—that
Professor Arcidiacono’s estimate of the extent to which the Academy does so is overstated.
(Id. at 153:11–21.)
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To be clear, Dr. Gurrea concedes that Professor Arcidiacono’s model “fit” the data
“very well.” (Id. at 153:22–25.) Nevertheless, Dr. Gurrea explained that “how well the model
fits the data doesn’t tell us anything about whether there is bias or not.” (Id. at 154:1–4.) Dr.
Gurrea testified that “fit is how well the model explains the outcomes,” and noted Professor
Arcidiacono’s model “does a fairly good job of explaining decisions.” (Id. at 154:17–19.) He
noted, however, that “bias concerns the interpretation of the coefficients and whether there’s
actually an issue of whether simply we’re observing some correlation or whether there’s an
actual causation.” (Id. at 154:20–23.) Dr. Gurrea testified:
[I]n this case there’s a correlation with the coefficients, with the observed
outcome. So that means the model is doing a good job. But simply because
there’s that correlation and we observe the inclusion of a race variable explains
well in the outcome doesn’t mean that that race variable is entirely attributable
to the Academy’s consideration of race. But anything else that is not in the
model that is not accounted for in Professor Arcidiacono’s dataset would
capture some of that effect.
(Id. at 154:24–155:8.)
According to Dr. Gurrea, “the portion that Professor Arcidiacono attributes to the
[Academy’s] racial consideration is actually, in part, explained by other attributes of [minority]
applicants that are just simply not observed in his data.” (Id. at 154:11–14; see also id. at 155:12–
21.) This omitted variable bias—that is, the “bias resulting from not accounting for relevant
factors”—results in part from the inability to observe in the data all the information that
determined the observed admission outcomes, such as the narratives contained in letters of
recommendation, personal statements, and BGO interview notes. (DX200.) Critically, it also
results from Dr. Arcidiacono’s omission of observable variables such as the Naval Academy’s
prioritization of underrepresented districts and certain RABs excluded in his model. (ECF
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No. 145 at 155:22–23; DX200; DD5.) Dr. Gurrea explained that “Professor Arcidiacono’s
model is entirely reliant on information that can be codified and incorporated into a dataset
and is amenable to statistical analysis.” (ECF No. 145 at 156:6–8.) While the information that
Professor Arcidiacono considered is relevant to the admissions process, the Academy’s
admissions decisions are “based on a broader set of information,” including whether an
applicant is from an underrepresented district, the excluded RABs,53 and the narratives
contained in letters of recommendation, personal statements, and BGO interview notes. (Id.
at 156:9–21.)
Both Dr. Gurrea and Professor Arcidiacono agree that, because his model does not
observe this information, Professor Arcidiacono’s coefficient estimates are “not an accurate
measure of the magnitude of racial preferences.” (Id. at 156:22–158:1.) They disagree as to
the “direction of the bias,” with Professor Arcidiacono contending the bias has the effect of
understating the true impact, and Dr. Gurrea contending that the measure that Professor
Arcidiacono is estimating is actually overstating the impact. (Id. at 158:2–11.)
With respect to his position, Professor Arcidiacono assumes that minorities are weaker
in the factors excluded in his model. (PX218.) That is, according to Plaintiff’s expert,
“applicants who are strong on characteristics that are observed are likely also to be strong on
characteristics that are unobserved.” (Id.)
As Dr. Gurrea pointed out at trial, “Professor Arcidiacono’s estimates are constrained
by the information that’s incorporated into his model,” and “the strength of his predictions
53 Other RABs excluded from Arcidiacono’s preferred model include RABs for participation in NASS, STEM
interest, life experience/hardship, extracurriculars and year-round sports, and character issues. (DX200.)
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are as good as the richness of his data.” (ECF No. 145 at 158:12–159:9.) Indeed, during
cross-examination of Plaintiff’s expert, Professor Arcidiacono acknowledged that “if there
were unobserved factors that were massive and perfectly correlated with race,” his estimate of
the impact of the Academy’s consideration of race goes away. (ECF No. 142 at 25:4–15.) Dr.
Gurrea characterized Professor Arcidiacono’s assumption that minorities are weaker in factors
unaccounted for as “unreasonable.” (ECF No. 145 at 160:8–161:6.) Dr. Gurrea noted that a
2005 article, upon which Professor Arcidiacono relied to justify his assumption, in fact
explicitly warned “it is dangerous to infer too much about selection on the unobservables from
selection on the observables if the observables . . . are unlikely to be representative of the full
range of factors that determine an outcome.54 (Id.) To illustrate this point, Dr. Gurrea noted
that while it might make sense to assume that applicants with higher SAT scores in math may
have higher high school math grades, assuming socioeconomic characteristics strictly based
on SAT scores “makes no sense.” (Id. at 161:7–162:5.) Stated otherwise, “if what you don’t
observe is beyond the range of what you observe, then there’s no real basis to make that
assumption.” (Id. at 162:3–5.)
To prove that his assumption about data that is unaccounted for in his modeling is
reliable, Professor Arcidiacono “gradually incorporates observable information into his
model,” “find[ing] that the coefficient on Black [candidates] increases gradually as more
information is included.” (Id. at 162:7–21.) While Professor Arcidiacono concludes this
corroborates his assumption, Dr. Gurrea finds this approach unreliable, citing to a 2019 article
54 Joseph Altonji, et al., Selection on Observed and Unobserved Variables: Assessing the Effectiveness of Catholic Schools,
113 J. POL. ECON. 151, 182 (2005).
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Professor Arcidiacono relies on in his report, which cautioned: “A common approach to
evaluating robustness to omitted variable bias is to observe coefficient movements after
inclusion of controls. This is informative only if selection on observables is informative about
selection on unobservables.”55 (Id. at 162:7–163:18.) To illustrate an example of source bias
that likely results in Professor Arcidiacono’s estimates overstating the impact of the Academy’s
consideration of race, Dr. Gurrea discussed socioeconomic disadvantage, a characteristic that
is correlated with race and is something that the Academy considers positively. (Id. at 163:20–
168:22.) Dr. Gurrea posits that Professor Arcidiacono includes poor measures of income—
that is reported household income less than $80,000 and average salary by ZIP code—and
does not include a measure of wealth. (Id.) Because this “significant variable” and others are
correlated with race and not fully accounted for in the model, Dr. Gurrea contends that
Professor Arcidiacono dramatically overstates the estimate of consideration of race. (Id.)
At bottom, the Court finds that Professor Arcidiacono’s estimates of the impact of the
Academy’s consideration of race are biased because they confound the contributions of the
Academy’s consideration of race and other omitted factors. Such factors that the Academy
positively considers and were excluded from Professor Arcidiacono’s modeling include
whether an applicant belonged to an underrepresented district; whether an applicant
participated in NASS; whether an applicant is interested in STEM; whether an applicant is
socioeconomically disadvantaged, has exceptional life experience or endured hardship; and
whether an applicant participates in extracurriculars and year-round sports. Further excluded
55 Emily Oster, Unobservable Selection and Coefficient Stability: Theory and Evidence, 37 J. BUS. & ECON. STAT. 187,
187 (2019).
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from Professor Arcidiacono’s modeling were the strength of teacher recommendations, BGO
interview notes, and personal statements, as well as any character issues. Because the Court
heard testimony that the Academy values such factors in their admissions decisions and agrees
that Professor Arcidiacono’s assumption that minorities are weaker in factors unaccounted for
is unreasonable, the Court finds that Professor Arcidiacono’s estimates of the impact of the
Academy’s consideration of race are likely overstated because significant omitted factors likely
explain the selection of minorities for reasons other than race. Accordingly, the Court finds
Professor Arcidiacono’s estimates unreliable.
b. Arcidiacono’s Modeling Relies on the Erroneous Assumption that the

Academy’s Admissions Decisions Are Independent.
Dr. Gurrea further opines that Professor Arcidiacono’s reliance on erroneous
assumptions—that is, Professor Arcidiacono’s model assumes that admissions decisions are
independent—undermine his methodology. (DD5; DX200; ECF No. 145 at 149:16–24,
169:10–175:18.) Dr. Gurrea explained that Professor Arcidiacono relies on an econometric
model for causal inference that assumes admissions decisions for each individual applicant are
independent of each other, as if made in isolation. (ECF No. 145 at 169:20–25.) According
to Dr. Gurrea, this assumption is erroneous, as the Academy’s decisions are interdependent
as they are made on a rolling basis throughout the admissions cycle for a fixed class size and
because they are guided by class composition with the goal of having a class from a variety of
backgrounds and congressional districts. (Id. at 170:1–171:14.)
To begin, Dr. Gurrea contends that admissions decisions are interdependent due to
competition among applicants for a limited number of appointments. (Id. at 171:2–172:13.)
“Because the class size is fixed, the likelihood of being admitted is dependent on prior
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admissions.” (DX200.) While Professor Arcidiacono does not deny that this competition
creates interdependence, he assumes that applicants compete against a common standard.
(PX518.) However, Professor Arcidiacono also acknowledges that the common standard
changes over time—that is, as an admissions cycle progresses, the Academy’s admissions
standard decreases. (Id.) In other words, to deal with the competition among applicants for
a limited number of appointments as a source of interdependence, Professor Arcidiacono
imposes an assumption that he acknowledges is not fully consistent with what actually happens
in practice. (ECF No. 145 at 171:2–172:13.)
Somewhat relatedly, Dr. Gurrea further notes that competition within a slate create
interdependence—a form of competition that is unique to service academies. (Id. at 172:13–
173:10.) “[C]ongressional slates have a limited number of nominees. And within those slates,
when they are competitive, applicants are competing for a limited—or actually one or maybe
two appointments within the slate.” (Id. at 172:17–22.) While Professor Arcidiacono
acknowledges that slate competition creates interdependence and attempted to control for this
by controlling for some slate characteristics in his modeling, Dr. Gurrea posits that Professor
Arcidiacono failed to account for the strength of competing slate candidates being dependent
on their inclusion in multiple slates. (Id. at 173:2–173:10.)
More generally, Dr. Gurrea testified that the Academy’s admissions goals are defined
in terms of class composition and variety—beyond just racial and ethnic diversity—meaning
that candidates with the same characteristics become less valuable when considering
subsequent applicants. (Id. at 173:12–175:11.) For example, the Academy considers positively
whether an applicant is from an underrepresented district or has unique life experiences, but
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these considerations depend on the selection decision for prior candidates. (DX200.)
Similarly, the Academy is required to graduate at least 65 percent of the class with STEM
degrees. (DX159.) As Dr. Gurrea explained “the strength of an applicant that offers these
characteristics will depend on prior admissions decisions.” (ECF No. 145 at 174:17–23.)
According to Dr. Gurrea, Professor Arcidiacono fails to address these sources of
interdependence. (Id. at 173:12–175:11.)
The Court shares Dr. Gurrea’s concern that the necessary conditions for Professor
Arcidiacono’s logit model to yield reliable estimates are not satisfied because the Academy’s
admissions decisions are not independent. Rather, the Court finds that the Academy’s
admissions decisions are interdependent, informed by the applicant pool, the constrained class
size, and certain admissions requirements and goals.
c. Arcidiacono’s Modeling Arbitrarily Blends Race and Ethnicity and Assigns

Multiracial Applicants to Other Categories.
Third, Dr. Gurrea opines that Professor Arcidiacono arbitrarily blends race and
ethnicity and assigns multiracial applicants to other categories, and this undermines the
reliability of his predictions as his estimates are sensitive to his racial categorization. (DD5;
DX200; ECF No. 145 at 150:1–10, 175:19–179:22.) To begin, Dr. Gurrea explains that the
Academy collects applicant data on self-identified race and ethnicity, with options for race and
ethnicity identification being “American Indian or Alaska Native,” “Asian,” “Black or African
American,” “Hispanic,” “Native Hawaiian or Other Pacific Islander,” and “White,” and the
option to identify one or more races/ethnicity or choose not to identify. (DX200.)
“Altogether, the race and ethnicity self-identities available across all years in the data amount
to 64 possible combinations,” Professor Arcidiacono “flattens these 64 race and ethnicity
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possibilities into six mutually exclusive categories by adopting a waterfall assignment rule that
blends race and ethnicity and assigns multiracial applicants.”56 (Id.)
Professor Arcidiacono explains that this method was followed in Harvard, though Dr.
Gurrea notes that this is inconsistent with the categorization of race followed by the Academy.
(ECF No. 145 at 176:20–25.) At trial, Dr. Gurrea testified that this arbitrary categorization of
race and ethnicity has implications, as Professor Arcidiacono’s “Black” category includes all
multiracial Black applicants; his “Hispanic” category does not include Black Hispanic
applicants; his “White” category does not include white Hispanic applicants; and Professor
Arcidiacono does not categorize any applicant as multiracial. (Id. at 177:2–20; DD5; DX200.)
Dr. Gurrea further testified that this categorization was “material to the predictions offered
by Professor Arcidiacono,” because his estimates are sensitive to race and ethnicity
categorization. (ECF No. 145 at 177:22–179:22; DD5; DX200.) For example, with respect
to Professor Arcidiacono’s average marginal effect analysis, which attempts to measure the
difference in admission rate after controlling for the model’s explanatory variables between
each racial group, Professor Arcidiacono estimates the average marginal effect for Black
applicants is 24.35 percent. (DD5.) Under the alternative categorization of race and ethnicity,
the estimate falls to 18.88 percent. (Id.) The numbers also go down for Asian and Hispanic
applicants, though by smaller numbers. (ECF No. 145 at 177:22–179:22; DX200.)
56 Specifically, where a candidate selected Black or African American, Arcidiacono categorizes them as Black.
(ECF No. 145 at 176:5–19.) Where a candidate did not identify as Black and identified as Hispanic, they are
categorized as Hispanic. (Id..) Where an applicant did not identify as Black or Hispanic and identified as either
American Indian or Alaska Native or Native Hawaiian or Other Pacific Islander, they are categorized as Native
American/Hawaiian. (Id.) Where an applicant did not identify as any of the above but identified as Asian, they
are characterized as Asian. (Id.) Where an applicant did not identify as any of the above but identified as white,
they are characterized as white. (Id.) Those that decline to respond are flagged as missing. (Id.)
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The Court agrees with Dr. Gurrea that Professor Arcidiacono’s blending of race and
ethnicity and assignment of multiracial applicants to other categories appears to be arbitrary.
At the very least, his categorization is inconsistent with the Navy’s instructions regarding the
reporting of race and ethnicity data. (DX101; DX102.) However, because the Court finds
Professor Arcidiacono’s estimates unreliable for other reasons, further discussion of Professor
Arcidiacono’s racial and ethnic categorization is unnecessary.
d. Arcidiacono’s Estimates Do Not Imply a Large Impact on White Applicants.
Next, Dr. Gurrea opines that Professor Arcidiacono’s estimates of the impact of the
Academy’s consideration of race on minorities does not imply a large impact on white
applicants, as race plays a role for a small percentage of applicants and the impact of race on
a majority has a small impact on the majority. (DD5; DX200; ECF No. 145 at 150:11–24,
179:23–182:1.) As Dr. Gurrea aptly notes, Black applicants, and minorities in general, account
for a relatively small number of applicants and admitted candidates. (ECF No. 145 at 180:18–
182:1; DX200.) To put it into perspective, across the five years that Professor Arcidiacono
studied, the number of white applicants to the Naval Academy is seven times the number of
Black candidates. (DD5; ECF No. 145 at 180:18–182:1.) Dr. Gurrea testified that this means
that Professor Arcidiacono’s modeling projects that, in a counterfactual world without the
consideration of race, a massive impact is observed on Black candidates—specifically, a decline
in admissions of 22.39 percent based on Professor Arcidiacono’s estimates. (DD5; ECF No.
145 at 180:18–182:1.) By contrast, the impact on white applicants is much more modest—an
increase in admissions by only 4.02 percent. (DD5; ECF No. 145 at 180:18–182:1.)
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e. Arcidiacono’s Prediction of the Racial Breakdown of Admissions in a World

Without the Academy’s Consideration of Race is Misleading.
Dr. Gurrea further opines that Professor Arcidiacono’s predictions of the racial
breakdown of admissions in a world without the Academy’s race-conscious admissions are
misleading. (DD5; DX200; ECF No. 145 at 150:25–151:7, 182:2–187:8.) First, Dr. Gurrea
explains that Professor Arcidiacono’s first three analyses—the transformational analysis, the
average marginal effect analysis, and the admitted minority analysis—are irrelevant to the
question of what the Academy’s admissions would look like without the consideration of race,
as these analyses do not consider the fixed size of the class. (ECF No. 145 at 182:10–183:8.)
In other words, only Professor Arcidiacono’s capacity constraints analysis is connected with
this question. (Id.) Indeed, Professor Arcidiacono agreed. (ECF No. 142 at 46:19–47:1.)
Preliminarily, Dr. Gurrea noted that any estimated differences in selection rates by race
and ethnicity reflect the contribution of factors other than the consideration of race and
ethnicity, as discussed above. (ECF No. 145 at 183:19–24.) Further, the contribution of those
factors is estimated when the Academy is considering race and ethnicity, and the significance
of those factors would be different for all applicants in the absence of racial consideration.
(Id. at 183:25–187:8.) Moreover, the pool of applicants may change in response to such a
change. (Id.) Dr. Gurrea highlights that, while Professor Arcidiacono implemented this
capacity constraints analysis approach in Harvard, in a subsequent work published in 2023 he
added a qualifier noting “[t]his exercise is not meant to estimate the impact of an affirmative
action ban[,] . . . [as] when we remove racial preferences, we do not allow schools to adjust
their preferences for all other applicant attributes.” (Id.; DD5.) At trial, Professor Arcidiacono
was asked whether “the reason [he] didn’t model what the Naval Academy’s admissions
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process would look like in the absence of the consideration of race” was “because [he]
believe[s] it’s difficult to do,” and he responded affirmatively. (ECF No. 142 at 51:8–12.)
The Court notes that neither party purports to model what the Academy’s admissions
would look like in a counterfactual world without the Academy’s consideration of race or
ethnicity. As Dr. Gurrea noted: the parties “can’t develop precise estimates because we
[cannot] observe the data that the Academy [would] consider[] to make their admissions
decisions” and doing so would require “very strong assumptions about the counterfactual
world.” (ECF No. 145 at 187:2–6.)
f. Professor Arcidiacono Does Not Provide Any Empirical Evidence to

Support Plaintiff’s Claim that Admissions Decisions Are Designed to
Achieve Racial Balancing.
The Court finds it appropriate to briefly address Dr. Gurrea’s sixth and final opinion,
though it is not directly targeted towards Professor Arcidiacono’s econometric modeling. For
his final opinion, Dr. Gurrea opines that Professor Arcidiacono does not provide any empirical
evidence to support Plaintiff’s claim that the Academy’s admissions decisions are designed to
achieve racial balancing. (DD5; DX200; ECF No. 145 at 151:8–14, 187:9–188:15.) Dr. Gurrea
contends that “[e]nrollment data for classes of 2023–2027 do not show any evidence of racial
balancing of admissions decisions,” but rather “show substantial fluctuations in the share of
racial and ethnic groups within each class.” (DX200.) While this opinion is not directly
responsive to Professor Arcidiacono’s econometric modeling, the Court finds the record
wholly devoid of evidence that the Naval Academy engages in racial balancing.
D. Findings of Fact: The Naval Academy Has Made a Serious, Good Faith
Effort to Consider Race-Neutral Alternatives.
Under the strict scrutiny rubric established by the Supreme Court in the Harvard case,
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the Naval Academy may consider race to achieve diversity only if there is no workable
race-neutral alternative to the consideration of race to ensure a sufficiently diverse class. See
600 U.S. 181, 213 (2023). SFFA introduced models on race-neutral alternatives through
Richard Kahlenberg, the same expert who testified in the Harvard case. Defendants introduced
testimony and exhibits demonstrating extensive race-neutral efforts both within and outside
of its admissions process to try and achieve its sought-after diversity.
The Academy’s race-conscious admissions policy has a significant impact on the racial
diversity of its class. Any race-neutral alternative will be deemed workable only if it would
allow the Government to achieve the benefits that it derives from its current degree of diversity
within a given class year, while also being practicable, affordable, and not requiring a material
decline in academic quality or any of the other measures of excellence valued by the Naval
Academy. In sum, the Court finds that no workable race-neutral alternatives will currently
permit the USNA to achieve the level of diversity the Government has credibly found
necessary for its national security mission.
1. The Academy’s Race-Neutral Efforts
The Court first considers the extent to which the Naval Academy has already engaged
in serious, good faith consideration of workable race-neutral alternatives. The Court finds
that the Naval Academy has implemented extensive race-neutral factors both within and
outside of its admissions process in an attempt to achieve its sought-after diversity.
a. Race-Neutral Efforts Within the Admissions Process
Within the admissions process, the Naval Academy has incorporated numerous
race-neutral factors to its whole person multiple scores and recommendation of the Admission
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Board points to award points to candidates based on race-neutral characteristics. (ECF No.
141 at 87:20–88:1 (Latta).) Such factors include where a candidate is socioeconomically
disadvantaged; where a candidate faced adversity and/or hardship; where a candidate has
unusual life experience; where a candidate is first-generation college; where a candidate is
first-generation American; where a candidate speaks English as a second language; and where
a candidate has had prior exposure to the military. (DX1; DX2; ECF No. 141 at 80:19–81:9,
87:20–88:1 (Latta).) While the Academy awards WPM points to candidates based on these
race-neutral characteristics, the Academy also considers and highly values the same
characteristics outside of the points, as well as additional race-neutral characteristics, such as
enlisted members applying from the fleet and candidates from underrepresented districts.
(DX4; DX3; DX28; PX27; ECF No. 139 at 233:11–19 (Hwang); ECF No. 140 at 209:7–211:21
(Latta).)
b. The Academy’s Extensive Recruiting Efforts and Outreach
Most impressive are the Naval Academy’s expansive recruiting efforts and outreach
programs, which are perhaps more important than the above efforts within the admissions
process. At trial, the Court heard testimony that the Naval Academy has difficulty encouraging
minorities to apply, and particular difficulty encouraging minorities to complete their
applications. (ECF No. 141 at 47:2–50:7, 69:17–70:1, 76:14–17 (Latta).) The Academy has
observed that this recruitment problem stems from a confluence of factors, including lack of
awareness of opportunities at the Naval Academy; reluctant influencers such as parents and
guidance counselors; skepticism of the military; declining eligibility for service; and declining
propensity to serve. (Id. at 47:2–49:8, 69:17–70:1, 75:14–78:11 (Latta).)
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To help attract exceptionally strong and diverse applicant pools, the Academy—
primarily through the Strategic Outreach Department of the Admissions office—engages in
extensive and multifaceted outreach efforts. Over the years, the Naval Academy has
significantly increased and expanded its outreach efforts to underrepresented communities.
(Id. at 76:14–78:11 (Latta).) Dean Latta testified that the Academy endeavors to increase
awareness of opportunities at the Naval Academy and to increase applications and application
completion rates across the board. (Id. at 76:17–78:11.)
Preliminarily, the Court notes that these efforts have required the Admissions office to
substantially increase its outreach budget over the past several years. (Id. at 50:8–52:6 (Latta).)
At trial, Dean Latta testified that in fiscal year 2021, the Admissions’ outreach budget was
“about $800,000 in appropriated money and a little over a million dollars in nonappropriated
money or private philanthropy.” (Id. at 51:9–20.) While the outreach budget is now $3.2
million, “with the increase in appropriated fundings, [the office] has lost
some . . . nonappropriated funding.” (Id. at 51:9–20 (Latta).) It is worth emphasizing that the
Naval Academy is funded principally by the federal government in appropriations that come
through DoD and the Department of the Navy with numerous cost centers to support, with
the Admissions office representing the Academy’s “smallest cost center.” (Id. at 50:8–52:7
(Latta).) In other words, the money available to the Academy’s Admissions office and
available for outreach more specifically is finite. (Id. at 50:8–52:7 (Latta).)
Nevertheless, the Strategic Outreach Department leads expansive efforts to develop
strategies and plans to create awareness of the Naval Academy among prospective candidates
throughout the United States and its territories. (PX21; DX94.) Such efforts include (1)
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partnering with a third-party marketing firm; (2) expanded digital outreach efforts; and (3)
expanded focus to reach prospective candidates earlier and more consistently, and to include
enlisted units. (ECF No. 141 at 76:17–78:11 (Latta).) An overview of these efforts follows.
i. Partnership with Marketing Firm
First, over the last several years, the Naval Academy has partnered with EAB, 57 a
third-party marketing firm that specializes in internet electronic outreach, to assist in outreach
efforts. (ECF No. 141 at 52:19–54:8, 57:11–23 (Latta); DX23, DX24; DX29; PX22; DX80;
DX119.) While the Naval Academy started with “an $800,000 budget [for] a basic contract”
with EAB during the first-year of the partnership, the Naval Academy spent close to $2 million
this year for such assistance from EAB. (ECF No. 141 at 54:4–8 (Latta).) EAB’s efforts on
behalf of the Academy include correspondence in the form of mail-outs, emails, and text
message and more across-the-board marketing and leveraging electronic platforms. (Id. at
57:11–23 (Latta); DX29.)
Dean Latta credited the Naval Academy’s partnership with EAB as a “contributing
factor” for the 14% increase the Naval Academy saw in overall applications for admission to
the Class of 2027. (ECF No. 141 at 52:17–54:1; DX106.) Still, Dean Latta noted that the
service academies experienced a big drop in applications following COVID and due to military
recruiting downtrends in recent years. (ECF No. 141 at 53:11–54:1.) In other words, the 14%
increase in overall applications for admission to the Class of 2027 was merely a return to more
normal numbers.
57EAB stands for the Education Advisory Board, which was EAB’s original moniker, though the company’s
name was officially shortened to EAB in 2014. See About Us, EAB, available at https://eab.com/about/.
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ii. Digital Outreach Efforts
Relatedly, through its partnership with EAB and efforts within the Admissions office,
the Strategic Outreach Department has expanded digital outreach efforts, including expanding
social media, search engine marketing, upgrading virtual campus tours, and integrating
smartphone technology. (ECF No. 141 at 60:25–62:22, 68:16–69:16 (Latta); DX17; PX573;
DX24; DX80; DX84 DX106; DX155.) Again, while Dean Latta noted that “all these things
are contributing to increased outreach,” he emphasized that these initiatives had only come
online in the last several years, and it was going to take time to determine overall impact. (ECF
No. 141 at 61:8–62:22.) Moreover, Dean Latta emphasized that “this is all trying to keep up
with the trends in college admissions.” (Id. at 62:6–7.)
iii. Outreach Events
More generally, the Naval Academy puts on outreach events to target prospective
candidates across the United States and its territories, as well as community influencers, such
as guidance counselors and parents, and enlisted members of the Navy and Marine Corps.
With respect to outreach events targeted towards prospective high schoolers, the Naval
Academy offers several programs designed to encourage high school students to pursue a
course of study in science, technology, engineering, and mathematics. (ECF No. 139 at 216:9–
25 (Hwang); ECF No. 141 at 54:19–59:24, 70:17–72:16 (Latta); DX23; DX25; DX97; DX106;
DX155; DX162.) These programs include Summer Seminar (or NASS), Summer STEM, and
additional events, including one-day STEM programming such as STEM 2, STEM Underway,
and STEM On Deck. (ECF No. 139 at 216:9–25 (Hwang); ECF No. 141 at 54:19–59:24,
70:17–72:16 (Latta); DX23; DX25; DX97; DX106; DX155; DX162.)
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Starting in the 1970s under a different name, the Naval Academy Summer Seminar—
or NASS—is an outreach program offered to rising high school seniors at the Naval Academy
during one of three one-week sessions in June going into senior year. (ECF No. 139 at 216:9–
14 (Hwang); ECF No. 141 at 58:21–60:24 (Latta); PX21; DX94.) During this one-week
session run by midshipmen, students experience all aspects of a midshipman’s life, including
academics and athletics. (ECF No. 139 at 216:9–14 (Hwang); ECF No. 141 at 58:21–60:24
(Latta); PX21; DX94.) As noted supra, an application for NASS—which opens in January
every year—is considered an initial application for admission, and students who participate in
the program are encouraged to continue their application. (ECF No. 139 at 216:9–14
(Hwang); ECF No. 141 at 58:21–60:24 (Latta); PX21; DX94.) Dean Latta explained that “[i]n
a given year, somewhere around 68 to 70 percent of [NASS participants] actually finish an
application” to join the Brigade of Midshipmen. (ECF No. 141 at 59:17–22 (Latta).)
Similarly, since around 2008, Summer STEM has offered several hundred rising ninth
to eleventh grade students the opportunity to participate in a six-day program at the Academy
focused on STEM. (ECF No. 139 at 216:15–25 (Hwang); PX21; DX94.) Dean Latta
emphasized that Summer STEM “was intentionally meant to be an outreach program,” noting
the Academy recognized that many students—particularly those from underserved
communities—did not have access to classes needed to prepare themselves for a STEM
school. (ECF No. 141 at 56:20–57:5.) In conjunction with this programming, the Naval
Academy runs a parents’ program, as the Academy appreciates that the importance of selling
the Academy and the Navy and Marine Corps to influencers in the prospective candidate’s
life. (Id. at 60:1–6 (Latta).)
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At trial, Dean Latta also explained that there is more interest in NASS and Summer
STEM than the Academy can accommodate between those programs. (Id. at 72:1–16.)
Accordingly, the Academy offers additional programming, including admissions forums,
Summer STEM 2, STEM Underway, and STEM On Deck. (Id. at 72:1–16, 82:12–83:6 (Latta).)
Summer STEM 2 is a one-day program at the Academy in August, where students attend
hands-on sessions led by midshipmen and faculty to expose students to opportunities at the
Academy and in the STEM fields. (Id. at 72:1–16 (Latta).) STEM Underway is a program
where midshipmen and faculty travel to do STEM programs in targeted locations to promote
interest in and awareness of STEM subjects and opportunities at the Academy. (Id. at 72:1–
16 (Latta).) STEM On Deck brings students to the Academy for a day-long STEM event led
by faculty and midshipmen. (Id. at 72:1–16 (Latta).)
The Naval Academy continues to expand its outreach programs for students and
parents/guardians. In 2021, the Naval Academy launched the INSPIRE program, which is
designed to invite highly qualified candidates from underrepresented groups and one
accompanying parent/guardian to Annapolis in order to experience the daily midshipman
routine and learn more about the admissions process. (Id. at 73:17–75:6 (Latta); PX21; DX94;
PX50; DX29; DX106; DX155.) The Academy hosts the INSPIRE program several times per
recruitment cycle, inviting seniors in the fall and juniors and some select seniors in the spring
and paying for their visit. (ECF No. 141 at 73:17–75:6 (Latta); PX21; DX94; PX50; DX29;
DX106; DX155.) While the program is still new, it has been successful in encouraging more
minorities to apply for and complete their applications. (ECF No. 141 at 73:17–75:6 (Latta);
PX21; DX94; PX50; DX29; DX106; DX155.) In light of this observation, the Academy has
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tripled its investment in the program since its initial launch in 2021. (ECF No. 141 at 73:17–
75:6 (Latta); PX21; DX94; PX50; DX29; DX106; DX155.)
Similarly, the Naval Academy hosts invitation-only visits to the Academy offered to
competitive prospective candidates, called Candidate Visit Weekend (“CVW”). (ECF No. 141
at 62:23–64:9 (Latta); PX21; DX94; DX23; DX106; DX155; DX162.) While CVW is a
self-paid program, the Academy offers opportunities for scholarships for financially
disadvantaged students. (ECF No. 141 at 63:20–22 (Latta).) Dean Latta explained that these
weekend visits are “helpful,” as students who attend a CVW are more likely to complete their
application. (Id. at 63:23–64:3; DX29 (noting the importance of getting students and their
parents on campus, as such candidates are more likely to complete their application).)
As noted, the Naval Academy appreciates the important role that influencers like
parents, guidance counselors, principals, and other community leaders play in a candidate’s
decision to apply to the Academy. In addition to the parallel programming for parents during
Summer STEM and the INSPIRE programs, the Naval Academy hosts Center of Influence
(“COI”) programs, which are orientation programs hosting educators or other influential
community leaders from around the country to introduce them to the exceptional
opportunities the Naval Academy has to offer prospective candidates. (ECF No. 141 at 64:10–
66:12 (Latta); PX21; DX94; PX573; DX24; DX84; DX154; DX155; DX162.) Dean Latta
explained that COI programs target underrepresented districts with the hope that these
influencers—typically primarily school superintendents, principals, directors, and guidance
counselors—attend the weekend and return to the community as a “force multiplier” for the
Academy. (ECF No. 141 at 64:10–66:12 (Latta); DX29.)
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The Academy also appreciates that midshipmen are “a very powerful recruiting tool”
who “do a lot to help facilitate application completion rates” and interest in the Academy.
(ECF No. 141 at 70:2–71:16 (Latta).) In addition to their active involvement in the
aforementioned summer programming, the Academy formally facilitates this through
initiatives such as Operation Information (“OPINFO”) and traveling musical groups,
including the Naval Academy Gospel Choir and Mariachi Band. (Id. at 67:16–68:13, 70:2–
71:16 (Latta); PX21; DX94; DX84; DX106; DX115; DX155; DX162.) The OPINFO
program sends midshipmen into their home communities to encourage students to apply.
(ECF No. 141 at 70:2–71:16 (Latta); PX21; DX94; DX106; DX115; DX155; DX162.) During
the 2023 recruitment cycle, the Academy scheduled 2,700 OPINFO events, engaging nearly
33,000 prospective students. (DX106.)
In addition to the above initiatives, the Naval Academy specifically targets Title I
schools,58 which are often underrepresented districts at the Academy, and frequently visits
Navy and Marine Corps units. (ECF No. 141 at 78:14–80:7, 80:19–82:1 (Latta); DX28;
DX29.) The Naval Academy recognizes that these populations tend to be more diverse, thus
recruiting more students from Title I schools and the enlisted corps might increase diversity
in the applicant pool and the Brigade of Midshipmen. (ECF No. 141 at 78:14–80:7, 80:19–
82:1 (Latta); DX28; DX29.)
Because the Academy’s admissions process is largely driven by the nomination
58 Title I, Part A of the Elementary and Secondary Education Act, as amended by the Every Student Succeeds
Act, provides financial assistance to local educational agencies and schools with high percentages of children
from low-income families to help ensure that all children meet state academic standards. 20 U.S.C. §§ 6301–
6304.
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requirement, the Naval Academy’s Strategic Outreach Department also regularly meets with
and coordinates programming for Members of Congress. (ECF No. 139 at 219:23–220:22,
221:20–222:12 (Hwang); ECF No. 140 at 230:4–231:14 (Latta); ECF No. 141 at 66:13–67:15,
83:2–84:12 (Latta); DX24; DX106; DX162.) Such efforts include trainings at the Naval
Academy, Congressional Academy Days (“CADs”), and programming targeted towards the
Congressional Minority Caucuses. (ECF No. 139 at 219:23–220:22, 221:20–222:12 (Hwang);
ECF No. 140 at 230:4–231:14 (Latta); ECF No. 141 at 66:13–67:15, 83:2–84:12 (Latta); DX24;
DX106; DX162.) Through these engagements, the Naval Academy encourages nominating
sources to nominate diverse candidates. (ECF No. 139 at 219:23–220:22, 221:20–222:12
(Hwang); ECF No. 140 at 230:4–231:14 (Latta); ECF No. 141 at 66:13–67:15, 83:2–84:12
(Latta).) At trial, Hwang explained that such efforts have been “minimally” successful at
increasing the diversity of congressional nominations, if at all, as it ultimately is the nominating
source’s decision. (ECF No. 139 at 221:20–222:12.)
In sum, despite the Academy’s efforts to utilize race-neutral alternatives in the
admissions process and to improve minority representation in the applicant pool and in the
Brigade of Midshipmen, it is clear that the Academy faces challenges attracting minority
candidates. With respect to outreach, it is clear that the Academy has already reached, or
nearly reached, the maximum returns in increased socioeconomic and racial diversity that can
reasonably be achieved through its recruiting efforts. (ECF No. 141 at 47:2–50:7, 69:17–70:1,
75:14–76:17, 88:2–11 (Latta).)
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2. SFFA’s Proposed Race-Neutral Alternatives
At trial, SFFA proffered Richard Kahlenberg59 as an expert witness on race-neutral
alternatives. (ECF No. 142 at 64:17–188:23; PX219; PX223; PD4.) Kahlenberg opined that
the Academy could achieve racial and socioeconomic diversity without the use of racial
preferences by (1) utilizing socioeconomic preferences, (2) increasing the share of enlisted
members, (3) increasing its recruitment efforts, (4) modifying and expanding its preparation
programs, (5) reducing or eliminating preferences that favor non-minorities, and (6) pursuing
changes to the Congressional appointments process. Kahlenberg also presented the Court
with the results of five simulations. These simulations were a selection of 70 simulations
developed by Plaintiff’s expert Professor Arcidiacono to replicate as closely as possible the
Academy’s existing system of admissions, while removing the “advantages associated with
race” in order to make the admissions process race-neutral and applying different levels of
“boosts” for socioeconomic status.
The Court addresses each of Kahlenberg’s proposals in turn below, incorporating
discussion of his proffered simulations as necessary. At bottom, the Court, considering all
evidence on race-neutral alternatives before it, finds that the Academy has conducted good
faith, serious consideration of ways in which its admissions policies can become race-neutral.
The Court finds that the Academy has demonstrated that there are not workable or viable
59 Kahlenberg is currently Director of the American Identity Project at the Progressive Policy Institute, which
is a non-profit, non-partisan research organization founded in 1989, and a professorial lecturer at George
Washington University, where he teaches on issues of civil rights and economic inequality. (ECF No. 142 at
65:13–19; PX219.) He received his A.B. degree magna cum laude in 1985 from Harvard College, and received his
J.D. degree cum laude in 1989 from Harvard Law School. (ECF No. 142 at 66:3–12 (Kahlenberg); PX219.)
Kahlenberg has published works on numerous socioeconomic subjects, including the use of race-neutral
alternatives in college admissions, and previously testified as SFFA’s expert in litigation against Harvard and
the University of North Carolina. (ECF No. 142 at 71:3–21 (Kahlenberg); PX219.)
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race-neutral alternatives that would allow it to achieve its current level of diversity about as
well as its current race-conscious admissions process, despite Kahlenberg’s assertion to the
contrary.
a. Increase Socioeconomic Preferences
In general, Kahlenberg contends that the USNA could achieve its current level of racial
diversity by altering its admissions process to place greater emphasis on socioeconomic
factors, such as considering where a candidate is first-generation college, where a candidate’s
family is low-income, and where a candidate comes from a working-class background. (ECF
No. 142 at 82:9–116:1; PX219 at 38–45, 74–93.) While Kahlenberg recognizes that the
Academy considers socioeconomic status as part of its admissions process, (ECF No. 142 at
142:7–143:8), he argues that the Academy’s commitment to socioeconomic diversity is modest
and that the admissions process “effectively penalizes socioeconomically disadvantaged
students compared with those who are more socioeconomically advantaged.” (PX219 at 38–
45.)
The Court is unpersuaded. As noted above, the Academy has incorporated numerous
race-neutral factors to its WPM and RABs to award points to candidates based on race-neutral
characteristics, including socioeconomic status. (ECF No. 141 at 87:20–88:1 (Latta).)
Notwithstanding the inaccuracies commonly observed in submitted applications on this topic,
the Academy requests information on first-generation college status, parental education,
household income information, single-parent household information, hardship funding, and
adversity experience, among other things. (ECF No. 140 at 219:3–220:20 (Latta); ECF No.
142 at 142:7–143:8 (Kahlenberg).) While the Academy awards WPM points to
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socioeconomically disadvantaged candidates, the Academy also considers and highly values
the same characteristics outside of the points. (DX1; DX2; DX4; DX3; DX28; PX27.)
Moreover, even Kahlenberg’s most aggressive simulations demonstrate that an admissions
process that heavily favored low-socioeconomic status does not achieve the racial diversity
attained through the Academy’s race-conscious policies. (ECF No. 142 at 173:7–175:16
(Kahlenberg); PD4.)
b. Increase the Share of Enlisted Members Admitted
Kahlenberg also recommends that, “[g]iven the higher levels of racial diversity found
among enlisted men and women, USNA could boost the share of enlisted members in its
incoming class as a race-neutral means of achieving racial and ethnic diversity.” (ECF No.
142 at 113:19–114:2, 180:22–181:25 (Kahlenberg); PX219 at 46.) Preliminarily, this Court
notes that the Naval Academy actively recruits enlisted members. (ECF No. 141 at 26:5–29:8
(Latta); ECF No. 142 at 180:22–181:25 (Kahlenberg).) Nevertheless, several legal and
logistical roadblocks exist, precluding many enlisted members from getting to the Academy.
First, 10 U.S.C. § 8458 requires that each candidate be not yet 23 years of age by I-Day, and
DoDINST 1322.22 provides that “[o]n the first day of enrollment, those appointed
as . . . midshipmen[] or preparatory school students must not have dependents, be responsible
for an existing pregnancy, or be pregnant.” As such, enlisted members are often precluded
from the Academy, and because enlisted members tend to be less academically prepared than
those matriculating directly from high school, the Academy is unable to offer some eligible
enlisted members the opportunity to matriculate through NAPS. (ECF No. 141 at 26:5–29:8
(Latta).) Practical roadblocks include the pay cut involved in attending the Academy as an
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enlisted member and the requirement that enlisted members receive a recommendation from
their commanding officer. (ECF No. 141 at 26:5–29:8 (Latta).)
c. Increase Recruitment Efforts
Despite the expansive recruiting and outreach efforts outlined infra, Kahlenberg
nevertheless contended at trial that the Academy could increase such efforts. (ECF No. 142
at 89:23–92:1, 167:3–175:16; PX219 at 47–52.) Kahlenberg insists that the Naval Academy
could increase completed application rates and better fund outreach efforts, making much of
a Boston Consulting Group (“BCG”) analysis from May 2022 that found that the Academy
lags in digital presence. (ECF No. 142 at 91:5–92:1; PX330.) Kahlenberg emphasized that
BCG recommended the Academy “invest more in admissions[, including] improving social
media, deeper engagement with geographies and where USNA appointments are [under
competitive], and better leveraging USNA’s massive cohort of [BGOs].” (ECF No. 142 at
91:5–92:1.)
The Court finds that the Academy already engages in these types of activities and makes
significant outreach efforts well beyond the suggestions proffered by Plaintiff’s expert. On
cross-examination, Kahlenberg conceded that there are “financial constraints” on the
Academy and noted “there are [a] number of good and promising things that just need more
resources.” (ECF No. 142 at 168:4–24.) Indeed, and as noted above, it is clear that the
Academy has already reached, or nearly reached, the maximum returns in increased
socioeconomic and racial diversity that can reasonably be achieved through its recruiting
efforts.
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d. Modify and Expand Preparation Programs
Kahlenberg further opines that the USNA could boost racial diversity without racial
consideration by modifying and expanding its preparation programs, noting about 20 percent
of each incoming class matriculates through a preparatory pipeline. (PX219 at 52–56; ECF
No. 142 at 103:4–106:11.) As noted supra, the Naval Academy has three preparatory
programs—NAPS, Foundation, and Civilian Prep—though Kahlenberg’s recommended
modifications are largely limited to NAPS, which was established for the benefit of enlisted
sailors and marines.
Preliminarily, this Court notes that Kahlenberg’s proposed expansions of NAPS are
dramatic, structural changes that are unworkable for several reasons. First, capacity at NAPS
is limited to 310 students total, and the Academy is not the only school utilizing NAPS as a
preparatory program. (ECF No. 141 at 24:22–26:4 (Latta).) Second, Kahlenberg’s proposed
expansion overlooks the limited funding available to commit towards such programs. (ECF
No. 142 at 165:22–166:7 (Kahlenberg).) Third, expanding NAPS impacts the Academy’s
ability to offer congressional vacancies. (ECF No. 141 at 25:18–21 (Latta).) As Kahlenberg
conceded on cross-examination, “it would be challenging” for the Academy to implement
these changes and “still meet all of its statutory and regulatory obligations.” (ECF No. 142 at
166:8–13 (Kahlenberg).)
Turning to Kahlenberg’s proposed modifications of NAPS, Kahlenberg testified that
“the NAPS program is one of the great things that the Naval Academy does,” noting NAPS
was “unusual on a national level, [as] it provides students who . . . are not fully ready to be at
the Naval Academy [with] a year of extra training.” (ECF No. 142 at 103:9–12.) Nevertheless,
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Kahlenberg was critical that “[t]hese [preparatory] programs do not appear to be aimed at
promoting socioeconomically diversity.” (PX219 at 54–55.) Accordingly, Kahlenberg opines
that the Academy “could have explored what would happen if NAPS were modified to be
race-neutral and emphasize socioeconomic disadvantage instead of race.” (Id. at 55–56.)
First, Kahlenberg suggests “expand[ing] the share of seats . . . devoted to [prep
applicants] from about 20% to something higher.” (Id. at 55.) This suggestion is unworkable,
as it is unclear how the Academy could implement such a change and “still meet all of its
statutory and regulatory obligations.” (ECF No. 142 at 166:8–13 (Kahlenberg).)
Second, Kahlenberg suggests that “NAPS could make the very reasonable policy shift
to devote most or even all of its seats to socioeconomically disadvantaged students on the
theory that students who have faced socioeconomic disadvantage are the most likely to benefit
from an extra year of preparation.” (PX219 at 55–56.) Kahlenberg notes that NAPS could
most likely maintain or exceed its current Black and Hispanic populations in light of the fact
that such “students are much more likely to be socioeconomically disadvantaged than white
students.” (Id. at 56.) Notably, Kahlenberg’s suggestion overlooks the fact that, aside from
recruited athletes, members of the fleet and applicants from underrepresented districts are the
Academy’s top priorities for offering spots at NAPS. (ECF No. 142 at 160:17–165:5
(Kahlenberg).) Moreover, minority representation decreases relative to what currently exists
at the Academy pursuant to Kahlenberg’s simulation on this proposal. (Id. at 160:17–165:5
(Kahlenberg).)
e. Reduce or Eliminate Preferences that Favor Non-Minorities
Kahlenberg opines that the USNA could boost racial diversity without racial
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preferences by reducing or eliminating preferences that favor non-minorities, such as legacy
preferences; preferences for athletes in boutique sports such as rowing, sailing, squash, and
water polo; preferences for students who attend wealthy high schools or participate in
expensive programs (i.e., preferences for students who attend a high school with high
percentage of students who are college bound, for students who take a large number of AP or
IB courses, for students involved in extracurricular activities). (PX219 at 56–66.) While it is
true that these preferences benefit wealthy students, the Court notes that Kahlenberg’s
simulations adopting these proposals did not benefit racial diversity, with the share of each
individual minority group falling in simulations modeling removal of these preferences. (ECF
No. 142 at 100:6–20, 154:3–160:9 (Kahlenberg).)
Moreover, Defendants put forth evidence at trial affirming the reasoning and
importance of these preferences, as Kahlenberg reluctantly conceded on cross-examination.
(Id. at 154:3–160:9 (Kahlenberg).) Briefly, with respect to legacy preferences, the Naval
Academy, as a military academy, has a legitimate interest in considering whether candidates
come from a military family. (Id. at 154:11–18 (Kahlenberg).) Dean Latta explained that such
candidates “have a strong motivation to serve” and have a better appreciation for what life at
the Naval Academy and in the Navy or Marine Corps will look like. (ECF No. 140 at 226:17–
229:20.) Furthermore, the legacy preference—which, to be clear, is provided to anyone whose
parent is currently on active duty in the U.S. military, not just to applicants with a family
member who attended one of the service academies—often operates as a proxy for hardship
because of the realities of the military lifestyle. (ECF No. 140 at 226:17–229:20 (Latta); DX1;
DX2; DX79; PX813.)
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With respect to preferences for athletes in boutique sports, the Naval Academy values
recruited athletes because of the skills exhibited by such candidates, such as warrior ethos,
leadership, teamwork, communication, time management, and persistence. (ECF No. 141 at
162:6–164:3 (Arcidiacono).) It is axiomatic that these skills are valuable to a federal service
academy with the mission of “develop[ing] midshipmen morally, mentally, and
physically . . . in order to graduate leaders who are dedicated to a career of naval service and
have potential for future development in mind and character to assume the highest
responsibilities of command, citizenship, and government.” (DX79; PX813.)
Finally, with respect to preferences for students who attend a high school with a high
percentage of students who are college bound, for students who take a large number of AP or
IB courses, and for students involved in extracurricular activities, the Naval Academy is “an
extremely difficult school to succeed in.” (ECF No. 140 at 159:2–162:5 (Latta).) “Students
have to have a strong foundation in math and science [and] across the board to not only
succeed in the first year but beyond the first year.” (Id. at 159:2–162:5 (Latta).) Moreover,
Kahlenberg described this proposed race-neutral alternative as “not optimal.” (ECF No. 142
at 157:11–160:9.)
f. Pursue Changes to the Nomination Process
Perhaps most untenable is Kahlenberg’s suggestion that the Naval Academy “seek
tweaks to the Congressional appointments process.” (PX219 at 66–73.) As Kahlenberg aptly
notes in his expert report, the Congressional appointment process is written into federal
statute. (Id. at 66); 10 U.S.C. § 8454. Indeed, Plaintiff appears to recognize that changes to
the nomination process are improbable. (ECF No. 148 ¶ 245 (claiming the race-neutral
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strategies identified by Kahlenberg are feasible but noting the current nominations process
would not need to change to facilitate the Academy’s incorporation of such race-neutral
alternatives).)
IV. Principles of Constitutional Review
A. Overview
SFFA’s challenge to the Naval Academy’s race-conscious admissions practices sits at
the intersection of two lines of precedent: race-conscious admissions and deference to the
executive and legislative branches’ military judgments. Under the Supreme Court’s affirmative
action precedents, the use of race in college admissions must survive strict scrutiny. That is,
the Naval Academy must show that its consideration of race is narrowly tailored to a
compelling governmental interest. Even in cases implicating strict scrutiny, however, the
military deference doctrine mandates deference to the political branches’ military judgments.
As explained infra, Defendants’ military judgment that the Navy and Marine Corps have a
compelling national security interest in enhancing unit cohesion and lethality, recruitment and
retention, and domestic and international legitimacy is entitled to judicial deference. Also as
explained infra, Defendants have met their burden to prove that the Naval Academy’s race-
conscious admissions practices are narrowly tailored to that compelling national security
interest. The Naval Academy’s race-conscious admissions policy withstands strict scrutiny.
That policy must receive the deference traditionally extended to military judgments. In short,
that military judgment is set by the President of the United States and not the federal judiciary.
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B. Students For Fair Admissions Has Standing.
Before reaching SFFA’s substantive claim, this Court reiterates its previous holding
that SFFA has Article III standing. (ECF No. 112.) To invoke associational standing, an
organization must demonstrate that “(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333,
343 (1977). Here, only the first element of associational standing was in dispute. In an equal
protection challenge to an admissions policy, an association meets this first element where at
least one of its members is ready and able to apply to the defendant institution. Gratz v.
Bollinger, 539 U.S. 244, 262 (2003). SFFA has already shown that Member D is ready and able
to apply to the Naval Academy because he applied to the Class of 2027 and intends to
complete his application for the Class of 2029 soon. 60 Accordingly, SFFA has Article III
standing to challenge the Naval Academy’s race-conscious admissions practices.
C. Standard of Review
The Fifth Amendment of the Constitution provides that “No person shall . . . be
deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V.
Although the Fifth Amendment does not contain an explicit Equal Protection Clause, its
“equal protection guarantee . . . is coextensive with that of the Fourteenth” Amendment.
United States v. Paradise, 480 U.S. 149, 166 n.16 (1987); see also Adarand Constructors, Inc. v. Peña,
515 U.S. 200, 217–18 (1995) (collecting cases). Accordingly, courts’ “‘approach to Fifth
60 No evidence at trial contradicted this showing or otherwise raised a genuine dispute as to standing.
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Amendment equal protection claims has always been precisely the same as to equal protection
claims under the Fourteenth Amendment.’” Adarand, 515 U.S. at 217 (quoting Weinberger v.
Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)). The equal protection principles within the Fifth
Amendment “‘require[] equality of treatment before the law for all persons without regard to
race or color.’” Harvard, 600 U.S. 181, 205 (2023) (quoting Browder v. Gayle, 142 F. Supp. 707,
715 (M.D. Ala. 1956)).
“Any exception to the Constitution’s demand for equal protection must survive a
daunting two-step examination known . . . as ‘strict scrutiny.’” Id. at 206–07 (citing Adarand,
515 U.S. at 227); see also Adarand, 515 U.S. at 227 (applying strict scrutiny to race-conscious
construction contracts); Shaw v. Reno, 509 U.S. 630, 650 (1993) (applying strict scrutiny to
race-conscious voting districting); Johnson v. California, 543 U.S. 499, 505 (2005) (applying strict
scrutiny to race-conscious prison housing assignments). Under that standard, courts must ask
(1) whether the racial classification is used to “further compelling governmental interests,”
and, if so, (2) whether the government’s use of race is “narrowly tailored—meaning
necessary—to achieve that interest.” Harvard, 600 U.S. at 206–207 (first quoting Grutter v.
Bollinger, 539 U.S. 306, 326 (2003); and then quoting Fisher v. Univ. of Tex. at Austin (Fisher I),
570 U.S. 297, 309, 312 (2013)). A governmental actor imposing a racial classification—
including a race-conscious admissions policy—must prove that classification complies with
the stringent demands of strict scrutiny. Adarand, 515 U.S. at 224.
All parties agree that the Naval Academy considers race in admissions. As such,
Defendants bear the burden to prove that the Naval Academy’s consideration of race is
narrowly tailored to achieve a compelling governmental interest. See Harvard, 600 U.S. at 228,
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206–207 (first citing Grutter, 539 U.S. at 326; and then citing Fisher I, 570 U.S. at 311–12).
Under the Supreme Court’s ruling in Harvard, civilian colleges and universities can only satisfy
strict scrutiny if they can show that their race-conscious admissions programs do not use race
as a negative, do not rest on stereotypes about the viewpoint of minority candidates, and have
a “logical end point.” Id. at 218, 219, 221.
Before applying strict scrutiny here, it bears reiterating that “at [their] heart our service
academies are quintessentially a military organization that also happen to be a four-year
degree-granting institution.” (ECF No. 146 at 143:8–10 (Miller).) Just as the Naval Academy
treats its midshipmen as servicemembers, Congress, the executive branch, and the judiciary
treat the Naval Academy as a military institution. (PX259 ¶ 7); 10 U.S.C. § 8459. “Midshipmen
enrolled in the Naval Academy are subject to . . . the Naval Academy’s own regulations and
the Directives of the Department of Defense applicable to the armed forces generally.”61
Steffan v. Perry, 41 F.3d 677, 682 (D.C. Cir. 1994); see also Dougherty v. Lehman, 688 F.2d 158,
160–61 (3d Cir. 1982) (explaining the Secretary of the Navy’s “power to discharge an Academy
midshipman ‘from the Naval Academy and from the Naval service’” (quoting 10 U.S.C. §
6962)). Although time spent at the Naval Academy does not accrue toward length of military
service, “a cadet in the Military or Naval Academies has always been considered to be a
member of the military forces of the United States.” Miller v. United States, 42 F.3d 297, 301
(5th Cir. 1995) (quoting Travis v. United States, 146 F. Supp. 847, 850 (Ct. Cl. 1956)). Courts
61 As discussed infra, former servicemembers such as Dr. Jeanette Haynie testified to the distinction between
the Naval Academy and a civilian institution. Dr. Haynie emphasized that “within a few weeks of graduating,
members of [her] class were leading . . . sailors and Marines . . . in all kinds of different places.” (ECF No. 144
at 130:19–25 (Haynie).)
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evaluate claims by a cadet as they would claims by a servicemember. See Doe v. Hagenbeck, 870
F.3d 36, 49 (2d Cir. 2017) (explaining sexual assault of cadet occurred incident to military
service because “academic and military pursuits are inextricably intertwined” at West Point);
Mentavlos v. Anderson, 249 F.3d 301, 314 (4th Cir. 2001) (explaining “cadets at military
academies have been considered to be ‘in the military’ for the purposes of the Feres doctrine”
(quoting Feres v. United States, 340 U.S. 135, 146 (1950)). The Supreme Court recognized
military service academies’ unique status when it exempted them from Harvard. 600 U.S. at
213 n.4.
Because strict scrutiny is a searching analysis, its application varies according to the
context and compelling interest claimed. See, e.g., Grutter, 539 U.S. at 327 (“Context matters
when reviewing race-based governmental action under the Equal Protection Clause.”). As the
Supreme Court acknowledged in Harvard, the application of strict scrutiny to civilian
institutions’ race-conscious admissions programs does not necessarily mirror its application to
race-conscious distinctions in the military context. See Harvard, 600 U.S. at 213 n.4. This case
implicates both race-conscious admissions and national security interests. Each stage of the
strict scrutiny analysis, therefore, requires this Court to determine the appropriate application
of both strict scrutiny and judicial deference to military judgments. Accordingly, it is useful to
review the Supreme Court’s jurisprudence in each area.
D. Strict Scrutiny in Affirmative Action Cases
This case follows closely on the heels of SFFA’s successful actions against Harvard
College and the University of North Carolina (“UNC”), decided jointly in Harvard, 600 U.S.
181 (2023). In that case, the Supreme Court held that race-conscious admissions policies in
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higher education violate the Equal Protection Clause of the Fourteenth Amendment. Id. at
230. In doing so, the Court applied strict scrutiny to the admissions practices, requiring
Harvard and UNC to prove that (1) “the racial classification is used to ‘further compelling
governmental interests’” and (2) “the use of race is narrowly tailored—meaning necessary—
to achieve that interest.” Id. at 206–207 (first quoting Grutter v. Bollinger, 539 U.S. 306, 326
(2003); and then quoting Fisher I, 570 U.S. 297, 311–12 (2013)). The Court further determined
that race-conscious admissions policies cannot use race as a negative or rest on stereotypes
about minority candidates’ viewpoints, and they must have a logical end point. Id. at 218, 219,
221.
The Supreme Court explicitly exempted military institutions from its decision in
Harvard “in light of the potentially distinct interests that military academies may present.” Id.
at 213 n.4. Though Harvard does not apply to military academies, its robust discussion of the
legal precedents that govern affirmative action remains instructive as to the strict scrutiny
analysis the Court must apply here. Accordingly, this Court provides a brief overview of
Harvard and its predecessors, keeping in mind the Supreme Court’s emphasis on the
importance of context in race-conscious admissions cases. See id. at 229 (critiquing principal
dissent for failing to consider case law in context).
1. Supreme Court Precedents on Race-Conscious Admissions
As the Supreme Court explained in Harvard, it first considered the constitutionality of
the use of race in college admissions in Regents of University of California v. Bakke, 438 U.S. 265
(1978). Harvard, 600 U.S. 181, 208 (2023). There, a fractured Court partly upheld the use of
race-based admissions practices, and Justice Powell wrote the opinion that would ultimately
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become “the touchstone for constitutional analysis of race-conscious admissions policies.”
Grutter v. Bollinger, 539 U.S. 306, 323 (2003); see also Bakke, 438 U.S. at 320 (opinion of Powell,
J.) (overturning lower court’s prohibition of any use of race in admissions). Justice Powell’s
opinion recognized the University of California’s compelling interest in the educational
benefits of a diverse student body but advocated careful limitations on race-conscious
admissions, including prohibiting racial quotas and requiring that race be considered only as a
factor in overall diversity. Bakke, 438 U.S. at 311–12, 317 (opinion of Powell, J.); see also
Harvard, 600 U.S. at 209–210 (summarizing Justice Powell’s opinion).
Twenty-five years later,62 the Supreme Court again considered the constitutionality of
race-based admissions practices in higher education in the companion cases Grutter v. Bollinger,
539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003).63 In Grutter, the Court accepted
diversity in higher education as a compelling interest that satisfied the second prong of the
strict scrutiny analysis. 539 U.S. at 328, 333. It required, however, that race-conscious policies
be narrowly tailored to achieving that interest. Id. at 333. Accordingly, a higher education
institution could not “establish quotas for members of certain racial groups or put members
of those groups on certain admission tracks;” “insulate applicants who belonged to certain
racial or ethnic groups from competition for admission;” base admissions on “any belief that
62 The decades that elapsed between Bakke and its progeny proved significant to the Supreme Court in both
Grutter and Harvard. Justice Sandra Day O’Connor’s majority opinion in Grutter noted that twenty-five years
had passed since Bakke and suggested affirmative action policies should conclude within the next twenty-five
years. Grutter v. Bollinger, 539 U.S. 306, 343 (2003). In Harvard, Chief Justice John Roberts echoed Justice
O’Connor’s words, lamenting, “[t]wenty years later, no end is in sight.” 600 U.S. 181, 213 (2023).
63 In Gratz v. Bollinger, the Court held that the University of Michigan’s admissions policy of automatically
assigning a twenty-point bonus to underrepresented minority applicants was not narrowly tailored to the
university’s compelling interest in a diverse student body. 539 U.S. 244, 273, 275 (2003). Therefore, the Court
held that the University of Michigan’s policy violated the Equal Protection Clause of the Fourteenth
Amendment. Id. at 275.
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minority students always (or even consistently) express some characteristic minority viewpoint
on an issue;” or “assure within its student body some specified percentage of a particular group
merely because of its race or ethnic origin.” Id. at 328, 334, 333, 329–30, 307. Moreover, the
Grutter Court held that “race-conscious admissions policies must be limited in time” in
recognition that racial preferences “may be employed no more broadly than the interest
demands.” Id. at 342. Specifically, the Court noted that racial classifications must not “unduly
harm nonminority applicants” competing for admission. Id. at 341.
In Fisher v. University of Texas at Austin (Fisher II), 579 U.S. 365 (2016), the Supreme
Court considered another equal protection challenge to race-conscious admissions practices
at a public university.64 Id. at 369. As in Grutter, the Court accepted diversity on campus as a
compelling governmental interest but emphasized that race-conscious admissions are only
constitutional if they are narrowly tailored to achieving that goal. Id. at 377. In Fisher II, the
University of Texas at Austin (“UT Austin”) filled seventy-five percent of its freshman class,
as required by Texas law, with students who graduated in the top ten percent of their class at
a Texas high school and considered race as a subfactor in the admission of the remaining
twenty-five percent of the class.65 Id. at 373–74. In upholding this race-conscious admissions
policy, the Court cited three principles established in Fisher I: (1) race-conscious admissions
64 Fisher II was the second time the Supreme Court considered the policies at the University of Texas at Austin.
The first time the case went to the Supreme Court, the Court vacated and remanded the district court’s
judgment because the lower courts had improperly reviewed the race-conscious policies under a “good faith”
standard, rather than under strict scrutiny. See Fisher I, 570 U.S. 297, 311–13 (2013) (chastising the Court of
Appeals for failing “perform th[e] searching examination” mandated by strict scrutiny and placing the burden
on the petitioner).
65 UT Austin adopted a policy by which applicants not admitted under the Top Ten Percent statute received
an Achievement Index (“AI”) and a Personal Achievement Index (“PAI”). Fisher II, 579 U.S. 365, 371 (2016).
Race was considered as a subfactor within an applicant’s PAI, which itself was comprised of two components:
a score based on two application essays and a score based on a holistic review of the applicant’s full file. Id. at
373–74.
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programs are subject to strict scrutiny; (2) a university’s determination that diversity is a
compelling interest is entitled to “‘some, but not complete, judicial deference;’” and (3) courts
extend no deference to a university’s conclusion that its race-conscious admissions policies are
narrowly tailored to achieving diversity. Id. at 376–77 (quoting Fisher I, 570 U.S. 297, 309
(2013)). The Court deemed the race-conscious admissions policy at issue narrowly tailored
because UT Austin provided statistical and anecdotal evidence that the policy “had a
meaningful, if still limited, effect on the diversity of the University’s freshman class,”
continually studied the impact of the policy, and showed no workable alternatives were
available. Id. at 384, 383–84, 385–86, 388.
2. SFFA v. President & Fellows of Harvard College
It was against this backdrop that the Supreme Court recently considered the race-
conscious admissions practices of Harvard and UNC. In Harvard, the Court for the first time
held that the benefit that flows from a diverse student body no longer constitutes a compelling
governmental interest that justifies race-conscious admissions at civilian colleges and
universities. 600 U.S. 181, 214 (2023). Although SFFA called for the Court to overrule Grutter,
the Court declined. See Brief for Petitioner at 49–71, Students for Fair Admissions v. Pres. &
Fellows of Harv. Coll., 600 U.S. 181 (2023) (Nos. 20–1199, 21–707); Harvard, 600 U.S. at 211–
214. After carefully recounting Grutter’s strict scrutiny analysis, the Court in Harvard relied
heavily on Grutter as authority.66 See Harvard, 600 U.S. at 211–13 (reasoning that the Court had
66 Justice Brett Kavanaugh wrote separately “explain[ing] why the Court’s decision . . . is consistent with and
follows from . . . the Court’s precedents on race-based affirmative action.” Harvard, 600 U.S. at 311
(Kavanaugh, J., concurring). This Court notes that Justice Clarence Thomas wrote separately and stated
“Grutter is, for all intents and purposes, overruled,” id. at 287 (Thomas, J., concurring), and Justice Sonia
Sotomayor’s dissent accused the majority of “overruling decades of precedent” while “‘disguis[ing]’ its rulings
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permitted race-based admissions “only within the confines of narrow restrictions” and the
respondents’ admissions programs failed each of these criteria); id. at 220 (reasoning that “by
accepting race-based admissions programs in which some students may obtain preferences on
the basis of race alone, respondents’ programs tolerate the very thing that Grutter foreswore:
stereotyping”); id. at 221 (reasoning that the respondents’ admissions programs were
unconstitutional under Grutter because they lacked a logical end point). It seems that Harvard,
at most, partially overruled Grutter.
In Harvard, the Supreme Court held that the race-based admissions practices at issue
failed to survive strict scrutiny. Id. at 230. The Court carefully evaluated the case law in its
context, chiding the principal dissent for both “wrench[ing the] case law from its context” and
relying on Fisher II, which evaluated race-based admissions practices geared toward achieving
a “critical mass.” Id. at 228–29 (quoting Fisher I, 570 U.S. 297, 297 (2013)). The Court
expressly acknowledged that a higher educational institution’s decision to use race in
admissions merits deference “‘within constitutionally prescribed limits.’” Id. at 217 (quoting
Grutter v. Bollinger, 539 U.S. 306, 328 (2003)). Even in striking down the race-based admissions
policies at issue, however, the Court was careful to note that “nothing in this opinion should
be construed as prohibiting universities from considering an applicant’s discussion of how
race affected his or her life, be it through discrimination, inspiration, or otherwise.” Id. at 230.
The Supreme Court explained that Harvard and UNC had failed to identify a
compelling governmental interest because the interests they claimed were not “sufficiently
as an application of ‘established law,’” id. at 341–42 (Sotomayor, J., dissenting) (quoting Kennedy v. Bremerton Sch.
Dist., 597 U.S. 507, 573 (2022) (Sotomayor, J., dissenting)).
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measurable to permit judicial review under the rubric of strict scrutiny.” Id. at 214. Next, the
Court determined that Harvard and UNC failed to show that their race-based admissions
programs were narrowly tailored to their claimed compelling interests. Id. at 215. The Court
rejected the categories the schools used to track racial diversity on campus, noting that racial
categories such as Asian American are grossly overbroad, while ethnic categories like
“Hispanic[] are arbitrary or undefined.” Id. at 216.
The Court also held that the race-based admissions practices at issue “fail[ed] to comply
with the twin commands of the Equal Protection Clause that race may never be used as a
‘negative’ and that it may not operate as a stereotype.” Id. at 218. Crucially, the Court deemed
college admissions “zero-sum,” so an admissions bonus given only to certain applicants
inherently decreases the admissions chances of applicants who do not receive that bonus. Id.
at 218–19. The Court further concluded that providing an admissions preference based on
race alone amounted to unconstitutional stereotyping by assuming that a student of one race
offers something unique solely because of her skin color. Id. at 220.
Finally, the Court returned to Grutter’s requirement of an end point for the use of race
in college admissions. Id. at 221. The Court first determined that the relative stability in the
racial makeup of each Harvard class showed that Harvard was engaged in impermissible racial
balancing. Id. at 222. The Court concluded that UNC’s claimed interest in achieving an
undergraduate student body whose racial composition more closely approximated that of the
general population of North Carolina also amounted to unconstitutional racial balancing. Id.
at 223. The Court quickly rejected Harvard and UNC’s assertions that (1) race-based
admissions should be permitted to continue until 2028 in respect of the Court’s 25-year sunset
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provision in Grutter, and (2) frequent review of the race-based admissions policies precluded
the need for an end date.67 Id. at 224–25.
Under Harvard, race-based admissions programs are still subject to strict scrutiny, but
the benefit of diversity on campus is no longer a compelling governmental interest that can
justify the use of race in admissions. A civilian institution’s claimed interest in the use of
race-conscious admissions practices can only be compelling if it is sufficiently measurable to
allow judicial review. Id. at 214–15. The Court also clarified that the narrow tailoring prong
of the strict scrutiny analysis requires civilian institutions to concretely demonstrate the
beneficial effects of their race-conscious admissions policies. Id. at 216–17. Additionally, the
Court imposed further requirements on the constitutional use of race in admissions: (1) race
may never be used as a negative; (2) the use of race may not rest on the principle that minority
students always express the same viewpoint on an issue; and (3) race-conscious admissions
policies must have a logical end point. Id. at 218, 219, 221.
In declining to apply Harvard to military service academies, however, the Court made
clear that service academies may identify distinct and compelling governmental interests that
justify their use of race in admissions.68 Id. at 214 n.4. This determination rests atop the long
67 The Supreme Court’s consideration of affirmative action more generally extends far beyond Bakke, Grutter,
Fisher I and Fisher II, and Harvard. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 477, 511 (1989)
(striking down ordinance requiring city to set aside certain portion of construction contracts for “minority
business enterprises”); Swann v. Charlotte-Mecklenburg Bd. Of Educ., 402 U.S. 1, 32 (1971) (upholding desegregation
plan that considered race in K-12 education); Parents Involved Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
747–48 (2007) (striking down policy that considered race in K-12 school assignments). Because this case
challenges race-conscious admissions practices at a military service academy, however, this Court reviews only
those cases that considered the constitutionality of race-conscious admissions in the context of higher
education.
68 The scope of Harvard is now subject to litigation in many circuits, including the Fourth Circuit. See, e.g., Brief
for Appellants at 50, Hierholzer v. Guzman, No. 24-1187 (4th Cir. April 23, 2024), ECF No. 14 (contending that
Harvard applies to all challenges to racial classifications under strict scrutiny); see also Ossmann v. Meredith Corp.,
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line of cases in which the Supreme Court distinguished military matters by deferring to the
military judgments of the legislative and executive branches. Under these cases, the Naval
Academy’s claimed compelling governmental interests are entitled to deference.
E. Judicial Deference to the Legislative and Executive Branches in Military

Matters
Although premised at least in part on the Court’s reluctance to decide an issue not fully
briefed, the footnote exempting service academies from the decision in Harvard is firmly in
line with the Supreme Court’s “healthy deference to legislative and executive judgments in the
area of military affairs.” Rostker v. Goldberg, 453 U.S. 57, 66 (1981). This deference reflects not
only the judiciary’s limited competence to review national security determinations, but also the
Constitution’s assignment of military authority to the executive and legislative branches. Here,
Defendants’ compelling national security interest in furthering unit cohesion and lethality,
recruitment and retention, and the legitimacy of the Navy and Marine Corps at home and
abroad implicates such deference. The Court has treated the military separate and apart from
civilian institutions in at least three areas: (1) constitutional challenges; (2) military personnel
policies; and (3) military justice.69 Although the Court’s emphasis on the distinctions between
82 F.4th 1007, 1019–20 (11th Cir. 2023) (rejecting plaintiff’s attempt to apply Harvard to employment
discrimination case); Smyer v. Kroger Ltd. P’ship I, 2024 WL 1007116, at *7 (6th Cir. Mar. 8, 2024) (Boggs, J.,
concurring) (discussing application of Harvard to employment discrimination case); Ultima Servs. Corp. v. United
States Dep’t of Agric., 683 F. Supp. 3d 745, 764–65 (E.D. Tenn. 2023) (applying Harvard to Equal Protection
challenge to program providing federal funding for small businesses); Robinson v. Ardoin, 86 F.4th 574, 593 (5th
Cir. 2023) (declining to apply Harvard in voting districting context); Mid-Am. Milling Co. v. United States Dep’t of
Transp., 2024 WL 4267183, at *7–*10 (E.D. Ky. Sept. 23, 2024) (applying Harvard in challenge to federal
Disadvantaged Business Enterprise Program). It remains unclear whether Harvard is limited to the higher
education context or applies more broadly to all governmental uses of a racial classification. Given the Supreme
Court’s emphasis on context and the content of footnote four of the Harvard opinion, this Court construes
Harvard to apply to race-conscious admissions at civilian colleges and universities.
69 The Supreme Court has long distinguished the military justice system from the civilian justice system. See,
e.g., Solorio v. United States, 438 U.S. 435, 447–451 (1987) (discussing historical deference to military justice and
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military and civilian life has never wavered, its application of deference differs in each of these
areas.
1. Deference to Coordinate Branches’ Judgments in Constitutional

Challenges
The Court has repeatedly noted that it applies the same analysis to constitutional
challenges regardless of whether the challenge arises in the military or civilian context. See, e.g.,
Rostker v. Goldberg, 453 U.S. 57, 67 (1981) (“We of course do not abdicate our ultimate
responsibility to decide the constitutional question, but simply recognize that the Constitution
itself requires such deference to congressional choice.”). Rather than adjusting its standard of
review in constitutional challenges, the Court defers to the judgment of Congress and the
Executive, including military leaders, regarding the military’s needs. See Schlesinger v. Ballard,
419 U.S. 498, 510 (1975). In cases implicating strict scrutiny in the military context, therefore,
the judiciary defers to its coordinate branches’ logical determinations about the existence of a
compelling governmental interest. This deference is most apparent in the Court’s
consideration of equal protection and First Amendment challenges.
a. Deference in Equal Protection Challenges
Ample case law demonstrates that the judiciary defers to congressional and executive
leaders’ determinations of a compelling governmental interest in equal protection cases
involving the military. The Supreme Court has considered numerous equal protection
challenges to military policy beginning in the Second World War and continuing to the present
day. Regardless of the standard of review—heightened scrutiny or rational basis—the Court
deferring to distinct needs of the military justice system). The nature of SFFA’s challenge here, however, does
not require discussion of the Supreme Court’s deference to the military justice system.
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applied deference to the legislative and executive branches’ determinations about national
security and military needs.
i. Equal Protection Challenges Based on Race
In Hirabayashi v. United States, decided at the height of the Second World War, the Court
deferred to the national security determinations of Congress and the Executive to affirm the
constitutionality of a federal statute and military proclamation as applied to Gordon
Hirabayashi. 320 U.S. 81 (1943). The Court evaluated the constitutionality of a federal statute
and associated military proclamation—both imposed pursuant to the President’s Executive
Order Number 9066 (“EO 9066”)—that authorized criminal punishment of Japanese
Americans who failed to obey the military’s curfew and exclusion orders. Id. at 83, 89. In
considering Hirabayashi’s challenge to both Congress’s delegation of authority to a military
commander and the resulting regulation’s explicit discrimination against Japanese Americans,
the Court emphasized its deference to the political branches on issues of national security.70
The Court determined that, under the federal government’s war power, “it was within
the constitutional power of Congress and the executive arm of the Government to prescribe
this curfew order for the period under consideration.” Id. at 92. The Court evaluated the
restriction in context, reciting Japan’s various attacks in the Pacific, including on Pearl Harbor,
espionage efforts in the United States, and information provided by the military and Congress
regarding the risk of espionage. Id. at 94–95, 102–104. The Court acknowledged that
70 Hirabayashi raised a due process challenge because the Fifth Amendment does not contain an explicit equal
protection clause, and the Court analyzed his claim under the equal protection principles implicit in the Fifth
Amendment. See Hirabayashi v. United States, 320 U.S. 81, 100 (1943) (“[L]egislative classification or
discrimination based on race alone has often been held to be a denial of equal protection.”).
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legislative distinctions by race typically violate equal protection principles but explicitly
declined to apply those principles to Hirabayashi’s case because of the military judgments at
issue. Id. at 98–99. In deference to those judgments, the Court upheld the race-based curfew
order. Id. at 102–103, 104.
Just a year later, in Korematsu v. United States, the Court upheld the constitutionality of
exclusion orders requiring Japanese Americans to leave military areas and, ultimately, face
federal detention. 323 U.S. 214, 221 (1944) abrogated by Trump v. Hawaii, 585 U.S. 667 (2018).
In Korematsu, the Court addressed the constitutionality of Exclusion Order Number 34
(“Exclusion Order”), under which all persons of Japanese ancestry were excluded from the
military area of San Leandro, California. Id. at 215–16. Like the curfew in Hirabayashi, the
Exclusion Order was issued pursuant to EO 9066. Id. at 216. In upholding the Exclusion
Order, the Court overtly recognized the military’s unique ability to judge national security. Id.
at 219. As in Hirabayashi, the Court cited its inability to reject military authorities’ conclusion
that the national loyalties of individual Japanese Americans could not efficiently be
determined. Id. at 219. The Court concluded by distinguishing the military context of the case
from an ordinary equal protection case: “To cast this case into outlines of racial prejudice,
without reference to the real military dangers which were presented, merely confuses the
issue.”71 Id. at 222–23.
71 Even in the most famous dissent to Korematsu, Justice Jackson still urged deference to military decisions
regarding national security. 323 U.S. 214, 245 (1944) (Jackson, J., dissenting) abrogated by Trump v. Hawaii, 585
U.S. 667 (2018). He argued that courts lack capacity to evaluate the constitutionality of military judgments
because those judgments rest on determinations that are often unprovable. Id. Though he warned of the
dangers of civil courts that deem military commands constitutional merely because they rest on “reasonable
military grounds,” he concluded that judges are ill-equipped to evaluate military judgments. Id. at 244, 247.
Therefore, he contended that the Court should have evaluated the law only as applied to Korematsu. Id. at
248.
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Proper application of Korematsu demands consideration of Trump v. Hawaii, 585 U.S.
667 (2018), the case that ultimately abrogated its holding. In Trump v. Hawaii, the Supreme
Court grappled with the application of Establishment Clause principles in the national security
arena when it reversed the grant of a preliminary injunction against President Trump’s
Executive Order Number 13769 (“EO 13769”) barring the entry into the United States of
immigrants from eight foreign countries. 585 U.S. at 710. The Trump Administration justified
EO 13769 as critical to national security because the targeted countries failed to properly
investigate their emigrants for potential ties to terrorism. Id. at 679–80. The Court deferred
to the President’s national security determinations because “[b]y its terms [the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.,] § 1182(f) exudes deference to the
president in every clause,” and a searching review of the persuasiveness of the President’s
reasoning would be “inconsistent with the . . . deference traditionally accorded the President
in this sphere.” Id. at 684, 686. The Court rejected the plaintiffs’ argument that history,
statutory structure, or legislative purpose overcame the broad grant of discretion to the
president in the text of § 1182(f). Id. at 688. The Court acknowledged President Trump’s
repeated anti-Islam rhetoric but emphasized that EO 13769 was facially neutral and premised
on legitimate national security concerns. Id. at 702, 706–707. The Court concluded by
distinguishing its decision to uphold President Trump’s Executive Order from its decision in
Korematsu. Id. at 710 (“Korematsu was gravely wrong the day it was decided, has been overruled
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in the court of history, and—to be clear—has no place in law under the Constitution.”
(internal quotation omitted)).72
ii. Equal Protection Challenges Based on Sex
The Supreme Court’s next spate of equal protection challenges in the military context
arose in the Vietnam War Era. In Schlesinger v. Ballard, the Court heard an equal protection
challenge to the military separation statute’s different application to male and female
servicemembers. 419 U.S. 498 (1975). A male lieutenant in the United States Navy challenged
the statute, 10 U.S.C. § 6382, after he faced mandatory discharge when he failed for a second
time to receive a promotion after nine years serving as a commissioned officer. 73 Schlesinger,
419 U.S. at 499–500. He then filed an action in federal court, alleging the separation statute
violated the equal protection principles of the Fifth Amendment’s Due Process Clause by
guaranteeing women thirteen years of commissioned service before mandatory discharge but
subjecting men to mandatory discharge after two failures to promote. Id. at 500, 500 n.2.
Applying rational basis review, the Court upheld the statute.74 Id. at 508.
72 Here, SFFA argues that Korematsu was overruled because it was too deferential to military urgency. (ECF
No. 148 ¶¶ 253, 264(c).) This argument misstates the Supreme Court’s language in Trump v. Hawaii and Harvard.
While the Supreme Court made clear in Trump v. Hawaii that the holding of Korematsu was repugnant, it did not
discuss its reasons for deeming the decision “overruled in the court of history.” 585 U.S. at 710. As such,
Trump v. Hawaii critiques the outcome of Korematsu without offering any insight into the Supreme Court’s reason
for abrogating that outcome. In Harvard, the Supreme Court explained in a footnote that Korematsu
demonstrates that “even the most rigid scrutiny” at times fails to detect an illegitimate racial classification and
“[a]ny retreat from the most searching judicial inquiry can only increase the risk of another such error.” Harvard,
600 U.S. 181, 207 n.3 (2023) (citations omitted) (alterations in original). This language does not suggest that
the Court rejects deference to military judgments, which has long existed within the rigid strict scrutiny analysis.
Rather, the Court’s language characterizes Korematsu as an application of “the most rigid scrutiny.” Id.
73 The Navy and Marine Corps ultimately discontinued these “up-or-out policies” in recognition of the various
factors that may lead an individual to fail to promote. (ECF 146 at 138:11-140:1 (Miller).)
74 The application of rational basis review may itself have reflected deference to the military concerns at issue.
Two years earlier, in Frontiero v. Richardson, the Court explicitly departed from “‘traditional’ rational basis analysis
with respect to sex-based classifications” and evaluated a gender-based classification under strict scrutiny. 411
U.S. 677, 684, 690–91 (1973). Writing in dissent in Ballard, Justice Brennan argued that “[s]uspect classifications
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The Court distinguished the mandatory discharge scheme from its prior equal
protection precedents regarding sex discrimination, Frontiero v. Richardson, 411 U.S. 677 (1973),
and Reed v. Reed, 404 U.S. 71 (1971). Unlike Frontiero and Reed, where the different treatment
at issue was rooted in gender stereotypes, the Navy’s promotion scheme reflected that “male
and female line officers in the Navy are not similarly situated with respect to opportunities for
professional service.” Ballard, 419 U.S. at 508. The Court pointed to the restriction of female
officers in combat communities and noted that Congress could have rationally concluded that,
absent combat experience, women might need a longer period to reach the same rank as their
male counterparts. Id. at 508. Additionally, the Court emphasized that Congress only applied
the statute at issue to Navy and Marine Corps communities where officers were not similarly
situated. Id. at 509. The Court explicitly noted that the Constitution assigned Congress and
the President—not the judiciary—the responsibility to prepare and maintain the Armed
Forces. Id. Once again, therefore, the Court deferred to the determinations of the legislative
and executive branches regarding military readiness.
Less than a decade later, in Rostker v. Goldberg, the Supreme Court revisited the equal
protection implications of military policies that differentiate by sex. 453 U.S. 57 (1981). There,
the Court upheld the Military Selective Service Act (“the Act”) against an equal protection
challenge alleging that it violated the Fifth Amendment by requiring men but not women to
register for the draft. Id. at 59, 83. The Court began its analysis by explaining the interaction
can be sustained only if the Government demonstrates the classification serves compelling interests that cannot
otherwise be achieved.” Schlesinger v. Ballard, 419 U.S. 498, 511 (1975) (Brennan, J., dissenting). The
intermediate scrutiny test for sex-based classifications was not firmly established until 1976. See Craig v. Boren,
429 U.S. 190 (1976).
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between deference on military matters and the heightened scrutiny applied in some equal
protection cases. Id. at 64–72. Although the Court declined to apply lesser scrutiny merely
because Rostker implicated military judgments, it noted that Congress’s broad constitutional
authority informed its review. Id. at 71. Specifically, the Court explained that it affords the
greatest deference to Congress’s sweeping “authority over national defense and military
affairs,” in which the judicial branch is ill-equipped to intervene. Id. at 64, 69; see also id. at 65–
66 (“‘[I]t is difficult to conceive of an area of governmental activity in which the courts have
less competence. The complex, subtle, and professional decisions as to the composition,
training, equipping, and control of a military force are essentially professional military
judgments, subject always to civilian control of the Legislative and Executive branches.’”
(alteration and emphasis in original) (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)). Given
its history of “healthy deference” to the executive and legislative branches’ military
determinations, the Court concluded that “constitutional tests and limitations” may differ in
the military context. Id. at 66, 67.
b. Deference in First Amendment Challenges
The Court is similarly deferential to its coordinate branches’ judgments of national
security and military affairs in First Amendment challenges. In 1986, in Goldman v. Weinberger,
the Court upheld an Air Force regulation barring an Orthodox Jewish servicemember from
wearing his yarmulke on base. 475 U.S. 503, 504–505 (1986). The Court explained that it had
“repeatedly held that ‘the military is, by necessity, a specialized society separate from civilian
society.’” Id. at 506 (quoting Parker v. Levy, 417 U.S. 733, 743 (1974)). Therefore, the Court
deferred to the considered judgment of the Air Force that it required standardized uniforms—
126
regardless of religious dress—to encourage a unified identity. Id. at 508. In support of its
ruling, the Court cited the Air Force regulation itself, which detailed the limitations and
exceptions applicable to servicemembers’ garb. Id. at 508–509.
In Holder v. Humanitarian Law Project, the Court considered a due process and free
speech challenge to 18 U.S.C. § 2339B (“Material Support Statute”), which prohibits the
knowing provision of “material support or resources” to foreign terrorist organizations. 561
U.S. 1, 7 (2010) (quoting 18 U.S.C. § 2339B(a)(1)). In Holder a group of citizens and domestic
organizations alleged that the Material Support Statute violated their First Amendment rights
of free speech and association by preventing them from supporting the non-terroristic
humanitarian and political activities of covered organizations.75 Id. at 10. In its extensive
discussion of the statute’s alleged infringement upon free speech rights, the Court explained
the deference owed the executive branch in its national security conclusions. Id. at 33–39.
2. Deference to Military Personnel Regulations
Even when a policy does not overtly implicate national security matters, the Supreme
Court has repeatedly affirmed its deference on military matters. In a series of cases challenging
military personnel policies, the Court time and again deferred to the judgment of Congress,
the Executive, and military leaders. In Orloff v. Willoughby, 345 U.S. 83 (1953), the Supreme
Court deferred to the legislative and executive branches’ combined judgment regarding the
commissioning of officers.
75 The plaintiffs also argued that the Material Support Statute was unconstitutionally vague in violation of the
Fifth Amendment’s Due Process Clause. Holder v. Humanitarian L. Project, 561 U.S. 1, 11 (2010). The Court
rejected this argument. Id. at 25.
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Pertinently, the Court distinguished its own view of the functioning of the military
from that of Congress and the Executive. Id. at 91. After explicitly noting the irrelevance of
its own opinion of Orloff’s fitness for the rank and duties of officer, the Court determined
that the President had the right to set requirements for commissioning as an officer. Id. The
Court emphasized the unique trust and honor the President places in military officers and held
that it could not order the President to commission Orloff if he failed to complete a required
loyalty certificate. Id. at 92. Similarly, the Court held that it could not order the Army to assign
Orloff specific duties. Id. The only legal duty the government owed Orloff was to assign him
duties in the “medical and allied specialist categories.” Id. As the Court noted, this category
left much discretion to military commanders. Id.
Although the Court acknowledged the frequent complaints of discrimination in the
Army, it concluded that “judges are not given the task of running the Army.” Id. at 93. In
parting, the Court reiterated the importance of distinguishing the judiciary from the executive
and legislative branches in making miliary determinations:
The responsibility for setting up channels through which such grievances can
be considered and fairly settled rests upon the Congress and upon the President
of the United States and his subordinates. The military constitutes a specialized
community governed by a separate discipline from that of the civilian. Orderly
government requires that the judiciary be as scrupulous not to interfere with
legitimate Army matters as the Army must be scrupulous not to intervene in
judicial matters. While the courts have found occasion to determine whether
one has been lawfully inducted and is therefore within the jurisdiction of the
Army and subject to its orders, we have found no case where this Court has
assumed to revise duty orders as to one lawfully in the service.
Id. at 93–94. The Court declined to exercise habeas jurisdiction because it would intrude on
“affairs peculiarly within the jurisdiction of the military authorities.” Id. at 94–95.
128
Nearly two decades later, the Court again confronted its role in reviewing military
policies in Gilligan v. Morgan, 413 U.S. 1 (1973). There, the Supreme Court held injusticiable a
civil suit alleging that the Ohio National Guard’s “pattern of training, weaponry, and
orders . . . ma[d]e inevitable the use of fatal force in suppressing civilian disorders” in violation
of the Due Process Clause of the Fourteenth Amendment. Id. at 4, 6. The Court characterized
the suit as asking it to “assume continuing regulatory jurisdiction” of the Ohio National Guard
and held that such authority would unconstitutionally impinge on Congress’s power to
organize, arm, and discipline the military. Id. at 5–6 (citing U.S. CONST. art. I § 8, cl. 16).
Similarly, the Court concluded that because Congress had authorized the President to regulate,
organize, and discipline the National Guard, judicial interference would disrupt the President’s
statutory authority. Id. at 7.
In Chappell v. Wallace, the Court considered its role in addressing claims of racial
discrimination in the Armed Forces. 462 U.S. 296 (1983). A group of enlisted Navy sailors
serving on a combat vessel sued the vessel’s commanding officer, four lieutenants, and three
non-commissioned officers, alleging the officers had discriminated against them because of
their minority race. Id. at 297. The U.S. Court of Appeals for the Ninth Circuit allowed the
enlisted sailors’ claims to advance as a Bivens action,76 but the Supreme Court, in apparent
deference to the unique needs of the military, reversed. Id. at 298. The Court noted that “[t]he
76 In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court
recognized a federal analog to 42 U.S.C. § 1983, which allows individuals to sue state officials for constitutional
violations. 403 U.S. at 397. Under Bivens, a victim of a constitutional violation at the hands of a federal agent
may recover damages against that agent despite the absence of any statute that provides such a right to damages.
Id. at 395–97. Because Bivens exists independent of a federal statute authorizing such claims, the Supreme Court
has tightly constrained its application. See, e.g., Hernandez v. Mesa, 589 U.S. 93, 99–102 (2020) (explaining the
Supreme Court’s rationale for sharply limiting the application Bivens).
129
need for special regulations in relation to military discipline . . . is too obvious to require
extensive discussion.” Id. at 300. It went on the explain the differences between civilian life
and military life:
In the civilian life of a democracy many command few; in the military, however,
this is reversed, for military necessity makes demands on its personnel “without
counterpart in civilian life.” The inescapable demands of military discipline and
obedience to orders cannot be taught on battlefields; the habit of immediate
compliance with military procedures and orders must be virtually reflex with no
time for debate or reflection. The Court has often noted “the peculiar and
special relationship of the soldier to his superiors,” and has acknowledged that
“the rights of men in the armed forces must perforce be conditioned to meet
certain overriding demands of discipline and duty . . . .” This becomes
imperative in combat, but conduct in combat inevitably reflects the training that
precedes combat; for that reason, centuries of experience has developed a
hierarchical structure of discipline and obedience to command, unique in its
application to the military establishment and wholly different from civilian
patterns. Civilian courts must, at the very least, hesitate long before entertaining
a suit which asks the court to tamper with the established relationship between
enlisted military personnel and their superior officers; that relationship is at the
heart of the necessarily unique structure of the military establishment.
Id. at 300 (internal citations omitted).77
The Court emphasized that the Framers—themselves familiar with military service—
deliberately awarded Congress plenary power to regulate the military. Id. at 300–301. The
Court refused to intervene to provide a remedy for sailors challenging their superior officers
because such external remedy would disrupt the uniquely hierarchical nature of military life.
77 Chappell is not the only case in which the Supreme Court emphasized the unique nature of relationships
within the military hierarchy. In United States v. Brown, for example, the Court considered whether an honorably
discharged veteran could maintain a suit in negligence under the Federal Tort Claims Act against the doctors
at a veteran’s hospital who treated his injury after he had left active service. 348 U.S. 110, 110–12 (1954). The
Court recited its previous determination that “[t]he peculiar and special relationship of the soldier to his
superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain
if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the
course of military duty” barred negligence suits by military servicemembers for injuries suffered while on active
duty. Id. at 112. Because the injury in Brown had not occurred during military service, however, the Court
affirmed the lower court’s judgment granting relief to Brown. Id. at 112–13.
130
Id. at 304. Though the Court ultimately held that enlisted sailors did not have a Bivens remedy
against Naval officers, it was careful to note that military personnel still have some redress for
constitutional wrongs suffered while in service. Id. at 304–305.
In Department of Navy v. Egan, the Court considered the procedural protections owed a
civilian employee, Egan, denied a security clearance and thus discharged from his position as
a laborer at a Naval facility. 484 U.S. 518, 520 (1988). Specifically, the Court considered
whether the Merit Systems Protection Board (“Board”) was statutorily authorized to review
the Navy’s substantive decision to deny a security clearance. Id. at 520. Egan obtained a
position as a “noncritical-sensitive” laborer leader but lost his position after the Navy denied
his security clearance. Id. at 521, 521 n.1, 522. Pursuant to 5 U.S.C. § 7513(d), he petitioned
for review at the Board, which ordered him reinstated. Egan, 484 U.S. at 522–23, 524. On
appeal, the full Board reversed its decision after determining that it lacked the authority to
review a removal premised on denial of a security clearance. Id. at 524–25. After determining
that Congress had a created a two-track removal scheme—one track for removals for cause
and another for removals not for cause—the Court determined that the Board lacked authority
to review the Navy’s denial of Egan’s security clearance. Id. at 533–34.
As in its other cases, the Supreme Court explained its deference to Congress and the
executive branch, including military personnel, on matters of national security. Id. at 526–530.
The Court immediately distinguished ordinary administrative law cases from those cases
implicating national security concerns and the discretion of the executive branch. Id. at 526.
The Court noted its independent deference to the President, as the Commander in Chief of
the Armed Forces, and executive branch as distinct from its deference to Congress. Id. at 527.
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Citing its considerable case law on the deference owed the Executive in military matters, the
Court concluded, “unless Congress specifically has provided otherwise, courts traditionally
have been reluctant to intrude upon the authority of the Executive in military and national
security affairs.” Id. at 529. Accordingly, the Court refused to interpret the statute at issue to
allow the Board to review the Navy’s substantive decision. Id. at 533–34.
More recently, in its brief opinion in Austin v. United States Navy Seals 1-26, the Court
granted an application for a partial stay of a preliminary injunction that would have barred the
Navy from considering Navy Seals’ vaccination statuses when making deployment,
assignment, and other operational decisions. 142 S. Ct. 1301 (2022) (Mem.). Writing in
concurrence, Justice Kavanaugh explained his view of the deference owed the Executive on
issues of national security and the military. Id. at 1302 (Kavanaugh, J., concurring).
Specifically, Justice Kavanaugh explained, “[u]nder Article II of the Constitution, the President
of the United States, not any federal judge, is the Commander in Chief of the Armed Forces.”
Id. Accordingly, Justice Kavanaugh argued, courts are reluctant to intrude on military and
national security affairs and have long recognized the deference owed military leaders in
judgments regarding “strategic and operational control” and “military readiness.” Id. (citing
Morgan, 413 U.S. at 10).
V. Conclusions of Law: The Naval Academy’s Race-Conscious Admissions Program

Withstands Strict Scrutiny.
The Naval Academy’s race-conscious admissions policies are narrowly tailored to
further a compelling governmental interest in national security. Defendants have proven that
the Naval Academy’s limited use of race in admissions has increased the racial diversity of the
Navy and Marine Corps, which has enhanced national security by improving the Navy and
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Marine Corps’ unit cohesion and lethality, recruitment and retention, and domestic and
international legitimacy. The Court addresses each prong of the strict scrutiny analysis in turn.
A. Conclusions of Law: Defendants Have Established a Compelling National

Security Interest in a Diverse Officer Corps.
To survive strict scrutiny, the government’s asserted interest must be compelling.
Unlike the civilian institutions in Harvard and other affirmative action cases, Defendants here
do not claim the benefits that flow from a diverse student body as the compelling interest
served by race-conscious admissions.78 Instead, Defendants argue that the Naval Academy’s
race-conscious admissions policies serve a compelling interest in national security by
improving the Navy and Marine Corps’ unit cohesion and lethality, recruitment and retention,
and domestic and international legitimacy.
“It is ‘obvious and unarguable’ that no governmental interest is more compelling than
the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Sec’y of
State, 378 U.S. 500, 509 (1964)). In line with the decades of precedent recognizing “that the
Constitution itself requires . . . deference to congressional choice” and to the Executive’s
“complex, subtle, and professional decisions as to the composition, training, equipping, and
control of a military force,” this Court defers to Defendants’ military judgments of a
compelling national security interest. Rostker v. Goldberg, 453 U.S. 57, 65–66, 67 (1981); see supra
Section IV.E. Put simply, Defendants’ determination that there exists a compelling national
security interest in a diverse Navy and Marine Corps is entitled to judicial deference.
78As discussed above, Harvard and UNC specified the benefits that flow from a diverse student body. Harvard,
600 U.S. 181, 214 (2023). Entirely distinct from the interests Defendants claim here, these benefits reflect the
purpose and goals of a civilian educational institution.
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Defendants identify three ways in which a diverse Navy and Marine Corps serve a
compelling governmental interest in national security: (1) furthering unit cohesion and
lethality; (2) improving recruitment and retention; and (3) enhancing the Navy and Marine
Corps’ domestic and international legitimacy. As Defendants explain, these areas are
inherently intertwined: a diverse officer corps trained in a diverse environment is better able
to understand unique experiences and develop cultural competency, which improves unit
cohesion, which in turn improves recruitment and retention, which bolsters legitimacy. (ECF
No. 144 at 29:9–19 (Vazirani).) Defendants have met their burden to prove the existence of
a compelling governmental interest.
1. Unit Cohesion and Lethality
Defendants proved that race-conscious admissions at the Naval Academy help to
develop a diverse Navy and Marine Corps, which serves national security by enhancing unit
cohesion and lethality. As explained supra, courts applying strict scrutiny defer to military
personnel policies reflecting the military judgment that “esprit de corps” and a cohesive
identity among servicemembers are critical to an effective military. See, e.g., Goldman v.
Weinberger, 475 U.S. 503, 504–505 (1986). Courts have recognized “a compelling national
security interest in training Marine Corps recruits to strip away their individuality and adopt a
team-oriented mindset committed to the military mission and defense of the Nation.” Singh
v. Berger, 56 F.4th 88, 107 (D.C. Cir. 2022). Thus, courts have upheld restrictions on
homosexuality and religious headwear in the military where such restrictions ostensibly
advance “the military’s compelling need to ‘foster instinctive obedience, unity, commitment
and esprit de corps.’” Cook v. Gates, 528 F.3d 42, 62 (1st Cir. 2008) (quoting Goldman, 475 U.S.
134
at 503); see also Goldman, 475 U.S. at 510. Here, judicial deference extends to the longstanding
military judgment of the Navy and Marine Corps and Department of Defense (“DoD”) that
a diverse officer corps mitigates risk by enhancing units’ cohesion and lethality.
Defendants here presented significant evidence to support a compelling national
security interest in unit cohesion and lethality. Defendants produced a 2020 memorandum
from Secretary of Defense Mark T. Esper in which he expressed DoD’s judgment that, “[t]o
ensure the morale, cohesion, and readiness of the military, it is essential that our ranks reflect
and are inclusive of the American people we have sworn to protect and defend.”79 (ECF No.
144 at 12:24–13:2 (Vazirani); DX177–001.) The testimony of senior DoD leaders, including
Under Secretary of Defense Ashish Vazirani (“Under Secretary Vazirani”) and Deputy
Assistant Secretary of Military Manpower Personnel Lisa Truesdale (“Deputy Assistant
Secretary Truesdale”), revealed that military leaders within DoD also deem unit cohesion
critical to a unit’s effective communication, proficiency, and lethality. (ECF No. 144 at 15:21–
16:5 (Vazirani).) Under Secretary Vazirani explained that unit cohesion mitigates risk by
improving effectiveness and increasing a unit’s ability to assess risk. (Id. at 14:9–12; 14:19–24;
15:16–16:5; 29:9–19; see also DX65 (“[D]iverse teams are 58 percent more likely than non-
diverse teams to accurately assess a situation.”).) He testified that a diverse officer corps can
draw from a range of experiences, which enables officers to better understand their own units
and address problems from different perspectives. (ECF No. 144 at 16:6–14 (Vazirani).)
Deputy Assistant Secretary Truesdale testified that unit cohesion and trust are imperative to
79 Secretary of Defense Esper served under the first Trump Administration. (ECF No. 144 at 13:4–8
(Vazirani).)
135
avoiding a poor climate, and officers are responsible for building the culture of their team. 80
(DX 210 at 115:1–22.)
These informed judgments are rooted in the military’s historical experience and data
demonstrating the importance of diverse leadership in military settings. DoD cited its
historical experience that a lack of diversity in the officer corps—including a lack of racial
diversity—during the Vietnam War diminished cohesion, trust, and capability. (ECF No. 144
at 36:7–15 (Vazirani).) Similarly, expert testimony elucidated numerous studies that support
DoD’s military judgment regarding the importance of diversity to unit cohesion and thus to
national security. See, e.g., (PX275; DX170; PX597). Dr. Jeannette Haynie (“Haynie”)—a
former Marine, one of the first women to fly attack helicopters in combat, and an expert in
the relevance of diversity and inclusion to the military and its mission—testified that climate
studies show diverse leadership increases the likelihood that leaders recognize a climate’s
impact on their team members, mitigate obstacles, and improve morale and cohesion. (Id. at
95:11–19; 109:23–110:13 (Haynie).) DoD’s own annual defense organizational climate survey
likewise demonstrates the impact of improved diversity on the military’s climate and the
performance of its units. (Id. at 18:12–18 (Haynie).)
Plaintiff rejects Defendants’ evidence as insufficient to demonstrate a compelling
national security interest in unit cohesion and lethality. Instead, Plaintiff urges this court to
narrowly define unit cohesion and lethality as a given unit’s ability to complete the tasks
necessary to its mission. Plaintiff emphasizes that the racial composition of a unit alone has
80 As noted supra, Deputy Assistant Secretary Truesdale was unavailable to testify at trial and testified by
deposition designation, (DX210). See supra note 9; (ECF No. 139 at 18:18–19:13).
136
no effect, for example, on that unit’s ability to complete tasks such as firing missiles. (ECF
No. 145 at 115:11–116:1 (Fuller).) Defendants’ witnesses conceded this point, and the parties
agree that racial diversity alone does not enhance a unit’s ability to complete the literal tasks
of combat. (Id. (Fuller).) Plaintiff similarly offered testimony of former servicemembers in
the Air Force and Navy and Marine Corps who disagree with DoD’s judgment that diversity
is important to unit cohesion. This Court respects the considered personal opinions of those
servicemembers but finds the research-backed conclusions of DoD officials more convincing.
Defendants’ compelling national security interest in a diverse officer corps is about more than
performance in immediate combat.
At bottom, Plaintiff’s definition of unit cohesion and lethality contradicts that of DoD
and military leaders. A central reason for judicial deference to military judgments is the
judiciary’s limited competence to evaluate military determinations. See, e.g., Holder v.
Humanitarian L. Project, 561 U.S. 1, 34 (2010) (noting the importance of judicial deference to
congressional and Executive officials’ factual determinations regarding military matters). As
the U.S. Court of Appeals for the Fourth Circuit has explained, “[t]he judiciary has no Armed
Services Committee, Foreign Relations Committee, Department of Defense, or Department
of State.” Thomasson v. Perry, 80 F.3d 915, 925–26 (4th Cir. 1996). Moreover, given the peculiar
expertise of the military in determining its own personnel regulations, contradictory expert
testimony regarding the benefit of a military regulation is irrelevant. Goldman, 475 U.S. at 509
(“But whether or not expert witnesses may feel that religious exceptions to [the Air Force
regulation at issue] are desirable is quite beside the point.”). Here, this Court adopts the
definition of unit cohesion and lethality used by Executive leaders with the expertise,
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knowledge, and responsibility to run the Navy and Marine Corps. Defendants have met their
burden to prove a compelling national security interest in unit cohesion and lethality.
2. Recruitment and Retention
The Supreme Court has made clear that “judicial deference to . . . congressional
exercise of authority is at its apogee when legislative action under the congressional authority
to raise and support armies and make rules and regulations for their governance is challenged.”
Rostker v. Goldberg, 453 U.S. 57, 70 (1981). The Naval Academy’s admissions process is
governed, in part, by statutory requirements imposed by Congress, such as the nomination,
STEM, and unrestricted line requirements. Defendants do not contend that Congress
imposed a race-conscious admissions process here. However, it is significant that Congress
has taken an interest in the diversity of the Navy and Marine Corps. See (DX152
(congressionally mandated study of diversity in the Armed Forces); DX67 (Secretary of
Defense’s remarks to Congress about diversity); PX31; PX376 (Naval Academy responses to
House Armed Services Committee’s inquiries into use of race in admissions).)
The Supreme Court has consistently tied military recruitment to the governmental
interest in raising and supporting the Armed Forces. Rumsfeld v. F. for Acad. & Inst’l Rts., Inc.,
547 U.S. 47, 67 (2006) (“Military recruiting promotes the substantial Government interest in
raising and supporting the Armed Forces[.]”). Courts in various contexts have noted the
importance of recruitment and retention in maintaining the United States’ all-volunteer Armed
Forces. See, e.g., Clarkson v. Alaska Airlines, Inc., 59 F.4th 424, 428 (9th Cir. 2023) (noting
protections for veterans returning to civilian jobs “remain all the more important today, as our
nation relies on an all-volunteer military force”); Harris v. Hahn, 827 F.3d 359, 368 (5th Cir.
138
2016) (noting that “[b]ecause the military relies entirely on voluntary enlistment, Texas can
promote national security by encouraging enlistment”). As the Fourth Circuit has recognized,
“our nation’s very preservation hinges on decisions regarding war and preparation for war.”
Thomasson v. Perry, 80 F.3d 915, 925 (4th Cir. 1996). Here, Defendants have proven that
diversity in the officer corps serves a compelling interest in national security by improving
recruitment and retention in the all-volunteer Navy and Marine Corps.
In a statement before Congress, Secretary of the Navy Carlos Del Toro (“Secretary Del
Toro”) explicitly stated: “We need a diverse force, so every child in America can see themselves
wearing the uniform or working in our civilian ranks tomorrow, and every viewpoint is in our
operations today, so that we can draw talent from all of America to build our warfighting
advantage.” (DX67.) Secretary Del Toro deemed a diverse Naval force a “national security
imperative.” (Id.) Secretary of Defense Esper likewise expressed this determination in his
Message to the Force on DoD Diversity and Inclusiveness. (DX178.) In light of this military
judgment, Secretary of Defense Esper announced an initiative to “increase racial diversity and
ensure equal opportunity across all ranks, and especially in the officer corps.” (Id.) This Court
defers to the military judgment of the Secretary of Defense and the Secretary of the Navy
regarding recruitment and retention in the Navy and Marine Corps.
Defendants presented significant evidence to support DoD’s determination that
recruitment and retention are essential to the combat readiness of the Navy and Marine Corps.
Vice Admiral Vincent Fuller, Under Secretary Vazirani, Deputy Assistant Secretary Truesdale,
and Deputy Assistant Secretary of Defense for Military Personnel Policy Stephanie Miller
(“Deputy Assistant Secretary Miller”), testified that recruitment and retention are critical in an
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all-volunteer military. (ECF No. 145 at 117:11–13 (Fuller); ECF No. 144 at 21:22–24
(Vazirani); ECF No. 146 at 101:6–14 (Miller); DX210 at 43:19–44:11 (Truesdale).) Deputy
Assistant Secretary Miller, who oversees and maintains the all-volunteer force, explained that
the Navy and Marine Corps’ “ability to support national defense priorities is inherently tied to
[their] ability to successfully recruit each year and each generation of service.” (ECF No. 146
at 101:8–13 (Miller).) Under Secretary Vazirani testified to DoD’s conclusion that one of the
great strengths of the United States is its diversity, and the Navy and Marine Corps want to
draw from that diverse talent. (ECF No. 144 at 21:22–22:4 (Vazirani).) Under Secretary
Vazirani explained that the Navy and Marine Corps need to “retain capabilities and talents”
to maintain a professional officer corps and to effectively innovate and utilize new
technologies as new challenges arise. (Id. at 25:12–26:3 (Vazirani).)
Defendants provided substantial data to support their position that a diverse officer
corps improves recruitment and retention. Deputy Assistant Secretary Miller explained that
DoD reviews demographic data, marketing success, and characteristics of developed recruits
to evaluate its recruitment programming. (ECF No. 146 at 103:12–21 (Miller).) Using these
data, DoD has identified various recruiting challenges. (Id. (Miller).) For example, just 23
percent of Americans between the ages of 17 and 24 are eligible to serve in the military without
some kind of waiver, and propensity to serve is just nine percent. (Id. at 101:23–102:6 (Miller);
ECF No. 144 at 137:10–14; 137:32–138:9 (Haynie).) Citing the Institute for Defense Analyses’
2021 “Study on Reducing Barriers to Minority Participation in Elite Units of the Armed
Forces,” which Congress required DoD to conduct, Deputy Assistant Secretary Miller
outlined recruiting challenges specific to minority servicemembers such as (1) a lack of
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awareness and interest; (2) competing recruitment priorities; and (3) potential recruits’
concerns over their own capacity to succeed and advance in the military. (ECF No. 146 at
87:5–12; 90:14–92:6 (Miller); DX152.) As Deputy Assistant Secretary Miller explained,
addressing such challenges specific to recruitment of minority servicemembers is imperative
because individuals of color have a higher propensity to serve in the military than white
individuals. (ECF No. 146 at 104:2–11 (Miller).)
Defendants established that a diverse officer corps improves recruitment success
despite these difficulties. Navy Strategic Guidance sets as an enduring priority the Navy and
Marine Corps’ need to develop a reputation as “great places to lead, work, grow, and build
families” and explicitly identifies recruiting individuals of diverse personal, cultural, and
professional backgrounds as critical to the Navy and Marine Corps’ ability to address
challenges. (ECF No. 145 at 104:5–8; 104:17–22 (Fuller).) Deputy Assistant Secretary Miller
explained that a diverse officer corps, particularly in special forces units, enables individuals to
envision themselves succeeding in the Navy and Marine Corps. (ECF No. 146 at 93:9–15;
104:14–24 (Miller).) Vice Admiral Fuller echoed this judgment, explaining that it is easier to
recruit the most talented individuals when people can relate to the all-volunteer military—
whether because of race, personal history, or professional interests. (ECF No. 145 at 117:3–
13 (Fuller).) Both Under Secretary Vazirani and Dr. Haynie tied a diverse officer corps to
DoD’s goal of maintaining a meritocratic military such that recruits see opportunities for
success. (ECF No. 144 at 24:3–18, 15:1–5 (Vazirani), 136:13–20 (Haynie).) The “Department
of Defense (DoD) Officer Retention and Promotion Barrier Analysis Study” explained that
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“a lack of diversity in recruiters and advertisements” may contribute to a lack of diversity in
the officer corps. (DX150.)
Defendants similarly demonstrated that diversity in the officer corps improves
retention of officers and enlisted servicemembers in the Navy and Marine Corps. Defense
experts presented studies demonstrating “the link between D&I [diversity and inclusion]
climate and key readiness and retention outcomes.” (ECF 144 at 105:17–23 (Haynie); PX275.)
Dr. Haynie explained the results of a DoD Office of People Analytics (“OPA”) study that
showed that individuals reporting the healthiest diversity and inclusion climate also reported
the highest levels of intent to remain in the military. (ECF No. 144 at 109:4–11 (Haynie).)
Notably, servicemembers who identified their climate as healthy were more likely to be white,
male, and/or heterosexual, while those reporting an unhealthy climate were more likely to be
racial or ethnic minority members, females, and/or not heterosexual. (Id. at 109:23–110:2
(Haynie); PX275.) The “Department of Defense (DoD) Officer Retention and Promotion
Barrier Analysis Study” also supports these conclusions, finding that perceived hostile
environments and unwanted behaviors like racial and sexual hostility and harassment are
“viable deterrents for women and racial/ethnic minorities joining the military.” (DX150.)
Under Secretary Vazirani testified that retention levels have been historically high in the Navy
and Marine Corps, which enables junior ranked servicemembers to see an opportunity for
success in the military regardless of gender, race, background, or ethnicity. (ECF No. 144 at
26:5–16, 26:24–27:14 (Vazirani); PX275.) Moreover, Black/African American and Hispanic
retention is higher than white retention across the twenty-year career pipeline. (DX151.)
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Plaintiff characterizes Defendants’ interest in recruitment and retention as equivalent
to the interest in diversity on campus in Harvard and contends that the Naval Academy engages
in racial balancing. (ECF No. 148 ¶ 268.) This characterization is inaccurate and diminishes
the contrary testimony of high-ranking DoD officials. Plaintiff also disputes the data and
testimony Defendants presented, citing one competing study—"The Effects of Diversity
Among Peers and Role Models on U.S. Navy Retention”—that showed a negative correlation
between racial diversity in the officer corps and minority officer retention. (PX872.) As
Plaintiff acknowledges, however, that same study suggested a positive correlation between
racial diversity and retention of Black male enlisted servicemembers. (Id.) Thus, this study at
least partly supports Defendants’ national security interest in increasing the Navy and Marine
Corps’ overall diversity in accordance with DoD policy.
Plaintiff argues that any recruitment and retention interest cannot be based on a “role-
model theory” that minority officers serve as career models for those joining the military. See
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (plurality opinion) (“[T]he idea that
black students are better off with black teachers could lead to the very system the Court
rejected in Brown v. Board of Education, 347 U.S. 483 (1954).”). But Defendants evince no such
theory. Defendants do not contend that servicemembers are somehow better off if their
commanding officer shares their race or ethnicity. Defendants argue that DoD administers a
meritocratic military, and much of the Navy and Marine Corps’ recruiting reflects the notion
that recruits can succeed on their own merit. Defendants have met their burden to prove a
compelling governmental interest in recruitment and retention.
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3. Domestic and International Legitimacy
Finally, Defendants have shown that diversity in the officer corps furthers the domestic
and international legitimacy of the Navy and Marine Corps, which in turn serves a compelling
national security interest. Courts, including the U.S. Court of Appeals for the Fourth Circuit,
have rejected racial classifications supported solely by “subjective evidence” such as the need
“to gain the confidence and acceptance of the community.” Hayes v. N. State L. Enf’t Officers
Ass’n, 10 F.3d 207, 214 (4th Cir. 1993); see also Christian v. United States, 46 Fed. Cl. 793, 806
(Fed. Cl. 2000) (“The government’s desire to manipulate private perceptions can never by
itself justify the use of race-conscious policies.” (citing Wygant v. Jackson Bd. of Educ., 476 U.S.
267, 267 (1986) (plurality opinion))). In the context of the Armed Forces, however, the Fourth
Circuit has recognized the need to preserve the integrity of military systems. See United States
v. Hamilton, 699 F.3d 356, 371–72 (4th Cir. 2012) (collecting cases deeming the government’s
interest in preserving the integrity of the military honors system compelling). Here,
Defendants do not support the Naval Academy’s race-conscious admissions policies only by
reference to the need to support the domestic and international legitimacy of the military.
Rather, Defendants suggest that the Navy and Marine Corps’ legitimacy—which is inextricably
connected to its ability to recruit and retain officers and produce cohesive, lethal units—is one
of several national security interests supported by race-conscious admissions.
Defendants demonstrated that the Navy and Marine Corps, as represented by Deputy
Assistant Secretary Truesdale, Secretary Del Toro, and the Chief of Naval Operations, has
made the military judgment that a racially diverse officer corps improves their domestic and
international legitimacy. (PX507; DX210; ECF No. 144 at 15:11–15, 28:5–29:22 (Vazirani).)
144
This judgment is rooted in historical evidence that a lack of diversity in the officer corps
decreased the legitimacy of the military during the Vietnam War. (PX445.) Defendants
presented expert testimony that an officer corps reflective of the diversity of the United States
population enhances public trust in the military. (ECF No. 144 at 140:3–142:17 (Haynie);
ECF No. 143 at 136:18–139:13, 139:15–141:3 (Bailey); ECF No. 145 at 18:17–20, 21:5–10
(Lyall).) Defendants also presented lay opinion testimony from Captain Birch in which he
described his personal experience of how his status as a Black Navy Seal Captain enhanced
the legitimacy of his Navy unit in Somalia and the legitimacy of a Naval delegation in China.
(ECF No. 143 at 32:15–33:15, 34:3–35:1 (Birch).) Finally, Defendants showed that racial
diversity among the enlisted corps far exceeds that among the officer corps, creating a visible
divide between officers and enlisted servicemembers. (DX65; PX330.)
Plaintiff emphasizes that legitimacy is a subjective opinion that cannot sustain the use
of a racial classification. (ECF No. 148 ¶ 282 (citing first Hayes, 10 F.3d at 214; and then citing
Christian, 46 Fed. Cl. at 806).) As explained supra, legitimacy alone is insufficient to sustain a
racial classification. Defendants here, however, claim national security—as furthered by
improved unit cohesion and lethality, recruitment and retention, and domestic and
international legitimacy—as the compelling interest that justifies the Naval Academy’s race-
conscious admissions practices. It is difficult, if not impossible, to separate the domestic and
international legitimacy of the Navy and Marine Corps from their unit cohesion and lethality
and their recruitment and retention needs. See, e.g., Brown v. Dunleavy, 722 F. Supp. 1343, 1353
(E.D. Va. 1989) (connecting recruiting to the peacetime Navy’s integrity). Therefore,
Defendants have shown that a diverse officer corps serves the Navy and Marine Corps’
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legitimacy, which in turn improves its unit cohesion and lethality and its recruitment and
retention.
B. Conclusions of Law: A Compelling National Security Interest Need Not Be

Measurable, But Defendants Have Shown Their Compelling Interests Are
Measurable.
In Harvard, the Supreme Court explained that in the context of affirmative action at
civilian colleges and universities, it has “required that universities operate their race-based
admissions programs in a manner that is ‘sufficiently measurable to permit judicial [review]’
under the rubric of strict scrutiny.” Harvard, 600 U.S. 181, 214 (2023) (alteration in original)
(quoting Fisher II, 579 U.S. 365, 381 (2016)). This measurability requirement has been limited
to cases contemplating race-based admissions programs. Id.; see also Adarand Constructors, Inc.
v. Peña, 515 U.S. 200 (1995) (applying strict scrutiny to race-conscious construction contract
scheme without requiring compelling interest claimed to be measurable); Parents Involved Cmty.
Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (applying strict scrutiny to race-conscious
K-12 school districting assignments without requiring compelling interest claimed to be
measurable); Johnson v. California, 543 U.S. 499 (2005) (applying strict scrutiny to race-conscious
prison housing assignment policy without requiring compelling interest claimed to be
measurable); Shaw v. Hunt, 517 U.S. 899 (1996) (applying strict scrutiny to race-conscious
voting districting plan without requiring compelling interest claimed to be measurable).81
81 In his concurrence to Parents Involved, Justice Thomas explained that “‘inherently immeasurable past wrongs’”
cannot justify a racial classification. 551 U.S. 701, 755 (2007) (Thomas, J., concurring) (quoting City of Richmond
v. J.A. Croson Co., 488 U.S. 469 (1989)). This reference to the language of J.A. Croson, in which the Court
considered the constitutionality of Richmond’s race-conscious construction contract program, does not impose
any measurability requirement except to suggest that immeasurable past discrimination cannot support a racial
classification. Since Harvard, some courts have applied the measurability requirement to racial classifications
outside of the higher educational context. See, e.g., Nuziard v. Minority Bus. Dev. Agency, --- F. Supp. 3d ---, 2024
146
In the context of national security, the Supreme Court has explicitly rejected the notion
that the government must present “hard proof—with detail, specific facts, and specific
evidence—” to justify a restriction under strict scrutiny. Holder v. Humanitarian L. Project, 561
U.S. 1, 34 (2010) (internal quotation marks omitted). The Supreme Court has specifically
noted that a “searching inquiry into the persuasiveness” of national security interests “is
inconsistent” with the deference owed the executive branch. Trump v. Hawaii, 585 U.S. 667,
686 (2018). In Harvard, the Court explicitly recognized that military service academies may
have compelling interests distinct from those of civilian colleges and institutions. 600 U.S. at
213 n.4. Defendants here have established their distinct and compelling national security
interests, and those interests do not have to be measurable.
Even in the unlikely event that the measurability requirement applies here, Defendants
have shown that their compelling interest in preserving national security by improving
recruitment and retention is measurable. The measurability requirement is stringent. As
defined in Harvard, measurability requires the government to show “how many fewer leaders
[the Naval Academy] would create without racial preferences[.]”82 Id. at 215. The Naval
Academy can easily meet this demanding burden in the context of its graduates. The closed-
loop nature of the Navy and Marine Corps’ officer promotion systems and the requirement
that Naval Academy graduates access into active duty means that the Navy and Marine Corps
WL 965299, at *24, *25 (N.D. Tex. Mar. 5, 2024) (noting that while strict scrutiny sounds simple, it has
numerous variations including the measurability requirement). No court has applied a measurability
requirement in the context of national security.
82 The Supreme Court also suggested that Harvard would have had to show “how much poorer the education
at Harvard would be” absent consideration of race in admissions. Harvard, 600 U.S. at 215. Given that
Defendants claim no interest in diversity on campus, this framing of the measurability requirement is inapposite
here.
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can measure the diversity of the officer corps by accession source. (ECF No. 146 at 43:25–
44:5, 44:19–22, 56:8–18 (Miller); ECF No. 143 at 176:17–177:2 (Sherwood); see also DX65
(noting “[w]arfare communities are overall affected by the lack of racial minority inventory at
accession”)). As explained supra, officer accession sources include (1) the Naval Academy; (2)
ROTC; and (3) Officer Commissioning School. DoD can, and does, measure demographic
data at various points in officers’ careers. (DX204 *SEALED*.)
Defendants presented data that track racial demographics—according to officers’ self-
identified race and ethnicity categories—between 2001 and 2024 for Navy and Marine Corps
officers who entered the officer corps via the Naval Academy. (Id. *SEALED*.) Those data
show measurable improvement in the racial and ethnic diversity of the Navy and Marine
officer corps between 2001 and 2024:83
83 In Harvard, the Supreme Court noted that the racial and ethnic categories Harvard and UNC employed to
track demographic data—Asian, Native Hawaiian or Pacific Islander, Hispanic, White, African American, and
Native American—were “imprecise,” “plainly overbroad,” and “arbitrary or undefined.” 600 U.S. at 216. Here,
however, the Naval Academy tracks demographic data according to the categories employed by the United
States Census and DoD. Given that the Naval Academy exists to provide officers to serve in the Navy and
Marine Corps’ unrestricted line (or combat) communities and is tightly regulated by DoD and Congress, it
defies common sense to suggest that it must use different categories to track racial and ethnic data than do
DoD and Congress. Accordingly, this Court determines that the critiques of the demographic categories in
Harvard do not apply to the racial and ethnic categories used here.
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lines of precedent. Even in the national security context, however, Executive and military
leaders receive very limited deference regarding whether a classification is narrowly tailored. 85
A racial classification is narrowly tailored when it furthers the compelling interest
claimed such that there is no possibility that the motive behind the classification is illegitimate.
Id. at 333. In the context of college admissions, narrow tailoring is best defined by the kind
of racial classification it precludes. A race-conscious admissions program is narrowly tailored
where it (1) does not use a quota system but rather is flexible enough to consider all aspects
of each applicant’s diversity, id. at 334; (2) is necessary to achieve the compelling interest
claimed, Fisher I, 570 U.S. 297, 311–12 (2013); (3) does not use race as a negative or stereotype,
Harvard, 600 U.S. 181, 213 (2023); (4) has a “‘logical end point,’” id. at 221 (quoting Grutter,
539 U.S. at 342); and (5) applies only because the governmental actor has determined after
serious, good-faith consideration that race-neutral alternatives are insufficient to serve the
compelling interest claimed, Grutter, 539 U.S. at 339. The Court addresses each requirement
in turn.
1. Conclusions of Law: The Naval Academy’s Limited Consideration of

Race Furthers the Government’s Compelling National Security
Interests.
“[I]t is not a failure of narrow tailoring for the impact of racial consideration to be
minor.” Fisher II, 579 U.S. 365, 384 (2016). By the same token, however, a racial classification
cannot be so overinclusive that it fails to further the claimed compelling governmental interest.
See Harvard, 600 U.S. 181, 216 (2023). Here, the Naval Academy’s consideration of race is
85 In accordance with the judiciary’s doctrine of deference to the executive branch’s military judgments,
deference may be appropriate in the narrow tailoring analysis to the extent that the executive branch makes a
military judgment that a race-neutral alternative is not workable.
151
narrowly tailored to increase diversity in the Navy and Marine Corps. Defendants proved
measurable increases in the racial diversity of the Navy and Marine officer corps over the last
twenty years. (DX204 *SEALED*.) As explained supra, Naval Academy graduates
commission directly into the officer corps and are more likely to stay in the Navy and Marine
Corps and reach leadership ranks. (ECF No. 141 at 42:10–19 (Latta); ECF No. 146 at 44:2–
11; 44:13–15 (Miller).) Similarly, Naval Academy graduates commissioned into the officer
corps fill a disproportionate number of warfare command billets. For example, eight of the
Navy’s twelve aircraft carriers are presently commanded by Naval Academy graduates. (ECF
No. 146 at 41:4–5 (Miller).) In other words, “67 percent of [the] largest warfighting platform
in the United States Navy is commanded by a Naval Academy graduate.” (Id. at 41:6–8
(Miller).) These numbers prove that the Naval Academy’s consideration of race in admissions
has furthered the Government’s national security interests in a diverse Navy and Marine
corps.86
There is no evidence that the Naval Academy’s consideration of race fails to increase
the number of minority officers. Plaintiff contends that Black and Hispanic midshipmen
disproportionately leave the Naval Academy before graduation such that any benefit of their
increased enrollment fails to reach the Navy and Marine Corps. Plaintiff relies on percentages
to make this point, but those percentages can be misleading. When a small number of
86 Plaintiff argues that the Navy could achieve the same result by considering race in officers’ assignments.
(ECF No. 148 ¶ 201.) This suggestion contradicts DoD policy and falls, in part, to the Department of the
Navy, which is not a named Defendant in this action. Moreover, this Court is unwilling to impose its own
judgment—or the judgment of Plaintiff—over the considered judgment of DoD and military officials.
Currently, that judgment is that “officer promotions . . . occur only after a servicemember has entered the
Armed Forces and proven that promotion is merited[.]” Brief of Adm. Charles S. Abbot et al. as Amici Curiae
in Support of Respondents, Harvard, 600 U.S. 181 (2023) (Nos. 20-1199, 21-707); (ECF No. 146 at 49:11–14;
112:6–18 (Miller)).
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midshipmen comprise an entire minority group, any one of those midshipmen leaving will
result in a seemingly drastic decrease in that group’s graduation rate. For example, if one
Native Hawaiian/Pacific Islander midshipman in a class of four—such as the four Native
Hawaiian/Pacific Islander midshipmen who graduated from the Naval Academy in 2023—
leaves before graduation, the graduation rate for Native Hawaiian/Pacific Islander
midshipmen that year falls by twenty-five percent.
Moreover, attrition is not a monolith. As Defendants’ witnesses testified, midshipmen
disproportionately leave the Naval Academy in the first two years, before the service
commitment takes effect. (ECF No. 143 at 77:16–78:8 (Vahsen).) Voluntary resignations
account for more than half of all attrition and approximately five percent of attrition in a given
class. (Id. at 78:6–12, 91:12–22 (Vahsen).) In fact, the evidence in this case indicates that
African American midshipmen are less likely than other racial groups to leave due to voluntary
attrition, and academic attrition is not the most frequent reason that African American
midshipmen leave the Naval Academy.87 (Id. at 86:18–22 (Vahsen); PX 148.) Varsity athletes
at the Naval Academy tend to be disproportionately minority midshipmen. The COVID-19
Pandemic, which prevented athletes from playing their sports, and the opening of “name,
image, and likeness” (“NIL”) rights88 severely affected attrition of athletes, which is reflected
87 Plaintiff repeatedly suggested that race-conscious admissions at the Naval Academy has led to the admission
of “unqualified” candidates, and particularly to academically unqualified Black or African American candidates.
Plaintiff presented no evidence to support this contention except Professor Arcidiacono’s testimony that Black
midshipmen had higher attrition rates. Defendants, however, presented repeated evidence that every candidate
admitted to the Naval Academy is qualified and that academics are one of many factors—including leadership,
moral character, life experience, language skills, and many more—that the Naval Academy seeks in midshipmen
and, ultimately, in Naval officers.
88 NIL rights refer to college athletes’ right to control and profit from their own personal brand, including their
name, image, and likeness. See Name, Image, Likeness, NCAA, https://www.ncaa.org/sports/2021/7/9/name-
image-likeness.aspx (last visited November 15, 2024.)
153
in higher attrition numbers for minority midshipmen. (ECF No. 143 at 98:18–99:8 (Vahsen).)
Finally, as discussed supra, Defendants presented data that prove that minority representation
among Navy and Marine Corps officers who commissioned via the Naval Academy increased
between 2001 and 2024.
This Court notes that the categories that Defendants use to track racial data are
coherent and consistent with the United States Census and Office of Management and Budget
(“OMB”). In Harvard, the Supreme Court determined that the “opaque racial categories”
Harvard and UNC used in their demographic data created a “mismatch between the means
[they] employ and the goals they seek,” such that no court could scrutinize their admissions
programs. 600 U.S. at 216. Unlike Harvard and UNC, however, the Naval Academy considers
race to serve Defendants’ compelling national security interest in creating a diverse Navy and
Marine Corps. The Navy, Marine Corps, and DoD use the same racial and ethnic
categorizations in tracking the race and ethnicity of officers that the Naval Academy uses in
tracking the race and ethnicity of its candidates and midshipmen. See, e.g., (DX65 (Task Force
One Navy Final Report) (using national census data to compare demographics in the Navy to
the national population)). Therefore, there is no “mismatch” between the means the Naval
Academy uses and the goals Defendants seek.
Finally, Plaintiff argues that the Naval Academy’s race-conscious admissions policies
do not further any national security interest in a diverse officer corps because Asian
midshipmen are overrepresented at the Naval Academy relative to their representation in the
United States population. Specifically, Plaintiff contends that the proportional representation
of Asian midshipmen is approximately double that of Asians among the overall United States
154
population.89 This contention ignores that Defendants claim a compelling interest in
furthering national security by creating a diverse Navy and Marine Corps. Representation of
Asian officers in the Navy and Marine Corps is still well below their representation in the
national population: at the O-6 rank in 2023, for example, just 2.9 percent of officers were
Asian, but approximately 7 percent of the national population is Asian.90 Therefore, the Naval
Academy’s race-conscious admissions policies do not result in an overrepresentation of some
minority racial groups relative to others. Defendants have shown that the Naval Academy’s
race-conscious admissions policies further their compelling national security interests.
2. Conclusions of Law: The Naval Academy’s Race-Conscious

Admissions Policies Require Holistic Candidate Assessment Without
Quotas or Racial Balancing.
As the Supreme Court explained in Grutter v. Bollinger, a race-conscious admissions
program must be flexible such that it considers all aspects of diversity as to each applicant.
539 U.S. 306, 334 (2003); see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 315–316 (1978)
(opinion of Powell, J.). Specifically, a race-conscious admissions program cannot employ
quotas for specific racial groups “or put members of those groups on separate admissions
89 Although Plaintiff does not provide citations for its data regarding the American population, Plaintiff appears
to reach this conclusion by comparing the Naval Academy’s population of Asian American midshipmen in
combination with other races—that is, midshipmen who reported that they were Asian American alone or
Asian American in combination with another race—with United States Census data, which categorizes Asian
Americans as “Asian alone.” See (ECF No. 148 ¶ 42.) This comparison is somewhat misleading. The
percentage of midshipmen who identified as “Asian American alone” in the class of 2023, for example, is
comparable to the percentage of Americans who identified as “Asian alone” as of 2023. See UNITED STATES
CENSUS BUREAU, QUICK FACTS (2023), https://www.census.gov/quickfacts/fact/table/US#; (PX519).
90 As discussed infra, Defendants’ reference to United States Census data is not unconstitutional racial
balancing. “A university is not permitted to define diversity as ‘some specified percentage of a particular group
merely because of its race or ethnic origin’” because that would amount to racial balancing. Fisher I, 570 U.S.
297, 311 (2013) (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J.)).
Plaintiff, not Defendants, raised the issue of an alleged “overrepresentation” of Asian Americans at the Naval
Academy. Neither the Naval Academy nor DoD has defined diversity as some specified percentage of a
particular racial or ethnic group in the Brigade of Midshipmen or officer corps. Rather, Defendants presented
significant evidence that racial or ethnic diversity is just one factor of the broad diversity they seek.
155
tracks.” Grutter, 539 U.S. at 334. In line with the proscription of racial quotas, racial balancing
is also unconstitutional. Harvard, 600 U.S. 181, 223 (2023). In Harvard, the Supreme Court
considered the consistency of the racial makeup of each class year at Harvard and UNC to be
evidence of racial balancing. Id. The Supreme Court determined that the schools’ promise to
terminate their use of race upon reaching a specific percentage of various racial groups in each
class year was racial balancing. Id.; see also Fisher II, 579 U.S. 365, 375 (2016). Higher
educational institutions also must evaluate each candidate as an individual. Grutter, 539 U.S.
at 327. Therefore, race may only be used in a “flexible, nonmechanical way” such that it is
just one factor in the individualized consideration of every applicant. Id. at 327, 334. To that
end, institutions may not assign a specified number of points merely because of a candidate’s
race. Id. at 337.
The evidence in this case clearly indicates that the Naval Academy does not employ
quotas, admit candidates based solely on their race or ethnicity, or place minority candidates
on separate admissions tracks. See, e.g., (ECF 140 at 16:2–7 (Hwang); ECF No. 141 at 34:5–
10 (Latta).) In response to a 2022 inquiry from the House Armed Services Committee about
the use of race at the Academy, the Academy explained that “[a]ll candidates are evaluated
using a holistic approach” and “[n]o points or quotas exist for race.” (ECF No. 140 at 57:14–
20, 58:23–59:4 (Latta); PX31; PX376.) The data prove this. The number of offers extended
to candidates identifying as members of a racial minority group fluctuates by as much as sixty
percent each year. See (PX18 (showing offers fluctuating from 449 to 563); PX558 (showing
offers fluctuating from 235 to 378); DX109–DX113 (showing enrollment numbers fluctuating
across class years); ECF No. 145 at 187:18–188:15 (Gurrea)). Applications of candidates who
156
identify as racial or ethnic minorities are assigned for review in the same manner as applications
of candidates who do not so identify. (ECF No. 140 at 136:15–137:7 (Latta).) Regardless of
the racial or ethnic identity of a candidate, a computer randomly assigns each application to
an Admissions Board member, and no particular board member is assigned to review
applications from minority candidates.91
Moreover, the Naval Academy considers each candidate holistically such that race is
only one aspect of an applicant’s diverse qualities. Explicit guidance to the Admissions Board,
which assigns point-based adjustments to candidates’ computer-generated Whole Person
Multiple (“WPM”) score, prohibits assigning points based on race. (Id. (Latta); PX31; PX28;
DX1; DX12; DX72; DX 161; DX158; ECF No. 140 at 59:2–4, 187:6–189:3, 241:23–242:15
(Latta); ECF No. 139 at 204:2–10; 225:24–226:4 (Hwang).) Instead, the Naval Academy
evaluates candidates’ applications holistically, considering their WPM—the numerical value
based on their standardized test scores, high school GPA, the college attendance rate of the
high school they attended, and more—their personal statement, their teacher and counselor
recommendations, and the Blue and Gold Officer’s feedback from their BGO interview.
(ECF No. 139 at 235:22–237:3 (Hwang); ECF No. 140 at 15:13-16:1 (Hwang), 152:5-20,
155:20-156:9, 231:17–233:8 (Latta); PX28; PX29; PX491.) Dean Latta and Hwang, who is the
director of nominations, both testified to the importance of the narrative portions of the
application. (ECF No. 139 at 236:16–237:3 (Hwang); ECF No. 140 at 146:5–149:10, 152:5–
91Candidates who are homeschooled, athletes, fleet candidates, and candidates who are applying while already
enrolled in another college or university are not randomly assigned to a board member. Instead, their
applications are reviewed by a designated board member because the unique circumstances of their applications
make review by an assigned board member more efficient. (ECF No. 140 at 136:22–137:13 (Latta).)
157
20, 177:8–24 (Latta).) The Naval Academy considers a particular applicant’s race or
ethnicity—if it considers it at all—only after a holistic review of that applicant’s entire
application at both the Admissions Board and the Slate Review Committee. (ECF No. 140 at
155:20–156:9 (Latta).) Even when race is considered, it is one of many nondeterminative
factors the Naval Academy evaluates. (Id. at 15:12–16:4 (Hwang), 51:10–14 (Latta); ECF No.
139 at 224:13–15, 225:21–24 (Hwang); ECF No. 141 at 10:4–8 (Latta); ECF No. 142 at 44:14–
45:4, 56:7–11, 58:21–59:4 (Arcidiacono).)
Finally, the Naval Academy does not engage in racial balancing. Plaintiff argues that
the Naval Academy’s collection of demographic data across the admissions cycle and intent
to practice race-conscious admissions until racial diversity in the Navy and Marine Corps
matches that of the United States population amounts to racial balancing. The Supreme Court
has repeatedly made clear that racial balancing—that is, seeking some proportional
representation or attempting to work backwards to achieve representation based on some
demographic target—is unconstitutional. See, e.g., Parents Involved Cmty. Schs. v. Seattle Sch. Dist.
No. 1, 551 U.S. 701, 730–32 (2007); Fisher I, 570 U.S. 297, 311 (2013); Bakke, 438 U.S. at 398;
Harvard, 600 U.S. 223–224; City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 507-508 (1989).
Quite simply, the Naval Academy implements its admissions policies without reference to the
ethnic or racial makeup of its midshipmen class as compared to that of the United States. See,
e.g., (ECF No. 141 at 42:12–43:9; 44:21–25 (Latta) (explaining racial demographics of class are
not used to make admissions decisions); ECF No. 140 at 71:10-74:16 (Latta) (explaining that
Admissions Office tracks racial demographics between class years but not mentioning any
comparison to United States Census); PX558.)
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years.93 See, e.g., (DX109–DX113 (showing enrollment numbers fluctuating across class years);
ECF No. 145 at 187:18–188:15 (Gurrea)). The Naval Academy’s practice of tracking each
class’s demographic data throughout the application process does not evidence racial
balancing. As Dean Latta repeatedly testified, the information in the class comparison
documents he compiles does not affect admissions offers and is “not used to make decisions
at all.” (ECF No. 141 at 42:12–43:9; 44:21–25 (Latta).) Therefore, there is no evidence that
the Naval Academy is engaged in unconstitutional racial balancing.
3. Conclusions of Law: The Naval Academy Does Not Use Race as a

Negative or Stereotype.
Under Grutter v. Bollinger and Harvard, race is used as a negative when it “‘unduly harm[s]
nonminority applicants.’” Harvard, 600 U.S. 181, 212 (2023) (quoting Grutter v. Bollinger, 539
U.S. 306, 341 (2003)). The Supreme Court has deemed admissions at civilian colleges and
universities “zero-sum:” a benefit to one candidate is a disadvantage to another. Id. at 218–
19. In such zero-sum admissions, consideration of a candidate’s race is a negative where it is
a determinative factor that disadvantages at least some candidates not of the same race. Id. at
219. While civilian college admissions may be zero-sum, Naval Academy admissions are much
more complex. Unlike admissions at a civilian institution, the Naval Academy’s admissions
process is subject to several statutory restraints. Under these unique requirements, each
93 One of Defendants’ fact witnesses and Defendants’ Proposed Conclusions of Law (ECF No. 149) suggest
that the Naval Academy will stop using race-conscious admissions policies once it “achieves and maintains the
racial and ethnic diversity of its student body at a level comparable to the ethnic and racial diversity of the
general population.” (ECF No. 149 ¶ 69; ECF No. 140 at 95:11–18 (Latta).) This testimony is inconsistent
with the testimony of other witnesses, who connected the Naval Academy’s use of race-conscious admissions
to the Government’s national security interest in a diverse Navy and Marine Corps. (ECF No. 146 at 44:2–15;
76:6–78:25; 80:24–81:25; 107:9–12; 109:14–25 (Miller); ECF No. 145 at 108:11–18; 109:12–110:4; 115:23–
116:16; 67:15–18 (Fuller); ECF No. 144 at 11:10–12:2; 14:9–15:15; 31:25–33:4; 55:7–56:1 (Vazirani).) As this
testimony and the demographic data demonstrate, the Naval Academy is not attempting to match the racial
and ethnic makeup of its midshipmen to the racial and ethnic makeup of the United States.
160
candidate’s admission to the Naval Academy is inherently intertwined with others’, and one
candidate’s admission may increase another qualified candidate’s chances of admission.
As detailed supra, the Naval Academy is required by statute to admit candidates with a
nomination. The nomination requirement means that a candidate cannot be admitted to the
Naval Academy if they do not obtain some form of nomination—whether service-connected,
congressional, presidential, or superintendent. By official policy, the Naval Academy seeks to
admit candidates that represent every congressional district in the United States. (ECF No.
139 at 233:11–19 (Hwang).) Because Congress includes both senators and representatives,
congressional districts include representative districts and the state at large. The Naval
Academy encourages candidates to seek nominations from multiple sources, such that one
candidate may receive a nomination from her congressional representative and a nomination
from one or both of her senators. (ECF No. 140 at 179:9–23 (Latta), 6:15–7:11 (Hwang);
DX91; DX79; PX813.)
Where a candidate successfully obtains nominations from multiple sources, that
candidate’s admission may improve another qualified candidate’s chances of admission. For
example, if Candidate A has received both her senator’s nomination and her congressperson’s
nomination under the competitive nomination method, then she may be admitted under either
nomination. The Naval Academy’s choice to admit Candidate A under her congressperson’s
nomination means that her senator’s nomination is still open. Therefore, it benefits every
candidate nominated by Candidate A’s senator when she is admitted under her
congressperson’s nomination. Essentially, candidates seeking admission to the Naval
Academy can increase everyone’s chance of admission by obtaining nominations from
161
multiple sources. The same is not true of civilian college admissions. Even where civilian
colleges and universities consider residency goals—for example, universities like UNC might
seek to admit a certain percentage of each class as North Carolina residents or may seek to
limit new students from a specific state so as to ensure each class represents as many states as
possible—an individual applicant cannot apply as a resident of multiple states such that the
civilian institution chooses which residency attaches to her application.
Because of the way in which statutorily imposed requirements—including the
nomination requirements—interact with application requirements, the Naval Academy’s
admissions process cannot be accurately modeled. That is, the Naval Academy’s admissions
process is not zero sum because one candidate’s admission may positively affect another
candidate’s admission. Certainly, like civilian educational institutions, the Naval Academy has
a limited number of seats. Unlike civilian institutions, however, the Naval Academy can admit
candidates via various interconnected avenues.94 Under this distinct admissions system,
consideration of race as a nondeterminative factor in one candidate’s admission does not
disadvantage nonminority candidates.
Furthermore, the evidence in this case makes clear that consideration of candidates’
race does not harm the admission chances of candidates of a different race. First, the evidence
shows that a candidate’s race never determines her admission. Second, in practice, the Naval
94 The Naval Academy also has its own preparatory school, Naval Academy Preparatory School (“NAPS”), a
similar preparatory program, and various partner agreements with private institutions. Neither NAPS nor the
Naval Academy’s preparatory program have a separate application. Rather, candidates apply to the Naval
Academy, which determines whether to admit them straight into the Naval Academy, admit them to a
preparatory program, or deny their admission. This structure is unique to the Naval Academy admissions
process. As with congressional nominations and admissions decisions, admission of one candidate into NAPS
or another preparatory program benefits other candidates by leaving open a spot at the Naval Academy.
162
Academy considers race—if at all—as a nondeterminative factor in only three areas of the
admissions process. Specifically, race is a nondeterminative factor that may arise in (1) the
issuance of Letters of Assurance; (2) admissions decisions between two candidates with very
close Whole Person Multiples (“WPMs”) for some nomination methods; (3) admission of
additional appointees; and, theoretically, (4) superintendent nominations.95 Because
superintendent nominations have not considered race since 2009, however, the Naval
Academy may consider race in only three areas of the overall admissions process. If race is
not a determinative factor, then it cannot unduly harm applicants not of the same race.
Admissions data support this truth. Absent consideration of race, the admissions rate of White
applicants, who outnumber Black applicants seven to one, increases just 4.2 percent. (ECF
No. 145 at 180:16–181:6; 181:9–18 (Gurrea).) Put simply, unlike the race-conscious
admissions policies at issue in Harvard, the Naval Academy’s consideration of race has not
resulted in a significant decrease in white candidates’ admission rate.
Nor does the Naval Academy use race as a stereotype. Defendants proved that the
Naval Academy’s admissions process seeks broad diversity based on individuals’ varied
experiences. See, e.g., (id. at 124:17–125:24 (Fuller); ECF No. 144 at 32:19–23 (Vazirani); ECF
No. 143 at 117:18–25, 119:5–12 (Bailey).) Admissions officials emphasized that they consider
race, if at all, as a characteristic that might affect an individual’s worldview. (ECF No. 141 at
4:17–22 (Latta).) No witnesses from any party testified that the Naval Academy seeks out
95 As noted supra, the Court in weighing the evidence presented has determined that consideration of race in
offers to candidates on the waitlist falls within these enumerated categories. That is, race and ethnicity are
considered in offers of appointment to candidates on the waitlist only to the extent that the decision to offer
appointment to the waitlisted candidate falls within enumerated circumstances (2) and (4) above.
163
individuals of certain races because it believes those individuals inherently share the same
beliefs. Similarly, the admissions documents presented evinced the Naval Academy and
DoD’s interest in developing a broadly diverse cadre of midshipmen and Navy and Marine
Corps officers.
Plaintiff contends that, under Harvard, any use of race in college admissions is a
stereotype because it assumes an “inherent benefit in race qua race.” (ECF No. 148 ¶ 316
(quoting Harvard, 600 U.S. at 220).) The holding of Harvard, however, explicitly does not apply
to military service academies because of their potentially distinct compelling governmental
interests. Here, Defendants have shown that the Naval Academy does not consider race
because it assumes some benefit inherent to a given racial identity. Defendants have shown
that the Naval Academy’s consideration of race is tailored to the Navy and Marine Corps’
national security interest in a broadly diverse officer corps. The benefit Defendants seek,
therefore, is not racial diversity for its own sake but racial diversity for national security.
Specifically, the Naval Academy considers race in admissions based on the Navy and Marine
Corps’ determination that everyone has different experiences, including experiences affected
by race, that allow them to perceive situations differently. This determination is the opposite of
a stereotype: it assumes that everyone has unique aspects—including, but not limited to racial
and ethnic identities—that inform their unique worldviews.
4. Conclusions of Law: The Naval Academy’s Consideration of Race

Will Not Continue Indefinitely.
There is no end date on national security. Even so, the Naval Academy recognizes that
its race-conscious admissions practices should not continue indefinitely. (ECF No. 149 ¶ 69.)
164
While considering race-conscious admissions practices at a civilian university in Grutter v.
Bollinger, the Supreme Court stated that “all governmental use of race must have a logical end
point.” 539 U.S. 306, 342 (2003). Although Grutter marked the first time the Supreme Court
clearly elucidated such a requirement, it has long expressed concern at “timeless” racial
classifications. See Wygant v. Jackson Bd. Of Educ., 476 U.S. 267, 276 (1986) (plurality opinion)
(rejecting idea of “timeless” affirmative action remedies); City of Richmond v. J.A. Croson Co.,
488 U.S. 469, 498 (1989) (noting the government’s interest in remedying past discrimination
generally has “no logical stopping point” (quoting Wygant, 476 U.S. at 276 (plurality opinion))).
The Supreme Court has applied this “logical end point” requirement largely in the context of
civilian institutions’ race-conscious admissions policies and affirmative action policies
intended to remedy past discrimination. See Grutter, 539 U.S. at 342 (applying logical end point
requirement to civilian university); Harvard, 600 U.S. 181, 221 (2023) (applying logical end
point requirement to civilian college and university); J.A. Croson, 488 U.S. at 498 (expressing
concern at race-based remedy that has no logical end point); United States v. Paradise, 480 U.S.
149, 182, 185 (1987) (permitting state government’s race-conscious promotion scheme where
it was “temporary and extremely limited”).
In its national security jurisprudence, the Supreme Court has suggested that measures
restricting constitutional rights or utilizing racial classifications must be temporary, but it has
stopped short of requiring an identified “logical end point” for such measures. In Hamdi v.
Rumsfeld, the Court permitted detention “for the duration of these hostilities, [of] individuals
legitimately determined to be Taliban combatants[.]” 542 U.S. 507, 521 (2004). Similarly in
Korematsu v. United States, the Supreme Court allowed the imposition of curfew and detention
165
orders on Americans of Japanese descent as a “temporary exclusion” supported by military
necessity. 323 U.S. 214, 219 (1944) abrogated by Trump v. Hawaii, 585 U.S. 667, 710 (2018).96
Therefore, Defendants are not required to identify a specific end point to their use of race as
one non-determinative factor in admissions tailored to further national security.
Defendants have proven that their consideration of race in admissions is not indefinite.
Rather, the Naval Academy’s use of race is narrowly tailored to the goal of mitigating national
security risks by developing a diverse Navy and Marine Corps. Across administrations, DoD
has determined, based on historical evidence, that a lack of diversity in the officer corps leads
to “racial tensions” and “a degradation in [the military’s] capability.” (ECF No. 144 at 11:14–
12:7 (Vazirani).) Such racial tensions threatened the preparedness of the United States military
at critical junctures during the Vietnam War when racial violence broke out across the Armed
Forces. (ECF No. 143 at 131:8–132:18 (Bailey); 166:5–168:1 (Sherwood).) For at least the
last fifteen years, DoD has determined that a diverse officer corps mitigates risk, and the
officer corps should “represent the country it defends” and the servicemembers it leads.
(DX137; DX177; PX805; PX803.) Therefore, the Naval Academy’s race-conscious
admissions will terminate when the incoming classes of midshipmen enable Defendants to
develop a Navy and Marine officer corps that better represents racial and ethnic diversity
among enlisted servicemembers and the American population.97 (ECF No. 141 at 41:4–16
96 Though Trump v. Hawaii abrogated the holding in Korematsu by suggesting it was unconstitutional to permit
such detention, it did not question the characterization of the detention as “temporary.” See Trump v. Hawaii,
585 U.S. 667, 710 (2018).
97 The requirement that the Naval Academy’s Dean of Admissions consult with Navy leadership—i.e., military
officials—regarding the termination of race-conscious admissions policies further demonstrates that the use of
race in admissions serves a compelling national security interest. (ECF No. 141 at 44:20–46:1 (Latta).)
166
(Latta).) This goal, as expressed by DoD and the Naval Academy, meets the requirement that
the government’s use of race be time-bound.98
Plaintiff suggests that the Naval Academy’s race-conscious admissions program is not
appropriately time-bound because it does not meet the end date requirement discussed in
Harvard. As explained above—and as consistent with the Supreme Court’s carveout for
military service academies in Harvard—the Naval Academy is distinct from a civilian college
or university. While Harvard and UNC claimed their race-conscious admissions policies
would end upon reaching “some rough percentage of various racial groups admitted,” 600
U.S. at 223, Defendants have tied the Naval Academy’s use of race to the realization of an
officer corps that represents the country it protects and the people it leads. Although Plaintiff
balks at the suggestion that it may take decades to see if midshipmen admitted today reach flag
officer positions—that is, a rank of O-7 and above—it is factual reality that the structure of
the Navy and Marine Corps requires development of flag officers from within. (ECF No. 146
at 42:6–16 (Miller); ECF No. 145 at 137:20–21 (Bailey) (“They have to grow their own. And
to grow an O-6 can take twenty years.”).) Factual constraints such as this underscore the
importance of the Supreme Court’s oft-repeated admonition that strict scrutiny is context
dependent. See, e.g., Grutter, 539 U.S. at 327 (“Context matters when reviewing race-based
98 Defendants’ stated goal—creating an officer corps that represents the people it protects and the
servicemembers it leads—comes close to racial balancing. Crucially, however, that goal is a military judgment
related to Defendants’ compelling national security interests and not to narrow tailoring of the Naval Academy’s
race-conscious admissions. The Naval Academy has proven that it is not using race in admissions to create a
class of midshipmen that matches any demographic target. See supra Section V.C.2. Defendants have
established compelling national security interests in creating a Navy and Marine officer corps that represents
the people it protects and the servicemembers it leads. See supra Section V.A. As discussed supra, this Court
defers to executive leaders’ informed, military judgment that an officer corps that represents the United States
population is a national security imperative. See supra Section IV.E; Section V.A.
167
governmental action under the Equal Protection Clause.” (citing Gomillion v. Lightfoot, 364 U.S.
339, 343–44 (1960))). This Court cannot fault Defendants for employing race-conscious
admissions policies that reflect the peculiar context of the United States military.
5. Conclusions of Law: The Use of Race is Necessary to the

Government’s Compelling National Security Interests.
A race-conscious admissions policy is narrowly tailored only if the government can
show that it is “‘necessary . . . to the accomplishment of its purpose.’” Fisher I, 570 U.S. 297,
309 (2013) (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 305 (1978) (opinion of Powell,
J.)). That is, the government must show that it could not meet its interest without using racial
classifications. Id. at 312. A race-conscious admissions policy’s minimal impact is not evidence
that it fails narrow tailoring but rather “a hallmark of narrow tailoring.” Fisher II, 579 U.S. 365,
384–85 (2016). Plaintiff here critiques the Naval Academy’s race-conscious admissions policy
for its minimal effect, alleging that only 33 fewer Black candidates and 21 fewer Hispanic
candidates would be admitted without consideration of race in admissions. 99 (ECF No. 141
at 178:16–181:2 (Arcidiacono).) Placed in context, however, those numbers are not
insignificant at all.
The Naval Academy admits approximately 1,000 midshipmen each year, and those
midshipmen in turn enter the Navy and Marine officer corps for a five-year commitment upon
their graduation. In 2023, 64 Black midshipmen graduated and entered the Navy and Marine
officer corps from the Naval Academy. The decrease in Black candidates by 33 without
consideration of race would thus result in a decrease of more than half in the number of Black
99Plaintiff provided these numbers from its modeling but noted that, per the testimony of Dr. Gurrea, the
numbers may be slightly overstated. (ECF No. 148 ¶ 291.)
168
officers accessing into the officer corps via the Naval Academy that year. Far from minimal,
this drop tends to prove Defendants’ need to use race in admissions to achieve a broadly
diverse officer corps. Similarly, in 2023, 124 Hispanic officers entered the Navy and Marine
officer corps through the Naval Academy. A drop in admissions of Hispanic officers by 21
individuals would result in almost a seventeen percent reduction in representation of Hispanic
officers entering the O-1 Rank of the Navy and Marine Officer corps through the Naval
Academy.100 In light of the Naval Academy’s outsized impact on the officer corps—forty
percent of flag officers and ninety percent of Chiefs of Naval Operations are Naval Academy
graduates—these numbers have significant effect.
Defendants presented evidence that diversity in the officer corps is essential to the
Navy and Marine Corps’ national security interests in unit cohesion and lethality, recruitment
and retention, and domestic and international legitimacy. Defendants showed that, mere
decades ago, racial violence occurred within the Armed Forces due to an absence of racial
diversity. Plaintiff argues that Defendants failed to meet their burden to show consideration
of race is necessary because Defendants did not present statistical modeling of their admissions
process absent race. Plaintiff notes that the civilian institutions in Harvard, Grutter, and Fisher
presented such modeling. As explained repeatedly here and noted in Harvard, however, civilian
institutions’ admissions processes are not necessarily analogous to military service academies’
admissions processes. 600 U.S. 181, 213 n.4 (2023). In the context of national security, the
100 As Plaintiff acknowledges, due to attrition, the number of midshipmen admitted is not necessarily equivalent
to the number of midshipmen who graduate and enter the officer corps. (ECF No. 148 ¶ 293.) However,
given the Naval Academy’s explicit purpose of developing Naval officers and Defendants’ stated compelling
interest in creating a broadly diverse officer corps, it is appropriate to compare admitted candidates to the
midshipmen that graduate and enter the Navy and Marine Corps.
169
government need not present “hard proof—with detail, specific facts, and specific evidence—
” to justify a restriction under strict scrutiny. Holder v. Humanitarian L. Project, 561 U.S. 1, 34
(2010) (internal quotation marks omitted).
6. Conclusions of Law: The Naval Academy Has Undertaken Serious,

Good Faith Consideration of Race-Neutral Alternatives.
Narrow tailoring demands “serious, good faith consideration of workable race-neutral
alternatives.” Grutter v. Bollinger, 539 U.S. 306, 339 (2003); H.B. Rowe Co., Inc. v. Tippett, 615
F.3d 233, 252 (4th Cir. 2010) (quoting Grutter, 539 U.S. at 339). A workable, race-neutral
alternative is one that achieves the governmental interest “about as well” without imposing
intolerable administrative expenses or requiring an institution to sacrifice its academic
standards or other aspects of the claimed compelling interest. See Wygant v. Jackson Bd. Of
Educ., 476 U.S. 267, 280 n.6 (1986) (plurality opinion); Grutter, 539 U.S. at 339; Fisher I, 570
U.S. 297, 312 (2013). In Grutter, the Supreme Court determined that the University of
Michigan Law School had given serious, good-faith consideration to race-neutral alternatives
where it rejected those alternatives because they would prevent individualized review of
applications and sacrifice academic standards. 539 U.S. at 339–40.
Here, the Naval Academy has proven that it has seriously considered—and in some
cases employed—race-neutral alternatives. First, Defendants proved that the Naval Academy
has implemented numerous race-neutral recruiting tactics at various stages of its admissions
process. The Naval Academy has hired a marketing firm to improve its social media presence,
digital outreach, and marketing efforts; implemented various STEM camps and summer
programs; created Summer Seminar; created the INSPIRE program, which sends midshipmen
into high schools to increase interest and access to the Naval Academy; hosted Candidate Visit
170
Weekends; hosted Centers of Influence programming at the Naval Academy; created
OPINFO events; funded traveling music tours; and increased trainings and engagement with
Congresspeople. (DX28; DX106; DX155; DX162; PX50.) Specific to applications, the Naval
Academy has provided additional points and consideration to candidates with race-neutral
characteristics such as (1) disadvantaged socioeconomic background; (2) adversity or hardship
experiences; (3) unusual life experience; (4) first-generation college status; (5) first-generation
American status; (6) speaking English as a second language; (7) military exposure and
background; and (8) residence in underrepresented congressional districts. (DX1; DX2; DX4-
003; DX28; PX27; ECF No. 139 at 233:11–19 (Hwang); ECF No. 140 at 209:7–211:21 (Latta);
ECF No. 141 at 32:7–21; 79:19–80:9; 86:20–87:1; 105:21–106:7 (Latta).)
Plaintiff’s race-neutral alternatives expert, Richard Kahlenberg (“Kahlenberg”),
acknowledged these tactics but suggested the Naval Academy should do more. Specifically,
Kahlenberg proposed that the Naval Academy increase its socioeconomic preferences. Only
one of the various simulations Kahlenberg presented produced greater minority
representation—by one percentage point—at the Naval Academy than that which currently
exists without his proposed socioeconomic preferences. As Kahlenberg repeatedly
acknowledged, the results would be even less successful if they were reported according to the
racial demographic categories DoD and Congress require the Naval Academy to use. (ECF
No. 142 at 137:22–139:13; 139:23–140:1; 151:6–17; 160:6–9; 180:3–6; 187:13–16
(Kahlenberg).) Despite only increasing diversity by one percentage point, Kahlenberg’s
proposed race-neutral alternative would cause academic metrics to fall. In accordance with
171
Grutter and Wygant, this resulting decrease in the academic qualifications of admitted candidates
means that Kahlenberg’s proposed alternative is not workable.
Every other version of Kahlenberg’s proposed alternative resulted in a decrease in
minority representation and an increase in white representation at the Naval Academy. That
is, every other version of this alternative did not further Defendants’ compelling national
security interest “about as well” as race-conscious admissions policies. Moreover, increasing
the weight given to socioeconomic status does not account for the Naval Academy’s need to
evaluate each candidate’s leadership ability, moral character, intended academic concentration,
STEM interest, status as a member of a slate in an underrepresented congressional district,
gender diversity, or geographic diversity. Accordingly, such alternative methods are not
workable within the definition imposed under Grutter and Wygant.
Finally, Plaintiff’s assertions that the Naval Academy should double its recruiting and
outreach budget, overhaul its preparatory program, or tweak the congressional appointments
process are equally unworkable. Kahlenberg ignores the distinction between Harvard and
UNC and the Naval Academy. The Naval Academy is a federally funded institution that
already invests more than $3 million in outreach efforts. (ECF No. 141 at 49:10–51:20 (Latta).)
To double that budget is not the sort of “tolerable administrative expense” contemplated in
the workability requirement for a race-neutral alternative. Wygant, 476 U.S. at 280 n.6 (plurality
opinion). Similarly, the Naval Academy cannot overhaul its preparatory program without
disregarding the reason for which it was created: to give priority to members of the enlisted
fleet. To overhaul NAPS and similar preparatory programs would mean that fleet members—
who face several unique challenges to apply and gain admission to the Naval Academy—would
172
no longer receive uniquely specialized consideration. Finally, the congressional appointments
process is controlled by Congress via statute. Defendants—none of whom are Members of
Congress—lack the authority to legislate. As the Supreme Court explained in Grutter,
“[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative.”
539 U.S. at 339. Defendants have met their burden to prove serious, good-faith
consideration—and, where workable, even implementation—of race-neutral alternatives.
VI. Conclusion
The U.S. Naval Academy as a military academy was specifically exempted by the U.S.
Supreme Court in the Harvard opinion. In a footnote, Chief Justice Roberts noted the
“potentially distinct interests that military academies may present.”101 The record in this case
demonstrates the wisdom of that caution. The admissions policies of Harvard College and
the University of North Carolina placed these civilian universities in the maelstrom of our
Nation’s continued struggle with race. Justice Gorsuch in his concurring opinion
acknowledged that “racial discrimination still occurs and the effect of past racial discrimination
still persists.”102 Justice Sotomayor in her dissenting opinion lamented “an endemically
segregated society where race has always mattered and continues to matter.”103
It is in this environment that the U.S. Naval Academy seeks to perform its mission to
prepare its students to become officers in the U.S. Navy and Marine Corps. Recent
demographic studies of the all-volunteer Navy and Marine Corps indicate that 52 percent of
enlisted Naval servicemembers are racial minorities, but minority officers constitute only 31
101 Harvard, 600 U.S. 181, 213 n.4 (2023).

102 Id. at 317 (Gorsuch, J., concurring).
103 Id. at 318 (Sotomayor, J., dissenting).
173
percent of the entire officer corps of the U.S. Navy. 104 Relatedly, in the Marine Corps—the
least diverse branch of the Armed Services—only 35 percent of enlisted Marines are
minorities, and minority officers make up just 29 percent of the Marine Corps officer ranks.105
As Vice Admiral Fuller testified106 and demographic data confirms, as recently as 2020 only
about 17 of the 218 Admirals in the United States Navy were officers of color.107 In short,
there is a significant deficiency in the number of officers of color in the officer corps of the
Navy and Marine Corps. Over many years, military and civilian leaders have determined that
a racially diverse officer corps is a national security interest. That judgment is based on studies
mandated by the U.S. Congress. A U.S. Senate Armed Services Report issued earlier this year
has noted the continuing problem of underrepresentation of racial and ethnic minorities in the
military service academies.
The U.S. Naval Academy does not set any racial quotas or engage in racial balancing in
its admissions process. No candidate for admission is admitted based solely on his or her race.
However, the Academy is distinct from a civilian university and its admissions process is far
more complex. It is governed by federal statutes, Department of Defense directives, and
Department of Navy regulations. There is a nominations process which includes
congressional nominations and service-connected nominations, among others. The Academy
must graduate at least 65 percent of its students with science, technology, engineering, and
mathematics degrees. There are certain points in the admissions process wherein the Academy
104 See (PX330.)

105 See id.
106 (ECF No. 145 at 127:12–22.)
107 (DX65.)
174
may consider race or ethnicity among many nondeterminative factors in seeking greater
diversity in the Brigade of Midshipmen. There are only four instances where race is
considered. These relate generally to the Academy’s decision to extend appointment offers
among candidates it has already deemed qualified for admission.
In this case, SFFA has challenged any consideration of race by the Naval Academy in
its admissions process. After an intense one-year period of discovery and a nine-day bench
trial, this Court has found that the Academy’s admissions program withstands the strict
scrutiny mandated by the Harvard case. The Naval Academy has established a compelling
national security interest in a diverse officer corps in the Navy and Marine Corps.
Furthermore, that interest is indeed measurable, and the Academy’s admissions program is
narrowly tailored to meet that interest. In short, this Court defers to the executive branch
with respect to military personnel decisions. Specifically, as noted by Justice Kavanaugh in
Austin v. United States Navy Seals, “the President of the United States, not [this] federal judge”
ultimately makes such decisions.108 Accordingly, based on the foregoing Findings of Fact and
Conclusions of Law, this Court enters the following:
ORDER
IT IS THEREFORE ORDERED AND ADJUDGED THAT Judgment shall be
ENTERED in favor of Defendants and AGAINST Plaintiff Students for Fair Admissions.
Richard D. Bennett
United States Senior District Judge
108 Austin v. United States Navy Seals 1–26, 142 S. Ct. 1301, 1302 (2022) (Mem.) (Kavanaugh, J., concurring).
175

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Case 1:23-cv-02699-RDB Document 150 Filed 12/06/24 Page 1 of 179

IN THE UNITED STATES DISTRICT COURT

STUDENTS FOR FAIR ADMISSIONS, *

v. * Civil Action No. RDB-23-2699

THE UNITED STATES NAVAL *

RICHARD D. BENNETT, Senior District Judge.

b. Dr. Gurrea ...................................................................................................................66

D. Strict Scrutiny in Affirmative Action Cases .....................................................................111

continuing problem of underrepresentation of racial and ethnic minorities in the military

service academies. This is fundamentally a military personnel issue.

SFFA’s challenge to any consideration of race by the Naval Academy necessarily

case is consistent with a long history of Supreme Court deference.

2 (PX445 (Report of Military Leadership Diversity Commission).)

SHALL BE ENTERED IN FAVOR OF DEFENDANT NAVAL ACADEMY AND THE

NAMED INDIVIDUAL DEFENDANTS.

II. Parties & Procedural History

Academy”) is a four-year federally established undergraduate institution that prepares students

The individual Defendants are all sued in their official capacities.

requested injunctive relief. (ECF No. 57.)

to September 16, 2024. (ECF No. 71.)

III. Trial Findings of Fact

A. Findings of Fact: The Government Has a Compelling Interest in a Diverse

compelling testimony from several witnesses testifying on behalf of Defendants. These

the nine-day bench trial follows.

1. The Military Has Made the Judgment, Informed by History, that a

The Department of Defense (“DoD”) is America’s oldest and largest government

“officer accession sources”).

147:17 (Haynie); ECF No. 146 at 82:4–7 (Miller).)

Accordingly, the demographic composition of initial officer accessions is critical to the

historical and military consensus.

a. History of Internal Racial Strife Risking Mission Readiness

As Under Secretary Vazirani explained, the DoD is a “learning organization,” meaning

tensions, and resulting “lack of unit cohesion,” “lack of trust,” and

116:19–20, 159:13–20 (Bailey), 160:12–18 (Sherwood); DX197 ¶¶ 10–12.) Black

Navy.” (Id. at 161:4–161:8 (Sherwood).)

or warrant officer’s commission. (Id. ¶ 22.)

¶¶ 26–27; ECF No. 143 at 161:24–162:6 (Sherwood).)

No. 143 at 161:16–20 (Sherwood).)

officer promising to reexamine promotions. (Id. ¶ 28.)

a more effective fighting force. (PX445.)

integration, and racial discrimination continued to corrode military effectiveness. (PX272;

(PX445.) The Gesell Committee recommended that then-Secretary of Defense Robert

McNamara pursue “greater institutionalization of the military’s commitment to equality of

DoD Military Leadership Diversity Commission12 (“MLDC”) reflected in 2011, “DoD’s

bases in the United States. (DX197 ¶ 38.)

Corps. (ECF No. 143 at 127:8–18 (Bailey).)

allegations of unequal treatment. (Id. at 167:16–170:10 (Sherwood).) Other riots demonstrate

(Sherwood); DX197 ¶ 45.)

assignments; a climate of racism; a disciplinary system perceived to be biased against Black

129:22–131:17 (Bailey).) As Dr. Bailey explained:

(Id. at 123:5–15; DX196.) She further explained that:

(ECF No. 143 at 148:1–15.)13

from educationally underprivileged backgrounds to successfully complete the Navy’s

Academy Preparatory School (“NAPS”). (Id. at 175:10–176:1 (Sherwood).) While these

as further explored below.

b. A Diverse Officer Corps is Vital to National Security

effectiveness.” (PX445.) As Deputy Assistant Secretary Miller explained at trial, this is a

and . . . over multiple different administrations.” (ECF No. 146 at 82:1–7.)

to diversity among military leaders and recommend improvements to promote a more

leaders, “conduct[ed] a comprehensive evaluation and assessment of policies that provide