William Perry Pendley

In 1896, U.S. Supreme Court Justice Harlan wrote in Plessy v. Ferguson: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. [A]ll citizens are equal before the law.” Sadly, Justice Harlan wrote in dissent, as the Court authorized race-based decision making by state governments. In 1954, 58 years later almost to the day, the Court reversed Plessy in Brown v. Board of Education and put an end to the ability of governments to judge between and among Americans on the basis of their race. Or so it seemed.

In 1980, the Court approved of a congressional scheme to award federal contracts on the basis of race. In 1989, however, the Court ruled that state and local governments could not do as Congress had done. Such racial preferences were doomed. Or so it seemed.

In 1990, the Court approved a federal agency plan to achieve racial “diversity” by issuing licenses on the basis of race. Four justices dissented, including Chief Justice Rehnquist and Justice Scalia, to the Court’s violation of the Constitution’s equal protection guarantee. The future appeared bleak.

Then along came a tiny, family-owned highway guard-rail firm from Colorado.

In 1995, Adarand Constructors, Inc., appeared before the Court because, under the type of federal program approved of by the Court in 1980, the federal government had denied Adarand contracts because of its owner’s race.

The Court ruled for Adarand and overturned its 1990 decision (regarding the use of race to achieve “diversity”) explicitly and its 1980 ruling (regarding the use of race in federal government contracting) implicitly. Time called Adarand a “legal lightening bolt.” The use by governments of racial preferences was dead. Or so it seemed.

Bureaucrats, radical groups, and liberal judges fought on; then the federal appellate court hearing the Adarand case on remand eviscerated the Supreme Court’s 1995 Adarand ruling. In 2001, when Adarand returned to the Supreme Court, the Court refused to reign in the appellate court. Soon, other federal appellate courts joined in stripping the Adarand ruling of any meaning whatsoever. Then, in June 2003, the Supreme Court approved of the use of racial preferences at a state law school to achieve “diversity.” Finally, in November 2003, the Court refused, over a dissent by Justice Scalia and Chief Justice Rehnquist, to reaffirm Adarand in a case brought by a tiny Colorado concrete firm.

William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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