Later this month, opening briefs will be filed with the U.S. Supreme Court in two landmark civil rights cases addressing race-based decision-making by public schools. The Court’s ruling may turn on its 1995 decision in Adarand Constructors, Inc. v. Peña, in which the Court repudiated its 15-year abandonment of the Constitution’s guarantee of equal protection. As the Court determines whether, in Justice Scalia’s words, “we stand by [our] insistence that ‘[r]acial classifications are suspect,’...and that [we will] ‘“smoke out” illegitimate uses of race’” when public schools assign students based on race, another lawsuit seeking to determine if the Court meant what it said in Adarand begins its long journey to the Court.
In 1995, Colorado Springs highway subcontractor Randy Pech, who, despite having submitted the lowest bids, had been denied contracts to install guardrails on federal highway projects, urged the Court to rule that the Constitution’s equal protection guarantee applies to the federal government. The United States argued, Congress is exempt from that provision. Justice O’Connor, writing for the Court, rejected the government view and ruled that the Fifth Amendment guarantee is “for persons, not groups,” and is a “personal right to equal protection of the laws [that may not be] infringed.”
In urging against and dissenting from the majority’s opinion, Justice Stevens noted that the Court’s Adarand ruling would imperil the Court’s 1974 ruling in
Roberts is not the first hunter to run afoul of Montana’s race-based, big game rules. Sandra Shook of Sanders County in northwestern Montana was charged with hunting illegally, even though she had a deer hunting license and tag and her neighbor’s permission to hunt on his land, because the land is within the Flathead Indian Reservation. The Montana Supreme Court rejected Ms. Shook’s constitutional claims and, relying on
Randy Roberts is not waiting to be cited for hunting on privately owned land and a futile appeal to the Montana Supreme Court. Instead, he filed his lawsuit before the Montana federal district court. Today, his case is briefed and awaiting argument and a ruling.