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.
In his dissent, Justice Scalia declared that the Court’s refusal to hear the Denver case “invites speculation that [the Court’s rejection of the use of racial preferences in contracting] has effectively been overruled.” In the spring of 2004, the Court was asked to hear two cases where a federal appellate court had ignored Adarand; the Court denied the petitions. It appeared that Justice Scalia was right. These were dark days.
In the Court’s 2003 ruling on the use of race by law schools to achieve “diversity,” Justice O’Connor opined that such programs should last no longer than 25 years. Given the Court’s troubling history on the issue and the relentlessness of advocates of state-sponsored racial preferences and quotas (wrongly called “affirmative action”), proponents of a color-blind Constitution took no comfort in her meaningless pledge. Their worst fears were realized when, using Justice O’Connor’s 2003 ruling, the U.S. Court of Appeals for the Ninth Circuit upheld the constitutionality of a plan by Seattle School District #1 to assign students based on their race to achieve “diversity.”
Fortunately, on June 5, the Supreme Court agreed to review the Ninth Circuit’s ruling as well as that of another federal circuit on the same subject. Late last month, briefs were filed; more briefs will be filed next month; oral arguments are yet to be scheduled.
The good news is that there is a chance that the Supreme Court will issue the ruling that Justice Harlan enunciated 110 years ago. The bad news is that this may be its last opportunity to do so.