IS RACIAL DISCRIMINATION EVER “SUBSTANTIALLY JUSTIFIED?”
by William Perry Pendley
November 1, 2010
In 1995, in a ruling that generated banner headlines on the front page above the fold of every major newspaper in the country, grabbed the lead on every television network news show, and garnered the title “legal earthquake” by TIME, the Supreme Court of the United States held that the Constitution’s Equal Protection Clause applies to the federal government. The Court’s landmark ruling was a response to a problem of its own making; after all, in 1980, addressing the constitutionality of the first federal statute to mandate awarding federal contracts on the basis of race, it had punted. Given that the racial mandate then under review was included in a short-term, $2 billion economic stimulus package, the Court held that use of such an “odious” basis for federal decision-making as race was limited in both scope and duration and so, at least for the time being, gave it a pass. The ruling emboldened Congress, which included racial quotas in statute after statute. State and local governments reasoned that they too could engage in racial gamesmanship; they wrote racial quotas into their laws and ordinances.
By 1989, the Supreme Court had seen enough and, in a case that challenged the constitutionality of racial set-asides adopted by Richmond, Virginia, held that the Fourteenth Amendment’s equal protection guarantee bars such provisions. At that time, a legal challenge to similar federal enactments was about to begin in federal court in Colorado. By the time it reached the Court in 1994, both the Court’s 1980 ruling upholding racial preferences in federal contracting and a 1990 ruling upholding racial preferences in awarding FCC broadcast licenses stood in the way. On behalf of the Court, Justice O’Connor quickly brushed both rulings aside. Any racial preference, she wrote, adopted by any government as to any racial group must be subjected to “strict [usually deadly] judicial scrutiny.”
In response, Clinton vowed to “mend, not end” use of racial quotas; his administration did neither. Meanwhile, voters in California and Washington State repudiated the use of racial preferences, which prompted Congress to vote, for the first time ever, on whether to end the use of racial quotas; that vote failed in the face of calls to “leave the matter to the courts.” In 2001, the Colorado case returned to the Supreme Court, asking that it apply “strict scrutiny” to racial quotas used in federal highway contracting. In response to arguments by the Bush Administration that the case was moot, the Court declined to rule.
Although the Supreme Court had fallen silent on the issue—it denied certiorari in several cases that would have permitted a “final” ruling on the subject—its 1995 ruling in Adarand Constructors, Inc. v. Peña remained the law of the land. Little surprise therefore that when a small business contractor in Texas challenged the U.S. Department of Defense (DOD) use of racial preferences, Adarand all but preordained the ruling. It was not easy; after all, federal lawyers stonewalled. Nonetheless, in 2009, Rothe Development Corporation won a ruling that DOD’s racial preferences were blatantly unconstitutional.
Rothe’s attorney, David F. Barton of San Antonio, applied for attorneys’ fees and expenses as authorized by the Equal Access to Justice Act (EAJA) when private citizens defeat the federal government in court, if the federal government’s position is not “substantially justified.” Obviously, argued Rothe, after Adarand, the federal government’s position was not “justified,” let alone “substantially justified.” Incredibly, the District Court and then the Court of Appeals ruled against Rothe. On September 29, 2010, Rothe asked the Supreme Court to determine whether racial discrimination by the federal government in the wake of Adarand is ever “substantially justified.”
If the Court agrees to hear the case, a ruling in favor of Rothe could go a long way to ending federal racial preferences and quotas. That is, unless a new Congress across the street does not beat the Court to it in early 2011!
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