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Archived: Constitutional Liberties Legal Cases

Since its creation in 1977, Mountain States Legal Foundation has been a national leader in seeking to ensure the liberties and freedoms guaranteed by the U.S. Constitution. For example, before the U.S. Supreme Court and in various federal appellate and trial courts throughout the country, MSLF has set valuable legal precedent to achieve the goal of our Founding Fathers--a colorblind Constitution. MSLF victories before the U.S. Supreme Court in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) and Adarand Constructors, Inc. v. Peña, 115 S.Ct. 2097 (1995), have changed race-based decision making by the federal government forever! MSLF continues its fight to ensure that the Constitution is interpreted as intended by its framers.

Shea v. Kerry

Legal Question:

Whether the command of the Civil Rights Act of 1964 that all covered federal employees shall be “free from any discrimination based on…race” forbid the federal government from adopting race-based affirmative action plans?


William E. Shea


John F. Kerry, Secretary of State

Amicus Curiae:

Mountain States Legal Foundation


Supreme Court of the United States

At the time William E. Shea applied as a Foreign Service Officer (FSO), the State Department had in place an affirmative action plan that allowed only racial minorities to apply for and be hired directly into mid-level Foreign Service positions.  As a white male, Mr. Shea was not eligible to apply for a mid-level position; therefore, he applied for, and received, an entry-level Foreign Service officer grade.  On the other hand, pursuant to the State Department’s affirmative action plan, minority applicants with similar qualifications were hired directly into the mid-level positions.  Thereafter, Mr. Shea brought suit under Section 717 of Title VII of the Civil Rights Act of 1964, in which he alleged that the State Department’s affirmative action plan violated the prohibition of Section 717’s on race-based discrimination by the federal government because he was excluded from any consideration for the position solely on the basis of his race.

The federal district court placed the burden on Mr. Shea to prove the affirmative action plan was unlawful, and held that he failed to meet that burden.  Although district court questioned the ongoing validity of two earlier Supreme Court precedents, given recent Court rulings, it felt bound.  The U.S. Court of Appeals for the District of Columbia affirmed the district court’s holding, agreeing that the burden was on Mr. Shea to demonstrate the illegality of the State Department’s affirmative action plan because the State Department acted only to remedy “traditional patterns of racial segregation.”

On December 7, 2015, Pacific Legal Foundation, which represents Mr. Shea, filed its petition for writ of certiorari.  On January 8, 2016, MSLF filed a friend of the court brief urging the Court to grant the petition.  On February 8, 2016, the State Department filed its brief in opposition.  On April 18, 2016, the Court denied the petition.

No Status Updates
  • State Department’s Race-Based Hiring Is Unconstitutional

    Jan 8, 2016
    A nonprofit, public-interest legal foundation with decades of experience enforcing the Constitution’s equal protection guarantee today urged the Supreme Court of the United States to review a ruling by a federal appeals court upholding the ability of the U.S. Department of States to hire Foreign Service Officers (FSOs) on the basis of race.

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