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Action Update


Mar 15, 2017 | by William Perry Pendley

One of Mountain States Legal Foundation’s (MSLF’s) greatest victories occurred when the Supreme Court of the United States ruled that the federal government could not decide between and among Americans on the basis of race. For decades federal lawyers had argued that Congress could use race to make decisions, but MSLF argued that the federal government, including Congress, was bound by the equal protection component of the Due Process Clause of the Constitution’s Fifth Amendment, commonly referred to as the Constitution’s equal protection guarantee. In Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) in which MSLF’s client, a tiny “mom and pop” company from Colorado Springs, Colorado, challenged a federal program that awarded federal highway projects on the basis of race, the Supreme Court agreed with MSLF.

In ruling in favor of MSLF’s client, the Court struck down two earlier rulings that permitted Congress to make decisions based on race, and then ruled that Congress itself was subject to the equal protection guarantee. In her opinion for the 5-4 majority, Justice O’Connor quoted from the Court’s past rulings to set forth the Constitution’s equal protection guiding principles:

  • “[A]ny official action that treats a person differently on account of his race or ethnic origin is inherently suspect.”
  • “[R]acial classifications [are] ‘constitutionally suspect’.”
  • “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people.”
  • “[T]he standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification.”
  • “Equal protection analysis in the Fifth Amendment area [for the federal government] is the same as that under the Fourteenth Amendment [as applied to State and local governments].”“Taken together,” wrote Justice O’Connor, “these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.” Although Justice O’Connor insisted that “strict scrutiny” is not always “fatal scrutiny,” that is most often the case.

In other words, when MSLF’s Adarand victory is applied to a racial classification, by whatever name known, whether a racial quota, racial set-aside, racial preference, or “affirmative action,” it is doomed!Little wonder the ruling made headlines, above the fold, on the front pages of newspapers across the country, led the evening news on all of the networks, and caused Time to call it, “a legal earthquake.” Little wonder the left went absolutely bonkers. For example, Jesse Jackson said that African Americans now fear black robes, not white ones. Little wonder that President Clinton, who said he would “mend [affirmative action], not end it,” spent his last days in office vigorously defending race-based decision-making in court.

Republicans, in control of Congress, had a chance to end race-based policies, but lacked the political courage to do it. Instead, they teamed with Democrats and “left it up to the courts.” Sadly, lawyers for George W. Bush defended race-based policies. MSLF’s lawsuit ended, but its Adarand victory stood; however, the Court then lost its way. Justice Scalia, dissenting from denial of certiorari in another MSLF equal protection case, harshly scolded his colleagues that refusal “invites speculation that [Adarand] has effectively been overruled.” “We should grant certiorari to make clear that we stand by [our] insistence that ‘[r]acial classifications are suspect’… and that the courts will employ ‘searching judicial inquiry into the justification for such race-based measures… to [‘]smoke out[‘] illegitimate uses of race.’”

Enter President Obama, his radical team, and their “racialist agenda,” through which everything is racial. From the “2009 stimulus”—not meant for “white, male construction workers,” through Dodd-Frank, which set up racial quotas, to the FAA’s scheme—as to which MSLF filed its huge, class-action lawsuit—to hire air traffic controllers based on race, racial policies ruled.Meanwhile, a tiny, brave Texas company, Rothe Development, Inc., fought against the use of race in the awarding of Information Technology (IT) as well as Communication contracts by NASA and the U.S. Department of Defense. Susie Patenaude received her B.A. degree in education with concentrations in mathematics and business from Southwest Texas State University (the Texas State University). For years she taught high school math, then she and her husband bought Rothe and she became its president. She quickly discovered why they lost contracts on which they submitted the low bid—racial quotas!

They spent years and thousands of dollars fighting racial preferences and won. All along they insisted the courts apply MSLF’s victory in Adarand. Then, they challenged the race-based set aside in the Small Business Act—8(a) and appealed an adverse ruling. Incredibly, a federal court of appeals ruled (2-1) against them by holding 8(a) is NOT about race. The dissenting judge, in a scathing rebuke, wrote everyone knows 8(a) is about race. When the full appeals court declined to rehear the case to apply Adarand, it looked as if all was lost. Then a judge similar to Justice Scalia was nominated.Susie Patenaude turned to MSLF. Would MSLF take her case to the Supreme Court, to compel the application of Adarand, to end the use of racial preference by the federal government, and to vindicate Justice Scalia? MSLF said “Yes!” I hope you will support MSLF’s fight for “one race—American.”

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