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SCOTUS Shut Down Race-Based Hiring Nearly 30 Years Ago, So Why Are We Still Doing It?

What happened to the 1995 ruling my client won in Adarand Constructors, Inc. v. Peña?

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The corporate media are just now discovering what I learned in 2015, that the Federal Aviation Administration (FAA), under the direction of President Barack Obama, hires air traffic controllers (ATC) on the basis of race. Of course, President Biden, as part of his commitment to “equity,” took it further. His FAA “identified” certain disabilities as deserving of “special emphasis in recruitment and hiring,” including “epilepsy, severe intellectual disability, [and] psychiatric disability.”

How in the world did it come to this?

Twenty-nine years ago this week, I argued before the Supreme Court of the United States that the federal government’s policy of using race to award contracts was unconstitutional. My client, Randy Pech of Colorado Springs, was a college dropout who had parlayed his father’s retirement monies — no bank would loan him funds — into a small business building guardrails along federal highways. Although his was the lowest bid on a national forest job in southwestern Colorado and he had a reputation for doing excellent work on a timely basis, he was denied the subcontract because a federal agency awarded the prime contractor a $10,000 “bonus” to give the job to a minority-owned business.

Forty-one years after the Supreme Court ruled regarding public schools in Washington, D.C., “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government” than on the states, and the solicitor general argued just that: Congress owed no duty to my client to adhere to the Constitution’s equal protection guarantee. 

The court disagreed. In fact, I was there that spring when Justice O’Connor read her 5-4 ruling, which held: “[A]ny 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…” 

The holding was a bombshell. It led the network news that night and appeared on the front page, above the fold, of every newspaper in the country. Race-based decision-making, affirmative action, or reverse discrimination was doomed, declared all the legal experts.

Today, with federal agencies like the FAA hiring on the basis of race, Ivy League universities appointing presidents due to the color of their skin, corporations all but declaring that white males (like my client who was once called “an angry white man”) need not apply, and “diversity, equity, and inclusion” (DEI) everywhere run amok, what happened to the 1995 ruling my client won in Adarand Constructors, Inc. v. Peña?

Because, in Justice O’Connor’s words, the court had “alter[ed] the playing field,” my client was sent back to Colorado federal district court for it to rule anew, given the court’s holding that the Constitution’s equal protection guarantee applied to the federal government. 

In 2000, the court unanimously swatted aside an attempt by the U.S. Court of Appeals for the 10th Circuit to kill the case; thus, in 2001, I was back before the court. On their way out the door, Clinton administration lawyers argued the case was ripe for a ruling, but President George W. Bush’s lawyers argued it was moot. In the wake of the attack of 9/11, the court agreed.  During oral argument, I vowed to return to enforce the court’s 1995 holding.

In 2003, I did return on behalf of a Denver small businessman, but by then Justice O’Connor had lost her way. On the recommendation of retired generals and admirals, corporate CEOs, and university poohbahs, she allowed colleges to grant admission based on race for no more than 25 more years. Not surprisingly, over a vigorous dissent by Justice Scalia, joined by the chief justice, my client’s petition for writ of certiorari was rejected.

Meanwhile, in the wake of my 1995 victory, Congress considered whether to end its policy of doing business based on race. After two years, with bipartisan support, Congress voted to leave the issue up to the courts. Then, in 2015, after I sued the FAA for hiring air traffic controllers based on race, Congress declined to end the program, which continues even today. In 2021, albeit with not a single Republican vote, Congress enacted the American Rescue Plan Act, which granted Covid relief to restauranteurs, but only those of certain enumerated races. Fortunately, that misadventure ended after federal court rulings, including by the U.S. Court of Appeals for the Sixth Circuit, that it was unconstitutional, citing Adarand.

Meanwhile, the American people expressed their disdain for racial quotas. In 1996, California passed the California Civil Rights Initiative (Proposition 209), modeled after the Civil Rights Act of 1964, which ended race-based hiring, contracting, and admissions in the Golden State. In 1998, Washington state did the same. In both instances, voters rejected the urgings of their state’s political, business, and media elites, which were brought to them via slick, expensive advertising campaigns. In fact, in 2020, Californians once again voted “No” to government race-based decision-making.

Fortunately, O’Connor’s disastrous 2003 ruling in Grutter did not live out its 25-year sentence.  Last year, Chief Justice Roberts all but overruled Grutter by ending race-based admissions by colleges and universities. That good news was long overdue. However, that was not all the chief justice got right. 

In 2007, he declared, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Time to do so is well past due, but it will not occur with President Biden and the current Congress. 

Given illegal immigration, inflation, and imminent global war, the American people have many reasons to vote the bums out. Add racial politics, racial divisiveness, and the radical end to America’s meritocracy, and the path forward becomes clear.

A new president in 2025 must end DEI and all race-based hiring and decision-making by federal departments and agencies. Meanwhile, Congress must codify the Supreme Court’s ruling in Adarand and compel the federal government to comply with the Constitution’s equal protection guarantee. To paraphrase Dr. Martin Luther King Jr., it is the only way to pay the “promissory note” set forth in the Declaration of Independence and the Constitution.  


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