SCOTUS Shut Down Race-Based Hiring Nearly 30 Years Ago, So Why Are We Still Doing It; DEI Opponents Using a 1866 Civil Rights Law to Challenge Equity Policies in the Workplace

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?

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. —>READ MORE HERE

DEI opponents using a 1866 Civil Rights law to challenge equity policies in the workplace:

Opponents of workplace diversity programs are increasingly banking on a section of the Civil Rights Act of 1866 to challenge equity policies as well as funding to minority-owned businesses.

Section 1981 of the act was originally meant to protect formerly enslaved people — or black people specifically — from economic exclusion.

But now the American Alliance for Equal Rights — a group run by Edward Blum, the conservative activist who challenged affirmative action in higher education and won — is citing the section to go after a venture capital fund called the Fearless Fund, which invests in businesses owned by women of color.

A federal appeals court temporarily blocked funding for Fearless Fund’s grant program as the case proceeds.

Conservative activists have brought lawsuits using the 1981 section against other companies and institutions, including insurance company Progressive and pharmaceutical giant Pfizer.

The cases are being monitored carefully as the battle over racial considerations shift to the workplace following the Supreme Court’s June ruling ending affirmative action in college admissions.

While the 1981 statute had been used well before the latest affirmative action ruling to prove reverse discrimination, Alphonso David, Fearless Fund’s legal counsel who serves as president & CEO of The Global Black Economic Forum, said that there’s a “coordinated use of Section 1981 now that we did not see before.”

Here’s what’s happening and what the impact could be:

What is Section 1981? —>READ MORE HERE

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