STATES’ DECADE-OLD “DIALOGUE ON RACE” DOOMS
Mountain States Legal Foundation, by
William Perry Pendley President and Chief Legal Officer
On March 18, Senator Barack Obama urged what the media labeled a
“national dialogue on race.” One week later, Colorado’s Secretary
of State approved a ballot initiative to permit Colorado voters to
participate, along with three other States, in a dialogue on race
that began over a decade ago. If past is indeed prologue, on
Election Day, these four States will join California, Washington,
and Michigan in embracing Supreme Court Justice Scalia’s
sentiment, “In the eyes of government, we are just one race here.
It is American.” Other States will join them.
What is it that foreshadows Americans’ view that their governments
may not distinguish between and among their fellow citizens on the
basis of race? For one, the Declaration of Independence, which
Reverend Martin Luther King, Jr., called a “promissory note” to
the American people. Sadly, more than two centuries passed before
that note came due for all Americans when, in 1965, Congress
adopted the Civil Rights Act, which, Senator Humphrey assured his
colleagues, did not allow racial quotas or preferences.
A mere 12 years later, in 1977, Congress reneged, providing for
racial quotas in a public works bill. Then, in 1980, the Supreme
Court upheld that law as limited in extent and duration. Thus
emboldened, Congress extended racial quotas to nearly every
federal agency. Soon state and local governments joined in.
In 1990, the Court revisited what was termed, inaccurately,
“affirmative action”; by 6-3, it vitiated Richmond, Virginia’s
race-based system of awarding contracts. Then, in 1995, in Adarand
v. Peña, a Colorado case Time called “a legal earthquake,” the
Court declared, “Distinctions between citizens solely because of
their ancestry are by their very nature odious to a free people,”
mandated “strict scrutiny” when Congress uses race, and doomed
affirmative action. Unfortunately for the family bringing the
suit, Randy and Valery Pech, who owned Adarand Constructors, Inc.,
the Court remanded it for more fact finding.
That same year, University of California Regent Ward Connerly, who
had tired of California’s use of racial preferences for college
admission, sponsored a successful resolution ending the practice.
In 1996, he placed on the ballot the California Civil Rights
Initiative (CCRI), which was modeled after the Civil Rights Act of
1965. Opposed by California’s media, educational, and political
elite, it passed 55 percent to 45 percent. Two years later,
Connerly led a similarly successful effort in the State of
Meanwhile, spurred by the Supreme Court’s Adarand ruling,
Congress, for the first time, debated the constitutionality of
awarding contracts based on race. Not surprisingly, it demurred,
leaving the matter to the courts. In 2001, Adarand returned to the
Supreme Court, where it, at the Bush Administration’s urging,
declined to rule. Thus, it left standing a U.S. Court of Appeals
for the Tenth Circuit ruling that turned the Court’s 1995 ruling
on its head by authorizing use of racial quotas. Then, in 2003,
the Court ruled the University of Michigan Law School could grant
admission on the basis of race for another 25 years. Later that
year, the Court, over the vigorous dissent of two justices,
refused to hear an appeal by Marc Lenart of Lafayette, Colorado,
who sought to overturn the Tenth Circuit’s perversion of the
Supreme Court’s Adarand ruling.
The “national dialogue on race” as to government, race-based
decision making was over at the Supreme Court; however, it was not
finished in Michigan. Jennifer Gratz, lead plaintiff in a
successful challenge to Michigan’s undergraduate admission
program, returned to fight for the Michigan Civil Rights
Initiative (MCRI) and thus end the Michigan law school’s
race-based policy. In 2006, by a vote of 58 percent to 42 percent,
the MCRI passed; Gratz had snatched victory from the jaws of
In Colorado, Randy Pech, Valery Pech Orr, co-proponent of the
Colorado initiative, and Marc Lenart hope for a similar victory.
If they get it, it will be without Senator Obama’s help; he
opposed the MCRI.
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