Columbus, OH – On Friday, The Buckeye Institute filed an amicus brief in Diemert v. City of Seattle, urging the U.S. Court of Appeals for the Ninth Circuit to look to Justice John Marshall Harlan’s dissent in Plessy v. Ferguson and his expansive view of the 14th Amendment to end discriminatory workplace equity initiatives, which violate the U.S. Constitution and the U.S. Civil Rights Act of 1964.

“While government interventions—from affirmative action to DEI training—may spring from a desire to bring about a more equitable society, they suffer from the same noxious segregation statute at question in Plessy v. Ferguson. They sort Americans by race,” said Jay R. Carson, senior litigator at The Buckeye Institute. “By recognizing the wisdom in Justice Harlan’s Plessy dissent, this court can move us towards the color-blind Constitution and the America that Harlan envisioned.”

In its brief, The Buckeye Institute argues that the expansive view of the 14th Amendment that Justice Harlan outlined in his Plessy dissent—recognized as one of the most important dissenting opinions in American jurisprudence—deserves consideration in determining this case. In his dissent, Halan argues that it doesn’t matter whether the distinction between races is drawn to ameliorate past wrongs or current lack of opportunity: “The sin is in the government taking any notice of the race of a U.S. citizen.” Harlan read the 14th Amendment as prohibiting the government from making any “distinctions based on color,” and wrote that the 14th Amendment, along with the 13th Amendment, had “removed the race line from our governmental systems.”

Carson continued, “Applying the reasoning of Harlan’s Plessy dissent, the discrimination that Mr. Diemert experienced is no less odious than ‘separate but equal.’”

Pacific Legal Foundation represents Joshua Diemert in Diemert v. City of Seattle.

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