Buckeye Reporter

On Friday, The Buckeye Institute filed an amicus brief in the case of Diemert v. City of Seattle. The brief was submitted to the U.S. Court of Appeals for the Ninth Circuit, urging the court to consider Justice John Marshall Harlan’s dissent in Plessy v. Ferguson. The Buckeye Institute argues that discriminatory workplace equity initiatives violate both the U.S. Constitution and the U.S. Civil Rights Act of 1964.

Jay R. Carson, senior litigator at The Buckeye Institute, stated, “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.” He further added that recognizing Justice Harlan’s wisdom could lead towards a "color-blind Constitution and the America that Harlan envisioned."

The brief emphasizes Justice Harlan's expansive view of the 14th Amendment as outlined in his dissenting opinion in Plessy v. Ferguson, which is regarded as significant in American jurisprudence. In his dissent, Harlan argued against racial distinctions by the government: “The sin is in the government taking any notice of the race of a U.S. citizen.” He believed that both the 13th and 14th Amendments had removed racial lines from governmental systems.

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

Joshua Diemert is represented by Pacific Legal Foundation in this case.