"IN THE EYES OF GOVERNMENT, WE ARE . . . AMERICAN."

by William Perry Pendley
President, Mountain States Legal Foundation

January 6, 2003

It was a tough Christmas in Libby, Montana. In late October, the town of 8,000 in extreme northwestern Montana got news that Stimson Lumber Company would close its mill; by year’s end, 300 jobs would be gone. The reason was simple but hardly new: not enough timber was allowed to be harvested from the Kootenai National Forest, which makes up 78 percent of Lincoln County where Libby is located. Plus, the price of the logs that are allowed to be harvested has been driven up by endless appeals and lawsuits by environmental groups and thus rendered uneconomic in the world marketplace. This was the second of the double barrel shot that Lincoln County’s job market absorbed: environmental opposition helped kill a world class mine that was to open with hundreds of high paying jobs.

Nonetheless, there was an economic bright spot. Lincoln County’s largest employer, the federal government, was hiring. The Environmental Protection Agency (EPA) says it needs 200 to 300 new employees to address asbestos contamination of Libby’s homes and buildings. Plus, to implement President Bush’s forest health initiative to prevent the devastating fires of the kind that swept through Montana in 2000 and Oregon, Arizona, and Colorado in 2002, the U.S. Forest Service will have to hire, according to one local expert, nearly 100 new employees.

Alas, these job opportunities may not provide any relief to the men and women who once worked at the Libby mill. The men and women who have reported to the EPA’s local office have been turned away as unqualified; the EPA is looking, they were told, for bilingual employees, specifically those who can speak Spanish. One local quipped that the only truly qualified individual was the high school Spanish teacher and he already had a job. Not surprisingly, many of those turned away by the EPA believe the reason is not language but race. They could be right because of what may take place over at the Forest Service office.

Days before Stimson Lumber Company made its announcement, the Forest Service said it had settled a lawsuit at the U.S. Court of Appeals for the Ninth Circuit, which includes Montana, by agreeing to increase the number of Latino Forest Service employees. An attorney with the Mexican American Legal Defense and Education Fund (MALDEF), which brought the suit, enthused that the settlement could be forced on the Forest Service all across the country.

The people of Libby, Montana, who are looking for work with their federal government are asking why, notwithstanding the equal protection guarantee of the U.S. Constitution, their government focuses on the color of their skin and not the content of their character. They are not the first to ask that question.

In 1896, Justice Harlan, dissenting from an otherwise unanimous Supreme Court that ruled otherwise, declared, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” In 1954, Thurgood Marshall wrote, “Distinctions by race are so evil, so arbitrary and invidious that a state, bound to defend the equal protection of the laws, must not invoke them in any public sphere.” In 1995, Justice Scalia put it this way, “In the eyes of government, we are all one race. It is American.”

Nonetheless, governmental actors at all levels--Congress, state legislatures, county commissions, city councils, and university regents--continue to distinguish between and among Americans on the basis of race. Moreover, they do so notwithstanding a string of U.S. Supreme Court decisions that declares that they may not do so.

This spring, the Supreme Court will address the question once again when it decides whether the University of Michigan may use race as a criterion to admit undergraduate and law school students. As strange as it seems, in far away rural and isolated Libby, Montana, some out of work timber mill workers will be watching closely.