James E. Pietrangelo, II v. Christopher T. Sununu, Individually and in His Official Capacity as the Governor of New Hampshire, et al.

Recently, Justice Thomas remarked how, despite the clear constitutional prohibition against racial classifications, government actors continue to “go to great lengths to hide and perpetuate their unlawful [discrimination]” under fashionable but pernicious concepts such as “equity.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 143 S.Ct. 2141, 2191 (2023) (Thomas, J„ concurring). Justice Thomas of course was right. During the COVID-19 pandemic, New Hampshire State officials, in the name of equity, created a particularly pernicious Trojan Horse device to expressly prioritize “non-Whites” over Whites in the distribution of fungible vaccine-doses. The device involved a race-neutral allocation deliberately coupled with a race-specific (non-Whites only) alloca­ tion in order to try to prevent discriminated-against Whites from having standing to challenge the racial classification. When Petitioner sought Section 1983 money-damages and other relief against State officials after they denied his actual request for the vaccine in the race-specific allocation, the officials argued that he lacked standing. The officials made a “but for” argument that Petitioner could not show that he would have gotten the vaccine any earlier in the race-neutral allocation had the (unconstitutional) race-specific allocation—which the officials nonethe­ less continued to operate for the duration of the State’s vaccination program—not existed in the first place. The officials further argued that, in any case, they had qualified immunity from Petitioner’s money damages claim because the unconstitutionality of