Caseflicks

Supreme Court of the United States • 1995

Adarand Constructors, Inc. v. Pena

515 U.S. 200 | 115 S. Ct. 2097 | 132 L. Ed. 2d 158 | 1995 U.S. LEXIS 4037 | 63 U.S.L.W. 4523 | 95 Cal. Daily Op. Serv. 4381 | 40 Cont. Cas. Fed. 76 756 | 95 Daily Journal DAR 7503

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Takeaway

In short, Adarand established that every explicit governmental racial classification—federal, state, or local—receives strict scrutiny, overruling Metro Broadcasting's lower standard for federal affirmative action and requiring a compelling interest plus narrow tailoring.

Background

In 1989, the Department of Transportation awarded a Colorado highway contract to Mountain Gravel & Construction. The contract offered Mountain Gravel additional compensation if it subcontracted with firms certified as owned and controlled by “socially and economically disadvantaged individuals.” Adarand Constructors submitted the lowest guardrail subcontract bid, but Mountain Gravel chose Gonzales Construction, a certified disadvantaged business, because the compensation clause made that choice financially advantageous.

Federal statutes and regulations defined disadvantaged businesses partly through race-based presumptions. Members of specified racial and ethnic minority groups—and, in some programs, women—were presumed socially disadvantaged, and some regulations also presumed economic disadvantage. The presumptions could be rebutted, and the regulatory schemes varied over whether an applicant had to make an individualized showing of economic disadvantage.

Adarand sued federal officials, seeking declaratory and injunctive relief against future use of such subcontracting-compensation clauses. The District Court granted summary judgment for the Government. The Tenth Circuit affirmed, reading Fullilove v. Klutznick and Metro Broadcasting, Inc. v. FCC to require only a lenient, intermediate-scrutiny-like review of federal affirmative-action programs. The Supreme Court vacated and remanded.

Issues

Issue #1

Whether Adarand had Article III standing to seek prospective declaratory and injunctive relief.

Holding

Yes. Adarand showed a sufficiently concrete and imminent risk that it would again compete for contracts containing the challenged subcontracting incentive.

Reasoning

A plaintiff challenging a discriminatory barrier need not prove that it would have received a contract but for the barrier. The constitutional injury is the denial of an opportunity to compete on equal footing because of a racial classification.

Adarand's past loss alone would support a damages claim but ordinarily would not establish a future injury. Here, however, Adarand bid on every Colorado guardrail project, the federal highway division regularly awarded projects involving guardrail work with subcontractor-compensation clauses, and Adarand frequently competed against certified disadvantaged businesses. Those facts made future injury sufficiently imminent rather than speculative.

Issue #2

Whether the Fifth Amendment subjects federal racial classifications to the same equal-protection analysis that the Fourteenth Amendment applies to state racial classifications.

Holding

Yes. The equal-protection component of the Fifth Amendment's Due Process Clause imposes on the Federal Government the same basic constitutional obligation to avoid unjustified racial classifications.

Reasoning

Although the Fifth Amendment does not expressly contain an Equal Protection Clause, Bolling v. Sharpe and later cases established that it would be unthinkable for the Constitution to impose a lesser equality obligation on the Federal Government than on the States. The Court described Fifth and Fourteenth Amendment equal-protection analysis as coextensive in this setting.

The Court rejected the idea that federal racial classifications receive less searching review merely because Congress enacted or authorized them. Equal protection protects persons as individuals, and a person's right not to receive unequal treatment because of race does not depend on which level of government imposed the classification.

Issue #3

What level of scrutiny applies to federal racial classifications adopted to assist historically disadvantaged racial or ethnic groups.

Holding

Strict scrutiny applies to every governmental racial classification, whether federal, state, or local and whether characterized as benign or remedial. Such a classification is constitutional only if it is narrowly tailored to further a compelling governmental interest.

Reasoning

The Court identified three connected equal-protection principles: skepticism toward racial classifications, consistency in applying the same standard regardless of which race is burdened or benefited, and congruence between federal and state equal-protection standards. Together, those principles require the most searching review whenever government distributes burdens or benefits explicitly by race.

The Court reasoned that good motives alone cannot distinguish permissible from impermissible racial preferences. Strict scrutiny serves to test both the legitimacy and strength of the asserted governmental interest and the fit between the racial classification and that interest, thereby reducing the risk that stereotypes, racial politics, or prejudice drive governmental action.

Metro Broadcasting had applied intermediate scrutiny to congressionally authorized, supposedly benign federal racial classifications. The Court overruled Metro Broadcasting to the extent it conflicted with strict scrutiny, explaining that Metro had departed from the Court's broader equal-protection doctrine and had too recently been decided to generate substantial reliance interests.

The Court did not hold that strict scrutiny is automatically fatal to remedial programs. Government may act against the continuing effects of discrimination when a race-conscious remedy is necessary to advance a compelling interest and is genuinely narrowly tailored.

Issue #4

Whether the challenged subcontracting-compensation program was valid under strict scrutiny on the record before the Court.

Holding

The Court did not decide that question. It vacated the judgment and remanded for the lower courts to apply strict scrutiny in the first instance.

Reasoning

The Tenth Circuit had upheld the program under intermediate scrutiny and therefore had not decided whether the Government's asserted interests were compelling. It also had not evaluated narrow tailoring under the Court's strict-scrutiny precedents, including whether race-neutral alternatives could increase minority participation and whether the program was appropriately time-limited.

The record revealed unresolved details about the intertwined Small Business Administration and Department of Transportation certification programs. In particular, the regulations differed or were unclear about whether applicants received presumptions of economic disadvantage and whether they had to demonstrate economic disadvantage individually. Those distinctions could matter to the narrow-tailoring inquiry and required further examination below.

Concurrences

Justice Scalia

Reasoning

Justice Scalia joined the judgment and the Court's strict-scrutiny rule but rejected any suggestion that remediation of historical societal discrimination can ever be a compelling interest for racial discrimination. In his view, victims of proven unlawful discrimination may be made whole individually, but the Constitution recognizes neither creditor nor debtor races.

He maintained that racial entitlements, even when adopted for admirable purposes, preserve the racial thinking that produced slavery, privilege, and hatred. Because the Constitution protects individuals rather than racial groups, he doubted that the challenged program could survive under his understanding of strict scrutiny, while leaving that determination for remand.

Justice Thomas

Reasoning

Justice Thomas agreed that strict scrutiny governs every governmental racial classification. He wrote separately to reject what he understood the dissents to endorse: an exception allowing racial paternalism when government acts with a remedial purpose.

In his view, laws meant to subjugate a race and laws that allocate benefits by race both violate the constitutional principle of equality before the law. Government cannot make people equal, he argued, but must recognize and protect their equal legal status.

Justice Thomas emphasized the social costs of ostensibly benign preferences. Such programs may imply that minority citizens cannot compete without government indulgence, foster resentment, stamp beneficiaries with an undeserved badge of inferiority, and create dependency. Good intentions therefore cannot remove the constitutional injury caused by racial classification.

Dissents

Justice Stevens

Reasoning

Justice Stevens agreed that courts should be skeptical of racial classifications, but he rejected the majority's premise that remedial preferences and invidious discrimination are constitutionally equivalent. A policy that entrenches racial caste and subordination is fundamentally different from a policy designed to reduce the continuing effects of that subordination, even if the latter incidentally burdens some nonbeneficiaries.

He argued that the Court's uniformity principle was excessively formal. Courts can distinguish exclusionary measures from inclusionary affirmative-action programs, just as they routinely distinguish intentional discrimination from laws with merely disparate effects. Treating both sorts of measures as equally suspect ignored the difference between a “No Trespassing” sign and a welcome mat.

Justice Stevens also maintained that Congress deserves more deference than state and local governments when it acts to remedy racial inequality. Congress has distinct institutional competence, national democratic accountability, and constitutional authority under Section 5 of the Fourteenth Amendment to address historic discrimination and its effects.

In his view, stare decisis required affirmance under Fullilove and Metro Broadcasting. The present program was less objectionable than the set-aside upheld in Fullilove because race was neither necessary nor sufficient for eligibility, presumptions were rebuttable, firms could be reviewed and removed from the program, and the program offered incentives rather than a mandatory quota.

Justice Souter

Reasoning

Justice Souter argued that the Court should not have used this case to reconsider the governing standard of review. As litigated below, Adarand's principal argument was that the agency lacked the particularized findings required to go beyond Congress's goals, not that Fullilove itself should be discarded or that Congress's factual premises had become obsolete.

He concluded that Fullilove controlled because its shared rationale accepted Congress's authority to address the continuing effects of discrimination in the construction industry. Since the current program was more carefully tailored than the program sustained in Fullilove, he agreed with Justice Stevens that it should have been upheld.

Justice Souter nevertheless suggested that the practical result on remand might not differ greatly from Fullilove. Strict scrutiny can permit narrowly tailored remedies for lingering discrimination, and the Court's opinion did not resolve the scope of Congress's Section 5 enforcement power or deny that eliminating persistent discriminatory effects can be a compelling interest.

Justice Ginsburg

Reasoning

Justice Ginsburg saw no compelling reason for the Court's intervention, particularly while the political branches were actively considering affirmative action. She agreed that Congress's institutional competence and constitutional authority to combat historic racial subjugation warranted substantial judicial deference.

She stressed that entrenched racial inequality remained a real condition in employment, housing, consumer markets, and government contracting. Congress could reasonably conclude that a carefully designed affirmative-action program would help dismantle barriers produced by both past discrimination and continuing conscious or unconscious bias.

Justice Ginsburg read the Court's strict-scrutiny rule as requiring close review rather than automatic invalidation of remedial programs. Searching review can expose a supposedly benign program that is actually harmful or discriminatory, while also ensuring that legitimate catchup measures do not unduly burden persons outside the preferred class.