Adarand Constructors, Inc. v. Pena, 515 U.S. 200; 115 S. Ct. 2097; 132 L.Ed. 2d 158 (1995)

Facts—A division of the U.S. Department of Transportation awarded a contract for highway construction in Colorado to Mountain Gravel and Construction Company, which solicited bids for subcontracts for guardrails. It awarded the contract to Gonzalez Construction Company over Adarand Constructors because, although Adarand submitted a lower bid, government financial incentives—up to 10 percent of the subcontract—for subcontracting “socially and economically disadvantaged individuals” (largely determined by race) made the Gonzalez bid more profitable. Adarand filed suit challenging the federal incentives. The U.S. District Court granted summary judgment for the government, which the U.S. Tenth Circuit Court of Appeals affirmed. In so doing it applied an “intermediate standard” for reviewing racial classifications, largely based on the Supreme Court decisions in Fullilove v. Klutznick, 448 U.S. 448 (1980), dealing with a 10 percent set-aside for minority contractors, and Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), allowing the federal government to consider race in granting broadcast licenses.

Question—What level of scrutiny should courts apply when reviewing federal racial classifications designed to benefit minority groups?

Decision—Such classifications should be subject, like corresponding state classifications, to “strict scrutiny,” the Court’s highest such level.

ReasonsJ. O’Connor (5–4). Since Bolling v. Sharpe (1954), the Supreme Court has recognized that denials of equal protection can be so severe as to constitute denial of due process. Although Fullilove and Metro Broadcasting permitted greater deference to federal racial classifications than to those at the state level, the decision in Richmond v. J. A. Croson Company 488 U.S. 469 (1989), voiding a 30 percent set-aside requirement for contractors established by the Richmond City Council, indicated that all racial classifications needed to be subject to “strict scrutiny.” This case established the principles of skepticism, consistence, and congruence. Skepticism requires that “Any preference based on racial or ethnic criteria must necessarily receive a most searching examination.” Consistency requires that the level of review does not vary by the race of the individuals burdened by a particular racial classification. Congruence requires that equal protection claims under the Fifth Amendment be treated similarly to those under the Fourteenth Amendment. These principles are based on the idea “that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups,” and that constitutional rights are personal in nature. In thus overturning the intermediate scrutiny standard that the Court applied in Metro Broadcasting, the Court was not departing from but restoring “the fabric of the law.” Since the Court of Appeals relied on Metro Broadcasting and Fullilove in applying “intermediate” scrutiny to this case, the majority remanded it to that court for further consideration.

J. Scalia’s concurrence emphasized that “government can never have a ‘compelling interest’ in discriminating on the basis of race in order to ‘make up’ for past racial discrimination in the opposite direction.” He also argued that the Constitution did not recognize “either a creditor or debtor race.” J. Thomas’s concurrence suggested that so-called “benign” racial classifications were a form of “racial paternalism.”

J. Stevens’s dissent agreed with the majority’s “skepticism” but not with its other two standards. He thought there was “a significant difference between a decision by the majority to impose a special burden on the members of a minority race and a decision by the majority to provide a benefit to certain members of that minority notwithstanding its incidental burden on some members of the majority.” The principles of “consistency” would “disregard the difference between a ‘No Trespassing’ sign and a welcome mat.” The principle is further inconsistent with the Court’s past use of gender classifications, which were subject to intermediate scrutiny. Similarly, the principle of “congruence” ignored documented differences between state and federal action recognized in previous cases, which should be given greater deference. J. Souter’s dissent focused on what he believed to be the belated introduction in pleadings of the issue the Court was being called upon to decide as well as on his belief that the Court should give greater consideration to the doctrine of stare decisis. J. Ginsburg’s dissent focused on the “persistence of racial inequality and a majority’s acknowledg- ment of Congress’ authority to act affirmatively, not only to end discrimination, but also to counteract discrimination’s lingering effects.” She feared that the Court’s “strict scrutiny” standard would prove to be “‘fatal’ for classifications burdening groups that have suffered discrimination in our society.”

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