Adarand Constructors, Inc. v. Pena: Background

            May racial classifications be used for “benign” purposes — those that benefit rather than harm racial minorities? That question has proven to be enormously controversial in recent years, particularly in the context of affirmative action programs. From a constitutional perspective, the central question about affirmative action is whether strict scrutiny of racial classifications should be relaxed when the classifications in question have been adopted for the purpose of aiding minorities. If so, which “benign” purposes justify this relaxation of strict scrutiny? To remedy past racial discrimination by the state? To remedy past societal racial discrimination (both public and private)? To provide greater racial diversity in a particular setting? Should the level of scrutiny differ when assessing gender classifications (as opposed to racial classifications) motivated by “benign” purposes?

One setting in which these issues arise is affirmative action in higher education. In DeFunis v. Odegaard (1974), the Court in a 5–4 decision refused to reach the merits of a constitutional challenge to affirmative action in a state law school on the grounds that the case was moot. In Regents of the University of California v. Bakke (1978), the Court, for the first time, considered the merits of an affirmative action case. In Bakke, the Court considered the constitutionality of a program at the University of California at Davis medical school that set aside sixteen of the school’s 100 seats in each entering class for racial minorities who were found to have suffered from economic or educational deprivation.

Four Justices (Blackmun, Brennan, Marshall, and White) voted to uphold the program, using “intermediate” tier scrutiny. Justice Brennan explained that under this level of scrutiny, the racial classification must have an “important” purpose; for these Justices, the medical school’s goal of remedying prior discrimination was sufficiently important. Four other justices (Burger, Rehnquist, Stevens, and Stewart) found that the program violated Title VI of the Civil Rights Act of 1964 and therefore that it was not necessary to reach the constitutional question.

Justice Powell wrote the opinion for the Court striking down the medical school’s program. Powell’s reasoning, however, was joined by no other justice in its entirety. Powell concluded that all racial classifications, including “benign” classifications, must be subjected to strict scrutiny. Powell further concluded that the state’s proffered interest in remedying prior racial discrimination did not justify the program in question because the state could not establish that there had in fact been such prior discrimination at the medical school. However, Powell asserted that the medical school’s interest in a diverse student body did constitute a compelling state interest, but that the “set aside” aspect of the program by which nonminority applicants were barred from competing for sixteen seats was not a necessary means of accomplishing this goal of diversity. Powell joined Burger, Rehnquist, Stevens, and Stewart to hold that Bakke had been illegally denied admission to the medical school, but he also joined Blackmun, Brennan, Marshall, and White in leaving the door open to the use of affirmative action under a different kind of program. In dicta, Powell spoke approvingly of an affirmative action plan at Harvard in which the race of applicants was viewed as one of many “plus” factors considered for the purpose of securing a diverse class of students.

Subsequent cases continued to produce splintered opinions. The first issue was always whether or not the party adopting the program was doing so to remedy its own unlawful prior conduct or attempting to address societal discrimination. Cases which invalidated affirmative action programs during the Bakke era appeared to do so on the “means” reasoning. Quotas were not “necessary” to address societal discrimination, and firing a current employee was not “necessary” even to address suspected discrimination by the party itself. See Wygant v. Jackson Board of Educ. (1986) (discussed in Adarand).

The Court finally adopted strict scrutiny as the standard to be used in 14th Amendment cases involving state or local affirmative action programs. See Richmond v. J.A. Croson Co. (1989) (discussed in Adarand). However, Croson was arguably distinguishable from cases that were brought to challenge federal affirmative action programs. Congress had powers under § 5 of the 14th Amendment that states did not have.

In two cases prior to Adarand the Court had approved federal affirmative action programs. In Fullilove v. Klutznick (1980) (discussed in Adarand), the Court approved a federal set-aside program, even under ostensible strict scrutiny analysis; and in Metro Broadcasting, Inc. v. FCC (1990) (discussed in Adarand), the Court explicitly adopted intermediate scrutiny as the appropriate level of analysis for federal affirmative action programs. Adarand explicitly overrules Metro Broadcasting (and implicitly overrules Fullilove).

* * *

1. How do the affirmative action cases differ from Washington v. Davis (1976) on the issue of state power?
2. When may a state use a race-conscious affirmative action program?
3. Do the standards for affirmative action seem to differ according to whether race or gender is involved? Does this make any sense?
4. Who would you say is helped by the decision in Adarand? Who might complain about affirmative action?
5. What is the relation of the Carolene Products (1938) footnote 4 to the issue of affirmative action?
6. Should the use of race-conscious affirmative action trigger heightened scrutiny, as the use of race as a method of classification does in cases like Loving v. Virginia (1967)? Why or why not? What practical difference does it make?

Adarand Constructors, Inc. v. Pena

515 U.S. 200 (1995)

[Majority: O’Connor, Rehnquist (C.J.), Kennedy, Thomas, and Scalia. Concurring: Scalia and Thomas. Dissenting: Stevens, Ginsburg, Souter, and Breyer.]

Justice O’Connor announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which is for the Court except insofar as it might be inconsistent with the views expressed in Justice Scalia’s concurrence, and an opinion with respect to Part III-C in which Justice Kennedy joins.

Petitioner Adarand Constructors, Inc., claims that the Federal Government’s practice of giving general contractors on government projects a financial incentive to hire subcontractors controlled by “socially and economically disadvantaged individuals,” and in particular, the Government’s use of race-based presumptions in identifying such individuals, violates the equal protection component of the 5th Amendment’s Due Process Clause. The Court of Appeals rejected Adarand’s claim. We conclude, however, that courts should analyze cases of this kind under a different standard of review than the one the Court of Appeals applied. We therefore vacate the Court of Appeals’ judgment and remand the case for further proceedings.

1. In 1989, the Central Federal Lands Highway Division (CFLHD), which is part of the United States Department of Transportation (DOT), awarded the prime contract for a highway construction project in Colorado to Mountain Gravel & Construction Company. Mountain Gravel then solicited bids from subcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway construction company specializing in guardrail work, submitted the low bid. Gonzales Construction Company also submitted a bid.

The prime contract’s terms provide that Mountain Gravel would receive additional compensation if it hired subcontractors certified as small businesses controlled by “socially and economically disadvantaged individuals.” Gonzales is certified as such a business; Adarand is not. Mountain Gravel awarded the subcontract to Gonzales, despite Adarand’s low bid, and Mountain Gravel’s Chief Estimator has submitted an affidavit stating that Mountain Gravel would have accepted Adarand’s bid, had it not been for the additional payment it received by hiring Gonzales instead. Federal law requires that a subcontracting clause similar to the one used here must appear in most federal agency contracts, and it also requires the clause to state that “[t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the [Small Business] Administration pursuant to section 8(a) of the Small Business Act.” 15 U.S.C. §§ 637(d)(2), (3). Adarand claims that the presumption set forth in that statute discriminates on the basis of race in violation of the Federal Government’s 5th Amendment obligation not to deny anyone equal protection of the laws. . . .

The Act defines “socially disadvantaged individuals” as “those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities,” § 8(a)(5), 15 U.S.C. § 637(a)(5), and it defines “economically disadvantaged individuals” as “those socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged.” . . .

[T]he Act establishes “[t]he Government-wide goal for participation by small business concerns owned and controlled by socially and economically disadvantaged individuals” at “not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year.” . . .

To participate in the 8(a) program, a business must be “small,” as defined in 13 CFR § 124.102 (1994); and it must be 51% owned by individuals who qualify as “socially and economically disadvantaged,” § 124.103. The SBA presumes that Black, Hispanic, Asian Pacific, Subcontinent Asian, and Native Americans, as well as “members of other groups designated from time to time by SBA,” are “socially disadvantaged,” § 124.105(b)(1). It also allows any individual not a member of a listed group to prove social disadvantage “on the basis of clear and convincing evidence,” as described in § 124.105(c). Social disadvantage is not enough to establish eligibility, however; SBA also requires each 8(a) program participant to prove “economic disadvantage.” . . .

1. [The Court held that Adarand had standing not only to sue for damages for a contract it had lost in the past, but also had standing to seek forward-looking injunctive and declaratory relief because of the actual likelihood that it would submit bids under similar circumstances in the future.]

III. The Government urges that “[t]he Subcontracting Compensation Clause program is . . . a program based on disadvantage, not on race,” and thus that it is subject only to “the most relaxed judicial scrutiny.” To the extent that the statutes and regulations involved in this case are race neutral, we agree. The Government concedes, however, that “the race-based rebuttable presumption used in some certification determinations under the Subcontracting Compensation Clause” is subject to some heightened level of scrutiny. The parties disagree as to what that level should be. . . .

Adarand’s claim arises under the 5th Amendment to the Constitution, which provides that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Although this Court has always understood that Clause to provide some measure of protection against arbitrary treatment by the Federal Government, it is not as explicit a guarantee of equal treatment as the 14th Amendment, which provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws”. Our cases have accorded varying degrees of significance to the difference in the language of those two Clauses. We think it necessary to revisit the issue here.

III-A. [Court concludes that “equal protection obligations imposed by the 5th and 14th Amendments” are “indistinguishable.”]

III-B. . . . A majority of the Court in [Richmond v. J.A. Croson Co. (1989)] held that “the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification,” and that the single standard of review for racial classifications should be “strict scrutiny.” As to the classification before the Court, the plurality agreed that “a state or local subdivision . . . has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction,” but the Court thought that the city had not acted with “a ‘strong basis in evidence for its conclusion that remedial action was necessary.'” The Court also thought it “obvious that [the] program is not narrowly tailored to remedy the effects of prior discrimination.”

With Croson, the Court finally agreed that the 14th Amendment requires strict scrutiny of all race-based action by state and local governments. But Croson of course had no occasion to declare what standard of review the 5th Amendment requires for such action taken by the Federal Government. Croson observed simply that the Court’s “treatment of an exercise of congressional power in Fullilove [v. Klutznick (1980)] cannot be dispositive here,” because Croson’s facts did not implicate Congress’ broad power under § 5 of the 14th Amendment. . . .

A year later, however, the Court took a surprising turn. Metro Broadcasting, Inc. v. FCC (1990), involved a 5th Amendment challenge to two race-based policies of the Federal Communications Commission. In Metro Broadcasting, the Court repudiated the long-held notion that “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government” than it does on a State to afford equal protection of the laws. It did so by holding that “benign” federal racial classifications need only satisfy intermediate scrutiny, even though Croson had recently concluded that such classifications enacted by a State must satisfy strict scrutiny. “[B]enign” federal racial classifications, the Court said, ” — even if those measures are not ‘remedial’ in the sense of being designed to compensate victims of past governmental or societal discrimination — are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.” The Court did not explain how to tell whether a racial classification should be deemed “benign,” other than to express “confiden[ce] that an ‘examination of the legislative scheme and its history’ will separate benign measures from other types of racial classifications.” . . .

By adopting intermediate scrutiny as the standard of review for congressionally mandated “benign” racial classifications, Metro Broadcasting departed from prior cases in two significant respects. First, it turned its back on Croson’s explanation of why strict scrutiny of all governmental racial classifications is essential:

Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are “benign” or “remedial” and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. . . .

Second, Metro Broadcasting squarely rejected one of the three propositions established by the Court’s earlier equal protection cases, namely, congruence between the standards applicable to federal and state racial classifications, and in so doing also undermined the other two — skepticism of all racial classifications, and consistency of treatment irrespective of the race of the burdened or benefitted group. Under Metro Broadcasting, certain racial classifications (“benign” ones enacted by the Federal Government) should be treated less skeptically than others; and the race of the benefitted group is critical to the determination of which standard of review to apply. Metro Broadcasting was thus a significant departure from much of what had come before it. . . .

III-D. Our action today makes explicit what Justice Powell thought implicit in the Fullilove lead opinion: federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest. Of course, it follows that to the extent (if any) that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling. But we need not decide today whether the program upheld in Fullilove would survive strict scrutiny as our more recent cases have defined it.

Some have questioned the importance of debating the proper standard of review of race-based legislation. But we agree with Justice Stevens that, “[b]ecause racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic, it is especially important that the reasons for any such classification be clearly identified and unquestionably legitimate,” and that “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” Fullilove (dissenting opinion). We think that requiring strict scrutiny is the best way to ensure that courts will consistently give racial classifications that kind of detailed examination, both as to ends and as to means. Korematsu v. United States (1944) demonstrates vividly that even “the most rigid scrutiny” can sometimes fail to detect an illegitimate racial classification. Any retreat from the most searching judicial inquiry can only increase the risk of another such error occurring in the future.

Finally, we wish to dispel the notion that strict scrutiny is “strict in theory, but fatal in fact.” Fullilove v. Klutznick (Marshall, J., concurring). The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and the government is not disqualified from acting in response to it. As recently as 1987, for example, every Justice of this Court agreed that the Alabama Department of Public Safety’s “pervasive, systematic, and obstinate discriminatory conduct” justified a narrowly tailored race-based remedy. See United States v. Paradise (1987) (plurality opinion of Brennan, J.). When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the “narrow tailoring” test this Court has set out in previous cases. . . .

Justice Scalia, concurring in part and concurring in the judgment.

I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: In my view, 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. . . . Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual and its rejection of dispositions based on race, see Amdt. 15, § 1 (prohibiting abridgment of the right to vote “on account of race”) or based on blood, see Art. III, § 3 (“[N]o Attainder of Treason shall work Corruption of Blood”); Art. I, § 9 (“No Title of Nobility shall be granted by the United States”). To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand.

Justice Thomas, concurring in part and concurring in the judgment. [Omitted.]

Justice Stevens, with whom Justice Ginsburg joins, dissenting.

Instead of deciding this case in accordance with controlling precedent, the Court today delivers a disconcerting lecture about the evils of governmental racial classifications. . . .

1. The Court’s concept of “consistency” assumes that there is no 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. In my opinion that assumption is untenable. There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society. No sensible conception of the Government’s constitutional obligation to “govern impartially” should ignore this distinction. . . .

The consistency that the Court espouses would disregard the difference between a “No Trespassing” sign and a welcome mat. It would treat a Dixiecrat Senator’s decision to vote against Thurgood Marshall’s confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson’s evaluation of his nominee’s race as a positive factor. It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. An interest in “consistency” does not justify treating differences as though they were similarities.

The Court’s explanation for treating dissimilar race-based decisions as though they were equally objectionable is a supposed inability to differentiate between “invidious” and “benign” discrimination. But the term “affirmative action” is common and well understood. Its presence in everyday parlance shows that people understand the difference between good intentions and bad. As with any legal concept, some cases may be difficult to classify, but our equal protection jurisprudence has identified a critical difference between state action that imposes burdens on a disfavored few and state action that benefits the few “in spite of” its adverse effects on the many.

Indeed, our jurisprudence has made the standard to be applied in cases of invidious discrimination turn on whether the discrimination is “intentional,” or whether, by contrast, it merely has a discriminatory “effect.” Washington v. Davis (1976). Surely this distinction is at least as subtle, and at least as difficult to apply as the usually obvious distinction between a measure intended to benefit members of a particular minority race and a measure intended to burden a minority race. A state actor inclined to subvert the Constitution might easily hide bad intentions in the guise of unintended “effects;” but I should think it far more difficult to enact a law intending to preserve the majority’s hegemony while casting it plausibly in the guise of affirmative action for minorities. . . .

Justice Souter, with whom Justice Ginsburg and Justice Breyer join, dissenting. [Omitted.]

Justice Ginsburg, with whom Justice Breyer joins, dissenting. [Omitted.]