Adarand Constructors v. Pena, 515 U.S. 200

Supreme Court of the United States

1995

Chapter

5

Title

Equality and the Constitution

Page

558

Topic

Heightened Scrutiny and the Problem of Race Socially and Economically Disadvantaged

Quick Notes

Plaintiff (Adarand), a (white-owned) construction firm, which had bid for a subcontract to supply guardrails to a federal highway project in Colorado. Adarands bid was the lowest. But the general contractor took a bid from a minority-owned firm that qualified under federal regulations as a Disadvantaged Business Enterprise (DBE). The prime contractor was not required to award the sub-contract to a minority-owned DBE, but it received a financial incentive (10% of the amount of the sub-contract, or 1.5% of the amount of the prime contract, whichever was less) for doing so.

Adarand Arg

o    Adarand claims that the presumption discriminates on the basis of race in violation of the Fifth Amendment obligation not to deny anyone equal protection.

Rule

o    All racial classifications must be narrowly tailored to further a compelling governmental interest.

Application

o    All racial classification imposed by a governmental actor, must be analyzed under strict scrutiny.

Court - Principle of Consistency

Treated differently because of race, falls within Equal Protection

o    The principle of consistency simply means that whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection.

Strict Scrutiny determines whether injury is justified

o    The application of strict scrutiny, in turn, determines whether a compelling governmental interest justifies the infliction of that injury

Court - Narrow Tailoring Test

o    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

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0

Issue

o         Whether federal racial classifications subject to strict scrutiny review?  Yes.

Procedure

Trial

o    Upheld a federal government racial classification

Appellant

o    United States Court of Appeals for the Tenth Circuit upheld a federal government racial classification used by respondent Secretary of Transportation in awarding contracts

Supreme

o    Reversed

Facts

Discussion

Key Phrases

Rules

Pl -   Adarand Constructors

Df -   Pena

Description

o    A branch of the United States Department of Transportation awarded a highway construction project to Mountain Gravel and Construction Company (Mountain).

o    Mountain then solicited bids from subcontractors for the guardrail portion of the project.

Adarand submitted the low bid

o    Adarand Constructors, Inc. (Adarand) submitted the low bid.

o    Gonzalez Construction Company (Gonzalez) also submitted a bid.

o    The contract between the

Would receive addition compensation

o    Government and Mountain provided that Mountain would receive additional compensation if it hired subcontractors that were certified as small businesses controlled by "socially and economically disadvantaged individuals."

o    Gonzalez is certified as such a business, but Adarand is not.

Adarand would have won bid, but

o    Mountain awarded the subcontract to Gonzalez, but would have awarded it to Adarand if it had not been for the additional payment it received by hiring Gonzalez instead.

o    The Federal Government requires in most federal agency contracts a subcontracting clause similar to the one in the contract the Mountain.

Clause

o    The clause states that "the 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 8(a) of the Small Business Act. "

Adarand Arg

o    Adarand claims that the presumption discriminates on the basis of race in violation of the Fifth Amendment obligation not to deny anyone equal protection..

Justice OConnor

14th Amendment requires strict scrutiny of all race-based

o    With Croson, this Court finally agreed that the 14th Amendment requires strict scrutiny of all race-based action by state and local governments.

o    The cases through Croson establish three general propositions with respect to governmental racial classifications.

Three General Propositions with Respect to Governmental Racial Classifications

1.     The first is skepticism

o    We should be skeptical of race-based classifications and subject them to a most searching examination. 

2.     The second is consistency

o    All racial classifications reviewable under equal protection must be strictly scrutinized regardless of the race of those who are burdened or benefitted by the classification.

3.     The third is congruence

o    Equal protection in the 5th Amendment is the same as that under the 14th Amendment.

Right to demand racial classification (Subject to Strict Scrutiny)

o    These three propositions lead us to the conclusion that any person, of whatever race, has the right to demand that any governmental actor justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.

Court - Principle of Consistency

Treated differently because of race, falls within Equal Protection

o    The principle of consistency simply means that whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection.

Court determines validity of law

o    It says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny.

o    The principle of consistency explains the circumstances in which the injury requiring strict scrutiny occurs.

Strict Scrutiny determines whether injury is justified

o    The application of strict scrutiny, in turn, determines whether a compelling governmental interest justifies the infliction of that injury

Court - Narrow Tailoring Test

o    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

Reversed

CONCURRING Justice Scalia

Government can NEVER have a compelling interest in discrimination

o    The Government can never have a compelling interest in discriminating on the basis of race in order to make up for past racial discrimination.

o    Under our Constitution there can be no such thing as either a creditor or a debtor race.

o    That concept is alien to the Constitution's focus upon the individual.

o    Racial entitlement preserves future mischief that produced slavery and race hatred.

CONCURRING Justice Thomas

There is NOT a racial paternalism exception to the principle of Equal Protection

o    Classifications ultimately have a destructive impact.

o    Racial Paternalism engenders attitudes of superiority and provokes resentment.

o    So called "benign" discrimination teaches the majority that minorities cannot compete without the patronizing indulgence of the majority, and will inevitably engender attitudes of superiority and resentment.

o    These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitudes that they are entitled to preferences.

DISSENTING Justice Stevens, Justice Ginsburg

o    Tries to show inconsistencies with the majorities consistent approach

o    There is a clear distinction between policies designed to oppress minorities and policies designed to eradicate racial subordination.

No difference between imposing a burden and providing a benefit

o    The problem with the Court's version of consistency is that it assumes there is no difference between the majority imposing a burden upon the members of a minority race and the decision by the majority to provide a benefit to certain members of that minority.

Disregards difference between a "No Trespassing" sign and a welcome mat

o    "There is no moral or constitutional equivalence between a policy that is designed to

o    perpetuate a caste system and one that seeks to eradicate racial subordination

o    The consistency that the Court espouses would disregard the difference between a "No Trespassing" sign and a welcome mat.

o    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.

o    An interest in "consistency" does not justify treating differences as though they were similarities

o    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."

"Consistency" does not justify treating differences as though they were similarities

o    "Consistency" does not justify treating differences as though they were similarities.

"invidious" and "benign"

o    I believe that we can tell the difference between "invidious" and "benign" discrimination.

Dissimilar race-based classifications CANNOT BE TREATED as though they were similar

o    Therefore, we need not treat dissimilar race-based classifications as though they were similar

Different standards for racial and gender discrimination

o    Also, the Court's concern with consistency is difficult to square with the different standards for racial and gender discrimination.

o    As the law now stands, the Government can more easily enact affirmative action programs to remedy discrimination against women (reviewed under intermediate scrutiny) than it can enact affirmative action programs to remedy discrimination against African Americans - even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves.

o    Intermediate Scrutiny Women

o    Strict Scrutiny - Race

Congruence (IGNORES Difference between federal and state municipalities)

o    [The Majorities] concept of congruence ignores the difference between a decision of Congress and a decision by a State or municipality.

o    Federal affirmative action programs represent the will of our entire nation's elected representatives, whereas a state or local program may have an impact on nonresident entities that played no part in the decision to enact it.

o    This difference recalls the goals of the Commerce Clause, which permits Congress to legislate on certain matters of national importance while denying power to the States in this area for fear of undue impact upon out-of-state residents.

Congruence Supplement

Special enforcement powers

o    First, Congress' powers concerning matters of race were "explicitly enhanced" by 5 of the 14th Amendment (which gives Congress the power to "enforce, by appropriate legislation, the provisions of the 14^th .Amendment").

o    By contrast, the states' use of race-conscious measures was what the Amendment was specifically directed against.

Entire nation's representatives:

o    Second, "federal affirmative-action programs represent the will of our entire Nation's elected representatives, whereas a state or local program may have an impact on nonresident entities who played no part in the decision to enact it."

o    Just as Congress may burden interstate commerce even though the individual states may not, so Congress should have greater leeway to use race to combat the effects of past discrimination, Stevens argued.

DISSENT Justice Ginsburg, Justice Breyer

o    The judiciary should defer to Congress, as the political branches are better suited to respond to changing conditions

o    The United States suffers from those lingering effects because of our Nations history.

o    The divisions in this case should not obscure the Court's recognition of the persistence of racial inequality and of Congress' authority to act affirmatively to end discrimination and its lingering effects.

o    Given the history and consequences of discrimination in this country, Congress surely can conclude that a carefully designed affirmative action program may help to realize, finally, the "equal protection of the laws" that the 14th Amendment has promised since 1868.

o    The Court properly calls for searching review in order to ferret out classifications in reality malign, but masquerading as benign. However, this does not mean that reviewing courts need review all benign racial classifications by a standard that is strict in theory and fatal in fact.

o    While I would not disturb the programs challenged in this case, and would leave their improvement to the political branches, I see today's decision as one that allows our precedent to evolve, still to be informed by and responsive to changing conditions.

Rules

Rule

o    All racial classifications must be narrowly tailored to further a compelling governmental interest.

Application

o    All racial classification imposed by a governmental actor, must be analyzed under strict scrutiny.

Supplement

OConnor Reasoning

o    The three propositions derive from the basic principle that the Constitution protects individuals, not groups. Thus it follows that all race-based classifications be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. Because racial characteristics seldom are a relevant basis for disparate treatment, and because racial classifications are potentially so harmful to the entire body politic, it is especially important that the reasons for any classification be clearly identified and unquestionably legitimate. 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. All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.

Class Notes