- Adarand Constructors
United States Department of
Transportation awarded a highway construction
to Mountain Gravel and Construction
Mountain then solicited
bids from subcontractors
of the project.
Adarand submitted the
Inc. (Adarand) submitted the low bid.
(Gonzalez) also submitted a bid.
The contract between the
Would receive addition
Government and Mountain provided
additional compensation if it hired subcontractors
as small businesses controlled
and economically disadvantaged
is certified as such a business,
Adarand would have won
the subcontract to Gonzalez,
would have awarded it
to Adarand if it
received by hiring
requires in most federal agency
a subcontracting clause similar
the contract the
contractor shall presume that socially
Black Americans, Hispanic Americans, Native Americans, Asian
Pacific Americans, and other minorities,
found to be disadvantaged by
of the Small
Adarand claims that
on the basis of
violation of the
obligation not to deny anyone equal protection..
14th Amendment requires strict scrutiny of all race-based
With Croson, this Court finally
agreed that the 14th Amendment requires strict scrutiny of all
race-based action by state and local governments.
The cases through Croson establish
three general propositions with respect to governmental racial
Three General Propositions with Respect to Governmental Racial
The first is skepticism
We should be skeptical of race-based
classifications and subject them to a most searching
The second is consistency
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.
The third is congruence
Equal protection in the 5th
Amendment is the same as that under the 14th Amendment.
Right to demand racial classification (Subject to Strict
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
- Principle of Consistency
Treated differently because of race, falls within Equal
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
It says nothing about the ultimate
validity of any particular law; that determination is the job of
the court applying strict scrutiny.
The principle of consistency
explains the circumstances in which the injury requiring strict
Strict Scrutiny determines whether injury is justified
The application of strict scrutiny,
in turn, determines whether a compelling governmental interest
justifies the infliction of that injury
- Narrow Tailoring Test
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
CONCURRING Justice Scalia
Government can NEVER have a compelling interest in
The Government can never have a
compelling interest in discriminating on the basis of race in
order to make up for past racial discrimination.
Under our Constitution there can be
no such thing as either a creditor
or a debtor race.
concept is alien to the Constitution's focus upon the
preserves future mischief
that produced slavery and race hatred.
CONCURRING Justice Thomas
There is NOT a racial paternalism exception to the principle of
Classifications ultimately have a
Racial Paternalism engenders
attitudes of superiority and provokes resentment.
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.
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
DISSENTING Justice Stevens, Justice Ginsburg
Tries to show
inconsistencies with the majorities consistent approach
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
Court's version of consistency is that it assumes
no difference between the majority imposing a burden upon the
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
"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
The consistency that the Court
espouses would disregard the difference between a "No
Trespassing" sign and a welcome mat.
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
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
"Consistency" does not justify treating differences as though
they were similarities.
"invidious" and "benign"
that we can tell the difference
between "invidious" and "benign" discrimination.
classifications CANNOT BE TREATED as though they were similar
we need not treat dissimilar race-based classifications
they were similar
Different standards for
racial and gender discrimination
consistency is difficult to square with
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
to remedy discrimination against
Americans - even though the primary purpose of the
Protection Clause was to end discrimination against
the former slaves.
Intermediate Scrutiny Women
Strict Scrutiny - Race
Congruence (IGNORES Difference between federal and state
[The Majorities] concept of congruence ignores the difference
between a decision
of Congress and a decision by a State or municipality.
affirmative action programs represent
the will of our entire nation's elected
whereas a state or
program may have an impact on nonresident entities that played no part
in the decision to enact it.
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.
Congress' powers concerning matters of race were
by 5 of the 14th Amendment (which gives Congress the power to
by appropriate legislation,
the provisions of the 14th
By contrast, the
states' use of race-conscious measures was what the Amendment
was specifically directed against.
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."
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
The judiciary should defer to
Congress, as the political branches are better suited to respond
to changing conditions
The United States suffers from those lingering effects because
of our Nations history.
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.
Given the history and consequences of discrimination in this
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.
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.
While I would not disturb the programs challenged in this case,
and would leave their improvement to the political
I see today's decision as one that allows our precedent to
still to be informed by and responsive to changing conditions.