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Adarand Constructors, Inc. v. Pena

Citation. 22 Ill.515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158, 67 FEP Cases 1828 (1995)
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Brief Fact Summary.

A federal law provided financial incentives to contractors awarding subcontracts to minority-owned businesses.

Synopsis of Rule of Law.

State and federal racial classifications require the application of strict scrutiny in order to determine whether the constitutionality of the classification.


The Plaintiff, Adarand Constructors, Inc. (Plaintiff), a white-owned construction company, was denied a subcontract to provide guardrails to a federal highway construction project in Colorado. Although the Plaintiff submitted the lowest bid, the subcontract was given to a minority-owned firm. A federal law allowed contractors, with projects funded by the federal government, to receive an incentive when they award subcontracts to “socially and economically disadvantaged individuals.” The Plaintiff argued that the federal law violated the Equal Protection Clause of the Fifth Amendment of the United States Constitution (Constitution). After applying an intermediate level of scrutiny to the federal law, the Court of Appeals ruled in favor of the government. The Plaintiff appeals the judgment.


In order to withstand constitutional muster, are all federal, state, or local governments required to have racial classifications narrowly tailored to meet compelling governmental interests?


Judge Sandra Day O’Connor (J. O’Connor). Yes. All race-based classifications imposed by government must pass strict scrutiny to be constitutional. The judgment is vacated and remanded for further proceedings.
If the government action can be supported by narrowly tailored programs that would help to eliminate “the lingering effects of racial discrimination,” then the action may be upheld under the Constitution.
In determining whether the Constitution would support the government’s race-based classification, it must be determined whether the government has a compelling interest, whether the government could have applied a “race-neutral” program that could meet the same objectives of the race-based program and whether the race-based classification will last no longer than necessary in its elimination of the “discriminatory effects.”


The dissenting opinions are as follows:
Justice John Paul Stevens (J. Stevens). The majority errs in its application of strict scrutiny to all racial classifications, whether benign or invidious.
Judge David Souter (J. Souter). “[C]onstitutional authority to remedy past discrimination is not limited to the power to forbid its continuation, but extends to eliminating those effects that would otherwise persist and skew the operation of public systems even in the absence of current intent to practice any discrimination.”
Justice Ruth Bader Ginsburg (J. Ginsburg). “[T]he strict standard announced [by the Court] is indeed ‘fatal’ for classifications burdening groups that have suffered discrimination in ours society.” “[S]ome members of the historically favored race can be hurt by catch-up mechanisms designed to cope with the lingering effects of entrenched racial subjugation. Court review can ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups . . . .”
Concurrence. The concurring opinions are as follows:
Justice Antonin Scalia (J. Scalia). Applying strict scrutiny is irrelevant because race-based classifications can never be constitutional.
Justice Clarence Thomas (J. Thomas). A “government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple.”


This case overrules Metro Broadcasting, Inc. V. FCC, 497 U.S. 547 (1990) which applied intermediate scrutiny, instead of strict scrutiny, to determine whether governmental race classifications, favoring minorities, constituted a violation of the Equal Protection Clause.

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