Petitioner 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 the Government’s use of race-based presumptions in identifying such individuals violates the equal protection of the Fifth Amendment’s Due Process Clause.
The Constitution of the United States in its present form forbids, so far as civil and political rights are concerned, discrimination by the Government, or by the States, against any citizen because of his race.
The Central Federal Lands Highway Division (CFLHD) which is part of the U.S 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 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. Eventually, Gonzales was awarded the subcontract, despite Adarand’s low bid.
Is 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” subject to strict scrutiny?
Yes, 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 government interests. The Fifth and Fourteenth Amendments protect persons, not groups and all governmental action based on race – a group classification long recognized as in most circumstances irrelevant and prohibited – should be subjected to detailed judicial inquiry to ensure that the person right to equal protection has not been infringed.
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 despite its incidental burden on some members of the majority.
Government can never have a compelling interest in discriminating on the bass of race in order to make up for past racial discrimination in the opposite direction. Individuals who have been discriminated should be made whole but under our Constitution there can be no such thing as either a creditor or debtor race. That concept is alien to the Constitution’s focus on the individual and its rejection of dispositions based on race.
The Court in Croson agreed that the Fourteenth Amendment requires strict scrutinyof all race-based action by state and local governments and established three general propositions with respect to governmental racial classifications. First, any preference based on racial or ethnic criteria must necessarily receive a most searching examination. Second, the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification. Third, equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Taken together, these propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.