The 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 violates the equal protection of the Fifth Amendment.
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.
In 1989, the Central Federal Lands Highway Division awarded the contract for a highway construction project to Mountain Gravel. Mountain Gravel, then, solicited bids from subcontractors and Adarand, a Colorado-based company, submitted the low bid. Gonzales Company also submitted the bid. The contract term provides 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 while Adarand is not. Gonzales eventually received the contract.
Does 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 violate the equal protection of the Fifth Amendment?
Federal racial classifications, like those of a State, must serve a compelling government interest, and must be narrowly tailored to further that interest. Because the approach the lower court took in reaching the decision was not correct, and the case shall be remanded for further consideration.
Justice Stevens and Ginsburg
Stevens: 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 the power of the majority.
Ginsburg: The strict scrutiny test, which the majority adopted as the appropriate measure, is fatal for classifications burdening groups that have suffered discrimination in our society. Also, it is not the Court but Congress that can carefully design affirmative action program to help realize the equal protection of the laws.
Scalia: Government can never have a compelling interest in discriminating on the basis of race to make up for past racial discrimination. While anyone injured by lawful racial discrimination must be made whole, there is no such thing as either a creditor or debtor race under our Constitution.
Thomas: That government programs may have been motivated by good intentions cannot provide refuge from the principle that the government may not make distinctions on the basis of race. Government-sponsored racial discrimination whether based on benign prejudice or evil intention is racial discrimination.
Requiring strict scrutiny is most appropriate to ensure that courts will consistently give racial classifications detailed examination, both as to ends and as to means. 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 prior cases.