Petitioner
Adarand Constructors, Inc.
Respondent
Federico Pena, Secretary of Transportation
Petitioner's Claim
That race-based presumptions in federal subcontractor programs violate equalprotection under the law.
Chief Lawyer for Petitioner
William Perry Pendley
Chief Lawyer for Respondent
Drew S. Days III, Solicitor General
Justices for the Court
Anthony M. Kennedy, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, Clarence Thomas
Justices Dissenting
Stephen Breyer, Ruth Bader Ginsburg, David H. Souter, John Paul Stevens
Place
Washington, D.C.
Date of Decision
12 June 1995
Decision
Declared that classifications based explicitly on race must be narrowly tailored.The Court furthered compelling government interests by overturning the lower court's ruling against Adarand by a vote of 5-4.
Significance
Although this decision did not prohibit the federal government from involvingitself in affirmative action programs, it marked a retreat from the U.S. Supreme Court's earlier endorsement of minority set-aside programs as a remedy for past racial discrimination.
As an element of its affirmative action policy, in the 1960s the federal government adopted Title VII of the Civil Rights Act of 1964 and Executive Orders10925 and 11246, regulating federal contractors. Such measures were meant toremedy past employment discrimination against minorities. As a result, mostfederal agency contracts contained a clause giving the primary private contractor a financial incentive to hire subcontractors which have been certified as small businesses controlled by socially and economically disadvantaged individuals. Adarand, a noncertified construction company managed by a white person, submitted the lowest bid on a federal highway project. When it lost out to a certified competitor who had submitted a higher bid, Adarand alleged thatthis happened only because the "subcontractor compensation clause" in federal agency contracts favored contractors who were members of racial minorities.Such preferences, Adarand alleged, violated the equal protection component of the Fifth Amendment's Due Process Clause.
Adarand lost its suit in the U.S. District Court for the District of Colorado, as well as a subsequent appeal to the U.S. Court of Appeals for the Tenth Circuit. Because the applicable law was unclear, Adarand asked that their casebe reviewed by the U.S. Supreme Court. The Supreme Court reversed the lowercourt's ruling by a vote of 5-4. In the opinion of a majority of the justices, classifications based solely on race are constitutional only if they are narrowly tailored measures that further a compelling government interest. Thosein the "subcontractor compensation clause" were not.
Affirmative Action Standards Clarified
In 1980, the U.S. Supreme Court ruled in Fullilove v. Klutznick that a10 percent minority set-aside of federally-funded public works contracts didnot violate the equal protection component of the Due Process Clause of theFifth Amendment. But in 1989, the Court held in Richmond v. J. A. Croson Company that state government classifications by race, regardless of whether they were proposed for "remedial" or "benign" purposes, had to be subjected to strict scrutiny in order to pass constitutional muster under the Equal Protection Clause of the Fourteenth Amendment. That is, they must be necessaryto achieve a vital governmental interest, and they must be the least intrusive method of achieving that interest. In this case, the Court deemed that the30 percent of contracts set aside for minority contractors was unconstitutional. When it comes to affirmative action, the Court concluded, states are subject to a different constitutional standard than that which applies to the federal government. Then in 1990, in Metro Broadcasting, Inc. v. Federal Communications Commission, the Court indicated what the federal level wouldbe--at least in part. Federal racial categorization for "benign" purposes wasto be subjected only to an intermediate level of scrutiny by courts requiredto rule on their constitutionality.
Metro Broadcasting thus extended Fullilove, but Adarandmarked a significant retreat from the Court's earlier endorsement of so-called minority set-asides as remedial measures. From that point on, federal programs employing racial classifications must, according to the Court's 1995 decision in Adarand, meet standards of strict scrutiny. Justice O'Connor,writing for the Court, provided the following justification for partially overruling the more lenient standard the Court had endorsed in Metro Broadcasting
As this last comment makes clear, the Supreme Court has itself contributed tothe confusion surrounding the affirmative action issue. And Adarand did not resolve all of this confusion: while the federal government is still permitted to pursue remedial policies, by essentially outlawing race-based preferences, the Court has left the future course of affirmative action in employment in doubt.
Related Cases
Adarand Constructors, Inc.
Respondent
Federico Pena, Secretary of Transportation
Petitioner's Claim
That race-based presumptions in federal subcontractor programs violate equalprotection under the law.
Chief Lawyer for Petitioner
William Perry Pendley
Chief Lawyer for Respondent
Drew S. Days III, Solicitor General
Justices for the Court
Anthony M. Kennedy, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, Clarence Thomas
Justices Dissenting
Stephen Breyer, Ruth Bader Ginsburg, David H. Souter, John Paul Stevens
Place
Washington, D.C.
Date of Decision
12 June 1995
Decision
Declared that classifications based explicitly on race must be narrowly tailored.The Court furthered compelling government interests by overturning the lower court's ruling against Adarand by a vote of 5-4.
Significance
Although this decision did not prohibit the federal government from involvingitself in affirmative action programs, it marked a retreat from the U.S. Supreme Court's earlier endorsement of minority set-aside programs as a remedy for past racial discrimination.
As an element of its affirmative action policy, in the 1960s the federal government adopted Title VII of the Civil Rights Act of 1964 and Executive Orders10925 and 11246, regulating federal contractors. Such measures were meant toremedy past employment discrimination against minorities. As a result, mostfederal agency contracts contained a clause giving the primary private contractor a financial incentive to hire subcontractors which have been certified as small businesses controlled by socially and economically disadvantaged individuals. Adarand, a noncertified construction company managed by a white person, submitted the lowest bid on a federal highway project. When it lost out to a certified competitor who had submitted a higher bid, Adarand alleged thatthis happened only because the "subcontractor compensation clause" in federal agency contracts favored contractors who were members of racial minorities.Such preferences, Adarand alleged, violated the equal protection component of the Fifth Amendment's Due Process Clause.
Adarand lost its suit in the U.S. District Court for the District of Colorado, as well as a subsequent appeal to the U.S. Court of Appeals for the Tenth Circuit. Because the applicable law was unclear, Adarand asked that their casebe reviewed by the U.S. Supreme Court. The Supreme Court reversed the lowercourt's ruling by a vote of 5-4. In the opinion of a majority of the justices, classifications based solely on race are constitutional only if they are narrowly tailored measures that further a compelling government interest. Thosein the "subcontractor compensation clause" were not.
Affirmative Action Standards Clarified
In 1980, the U.S. Supreme Court ruled in Fullilove v. Klutznick that a10 percent minority set-aside of federally-funded public works contracts didnot violate the equal protection component of the Due Process Clause of theFifth Amendment. But in 1989, the Court held in Richmond v. J. A. Croson Company that state government classifications by race, regardless of whether they were proposed for "remedial" or "benign" purposes, had to be subjected to strict scrutiny in order to pass constitutional muster under the Equal Protection Clause of the Fourteenth Amendment. That is, they must be necessaryto achieve a vital governmental interest, and they must be the least intrusive method of achieving that interest. In this case, the Court deemed that the30 percent of contracts set aside for minority contractors was unconstitutional. When it comes to affirmative action, the Court concluded, states are subject to a different constitutional standard than that which applies to the federal government. Then in 1990, in Metro Broadcasting, Inc. v. Federal Communications Commission, the Court indicated what the federal level wouldbe--at least in part. Federal racial categorization for "benign" purposes wasto be subjected only to an intermediate level of scrutiny by courts requiredto rule on their constitutionality.
Metro Broadcasting thus extended Fullilove, but Adarandmarked a significant retreat from the Court's earlier endorsement of so-called minority set-asides as remedial measures. From that point on, federal programs employing racial classifications must, according to the Court's 1995 decision in Adarand, meet standards of strict scrutiny. Justice O'Connor,writing for the Court, provided the following justification for partially overruling the more lenient standard the Court had endorsed in Metro Broadcasting
Metro Broadcasting undermined important principlesof this Court's equal protection jurisprudence, established in a line of cases stretching back over fifty years . . . Those principles together stood foran "embracing" and "intrinsically soun[d]" understanding of equal protection"verified by experience," namely that the Constitution imposes on federal, state, and local governmental actors the same obligation to respect the personal right to equal protection of the laws . . . we cannot adhere to our most recent decision without colliding with an accepted and established doctrine. We also note that Metro Broadcasting's application of different standards of review to federal and state racial classifications has been consistently criticized by commentators.
As this last comment makes clear, the Supreme Court has itself contributed tothe confusion surrounding the affirmative action issue. And Adarand did not resolve all of this confusion: while the federal government is still permitted to pursue remedial policies, by essentially outlawing race-based preferences, the Court has left the future course of affirmative action in employment in doubt.
Related Cases
- Fullilove v. Klutznick, 448 U.S. 448 (1980).
- Richmond v. J. A. Croson Co., 488 U.S. 469 (1989).
- Metro Broadcasting, Inc. v. Federal Communications Commission, 497U.S. 547 (1990).
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