Inc. v. Pena Adarand Constructors

In 1980, the U.S. Supreme Court ruled in Fullilove v. Klutznick that a 10 percent minority set-aside of federally-funded public works contracts did not violate the equal protection component of the Due Process Clause of the Fifth 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 necessary to achieve a vital governmental interest, and they must be the least intrusive method of achieving that interest. In this case, the Court deemed that the 30 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 would be--at least in part. Federal racial categorization for "benign" purposes was to be subjected only to an intermediate level of scrutiny by courts required to rule on their constitutionality.

Metro Broadcasting thus extended Fullilove, but Adarand marked 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 principles of this Court's equal protection jurisprudence, established in a line of cases stretching back over fifty years . . . Those principles together stood for an "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 to the 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.