515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (Sup.Ct.1995)
Adarand Constructors, Inc., a Colorado-based firm specializing in guardrail work, submitted the low bid for a subcontract on a federal highway construction project.1 Despite submitting the lowest bid, Adarand lost the subcontract to another firm that had been certified as a small business controlled by socially and economically disadvantaged individuals.2 The prime contractor received a financial incentive from the federal government for awarding the subcontract to the certified firm.3 This incident prompted Adarand to challenge the government's practice of providing such incentives based on race-based presumptions.4
The federal subcontracting program derives from the Small Business Act and the Surface Transportation and Uniform Relocation Assistance Act of 1987.5 The Small Business Administration administers programs that presume members of specified racial groups are socially disadvantaged, though the presumption is rebuttable and allows for individualized showings of disadvantage.6 Department of Transportation regulations require federal agencies to set goals for participation by disadvantaged businesses and establish certification procedures that can be performed by the SBA, state highway agencies, or other acceptable authorities.7 Prime contractors receive monetary compensation under subcontracting compensation clauses when they use certified disadvantaged business enterprises as subcontractors.8
Adarand sued federal officials in federal district court, alleging that the race-based presumptions violated the equal protection component of the Fifth Amendment.9 The district court granted summary judgment for the government.10 The Tenth Circuit Court of Appeals affirmed the district court's judgment.11 Adarand then petitioned the Supreme Court for review.12
Adarand sought declaratory and injunctive relief to prevent future use of the subcontractor compensation clauses in government contracts.13 To establish standing for this forward-looking relief, Adarand presented evidence that it was very likely to bid on additional government contracts offering similar financial incentives in the near future.14 The Supreme Court granted certiorari to consider the constitutional challenge.15
Whether Adarand Constructors, Inc. has standing to seek declaratory and injunctive relief against future use of federal subcontractor compensation clauses?16
To establish Article III standing for forward-looking declaratory and injunctive relief, a plaintiff must demonstrate a concrete and particularized injury in fact that is actual or imminent rather than conjectural, along with a substantial probability that the plaintiff will again be subject to the challenged practice.17
Yes. Adarand Constructors, Inc., a Colorado-based firm specializing in guardrail work, submitted the low bid for a subcontract on a federal highway construction project. Despite submitting the lowest bid, Adarand lost the subcontract to another firm that had been certified as a small business controlled by socially and economically disadvantaged individuals. The prime contractor received a financial incentive from the federal government for awarding the subcontract to the certified firm.
This incident prompted Adarand to challenge the government's practice of providing such incentives based on race-based presumptions. Adarand sought declaratory and injunctive relief to prevent future use of the subcontractor compensation clauses in government contracts. To establish standing for this forward-looking relief, Adarand presented evidence that it was very likely to bid on additional government contracts offering similar financial incentives in the near future. The Supreme Court granted certiorari to consider the constitutional challenge.
These facts show that the race-based presumptions prevent Adarand from competing on an equal footing and that the probability of future injury satisfies standing requirements.18
Adarand has standing to seek declaratory and injunctive relief against future use of the subcontractor compensation clauses.19
Whether all racial classifications imposed by the federal government must be analyzed under strict scrutiny?20
All racial classifications imposed by any governmental actor, federal state or local, must be analyzed under strict scrutiny and are constitutional only if they are narrowly tailored measures that further compelling governmental interests; this follows from the principles of skepticism, consistency, and congruence under the equal protection component of the Fifth Amendment.21
Yes. The federal subcontracting program derives from the Small Business Act and the Surface Transportation and Uniform Relocation Assistance Act of 1987. The Small Business Administration administers programs that presume members of specified racial groups are socially disadvantaged, though the presumption is rebuttable and allows for individualized showings of disadvantage. Department of Transportation regulations require federal agencies to set goals for participation by disadvantaged businesses and establish certification procedures that can be performed by the SBA, state highway agencies, or other acceptable authorities.
Prime contractors receive monetary compensation under subcontracting compensation clauses when they use certified disadvantaged business enterprises as subcontractors. The Court overruled Metro Broadcasting to the extent it permitted intermediate scrutiny for benign federal classifications and held that the Fifth Amendment requires the same strict scrutiny as the Fourteenth Amendment.22 Requiring strict scrutiny serves to distinguish legitimate from illegitimate uses of race and ensures careful judicial consideration of both ends and means.23
All racial classifications imposed by the federal government must be analyzed under strict scrutiny.24
Related opinions on this issue
Justice Scalia joined the opinion of the Court except for Part III-C.25 He wrote separately to state his view that the Government can never have a compelling interest in discriminating on the basis of race to compensate for past racial discrimination in the opposite direction.26 Individuals wronged by unlawful racial discrimination should be made whole.27
However, the Constitution does not recognize a creditor or debtor race.28 The Constitution's concern is with individuals, not collective racial entitlements.29 Government should treat all persons as members of a single polity.30
Under that understanding of strict scrutiny, it is unlikely that the challenged program would survive, but he left that determination to the courts on remand.31
Justice Thomas agreed that strict scrutiny applies to all governmental classifications based on race.32 He wrote separately to reject any constitutional racial paternalism exception to equal protection.33 Government cannot make us equal.34
It can only recognize and protect us as equal before the law.35 Whether classifications are motivated by oppression or by a desire to help, they remain racial classifications.36 Such classifications are inconsistent with the principle of inherent equality that underlies the Constitution.37
These programs raise grave constitutional and moral questions and may undercut the equal protection principle by stigmatizing and fostering dependency among beneficiaries.38
Joined by Justice Ginsburg
Justice Stevens dissented and argued that there is no moral or constitutional equivalence between invidious discrimination that perpetuates a caste and remedial preferences designed to foster equality.39 The distinction between imposing burdens on a disfavored group and imposing incidental costs on the majority to benefit a disadvantaged minority is important.40 The Court also disregards significant differences between federal and state or local institutions.41
Congress has institutional competence and distinct constitutional authority through the Spending Clause, Commerce Clause, and section 5 of the Fourteenth Amendment to adopt nationwide remedial measures.42 Stare decisis counsels against the abrupt repudiation of Metro Broadcasting and the undermining of Fullilove.43 He would therefore affirm the judgment of the Court of Appeals.44
Joined by Justices Ginsburg And Breyer
Justice Souter dissented and contended that the Court should not have entertained the broad antecedent constitutional question because the litigation below did not show that the factual premises supporting Fullilove had evaporated.45 Fullilove upheld a remedial congressional program on the basis that Congress acted to remedy continuing effects of past discrimination.46 If Fullilove is applied to the present statutes and regulations, which are in many respects more narrowly tailored and administratively subject to review and rebuttal than the 1977 set-aside, the statutes here are likely sustainable.47
Stare decisis therefore counsels applying Fullilove rather than overruling Metro Broadcasting or otherwise imposing a new rule that unsettles longstanding precedent.48 He would affirm the judgment of the Court of Appeals.49
Joined by Justice Breyer
Justice Ginsburg dissented and stated that in light of the extensive attention Congress and the executive have given affirmative action there is no compelling cause for the judicial intervention the majority makes here.50 She agreed with Justice Stevens that substantial deference is owed to Congress institutional competence and constitutional authority to address historic racial subjugation.51 The record demonstrates the persistence of racial inequality and the continuing effects of prior discrimination.52
Given that reality, Congress may reasonably adopt carefully designed affirmative action programs to help remedy and counteract lingering effects.53 The majority's endorsement of strict scrutiny should not be read to foreclose remedial measures that are carefully tailored.54
Whether the judgment of the Court of Appeals should be vacated and the case remanded for further proceedings under strict scrutiny?55
When a new constitutional standard applies to federal race-based classifications. The judgment below must be vacated and the case remanded so that the lower courts may determine in the first instance whether the interests served are compelling and whether the programs are narrowly tailored.56
Yes. The Court of Appeals had applied intermediate scrutiny in upholding the challenged statutes and regulations and did not determine whether the interests served were compelling or whether the programs were narrowly tailored under strict scrutiny.57 The record also contains unresolved questions about the details of the regulatory regimes implicated by subcontractor compensation clauses.58 For example, whether SBA's 8(a) and 8(d) programs and DOT certification rules require individualized economic-disadvantage inquiries and how the definitions and procedures interact.59 Because the holding changes the standard applicable to federal race-based classifications the case must return to the lower courts for further consideration.60
The Supreme Court therefore vacated the judgment of the Court of Appeals and remanded the case for further proceedings consistent with the principles announced in the opinion.61
The judgment of the Court of Appeals is vacated and the case is remanded for further proceedings under strict scrutiny.62