The Adarand Chronicle:  From Bakke to Adarand VII

Adarand Decisions

Adarand III
United States Supreme Court
Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), June 12, 1995 

The Court repeated the facts from the earlier Adarand cases.  From there, the Court moved in two directions.  First, the Court did a historical review of its decisions dealing with "equal treatment" under the Fifth Amendment.  Second, the Court attacked the Metro and Fullilove decisions.  The Court concluded that

"All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.  In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.  To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled."

"It follows that to the extent (if any) that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling."

"Finally, we wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact.'  '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 previous cases.'”

Fifth and Fourteenth Amendment Review

The Court reviewed a number of its decisions since the 1940s to provide an analysis of the differences it considered between the Fifth and the Fourteenth Amendments.   

After reviewing a variety of cases, the Court concluded that its cases through Croson had established three general propositions with respect to governmental racial classifications:  (1) skepticism (racial classifications are suspect), (2) consistency (either the standard of review is not based on the race of the individual burdened or benefited by the racial classification or that "racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized), and (3) congruence ("[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.").  The Court said that these three 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.

Attack on Metro and Fullilove

Next the Court turned to its decision on Metro Broadcasting v. FCC 497 U.S. 547 (1990).  The Court said that in this case it took "a surprising turn" from its principles.  The Court claimed that Metro "repudiated the long held notion that 'it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government' than it does on a State to afford equal protection of the laws."  The Court said that 

"By adopting intermediate scrutiny as the standard of review for congressionally mandated 'benign' racial classifications, Metro Broadcasting departed from prior cases in two significant respects.  First, it turned its back on Croson's explanation of why strict scrutiny of all governmental racial classifications is essential: 

'Absent searching judicial inquiry into the justification for such race based measures, there is simply no way of determining what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.  Indeed, the purpose of strict scrutiny is to 'smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool.  The test also ensures that the means chosen 'fit' this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.'  Croson, supra, at 493 (plurality opinion of O'Connor, J.). 

We adhere to that view today, despite the surface appeal of holding 'benign' racial classifications to a lower standard, because 'it may not always be clear that a so called preference is in fact benign,'  Bakke, supra, at 298 (opinion of Powell, J.)."

Next, the Court said that Metro rejected one of the three propositions--congruence--that it said its past cases established.  The Court said Metro violated the "congruence between the standards applicable to federal and state racial classifications, and in so doing also undermined the other two--skepticism of all racial classifications, and consistence of treatment irrespective of the race of the burdened or benefited group."

As a result of its analysis, the Court said  

"that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.  In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.  To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled."

Additionally, the Court said that 

"Of course, it follows that to the extent (if any) that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling.  But we need not decide today whether the program upheld in Fullilove would survive strict scrutiny as our more recent cases have defined it."

Since the Court of Appeals followed Metro and Fullilove in its decision, the Court sent the case back to the Appeals Court because the Appeals Court upheld the laws and regulations because it found them "narrowly tailored to achieve [their] significant governmental purpose of providing subcontracting opportunities for small disadvantaged business enterprises."  The Court wanted the Appeals Court to determine whether the SCC was "compelling."  The Court further noted that the Court "did not address the question of narrow tailoring in terms of our strict scrutiny cases, by asking, for example, whether there was 'any consideration of the use of race neutral means to increase minority business participation' in government contracting, Croson, supra, at 507, or whether the program was appropriately limited such that it 'will not last longer than the discriminatory effects it is designed to eliminate.'" Fullilove, supra, at 513 (Powell, J., concurring).

Finally, the Court said that 

"Moreover, unresolved questions remain concerning the details of the complex regulatory regimes implicated by the use of subcontractor compensation clauses.  For example, the SBA's 8(a) program requires an individualized inquiry into the economic disadvantage of every participant, see 13 CFR § 124.106(a) (1994), whereas the DOT's regulations implementing STURAA §106(c) do not require certifying authorities to make such individualized inquiries, see 49 CFR § 23.62 (1994); 49 CFR pt. 23, subpt. D, App. C (1994).  And the regulations seem unclear as to whether 8(d) subcontractors must make individualized showings, or instead whether the race based presumption applies both to social and economic disadvantage, compare 13 CFR § 124.106(b) (apparently requiring 8(d) participants to make an individualized showing), with 48 CFR § 19.703(a)(2) (1994) (apparently allowing 8(d) subcontractors to invoke the race based presumption for social and economic disadvantage).  See generally Part I, supra.  We also note an apparent discrepancy between the definitions of which socially disadvantaged individuals qualify as economically disadvantaged for the 8(a) and 8(d) programs; the former requires a showing that such individuals' ability to compete has been impaired 'as compared to others in the same or similar line of business who are not socially disadvantaged,' 13 CFR § 124.106(a)(1)(i) (1994) (emphasis added), while the latter requires that showing only 'as compared to others in the same or similar line of business,' §124.106(b)(1).  The question whether any of the ways in which the Government uses subcontractor compensation clauses can survive strict scrutiny, and any relevance distinctions such as these may have to that question, should be addressed in the first instance by the lower courts."  

Additional Concurring Opinions 

Justice Scalia

In Justice Scalia's opinion, he explained that 

"In my view, government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction."

"Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race."

"It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand."

Justice Thomas

Justice Thomas also provided a brief opinion primarily to disagree with the dissenting opinion of Justice Stevens.  He first explained his belief that benign and malicious programs are indistinguishable.  He said

"I believe that there is a 'moral [and] constitutional equivalence,' post, at 3, (Stevens, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.  Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law."

"In my mind, government sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice.  In each instance, it is racial discrimination, plain and simple."

Dissenting Opinions

Justice Stevens

Justice Stevens began his dissent by saying

"Instead of deciding this case in accordance with controlling precedent, the Court today delivers a disconcerting lecture about the evils of governmental racial classifications."

Justice Stevens then turned to the Courts "selected three propositions, represented by the bywords "skepticism," "consistency," and "congruence."

He said that the concept of "skepticism" is, at least in principle, a good statement of law and common sense.  He further provided a quote from his dissent in Fullilove in which he said "Because racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic," a reviewing court must satisfy itself that the reasons for any such classification are "clearly identified and unquestionably legitimate."

Next he moved to the proposition of "consistency."  His comments were based on his distinction between benign and malicious programs that result in some form of discrimination.  He outlined these difference with several examples such as 

"The consistency that the Court espouses would disregard the difference between a "No Trespassing" sign and a welcome mat.  It would treat a Dixiecrat Senator's decision to vote against Thurgood Marshall's confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson's evaluation of his nominee's race as a positive factor.  It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers."

In summing up his discussion of consistency, he explained

"Nothing is inherently wrong with applying a single standard to fundamentally different situations, as long as that standard takes relevant differences into account.  For example, if the Court in all equal protection cases were to insist that differential treatment be justified by relevant characteristics of the members of the favored and disfavored classes that provide a legitimate basis for disparate treatment, such a standard would treat dissimilar cases differently while still recognizing that there is, after all, only one Equal Protection Clause.  See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 451-455 (1985) (Stevens, J., concurring); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 98-110 (1973) (Marshall, J., dissenting).  Under such a standard, subsidies for disadvantaged businesses may be constitutional though special taxes on such businesses would be invalid.  But a single standard that purports to equate remedial preferences with invidious discrimination cannot be defended in the name of 'equal protection.'"

Finally, he questioned the Court's treatment of race and sex classifications by stating that

"as the law currently stands, the Court will apply 'intermediate scrutiny' to cases of invidious gender discrimination and 'strict scrutiny' to cases of invidious race discrimination, while applying the same standard for benign classifications as for invidious ones.  If this remains the law, then today's lecture about 'consistency' will produce the anomalous result that the Government can more easily enact affirmative action programs to remedy discrimination against women than it can enact affirmative action programs to remedy discrimination against African Americans--even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves.  See Associated General Contractors of Cal., Inc. v. San Francisco, 813 F. 2d 922 (CA9 1987) (striking down racial preference under strict scrutiny while upholding gender preference under intermediate scrutiny).  When a court becomes preoccupied with abstract standards, it risks sacrificing common sense at the altar of formal consistency."

 Next Justice Stevens turned to the proposition of "congruence" and said

"The Court's concept of 'congruence' assumes that there is no significant difference between a decision by the Congress of the United States to adopt an affirmative action program and such a decision by a State or a municipality.  In my opinion that assumption is untenable.  It ignores important practical and legal differences between federal and state or local decision makers."

In stating his opinion, Justice Stevens referred to earlier opinions of the Justices in Metro and Fullilove that show a distinction between the U. S. Congress and the states and local governments.  In fact, he also quoted from Justice Scalia in the Croson decision in which Justice Scalia said

"it is one thing to permit racially based conduct by the Federal Government--whose legislative powers concerning matters of race were explicitly enhanced by the Fourteenth Amendment, see U. S. Const., Amdt. 14, §5--and quite another to permit it by the precise entities against whose conduct in matters of race that Amendment was specifically directed, see Amdt. 14, §1." Id., at 521-522." 

Justice Stevens also drew from the opinion of Chief Justice Rehnquist and Justices O'Connor and White in their Croson opinion and quoted the statement

"What appellant ignores is that Congress, unlike any State or political subdivision, has a specific constitutional mandate to enforce the dictates of the Fourteenth Amendment.  The power to 'enforce' may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations.  The Civil War Amendments themselves worked a dramatic change in the balance between congressional and state power over matters of race."

Justice Souter

Justice Souter believed that the Fullilove case was the case to be applied in this case.  However, in summing up his opinion, he stated

"Surely the transition from the Fullilove plurality view (in which Justice Powell joined) to today's strict scrutiny (which will presumably be applied as Justice Powell employed it) does not signal a change in the standard by which the burden of a remedial racial preference is to be judged as reasonable or not at any given time.  If in the District Court Adarand had chosen to press a challenge to the reasonableness of the burden of these statutes, more than a decade after Fullilove had examined such a burden, I doubt that the claim would have fared any differently from the way it will now be treated on remand from this Court."

Justice Ginsburg

Justice Ginsburg repeats some of the previous opinions but makes one final comment.

"While I would not disturb the programs challenged in this case, and would leave their improvement to the political branches, I see today's decision as one that allows our precedent to evolve, still to be informed by and responsive to changing conditions."