Adarand Constructors, Inc. v. Peña
, , is a United States Supreme Court
case which held that all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under a standard of "strict scrutiny
," the highest level of Supreme Court review (such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests). Justice Sandra Day O'Connor
wrote the majority opinion of the Court, which effectively overturned Metro Broadcasting, Inc. v. FCC
, , in which the Court had created a two tiered system for analyzing racial classifications.
Many contracts that are let by agencies of the US federal government contain financial incentives for the prime contractor to employ subcontractors that are owned or controlled by “socially and economically disadvantaged individuals.” The US Small Business Administration
certifies certain businesses as disadvantaged
. This usually means that the business is owned by racial or ethnic minority groups or by women. In this particular case the contract stated that “...the contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities...”
In 1989 the US Department of Transportation
(DOT) awarded a highway construction contract in Colorado to Mountain Gravel and Construction Company. Mountain Gravel solicited bids for a subcontract for guardrails along the highway. The lowest bid was submitted by Adarand Constructors, with a higher bid being submitted by Gonzales Construction. However, Gonzales Construction had been certified by the Small Business Administration as a disadvantaged business, and thus Mountain Gravel awarded the subcontract to Gonzales, due to financial incentives in the Mountain Gravel’s contract for employing disadvantaged businesses. Adarand filed suit in federal court against DOT, arguing that the subcontracting incentive clause, or bonus, that caused Adarand to lose a subcontract was unconstitutional. The federal district court and circuit court ruled in favor of DOT and against Adarand, which then appealed to the US Supreme Court. The case was docketed as Adarand Constructors, Inc. v. Federico Peña, Secretary of Transportation, et al.
, because Federico Peña
was the US Secretary of Transportation
at that time. Mountain States Legal Foundation
represented Adarand Constructors.
The question to be decided
Is the presumption of disadvantage based on race alone, and consequent allocation of favored treatment, a discriminatory practice that violates the equal protection principle embodied in the Due Process Clause of the Fifth Amendment?
In September 2005, the U.S. Commission on Civil Rights
issued a report finding that, ten years after the Adarand
decision, federal agencies still largely fail to comply with the rule in Adarand
. Specifically, the Commission found that the Departments of Defense, Transportation, Education, Energy, Housing and Urban Development, and State, and the Small Business Administration, do not seriously consider race-neutral alternatives
before implementing race-conscious federal procurement programs. The Commission found that such consideration is required by the strict scrutiny standard under Adarand
and other Supreme Court decisions. Commissioner Michael Yaki
dissented from the Commission's report, arguing that the Commission was taking a "radical step backwards" from the "race-progressive policies" of the past.