Adarand Constructors, Inc. v. Pena (1995)
Author: Bram

Relevant Facts: PL sues b/c it submitted the low bid on a subcontracting job for a governmental highway project, but the subcontracting job was awarded to a minority company, b/c the general contractor (Mountain Gravel) would receive additional compensation for the hiring of small business controlled by "socially and economically disadvantaged persons."

Issue: Under constitutional law, does the choosing of one minority subcontractor over another non-minority subcontractor violate the equal protection clause of the 5th Amendment when the gov't promises compensation for companies who award job to minority-based businesses?

Holding: All racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny (such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests).

Court's Rationale/Reasoning: Standard of review is not based on which party is discriminated, but on the basis of discrimination at all; and all racial classifications under the EPC are under strict scrutiny; and a fifth Amendment area of classifications encompasses the same analysis as 14th Amendment cases.  But now the Court uses intermediate scrutiny if they are neutral on its face.

Strict scrutiny in such cases is used to determine permissible and impermissible governmental use of race. Good intentions alone are not enough to sustain a supposedly benign racial classification.  Although this is not the actual predicate of this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race.  This does not help the race issue move forward, but pervades it from doing so.  Congress must actually give a reason for implementing such a spending act.

Rule: All governmental action based on race -- a group classification long recognized as "in most circumstances irrelevant and therefore prohibited," should be subject to detailed judicial inquiry (scrutiny) to ensure that the personal right to equal protection of the laws has not been infringed.  Strict scrutiny is not to be the death of every law, just those whose end does not justify its means: there must be a compelling interest to be within constitutional constraints.

Important Dicta:  This is a case of first impression, as the Court never had to decide  what standard of review the 5th Amendment requires for such action taken by the Federal gov't.

Dissenting:  (Justices Stevens, Ginsburg): People understand the difference between good and bad laws in terms of discriminatory intent.  This is not a bad law: the gov't is trying to make right on past and current discriminations by benefiting minority-owned businesses who choose to hire them.  Such consistency, as stated in the dissent, does not help laws such as these, as strict scrutiny to all statutes, even if benign in nature, stand to fall by the waistside.

Concurring: (Justice Scalia): Gov't can never take a compelling interest in discriminating on the basis of race in order to make up for past discrimination; this is not akin to the EPC.

(Thomas):These programs undermine the moral basis of equal protection.