Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1995)

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No.93-1841. Argued January 17, 1995-Decided June 12, 1995

Most federal agency contracts must contain a subcontractor compensation clause, which gives a prime contractor a financial incentive to hire subcontractors certified as small businesses controlled by socially and economically disadvantaged individuals, and requires the contractor to presume that such individuals include minorities or any other individuals found to be disadvantaged by the Small Business Administration (SBA). The prime contractor under a federal highway construction contract containing such a clause awarded a subcontract to a company that was certified as a small disadvantaged business. The record does not reveal how the company obtained its certification, but it could have been by anyone of three routes: under one of two SBA programs-known as the 8(a) and 8(d) programs-or by a state agency under relevant Department of Transportation regulations. Petitioner Adarand Constructors, Inc., which submitted the low bid on the subcontract but was not a certified business, filed suit against respondent federal officials, claiming that the race-based presumptions used in subcontractor compensation clauses violate the equal protection component of the Fifth Amendment's Due Process Clause. The District Court granted respondents summary judgment. In affirming, the Court of Appeals assessed the constitutionality of the federal race-based action under a lenient standard, resembling intermediate scrutiny, which it determined was required by Fullilove v. Klutznick, 448 U. S. 448, and Metro Broadcasting, Inc. v. FCC, 497 U. S. 547.

Held: The judgment is vacated, and the case is remanded. 16 F.3d 1537, vacated and remanded.

JUSTICE O'CONNOR delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in JUSTICE SCALIA'S concurrence, concluding that:

1. Adarand has standing to seek forward-looking relief. It has met the requirements necessary to maintain its claim by alleging an invasion of a legally protected interest in a particularized manner, and by showing that it is very likely to bid, in the relatively near future, on another Government contract offering financial incentives to a prime contractor


for hiring disadvantaged subcontractors. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560. pp. 210-212.

2. All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Pp. 212-231; 235-239.

(a) In Richmond v. J. A. Croson Co., 488 U. S. 469, a majority of the Court held that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. While Croson did not consider what standard of review the Fifth Amendment requires for such action taken by the Federal Government, the Court's cases through Croson had established three general propositions with respect to governmental racial classifications. First, skepticism: "'Any preference based on racial or ethnic criteria must necessarily receive a most searching examination,'" Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 273-274. Second, consistency: "[T]he standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification," Croson, supra, at 494. And third, congruence: "Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U. S. 1, 93. Taken together, these 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. pp. 212-225.

(b) However, a year after Croson, the Court, in Metro Broadcasting, upheld two federal race-based policies against a Fifth Amendment challenge. The Court 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, Bolling v. Sharpe, 347 U. S. 497, 500, by holding that congressionally mandated "benign" racial classifications need only satisfy intermediate scrutiny. By adopting that standard, Metro Broadcasting departed from prior cases in two significant respects. First, it turned its back on Croson's explanation that strict scrutiny of governmental racial classifications is essential because it may not always be clear that a so-called preference is in fact benign. Second, it squarely rejected one of the three propositions established by this Court's earlier cases, namely, congruence between the standards applicable to federal and state race-based action, and in doing so also undermined the other two. Pp. 225-227.

(c) The propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments protect persons, not groups. It follows from that principle that all gov-

Full Text of Opinion

Primary Holding

Strict scrutiny is the appropriate standard of review for all state actions based on race, not just those that disproportionately benefit whites but also affirmative action programs that benefit minority groups.

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